Potiuch and Repatriation Commission - [2000] AATA 320

DECISION AND REASONS FOR DECISION [2000] AATA 320

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S98/175

VETERANS' APPEALS DIVISION       )
           Re      ROMAN OREST POTIUCH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

Date26 April 2000
PlaceAdelaide

Decision      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 special rate as from 21 March 1996.
  (Signed)
`  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' APPEALS – veterans' entitlements – disability pension – special rate – discussion of special rate test – alone test – whether alone test satisfied – types of work Tribunal may consider – standard of reasonable satisfaction required – medical evidence – nature of work undertaken
Veterans' Entitlements Act 1986 s.24
Repatriation Commission v Smith (1987) 15 FCR 327
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1997
Banovich v Repatriation Commission (1986) 69 ALR 395
Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997)
Starcevich v Repatriation Commission (1987) 18 FCR 221
Birtles v Repatriation Commission (1991) 24 ALD 545
Sheehy v Repatriation Commission (1996) 41 ALD 205
Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

26 April 2000 Senior Member J.A. Kiosoglous MBE Dr J.T.B. Linn (Member)

This is an application by Mr Roman Potiuch (the applicant) for review of a decision of the Veterans' Review Board dated 2 March 1998 (T4/131) affirming a decision of the respondent dated 14 August 1996 (T2/5) granting the applicant disability pension at 100% of the general rate.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T16), together with five exhibits, four lodged by the applicant (Exhibits A1-A4) and one lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, who also called Dr D. Beard, General Surgeon, Dr M. Atchison, Psychiatrist, and Dr J. Condon, Psychiatrist . The respondent called Dr O. Osti, Orthopaedic Surgeon, as a witness. The applicant was represented by Mr G. Pickhaver and the respondent was represented by Ms S. Maharaj, both of counsel.
The issue before the Tribunal is whether or not the applicant is entitled to pension at the special rate. The parties being in agreement as to all other aspects of section 24 of the Veterans' Entitlements Act 1996 (the Act), the sole aspect before the Tribunal is whether or not the applicant satisfies sub-section 24(1)(c) of the Act.
history of the application
The applicant was born on 12 November 1945 and served in the Royal Australian Army as a conscript from February 1966 to February 1968. He has bronchitis, acute naso-pharyngitis, post traumatic stress disorder (PTSD), depressive disorder, gastro-oesophageal, reflux disease, psycho-active substance abuse or dependence and peptic ulcer disease as accepted disabilities under the Act.
The respondent determined on 14 August 1996 (T3/79) that pension should be paid at 100% of the general rate with effect from 21 March 1996. On 2 March 1998 the Veterans' Review Board affirmed that decision (T4).
legislation
Sub-section 24(1)(c) of the Act provides as follows:
"…
(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
…"

applicant's evidence

The applicant prepared an undated written statement (received by the Tribunal on 7 September 1999) (Exhibit A2) from which the Tribunal notes the following:
"…
I was not aware of any difficulties in my life prior to my entry into the Services, except of course for an injury to the tip of my finger, which was well known. It was not until I subsequently obtained my records that I was aware that I had been marked as abnormal in relation to the question of emotional stability.
I have no idea why that was included.
…
… I sat the aptitude test and was accepted to work at the mail exchange in or about May 1968. …
I stayed at the mail exchange for 7 to 7½ years. …
…
I left Australia Post on the 4th April 1974 and on the 14th April I began interstate truck driving. …
I subsequently purchased my own taxi from 13 July 1975 and drove with Suburbans. I drove the taxi from about 1975 to 1979. …
I then obtained work at Godfrey's as a sales person commencing on the 6th June 1980. I left voluntarily after 10 months. I was selling white goods and electrical goods from within the shop and I would do calls to clients (mainly with lawnmowers), who rang and made an appointment. …
I also worked at Detmold's Packaging as a sales person on 14th July 1980 leaving just short of 2 years. I had the city area and the northern suburbs to Elizabeth. My task was to manage existing clients and when I had spare time I was expected to canvas new customers.
…
I then obtained work at Manos Poultry driving to Melbourne. …
I then had several driving jobs. …
I left this last job to begin working for the Adelaide City Council. I was on anti-depressants during most of that time.
…
There were also a number of arguments about whether I should or could be given light duties.
…
However, they kept giving me heavy duties and I would experience pain in relation to those.
…
There were various tasks that I was expected to fulfil driving a truck. For a part of my employment, I was what is known as a gang driver. This meant that I was the truck driver for a specific gang.
On those occasions, I really just drove the truck. I would sit in the truck while it was being filled with an excavator or backhoe and at the same time I would man the two way radio which was in the truck. That two way radio was the mechanism by which that particular road gang would communicate with the Council Base.
I also undertook various driving tasks with the truck that might be unrelated to the carting of materials. By this I mean that if the foreman was required back at the Council Base then I would drive him back there or alternatively, we would go back and obtain stores or tools from the base site and then I would drive them back out.
There are other tasks that I performed and it was in relation to these that there sometimes distinctions [sic] between light and heavy duties. Invariably I was a driver. One of the tasks that we would do if we weren't allocated to a gang was to pick up the spoil from a dump just behind the cemetery and take that out to Wingfield. There were some lighter trucks either with a hydraulic tail gate or a light tail gate but if I was allocated one of the old International trucks then on those occasions, I would have to go to the back of the truck and knock out some pins which held the tail gate and then I would have to lift the heavy tail gate back up manually.
Occasionally I would have to use the front end loader at the dump to load my own truck but I had no difficultly with that.
One of the other tasks that we undertook on a fairly regular basis was the cartage of bitumen for roads. … at the end of the day, there would be bitumen stuck to the sides of the truck and to the tray. That would be hardening all of the time and it was necessary to dig it out with a shovel using the pressure of your foot and back to get rid of it. This was very hard work and this is what I mean when I say heavy duties. I continued to experienced [sic] difficulty with the heavy duties that I was given. …
…
I am not physically able to work because of my mental state.
I experience minimal pain from my back and my neck. There is some small residual amount of pain but I would expect that just simply from the scar tissue and the fact that there being an operation.
I do not notice any restriction in my mobility.
… About three and a half years ago we purchased the house at Hahndorf where we currently live. I have done some heavy work in relation to that including jack hammering, installation of storm water piping and landscaping.
I have not experienced any difficulties in undertaking those tasks save and except that I have done those tasks as my mental state has allowed me.
…"
In oral evidence in support of his statement, the applicant told the Tribunal that he coped extremely well with the light duties of a driver with the Council, and further elaborated on these duties to include cleaning up the yard with a front-end loader and performing deliveries and pick-ups for mechanics. He described the heavy duties in more detail, noting the weight and force required to move the tail gates and the bitumen.
He stated that he understood the action he took against the Council in the late 1980s to be for negligence, but also agreed that he took action for "compensation" in respect of his back. He stated that he understood that he was required by the Council to resign as part of his settlement agreement.
He told the Tribunal that the Council did not sympathise with his problems and were reluctant to put him on light duties. He stated that his back was not too bad when he was sitting and waiting in the truck at his Council job and stated that he could have been allocated a hydraulic truck but was not.
He stated that he has not looked for work since leaving the Council because, in his opinion, he is not mentally fit for employment.
medical evidence
dr d. beard
Dr D. Beard, General Surgeon with vast experience, saw the applicant several times between 1985 and 1994. He prepared eight reports in relation to the applicant (T3/21-25 and T3/29-44). In his report dated 12 May 1987 (T3/41) he referred to his previous reports and concluded:
"IN SUMMARY – this man makes complaints which cannot be substantiated by physical examination. He is fit for his previous duties. There is no permanent disability. His presentation is inconsistent."
On 29 June 1994 he prepared two reports (T3/21-25 and T3/29-33) in which he canvassed many previous medical opinions and assessments by various doctors and a clinical assessment dated 20 June 1994, concluding the second report (inter alia at p33):
"…
Throughout the reports there are marked discrepancies about the original injury, the presentation, the course of events from 1984 to 1987 when he had a settlement of his case and then eventually in 1988 when the first operation was performed. This was done in the absence of significant clinical and radiological findings in the hope that it might relieve his complaints which, in fact, became worse.
There is nothing in any of these reports to change my opinion in any way that the incident of March 1984 would have done anything more than cause some soft tissue strain of the lower back from which I would have expected him to have recovered within a few weeks at the most.
He had a very irregular work record prior to going to the Council and he said himself that he did not want the job but thought that it might lead to some security in a pure driving position.
As a result of perusing very carefully all these reports, evidence of disability arising from the March 1984 incident and from the time that I first saw him, he was fit for his previous duties.
…"
In oral evidence in support of his reports, he told the Tribunal that the applicant's back was such that he was suitable for both heavy and light duties of a driver. His understanding of a Council driver position was that it involved both driving and some road gang work, including shovelling and tailgate moving work.
He told the Tribunal that surgery was unnecessary in this case and happened ostensibly because of the applicant's insistence. He criticised the discograms performed on the applicant and noted that the epidural block and psychiatric history of the applicant indicated that surgery was very questionable.
He disagreed with Dr R. Fraser's assessment dated 6 January 1986 (T8/225) and stated that an annulus tear of the disc would not in itself cause incapacity or disability.
dr m. atchison
Dr M. Atchison, Psychiatrist, has been the applicant's treating psychiatrist since early 1996. The Tribunal notes that Dr Atchison has a long association with the Repatriation Hospital and that approximately one half of her practice involves treating Vietnam Veterans.
She prepared four reports in relation to the applicant dated 12 June 1996 (T3/53), 3 July 1996 (T3/61), 21 August 1997 (T3/101) and 1 December 1997 (T3/126). The Tribunal notes the following from the report dated 1 December 1997:
"…
Given the severity of Mr Potiuch's psychiatric symptoms, his persistent alcohol abuse and his dangerous temper, I do not believe he is able to work for more than 8 hours per week in any capacity…I believe these conditions are the sole reason he is unable to work. I do not believe his back injury is a contributing factor.
Mr Potiuch's psychiatric symptoms have persisted despite quite intensive inpatient and outpatient treatment. I believe his impairment due to these conditions is permanent.
…"
In oral evidence in support of her reports, Dr Atchison told the Tribunal that the applicant's psychiatric problems focus on any physical pain the applicant may have, and having pain is an expression of the applicant's emotional state. She stated that the applicant takes a variety of medications, but none for his back, and on the many occasions she has observed him, he has not been in any back discomfort.
She stated that the applicant has never recovered from his Vietnam experience and has severe PTSD, to which the alcohol abuse and recurrent depression and linked. She opined that the applicant's violent behaviour is part of his PTSD, and that on the basis of her clinical experience, assessment of the applicant and conversations with his wife, she considers that his pre-Vietnam personality would have been markedly different.
dr j. condon
Dr J. Condon, Psychiatrist, is also the Director of the Psychiatric Unit at the Repatriation Hospital and Associate Professor of Psychiatry at Flinders University. He also directs the South Australian part of the federal PTSD program. He has assessed the applicant on two occasions and interviewed him on six or seven occasions, at which time the applicant has been an in-patient of the hospital.
Dr Condon prepared a report dated 29 September 1997 (T3/106) in which he stated (inter alia):
"…
1.I believe it is reasonable to assume that Mr Potiuch was unable to continue to work predominantly because of his symptoms of Post Traumatic Stress Disorder.
2.His symptoms of Post traumatic Stress Disorder, in particular his hyperarousal and instability of mood, render him incapable of functioning in any form of employment.
3.For the reasons given above, it would be my opinion that his current disability is likely to be permanent."
In oral evidence in support of his report, Dr Condon stated that the applicant should not drive as he is dangerous because of his hyper-arousal/vigilance problem associated with his PTSD. He further stated that although it is difficult to say what was happening in the 1980s, he respects Dr Goldney's contemporaneous report, and considers it to be entirely plausible that some or all of the applicant's back pain was "converted" psychiatric pain.
He explained the notion of "conversion" to the Tribunal, noting that the applicant converts his psychiatric problems into real physical pain because he is unable to process emotions. He stated that the applicant may well have had some back pain, but that the psycho-somatic factors would have taken over and been the disabling factors. Although the applicant may have had some organic back problem, the resultant disability may well have been way out of proportion due to psycho-somatic factors.
dr o. osti
Dr O. Osti, Orthopaedic Surgeon, saw the applicant between 1994 and 1997 and performed three operations on him, one to remove metal plates and pins in February 1994 and the other two in relation to his cervical spine in June and December 1994.
He prepared three reports dated 11 December 1997 (T3/128), 16 October 1998 (T10) and 19 January 1999 (T12). In the report dated 11 December 1997 he stated (inter alia):
"…
Based on the evidence in my possession and the result of numerous clinical assessments and imaging of Mr Potiuch I believe that he would have been able to work either full or part-time in a light physical capacity after his initial injury in 1984.
I understand that the reason for his employment with the Adelaide City Council to be terminated was due to Mr Potiuch taking legal action against the Council as part of his compensation claim.
I believe that Mr Potiuch at present would be able to cope with light physical tasks on a part-time basis with regard to his low back condition and that the principal reason for him to be unable to work is significant psychiatric disability which has been well documented and summarised in the report by Dr. Condon of 29th September 1997.
…"
In oral evidence in support of his report, Dr Osti stated that even without the applicant's severe psychiatric problems, he would advise against heavy work due to the organic mechanical pathology of the applicant's back. He stated that there is a difference between what the applicant can and should do, and told the Tribunal that the applicant should not drive for prolonged periods of 2-3 hours and should avoid heavy lifting and repeated bending. He told the Tribunal that prolonged driving was likely to cause problems within weeks and irrespective of the surgery performed, the applicant should not be employed in a driving or heavy lifting capacity.
He commented to the Tribunal at length about the reasons for and against surgery in this case, and the Tribunal notes that in any event, following the removal of the plates and pins and subsequent back operations performed by Dr Osti, the applicant's back symptomology appears to have improved.
other medical evidence
There is a wealth of other documentary medical evidence before the Tribunal in this matter to which regard has been given. For the sake of brevity, reference herein is only made to the following additional medical reports.
In a report dated 6 January 1986 (T8/225) , Dr R. Fraser, Orthopaedic Surgeon, stated (inter alia):
"…
f)I consider that Mr Potiuch has been left with a disability of his back equivalent to a loss of its function of approximately 15 per cent, making him unsuited to heavy manual work, but enabling him to carry out light physical work.
g)As answered above, I consider he is partially incapacitated as a result of his injury.
h)It is unlikely that his condition will significantly alter in the near future.
i)If his condition did worsen, then he may require surgical treatment but, at present, I consider that this is not indicated."
Dr H. Schaeffer, Neurosurgeon, prepared a report dated 30 July 1987 (T3/26-28) in which he stated (inter alia):
"…
… the essence of the situation here is that, in spite of his allegations of severe continuing back disability, I can find nothing that would lend support to these allegations. He presents himself in an entirely subjective manner. In reality, he is presenting with excellent mobility and with no suggestion of any nerve root tension. His symptomatology is diffuse and somewhat bizarre and is not consistent with the diagnosis of any significant continuing condition.
I believe that this man's problems are essentially "in his mind", using the expression in its broadest sense.
I can find no evidence of any continuing or permanent work related back disability or loss of working capacity. I consider him as being fit for his pre-injury duties as a driver in spite of his allegations to the contrary. I can find no need for medical treatment and I do not understand why he has undergone so much investigation and treatment. This can only be counterproductive under these particular circumstances.
…"

Professor R. Goldney, Psychiatrist stated (inter alia) in a report dated 1 July 1994 (T6/156-160):
"…
In view of the fact that Mr. Potiuch has had a number of further treatments, none of which have given him any lasting relief, I feel even more confident that my diagnosis tendered in 1988 was correct. Thus I am firmly of the view that Mr Potiuch has evidence of a conversion reaction whereby he has converted mixed feelings of anxiety and depression about his predicament into an exacerbation and perpetuation of his pain experience…
I should hasten to add that in postulating this somatoform pain disorder or conversion component to his pain experience I am not suggesting that there has been no organic focus of his pain. Rather, it is probable that the somatoform pain disorder or conversion reaction component to his pain has been superimposed upon whatever initial physical injury he may have had.
…"
Dr Shannon (MBBS, Dip RACOG) was with Vocational Health Resources in 1987 and stated (inter alia) in a report dated 18 June 1987 (T6/190):
"…
This man, I feel, would be more suited for SICKNESS BENEFITS for the time being. He has a 30% disability due to the back injury but would be able to perform light work, possibly part-time initially. …
Mr Potiuch is capable of lighter duties that would allow him to sit or stand when he felt necessary and no prolonged nor heavy lifting or bend of his back.
…"
Dr R. Darby, Orthopaedic Surgeon, in a report dated 31 May 1985, stated (inter alia) T6/196):
"…
I agree this is a soft tissue injury and probably the annular ligament, between 4, 5, was mildly disrupted at the time of the incident. What concerns me most is not the physical aspect of this, but the non-organic response to his injury and his pain, he gave me an impression of being quite aggressive today, and this might very well be because of the whole business of insurance claims and workers compensation.
…
I would suggest that he be encouraged to return to some form of modified work, through the Commonwealth Rehabilitation Scheme as soon as possible and that his symptoms be handled as one would in a conversion reaction, cutting down on the physical treatment as much as possible.
…"
Dr R. Maruszczyk, Psychiatrist, prepared a report dated 25 February 1999 (T13/293) in which she stated (inter alia):
"…
At the time I saw him I thought that he had a degree of genuine physical pain relating to his back injury. However, I considered the physical symptoms he experienced as a result of that pain were out of proportion to the pain one would normally have expected him to experience, given his injury. I was of the opinion that there was a psychological elaboration of his pain and that he was experiencing emotional distress as pain.
…"

applicant's submissions

Mr Pickhaver submitted, on behalf of the applicant, that the symptoms resulting from the workplace accident in 1984 are a manifestation of the applicant's PTSD. He further submitted that the doctors who examined the applicant at the time in the 1980s only saw a minor ligamentous strain. In his submission, if the applicant did have a physical injury, it did not prevent him from working.
He submitted that it was the applicant's perceived symptoms of physical pain which resulted in the cessation of work, not the physical pain itself. If it was not for the PTSD, in his submission, the applicant could undertake full-time light work or "light duties" at the very least.
He submitted that the Tribunal was entitled to consider all the jobs referred to in the applicant's statement (Exhibit A2) in coming to its decision.
respondent's submissions
Ms Maharaj submitted, on behalf of the respondent, that Dr Beard presented an extreme view at odds with the prior mounting of a compensation claim in respect of his back by the applicant. She sought to rely on Drs Osti and Dr Fraser, arguing that these doctors supported the view that the applicant was incapacitated as a result of his "organic" back problems.
She also submitted that the Tribunal must consider the entirety of the relevant period, which, in this case runs from June 1996 until the present, and that it must also take into account factors such as age and the particularities of the job market for unskilled labour.
She submitted that the applicant had only supplied a paucity of information in respect of jobs apart from the driving job with the Council, such that the Tribunal would not be able to satisfactorily make any findings in respect of the other jobs.
discussion and findings
The Tribunal, whilst having summarised the submissions briefly, nevertheless has taken the evidence as a whole as well as the submissions of counsel and authorities referred to into account.
Sub-section 24(1)(c) has certainly been the subject of much discussion and contention before both the Tribunal and the Federal Court. It is clear from the authorities that the relevant standard is to a "reasonable satisfaction" or "the balance of probabilities" (Repatriation Commission v Smith (1987) 15 FCR 327 at p335, Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1997 at p9).
The question of whether a person complies with sub-section 24(1)(c) of the Act is to be assessed "as at the time of his or her application to the primary decision maker for the grant of a special rate pension" (Banovich v Repatriation Commission (1986) 69 ALR 395 at p404), which in this current case is early 1996.
The phrase "remunerative work that the member was undertaking" refers to the "type of work which the member previously undertook and not to any particular job" (Banovich at p402). Loss of a job for reasons unrelated to war accepted disabilities does not preclude special pension if "at the relevant date for determination of a claim, … the member was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity" (Banovich at p402/403).
It is not limited to the last work performed by the veteran (Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997 referencing (at paragraph 20) Starcevich v Repatriation Commission (1987) 18 FCR 221).
The "remunerative work" has been held to mean "not work undertaken only for a short period" (Birtles v Repatriation Commission (1991) 24 ALD 545 at p553) or work "performed or successfully undertaken" or "effectively undertaken" (Sheehy v Repatriation Commission (1996) 41 ALD 205 at p210).
"Alone" does not equate to "sole, unique and absolute" but requires a factual consideration of all factors which might reasonably affect a veteran's incapacity for work in order to determine whether such factors can be said to contribute to the incapacity as assessed on the civil standard of satisfaction (Cavell v Repatriation Commission (1988) 9 AAR 534 at p539-540).
With this consideration of the law in mind, the Tribunal therefore considers that the core question before it can be formulated as follows:
"does the applicant's incapacity from early 1996 to the present time for the type of work he was actually undertaking result only from his accepted disabilities, and his PTSD in particular?"

The parties appeared in agreement that if the Tribunal answers this question in the affirmative, then there is no challenge to the second aspect of sub-section 24(1)(c) of the Act, that being a loss of salary or wages as a result. The Tribunal will return to this issue in any event.
In relation to the question posed, Ms Maharaj repeatedly submitted that the Tribunal should not consider any other jobs apart from the driving work. Mr Pickhaver left it open to the Tribunal to consider all previous employment referred to in the applicant's statement. From the Tribunal's perspective, there is no great "unresolved" legal issue on this point, for Starcevich makes the position abundantly clear, in that the Tribunal is not limited to consider only the last work that was performed. It is open to the Tribunal to consider all the jobs referred to in the applicant's statement, if such jobs meet the definition of "remunerative work" as considered in the above authorities. In such consideration it is also necessary to be able to satisfy the reasonable satisfaction test, which necessarily involves the Tribunal being armed with sufficient information about the nature of the employment. In the absence of sufficient evidence on which to make an assessment, the Tribunal obviously cannot be reasonably satisfied.
Ms Maharaj contended that the applicant's "organic" back condition, worsened by 1996 due to degeneration and operations, coupled with his age and the employment market for unskilled labour, must be considered as factors contributing to his incapacity. In Mr Pickhaver's submission, it is the PTSD alone which is incapacitating the applicant for work in the relevant period. The Tribunal turns therefore to consider the medical evidence.
It appears to be common ground amongst all doctors that the primary problem the applicant has is his psychiatric problems (however described). The issue for the Tribunal is whether there is also an "organic" back condition which would also be incapacitating the applicant as assessed for the relevant period.
The Tribunal rejects Ms Maharaj's characterisation of Dr Beard. He was a very impressive witness with vast surgical experience and expertise. In the Tribunal's opinion, there are simply no grounds for asserting that his opinion would be anything but objectively and independently given. The Tribunal notes that he last assessed the applicant in 1994. Dr Beard's opinion was that the applicant's "organic" back condition would not prevent him from carrying out either heavy or light duties, and that he could perform all the tasks of the driving job. This opinion finds support with Dr Schaeffer's report of 1987.
Dr Fraser is a highly respected orthopaedic specialist (as both Drs Beard and Osti noted) and the Tribunal accordingly gives his opinion some weight. That opinion (as at 1986) was that the applicant was capable of "light physical duties" but unsuited to "heavy manual duties". This opinion accords with Dr Shannon's 1987 opinion that the applicant was capable of "lighter duties". Dr Darby in 1985 suggested "modified duties", although given the tenor of his report, it is reasonable to conclude that he considered this to be appropriate more as a result of the applicant's psychiatric problems than the physical ones.
Dr Osti was also a very impressive witness. He opined to the Tribunal that the applicant should not drive for prolonged periods (2-3 hours) or undertake heavy work. He last saw the applicant for review in 1997 and notes in his report dated 16 October 1998 (T10) (inter alia):
"…
It appears, on the basis of Mr Potiuch's clinical course following the surgery, that the operations carried out under my supervision had been useful and therefore, productive for his overall state.
…"
This assessment accords with the applicant's evidence that he does not have ongoing back pain. It is also worth noting that Dr Atchison has not observed the applicant suffering from any back pain in any of her treatment sessions since 1996. The Tribunal considers that, given Dr Atchison's extensive clinical experience, she would be able to identify such a problem if it existed. The Tribunal notes that Dr Osti's surgical interventions in 1994 appear to have been successful in alleviating the applicant's organic back pain. As a result his symptomatology as at 1996 was apparently much reduced.
Turning to the driving work as outlined to the Tribunal, it was apparent that there were a range of duties performed by the applicant. Some were heavy duties, such as scraping the bitumen, and others were light, such as cleaning the yard with a front end loader and listening to the CB radio. The Tribunal has a range of medical opinions suggesting that the applicant is capable at the very least of performing light duties, and at the very most, all required duties. In respect of the applicant's organic back condition only, in the Tribunal's opinion, at the very least, the applicant would be capable of performing many of the required duties of a driver. Whilst he may not be capable (or at least it is inadvisable) for him to carry out the heavy physical tasks, he could be reasonably expected to clean the yard, courier personnel and materials, listen to the CB radio and operate the trucks with hydraulic lifts.
The Tribunal is mindful of Dr Osti's suggested limitations, however the Tribunal is satisfied on the evidence presented as to the job of a driver for the Council, that "prolonged" driving is not the core job requirement. It is not a job whereby the applicant would be driving back and forth from Adelaide to Port Pirie on a daily run for example, but involves a wider variety of activities. Many of these activities appear to the Tribunal to be ones which would mean that the applicant would not be forced into sitting behind the wheel for prolonged periods, but could take reasonable breaks and sit and stand as appropriate whilst moving from cleaning up activities to couriering parts, from listening to the CB radio to loading trucks with the aid of hydraulic lifts.
The Tribunal is satisfied that the weight of the medical evidence suggests that bearing in mind the applicant's organic back condition only (as seen at 1996 and inclusive of degeneration and operative effect), the applicant would be able to undertake a reasonable range of the duties of a Council driver. It does not consider that either the applicant's age or the employment market would prevent him from undertaking this range of activities. It is further satisfied that the range of driver type activities the applicant would be capable of undertaking fall within the scope of the "type of work the applicant was undertaking". He would be capable of sufficient duties, in the Tribunal's opinion, that taking into account his organic back condition alone, he would be able to be gainfully employed as a Council driver as at 1996, and the Tribunal so finds.
Drs Goldney, Condon and Atchison are recognised experts in the field of PTSD. The Tribunal was impressed with the evidence of both Drs Condon and Atchison. The applicant has severe PTSD, and given the weight of the psychiatric evidence, the Tribunal concludes that the applicant has an extreme degree of functional overlay in terms of his back symptomatology. Taking all the medical evidence into account, the Tribunal considers that the organic component of the applicant's back condition has never played a significant part in any resultant incapacity.
Such organic back problems have never been present to the extent that taken alone, they would prevent him from continuing to undertake work. To the Tribunal's reasonable satisfaction, but for the PTSD, the applicant's experience of back pain (as at 1996) was never severe enough to prevent him from working as a driver and the Tribunal so finds.
Given the above findings, the Tribunal is satisfied and so finds that as at 1996, the applicant was prevented from continuing to undertake the type of remunerative work of a Council driver due to his PTSD alone. This type of work fits within the scope of "remunerative work" and the applicant has suffered a resultant loss of wages by reason of the incapacity. Sub-section 24(1)(c) is thereby satisfied and the Tribunal so finds.
The Tribunal notes that it has not canvassed the other jobs, although such consideration is open to it. It has not done so for the reasons that it is reasonably satisfied, having considered the driving job, and due to the lack of available evidence as to those other jobs. The Tribunal would require more evidence than that provided by the applicant in order to be able to reach a standard of reasonable satisfaction in respect of those other jobs.
decision
For the reasons given 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 special rate as from 21 March 1996.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Dr J.T.B. Linn (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  13-15 March 2000
Date of Decision  26 April 2000
Counsel for the Applicant        Mr G. Pickhaver
Solicitor for the Applicant          Mr G. Hemsley
Counsel for the Respondent    Ms S. Maharaj
Solicitor for the Respondent    AGS