Pickering and Repatriation Commission
[2008] AATA 1070
•1 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1070
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2852
VETERANS' APPEALS DIVISION ) Re CHRISTOPHER PICKERING Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate1 December 2008
PlacePerth
Decision The Tribunal affirms the decision under review ............sgd S D Hotop...........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – rate of disability pension – special rate – applicant suffers from war-caused conditions including post traumatic stress disorder (PTSD) – applicant also suffers from conditions which are neither war-caused nor defence-caused – applicant’s incapacity from PTSD of such nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours per week – applicant’s non-war-caused or non-defence-caused conditions contributing to his being prevented from undertaking remunerative work – applicant not prevented from continuing to undertake remunerative work by reason of incapacity from war-caused conditions alone – applicant has not been genuinely seeking to engage in remunerative work – applicant not eligible for special rate of pension – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 24(1) and s 24(2)
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
1 December 2008 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. Christopher Pickering (“the applicant”) served in the Australian Regular Army from December 1964 to April 1975. He is presently 64 years of age.
2. The applicant has been receiving a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”) and, from 15 May 2001, that pension has been payable to him at 100% of the “general rate” pursuant to s 22 of the VE Act.
3. On 3 May 2006 the applicant applied for an increase in the rate of his disability pension.
4. On 13 November 2006 a delegate of the Repatriation Commission (“respondent”) decided that the rate of the applicant’s disability pension was to remain at 100% of the “general rate”. That decision was affirmed by the Veterans’ Review Board (“VRB”) on 15 May 2007.
5. On 2 July 2007 the applicant applied to the Tribunal for review of the VRB’s decision.
The Issue and the Tribunal’s Determination
6. The issue for the Tribunal’s determination is whether the applicant is eligible for payment of his disability pension at the “special rate” pursuant to s 24 of the VE Act.
7. For the reasons which follow, the Tribunal has determined that the “special rate” of pension is not payable to the applicant.
The Evidence
8. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T35, pp1-169) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·statement of the applicant dated 5 May 2008 (Exhibit A1), and report of Mr R Genat dated 2 August 2007 (Exhibit A2), tendered by the applicant;
·report of Dr K C Wan dated 7 August 2008 (Exhibit R1) tendered by the respondent; and
·the oral evidence of the applicant
The Factual Background
9. It is common ground that the applicant suffers from the following conditions which are “war-caused” for the purposes of the VE Act:
·alcohol abuse
·gastro-oesophageal reflux disease
·anxiety state
·hypertension
·irritable bowel syndrome
·tinea
·ischaemic heart disease
·post traumatic stress disorder.
It is, furthermore, common ground that the applicant also suffers from the following conditions which have not been accepted by the respondent as either “war-caused” or “defence-caused” for the purposes of the VE Act:
·myalgia (intercostal)
·cervical spondylosis
·osteoarthrosis of the left knee
·lumbar spondylosis
·cholelithiasis
·osteoarthrosis of the left hip
·osteoarthrosis of the left ankle and foot
·osteoarthrosis of the right ankle and foot
·seborrhoeic dermatitis
·psoriasis
·benign prostatic hypertrophy
·diabetes mellitus
·bladder stones
·nephrolithiasis in the left kidney.
10. On 11 March 1996 the applicant made a claim for disability pension under the VE Act in respect of his left hip, left knee, both feet and lower back (T3). In the claim form he provided the following information regarding his employment history since his Army service:
·he was self-employed as a newsagency/delicatessen proprietor from 1975 to 1979;
·he was not currently employed because his “disabilities” caused him “too much pain and stress”;
·the disabilities in respect of which he was claiming had affected his employment as follows:
“can’t drive manual vehicles, can’t drive trucks, can’t stand/sit for too long, can’t wear heavy shoes/boots, can’t walk too long/far, can’t bend over too far or squat down, can’t concentrate for too long on one item”. (T3, p13)
11. In a “Lifestyle Questionnaire” form dated 9 April 1997 (T4), the applicant provided the following information (inter alia):
·he stopped working in 1979 by reason of ill health, namely, “leg and stress and alcohol abuse”;
·his disabilities stopped him working by reason of “constant pain and loss of use of left leg, stress and alcohol abuse aggravated by leg pain”. (T4, p21)
12. In an “Employment Questionnaire” form dated 9 April 1997 (T5), the applicant stated that:
·he ceased work in 1979 because of “left leg and stress”;
·he had not been actively seeking employment because his “left leg and stress” had stopped him from working. (T5, p23)
13. On 20 April 2001 the applicant made a claim for disability pension under the VE Act in respect of the following conditions:
·left hip
·left knee
·diabetes mellitus
·hypertension
·irritable bowel syndrome
·tinea
·lower back pain.
In the claim form he stated that he had ceased work on 12 December 1984 because of “illness” and that the disabilities in respect of which he was claiming had affected his employment as follows:
“left hip, left knee, blood pressure, diabetes, gastro-oesophageal reflux, upset stomach and back aches all precluded me from working in any employment”. (T9, p48)
14. In a “Lifestyle Questionnaire” form dated 13 April 2000 (T10), the applicant provided the following information (inter alia):
·he stopped working in 1980 by reason of ill health, namely, “disabilities hip knee back ache stomach cramps anxiety diarrhoea hypertension”;
·his disabilities stopped him working by reason of “pain hip knee back stomach cramps”. (T10, p56)
15. In a “Lifestyle Questionnaire” form dated 14 August 2001 (T11), the applicant stated that he had stopped working in 1980 by reason of ill health and he explained how his disabilities stopped him from working as follows:
“hip and knee problems, back problems caused me to cease work on medical grounds and advice from my doctor”. (T11, p62)
16. On 3 May 2006 the applicant made an application for an increase in his disability pension and made a claim in respect of the following conditions:
·benign prostatic hypertrophy
·depressive disorder
·stones in left kidney. (T16)
17. In a “Lifestyle Questionnaire” form dated 27 April 2006 (T17), the applicant stated that he had stopped working in 1984 by reason of ill health and he referred to, inter alia, his “extreme difficulty in relating to anyone”, “severe impediments to [his] mobility”, and his inability to drive a car “under any circumstances”. (T17, pp 92,93)
The Applicant’s Evidence
18. The applicant tendered in evidence his signed witness statement, dated 5 May 2008, as follows:
“…
5.I left school at the age of 15 years. I have no school, TAFE or University qualifications.
6.After I left school, I had various employment ranging from iron ore sampling for Rio Tinto, farm work, and sales work.
7.I began serving in the Australian Army on 29 December 1964.
8.During my 11 years of service in the Australian Army, I served as a recovery mechanic
9.I completed Operational Service in Vietnam from 12 June 1967 to 26 March 1968.
10.I completed service in the Australian Army on 30 April 1975.
11.After leaving the Australian Army in 1975, and until 1978, I was employed as a driver.
12.Towards the end of 1978 I was self employed as a delicatessen and newsagency proprietor.
13.Due to my accepted disability of Post Traumatic Stress Disorder, which at that stage was not accepted, in 1984 I was declared bankrupt.
14.After my bankruptcy, I began working as a RSL Commissionaire in 1991.
15.Due to my accepted disability of Post Traumatic Stress Disorder, which at that stage was still not accepted, after a period of six weeks I resigned from my position as RSL Commissionaire.
16.On or about 1992 I obtained employment with Wilson Parking as a parking attendant.
17.Due to my accepted disability of Post Traumatic Stress Disorder, which at that stage was still not accepted, after a period of four weeks I resigned from my position as a parking attendant.
18.On or about 1994 I obtained employment as a car delivery driver with John Hughes.
19.Due to my accepted disability of Post Traumatic Stress Disorder, which at that stage was still not accepted, after a period of three weeks I resigned from my position as a car delivery driver.
20.On or about 1997 I obtained employment at Cannington Greyhounds as a car park attendant.
21.Due to my accepted disability of Post Traumatic Stress Disorder, which at that stage was still not accepted, after a period of three weeks I resigned from my position as a car park attendant.
22.I was granted a Disability Pension with effect from 12 December 1984.
23.In April 2003 I attempted to obtain employment with Ausmic Pest Control. I was unsuccessful in my application.
24.In 1988, I voluntarily established Diggers’ Day, a bowling championship for veterans.
25.During Bruce Rock Vietnam Veterans’ week I drive a bus transporting veterans. I am accompanied by the CEO of the Shire during these trips. I have been doing this since 2006.
26.Towards the end of February 2008 I started delivering mail to rural households twice a week on a voluntary basis.
27.My Disability Pension was increased to 100% of the General Rate with effect from 15 May 2001.
28.It is clear that my Post Traumatic Stress Disorder existed when I ceased work and was the only factor at that time affecting my capacity to work, and it remains the only factor.
29.My skills and ability to work in a position with general administrative duties and general customer service duties have not been affected by my time out of the workforce.
30.If it were not for my accepted disabilities (sic) of Post Traumatic Stress Disorder, I would have been able to continue working in a position with general administrative duties and general customer service duties.” (Exhibit A1)
19. In his oral evidence the applicant said that :
·his small mixed business went bankrupt in 1984 (see paras 12-13 of his witness statement) because of the way he treated customers and suppliers;
·while working as an RSL Commissionaire (see paras 14-15 of his witness statement) he had “run-ins” with people and “did his block”;
·he last applied for paid work in 2003;
·he currently does a post office mail run in his local area for 4 hours each Tuesday and Friday on a voluntary basis;
·his left knee is now “good” and his hip is “ok”, as he had a hip replacement in 1997;
·he still suffers “stress”.
The Medical Evidence
Dr L C Risbey
20. Dr Risbey, Consultant Psychiatrist, prepared a report dated 6 November 2006 in which he opined that:
· the applicant suffers from chronic post traumatic stress disorder (“PTSD”);
· the applicant’s condition “has been sufficiently severe over the past two decades to have precluded him from any form of remunerative employment, due solely to his PTSD alone”;
· “some physical conditions [the applicant] suffers may have restricted the range of occupations available to him, but it is his PTSD alone which has completely precluded him from continuing in paid employment since 1984”;
· the applicant “would not be capable of working at all, and certainly is incapable of working eight or more hours per week in any form of remunerative employment”. (T24)
Mr R Genat
21. Mr Genat, Orthopaedic Surgeon, prepared a report, dated 2 August 2007, regarding the applicant as follows:
“This man suffered injuries to his left hip and left knee in a motor vehicle accident, while he was in the Army in 1972. Subsequently, (1973) he had a patellectomy at the left knee. In 1997, his left hip had deteriorated with post-traumatic arthritis, to the point where a colleague, Mr Don Webb, treated him with a left total hip replacement. Mr Pickering was referred to me by Dr A Johnson (Armadale) on the 18.03.05 with a six-week history of an increasing soreness in his left knee, perhaps particularly when weight bearing or playing bowls. I had x-rays of his hips, plus an MRI of his left knee, carried out. The x-rays showed his uncemented, left total hip replacement to be in excellent condition with no signs of any loosening or wear of the acetabular liner. His right hip showed some early osteoarthritic change. His MRI of the left knee showed tearing of his medial meniscus and some chondral damage and loss on his medial femoral condyle.
I treated him with an arthroscopy of his left knee on the 21.04.05 and resected the torn medial meniscus. Post-operative follow up on the 09.05.05 and on the 09.06.05 show Mr Pickering to be making an excellent recovery from his surgery to the left knee.
When further seen on the 02.08.07, Mr Pickering informed me that he was suffering no pain at all about either hip and at his left knee; there was only a little soreness if he overdid things. He has excellent function in both his hips and knees, although there is mild restrictions of full range of movement in both knees, more especially the left knee. The left knee was otherwise noted to be free of joint effusion and to have a pain free range of movement. His replaced left hip had an excellent range of pain free passive movement. Mr Pickering is not being disabled in respect to any work because of his orthopaedic condition. His hips and knees show minimal symptoms and excellent function. His disability for work related to multiple, other medical conditions.” (Exhibit A2)
Dr K C Wan
22. Dr Wan, Consultant Occupational Physician, prepared a report, dated 7 August 2008, regarding the applicant at the request of the Department of Veterans’ Affairs. That report states as follows:
“…
HISTORY:
Occupational/Work Duties:
Mr Pickering served in the Australian Army from 1 December 1964 to 30 April 1975 and during this period he also served in active combat duty in Vietnam from June 1967 to April 1968 at Vung Tau and Nui Dat. He was posted to the Royal Australian Electrical and Mechanical Engineers (RAEME) as a craftsman mechanic to collect and repair Army vehicles. He was discharged from the Army on completion of service and not for medical reasons. On leaving the Army, he operated a newsagency business in Fremantle for 18 months and later operated a delicatessen at Victoria Park for 18 months. He then was employed as a commissionaire/car park attendant at the RSL for approximately seven weeks and later for six months at John Hughes car dealer in Victoria Park, working on vehicle delivery in 1982. He has not returned to work since then.
Mechanism of Alleged Injury/Sequence of Events:
Disabilities that have not been accepted as being related to military service:
1.Intercostal Myalgia – Mr Pickering states that he started to experience chest pain six years ago which was due to ischaemic heart disease that required treatment from Cardiologist Dr Woollard.
2.Cervical Spondylosis – since his service in Vietnam from 1967 to 1968, he has been experiencing neck pain on and off, but no restriction in movement.
3.Lumbar Spondylosis – he has been experiencing back pain occasionally since the motor vehicle accident in 1972 without restriction of back movement.
4.Left Knee Osteoarthrosis – required repair in 2005 and subsequently he had regained function.
5.Left Hip Osteoarthrosis – required hip replacement which was performed in 1997 and subsequently he regained function.
6.Left Ankle and Foot Osteoarthrosis – which had developed since his service in Vietnam from 1967 to 1968, but subsequently he regained function.
7.Right Ankle and Foot Osteoarthrosis – which developed during his service in Vietnam from 1967 to 1968, but subsequently he regained function.
8.Cholelithiasis – his gallbladder and gallstones were removed by a surgeon in Armadale Hospital in 1983 and he has subsequently recovered.
9.Seborrhoeic Dermatitis – which developed during his service in Vietnam and he experiences symptoms on and off since then.
10.Psoriasis – that developed during his service in Vietnam and he experiences lesions on an off, but has not received treatment from a skin specialist.
11.Benign Prostate Hypertrophy – he began experiencing difficulty with passing urine in 1990 that subsequently required removal of the prostate in 1994 by Armadale surgeon, Mr Hill, and subsequently he has not had difficulty with passing urine. However, he has erectile dysfunction that did not improve with medication.
12.Diabetes Mellitus – this was diagnosed in 1997 and subsequently he has been taking medication.
13.Bladder Stones – were removed in 2001 by the surgeon at Kaleeya Hospital.
14.Nephrolithiasis in the Left Kidney – he is being treated for this at Fremantle Hospital.
15.Vertigo – for which he has been taking Stemzine medication for the past eight years.
Disabilities that have been accepted as being related to military service:
1.Alcohol Abuse – he had been drinking heavily during his service in Vietnam and at the present time, continues to drink six cans of full strength a day.
2.Gastroesophageal Reflux Disease (GORD) – this developed in the late 1980s and presently he uses three pillows to sleep and experiences heartburn symptoms.
3.Anxiety State – he developed anxiety symptoms during his service in Vietnam and continues to experience these symptoms.
4.Post Traumatic Stress Disorder (PTSD) – this was diagnosed in 1996 by Consultant Psychiatrist, Dr Risbey. Mr Pickering states that he continues to have uncontrollable temper and nightmares.
5.Hypertension – this was diagnosed in 2000 and he has been taking medication for it. He continues to experience headaches and symptoms of postural hypotension, which is dizziness on getting up quickly.
6.Ischaemic Heart Disease (IHD) – he began experiencing chest pains six years ago and ischaemic heart disease was diagnosed by Cardiologist, Dr Keith Woollard, for which he required treatment. He states that he had four stents inserted in the chest; the last one inserted in November 2007. He continues to experience occasional chest pain, but does not require medication for relief, and has shortness of breath on exertion sometimes.
7.Irritable Bowel Syndrome (IBS) – he had been experiencing symptoms such as diarrhoea in the mid 1980s and continues to experience frequency of passing stools, two or three times a day.
8.Tinea – he states that he contracted this infection during his service in Vietnam and still continues to experience to (sic) recurrence of symptoms in his groin on and off.
Current Status:
Present symptoms comprise the following:
1.Post Traumatic Stress Disorder symptoms comprising uncontrollable temper and nightmares.
2.Shortness of breath on exertion such as walking more than 50 metres on level ground, up an incline, or walking up more than ten steps at a time, but not associated with chest pain.
3.Low back pain on prolonged sitting or standing which he rates to be moderate on a scale of 5/10. Sitting more than 30 minutes, or standing more than 10 minutes aggravates the pain. He states that he is not able to do gardening or walk his dog for other than short distances. The dog is a small dog – a Shitzu. Mr Pickering states that his back and left lower limb pain had been aggravated recently when he fell down some steps six weeks ago and injured his left hip and left knee. He states that he did not seek medical treatment, but since then had to use a walking stick to walk.
Present Work Status:
Mr Pickering states that he has not been successful in returning to remunerative work since he ceased work in 1982. However recently… he had commenced voluntary work as a postman in Bruce Rock delivering mail on Tuesdays and Fridays, from 8:00 to 11:00am, for which he drives the post office vehicle which is a manually geared Toyota utility that does not have power steering. He states that he is coping with this work for which he does not receive remuneration.
He states that he could not return to remunerative work as he could not cope with direct contact with the other people at work because of his PTSD symptoms.
…
I provide herewith the answers to the two questions contained in your letter 9 July 2008:
1.What are the current objective and subjective symptoms of each?
Present symptoms comprise:
· uncontrollable temper and nightmares associated with PTSD,
·shortness of breath on exertion, walking more than 50m on level ground, walking up an incline, or going up more than ten steps,
·low back pain associated with prolonged sitting more than 30 minutes, or standing more than ten minutes, moderate pain on a scale of 5 out of 10.
Examination shows Mr Pickering is moderately obese with a BMI of 34.3kg/m² which is the upper limit of Class 1 obesity. His blood pressure was 90/60mmHg, and pulse was regular. He was observed to walk with a limping gait and using a walking stick for support. He could walk at a normal pace on level ground, but experienced shortness of breath on walking up an incline, or walking up more than ten steps. Examination of his back showed no restriction in range of motion and straight leg raising was not restricted, and NOSITUP response was negative, that is consistent with the function of his lower back being not significantly impaired. Examination of the lower limbs showed the patella was absent in the left knee, but range of motion was not restricted. Sensation to pin prick was diminished on both feet and ulcers were present on the second and third toe of the left foot, and on the big toe of the right foot. The middle toe of the right foot had been amputated previously. Range of motion of his hips, knees and ankles were not restricted and I did not detect weakness or muscle wasting. Examination of the abdomen showed a 15cm healed surgical scar from previous operation for removal of gallstones and gallbladder, over the right hypochondrium and no abnormality was detected on palpation. No abnormality was detected on auscultation of the chest. I agree with report of orthopaedic surgeon Mr Genat dated 2 August 2007….
2.In your opinion, would these conditions have any effect upon his ability to work?
Based on my examination and the medical information provided to me on 24 July 2008, Mr Pickering’s current medical conditions comprise the following:
Disabilities that have not been accepted as being related to military service:
Myalgia (intercostal)
Cervical spondylosis
Lumbar spondylosis
Osteoarthrosis left knee
Osteoarthrosis left hip
Osteoarthrosis left ankle and foot
Osteoarthrosis right ankle and foot
Cholelithiasis
Seborrhoeic dermatitis
Psoriasis
Benign prostatic hypertrophy (prostate removed in 1990)
Diabetes mellitus
Bladder stones
Nephrolithiasis left kidney (stones removed in 2001)
Vertigo.
Disabilities that have been accepted as being related to military service:
Alcohol abuse
Anxiety state
Post Traumatic Stress Disorder (PTSD)
Gastroesophageal reflux disease (GORD)
Hypertension (HBP)
Ischaemic heart disease (IHD)
Irritable bowel syndrome (IBS)
Tinea.
With reference to his work capacity, Mr Pickering is a 64-year-old man who is moderately obese with general, physical deconditioning and multi-system disorders contributing to his reduced physical capacity for work. My estimate of the contribution from the non-accepted disabilities is approximately 30% which is significant, and from the accepted disabilities, is approximately 70% which is substantial.
Prognosis in the short term is that Mr Pickering has sufficient mobility and physical capacity for light, moderate work such as the activity he is currently performing comprising duties as a voluntary postman in Bruce Rock. He drives the post office manually geared postal van that does not have power steering, to deliver mail, two hours per day, two days per week, and also voluntary duties for the Bruce Rock RSL organising the ‘Back to the Bush’ weekend to be held in November 2008. Based on my examination on 24 July 2008 of Mr Pickering from the physical fitness perspective, he is currently medically fit for work up to eight hours per week in light to moderate work, not requiring strenuous physical exertion or mobility that is consistent with his current voluntary work. In the longer term, as his medical conditions and mobility deteriorate with age, he will progressively become medically unfit for work from the physical perspective.
However, Mr Pickering has been certified to be not capable of working at all, and certainly is incapable of working eight or more hours per week in any form of remunerative employment by Consultant Psychiatrist, Dr Lance Risbey, in his letter dated 6 November 2006 to Dr Johan Yin of the Department of Veterans’ Affairs. The report also states that Mr Pickering’s condition has been sufficiently severe over the past two decades to have precluded him from any form of remunerative employment due solely to his PTSD alone….
…” (original emphasis) (Exhibit R1)
The Relevant Legislation
23. The VE Act relevantly 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.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;
and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…”
Analysis and Findings
24. It is common ground that paras (aa), (aab), (a) and (d) of s 24(1) of the VE Act are satisfied in this case. As regards para (b) of s 24(1), the respondent concedes, on the basis of Dr Risbey’s report of 6 November 2006 (referred to in paragraph 20 above), that that provision is also satisfied in this case. The Tribunal regards that concession as appropriate and it finds that the applicant’s incapacity from war-caused disease, namely, chronic PTSD, is of such a nature as, of itself alone, to render the applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Paragraph (b) of s 24(1) of the VE Act is, therefore, also satisfied in this case.
25. The critical matter for the Tribunal’s determination is whether para (c) of s 24(1) of the VE Act is satisfied in this case.
26. In Repatriation Commission v Hendy (2002) 76 ALD 47 the Federal Court of Australia (Full Court) said (at 54-55):
“…The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act…” (original emphasis)
27. As regards the “remunerative work that the [applicant] was undertaking”, for the purposes of s 24(1)(c) of the VE Act, the Tribunal notes that, according to the applicant’s witness statement (see paragraph 19 above), the only substantial remunerative work that he undertook after discharge from the Army in April 1975 was his work as a “driver” from 1975 to 1978 (see para 11 of his witness statement) and his work as a “delicatessen and newsagency proprietor” from late 1978. The Tribunal is uncertain, on the basis of the somewhat inconsistent evidence before it, regarding the duration of the period in which the applicant undertook the lastmentioned work but it is prepared to infer that he undertook that work for a period of 1-2 years. The Tribunal notes that the applicant has described the kind of work that he would have been able to continue to undertake, were it not for his PTSD condition, as “a position with general administrative duties and general customer service duties” (see paras 29-30 of his witness statement). The Tribunal is prepared to accept the applicant’s work description and it finds that the “remunerative work that the [applicant] was undertaking”, for the purposes of s 24(1)(c) of the VE Act, was light work involving general administrative duties and customer service duties.
28. The question then arises, for the purposes of s 24(1)(c) of the VE Act, whether incapacity from his war-caused conditions – in particular, PTSD – is alone preventing the applicant from continuing to undertake the abovementioned kind of remunerative work or, alternatively, whether any other factor or factors (including one or more of his medical conditions which are neither war-caused nor defence-caused) is or are playing a part in, or contributing to, his being prevented from continuing to undertake that kind of remunerative work.
29. According to the evidence before the Tribunal, the applicant, in documents lodged by him with the Department of Veterans’ Affairs between 1996 and 2006 in support of claims for an increase in the rate of his disability pension, has consistently partly attributed his cessation of remunerative work in or about 1980 to various physical conditions, including conditions affecting his left leg, left hip and lower back which are neither war-caused nor defence-caused for the purposes of he VE Act (see paragraphs 10-17 above).
30. The Tribunal notes the report of Mr Genat, Orthopaedic Surgeon, dated 2 August 2007, in which he noted that the applicant was “not being disabled in respect to any work because of his orthopaedic condition” – that is, in respect of his hips and knees. Mr Genat, however, added that the applicant’s “disability for work related to multiple, other medical conditions”.
31. The Tribunal also notes the report of Dr Wan, Consultant Occupational Physician, dated 7 August 2008. In that report Dr Wan comprehensively listed the medical conditions from which the applicant suffers and he accurately distinguished between those conditions which have been accepted as related to the applicant’s military service and those conditions which have not been so accepted. Dr Wan, having taken a history from the applicant and having examined the applicant, expressed the opinion that the applicant, by reason of his physical conditions, is “medically fit for work up to eight hours per week in light to moderate work”, and he estimated that the applicant’s non-accepted conditions are making a “significant” contribution to his “reduced physical capacity for work”. He also expressed agreement with Mr Genat’s report of 2 August 2007.
32. On the basis of the whole of the evidence before it, the Tribunal is not reasonably satisfied that, at any time within the relevant assessment period (which, for present purposes, commenced on 3 May 2006), the applicant has been, or is, by reason of incapacity from his war-caused conditions – in particular, chronic PTSD – alone prevented from continuing to undertake the kind of remunerative work that (the Tribunal has previously found) he was undertaking, for the purposes of s 24 (1)(c) of the VE Act. On the contrary, the Tribunal is reasonably satisfied on the basis of that evidence – including, in particular, Dr Wan’s report of the 7 August 2008 – that some of the applicant’s numerous medical conditions, which are neither war-caused nor defence-caused for the purposes of the VE Act, have, at all material times, played a part in, or contributed to, his being prevented from continuing to undertake that kind of remunerative work. Accordingly, the Tribunal finds that the “alone test” in para (c) of s 24(1) of the VE Act is not satisfied in this case.
33. The applicant sought to rely on the “ameliorative provision” in s 24(2)(b) of the VE Act. Although the applicant, according to his evidence, undertook remunerative work for short periods in 1991, 1992, 1994 and 1997, he has not engaged in remunerative work since 1997; nor, it seems, apart from one attempt to obtain employment in April 2003 (see para 23 of his witness statement), has he sought to engage in remunerative work since 1997. In these circumstances, the Tribunal is not reasonably satisfied that the applicant has, at any material time, been “genuinely seeking to engage in remunerative work” for the purposes of s 24 (2)(b) of the VE Act: see Leane v Repatriation Commission (2004) 81 ALD 625. Accordingly, s 24 (2)(b) of the VE Act does not avail the applicant in this case.
Conclusion
34. The Tribunal concludes, therefore, that the applicant, from the commencement of the relevant assessment period on 3 May 2006, has not satisfied, and does not presently satisfy, para (c) of s 24(1) of the VE Act. Accordingly, he is not eligible for the special rate of pension under s 24 of the VE Act.
Decision
35. For the above reasons the Tribunal affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: E Jordan .....................................................................................
Associate
Dates of Hearing 5 May, 18 November 2008
Date of Decision 1 December 2008Solicitor for the Applicant Mr B Soactar
Hammond WorthingtonRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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