Potterat and Repatriation Commission (Veterans' entitlements)

[2018] AATA 3262

Potterat and Repatriation Commission (Veterans' entitlements) [2018] AATA 3262 (5 September 2018)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2017/0771

Re:Guy Potterat

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:5 September 2018

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that Mr Potterat is entitled to the payment of pension at the special rate with a date of effect of 9 August 2016.

..[SGD]......................................................................

Senior Member D. J. Morris

Catchwords

VETERANS’ ENTITLEMENTS – special rate pension – disabling condition – whether by reason of incapacity resulting from war-caused disabilities – whether veteran incapable of undertaking remunerative work for more than 8 hours per week – whether non-war caused preventative factors – ‘alone test’ – Tribunal satisfied that criteria are met - decision set aside and new decision substituted

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Veterans’ Entitlement Act 1986 (Cth), ss 19, 22, 23, 24, 25, 120, 177

Cases

Fox v Repatriation Commission [1997] FCA 176
Repatriation Commission v Smith [1987] FCA 327

REASONS FOR DECISION

Senior Member D. J. Morris

5 September 2018

Background

1. Mr Guy Potterat, the Applicant in this matter, seeks to review the decision of the delegate of the Repatriation Commission (the Respondent) of 3 February 2016, which refused to increase his disability pension beyond 100 per cent of the general rate under section 22 of the Veterans’ Entitlement Act 1986 (the Act). That decision was affirmed by the Veterans’ Review Board (the Board) on 13 September 2016. Mr Potterat contends that he satisfies all the criteria set out in section 24 of the Act and as a consequence his pension should be increased to the special rate.

2. On 17 December 2012 Mr Potterat made a claim for post-traumatic stress disorder (PTSD), adjustment disorder and depressed mood.  On 6 March 2013 a delegate of the Respondent decided that the conditions of adjustment disorder and depressed mood were not related to service but accepted Mr Potterat’s application for increased disability pension. The pension was increased to 50 per cent of the general rate, with effect from 17 December 2012.  On 20 November 2013 Mr Potterat made an application for review of that decision to the Board. On 24 September 2015 the Board amended the diagnoses and accepted alcohol use disorder in remission and PTSD as related to service. The Board referred the matter to the Repatriation Commission for assessment of the disability pension (T17, p 99).  On 3 February 2016 a delegate of the Respondent increased the rate of Mr Potterat’s disability pension to 100 per cent of the general rate, with effect from 26 May 2013 (T17, p 99).  As mentioned above, on 15 February 2016 Mr Potterat applied for a review by the Board of this decision, and the Board affirmed it.  That is the matter before the Tribunal.

3. The hearing was held from 6 to 7 June 2018. Mr Potterat was represented by Ms Fiona Spencer, of counsel, instructed by Williams Winter. The Respondent was represented by Mr Ken Rudge, a legal officer of the Department of Veterans’ Affairs. The Applicant gave evidence and was cross-examined. The Respondent lodged documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The following witnesses also gave evidence: Mrs Zhaohui (Monica) Potterat, the wife of the Applicant; Mrs Doreen Beynon, his sister; Mr James Boatwright, a former Army colleague; Dr Nigel Strauss, consultant psychiatrist; Dr Chris Grant, consultant psychiatrist; and Dr Robyn Horsley, OAM, occupational physician.

   LEGISLATIVE FRAMEWORK

   Special Rate

4. The relevant legislation is contained in section 24 of the Act, which states:

   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.

5. The parties agreed that Mr Potterat’s application satisfies the requirements of       sections 24(1)(aa) and 24(1)(aab) of the Act, because he made a valid application for a pension increase under section 15 of the Act and had not yet turned 65 when making his claim.

6. Sections 24(1)(b) and 24(1)(c) of the Act are the two key provisions in contention between the parties in this matter: 

   (a)Section 24(1)(b). For this section to be satisfied, Mr Potterat must be totally and permanently incapacitated. This means that his war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Section 28 of the Act provides that the only factors a decision-maker shall have regard to in determining the kind of remunerative work Mr Potterat could reasonably undertake, is:

   (a) the vocational, trade and professional skills, qualifications and experience of the veteran;

   (b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

   (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

   (b)Section 24(1)(c).  This section of the Act is often referred to as the alone test. Pursuant to section 24(2) of the Act, the Applicant would not satisfy the alone test if he ceased to engage in remunerative work for reasons other than his war-caused incapacity, or was incapacitated or prevented from engaging in remunerative work for some other reason.

   Intermediate Rate

7. Section 23 of the Act provides for eligibility for a pension payable at the intermediate rate. Section 23 has the same eligibility criteria as section 24, except that the veteran has a capacity for more than eight but no more than 20 hours work per week.

8. In its Statement of Facts, Issues and Contentions, at paragraph 15, the Respondent submitted that Mr Potterat does not satisfy section 24(1)(b) of the Act but does satisfy section 23(1)(b) of the intermediate rate provisions.   However, as required by section 23(1)(d), it is necessary for the Tribunal to consider eligibility for the special rate of pension first, before turning to the intermediate rate. In effect, Section 23 only applies if section 24 or 25 does not apply to the veteran. 

9. To qualify for the intermediate rate, a veteran must be rendered incapable of undertaking remunerative work other than on a part-time or intermittent basis.  If the veteran is capable of undertaking work of a particular kind, for 50 per cent of the time ordinarily worked by persons engaged in work of that kind on a full-time basis, or for 20 hours or more per week, they do not qualify.

   Temporary Payment at Special Rate

10. The special rate of pension can be paid on a temporary basis under section 25 of the Act, if the veteran is incapacitated to such an extent that they can meet all of the tests within section 24, except that instead of requiring that the incapacity be permanent (section 24(1)(b)), it is only temporary. Section 25 of the Act provides that:

    Temporary payment at special rate

    (1)Where the Commission is satisfied that:

    (a)  a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and

    (b)  if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;

    the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.

    (2)  Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate that would have been applicable under subsection 24(4), (5), (5A) or (6) if section 24 applied to the veteran.

    (3)  The Commission may, under this section:

    (a)determine a period that commenced before the date on which the determination is made; and

    (b)determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran. 

    Standard of proof and assessment period

11. In accordance with section 19(9) of the Act, the assessment period for Mr Potterat’s eligibility commenced the date he lodged his application for an increase in pension, and continues until determination of this matter by the Tribunal. Under section 120(4) of the Act, the standard of proof for assessment or reassessment of the rate of pensions is ‘reasonable satisfaction,’ which is also referred to as the ‘balance of probabilities.’ To be reasonably satisfied, a decision-maker must consider that a piece of evidence is more likely than not to be true. In Repatriation Commission v Smith (1987) FCA 327 (Smith) Beaumont J (Northrop and Spender JJ concurring), stated that the Tribunal should ask itself:

    ...whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…

    Key issues before the Tribunal

12. Mr Potterat is 58 years old.  After a variety of jobs, including as a driver, security guard, plumbing assistant and horse strapper, he joined the Australian Army Reserve in 1986.  He then undertook full-time service in the Regular Army from 1991 to 2012. After that he returned to service in the Army Reserve.  He was discharged from the Reserves on 15 May 2016.  During his Army service, Mr Potterat saw operational service overseas in Bosnia, Kosovo, East Timor, Thailand and the Sinai.  His last Army Reserve positions were as a military instructor, first with the Adelaide University Regiment, and then with the Melbourne University Regiment.

13. Mr Potterat contended that he satisfies the criteria in section 24 of the Act and, accordingly, his pension should be increased to the special rate. He submits that:

    (a)He was discharged from the Regular Army in June 2012 because of his psychiatric condition alone; he has not undertaken remunerative work since May 2016, and has been prevented from doing so solely by his accepted war-caused psychiatric condition;

    (b)his non-accepted medical conditions have not contributed in any way to his cessation of remunerative work; and

    (c)there is a consensus of opinion from consultant psychiatrists that he has no capacity to undertake remunerative work in the future as a consequence of chronic symptoms from his accepted conditions.

14. The issues for determination, therefore, are whether Mr Potterat’s war-caused incapacity of itself alone:

    (a)  renders him incapable of undertaking remunerative work for the periods necessary to qualify for either the special or intermediate rates of pension; and

    (b)  prevents him from continuing to undertake remunerative work that he was undertaking and whether he is thereby suffering a loss of income that he would otherwise not be suffering.

    The Applicant’s accepted and non-accepted disabilities

15. Mr Potterat’s pension is paid for five disabilities accepted by the Respondent under the Act: Lumbar spondylosis; sensorineural hearing loss; tinnitus; alcohol use disorder and PTSD. He has one disability accepted under the Safety, Rehabilitation and Compensation Act 1988; namely, a right knee condition.

16. After being discharged from the Regular Army, Mr Potterat joined the Army Reserve at the Adelaide University Regiment as a military instructor.  Ms Spencer told the Tribunal that, in his role as a military instructor, most of Mr Potterat’s duties were managerial.  In terms of his historical right knee condition, Mr Potterat acknowledged that condition was aggravated by his tasks in the Regular Army and Army Reserve but he was still able to cope.

17. In 2014 Mr Potterat moved from Adelaide to Melbourne and transferred to the Melbourne University Regiment, still as a military instructor.  The hours he worked in Adelaide were about 134 days of a possible 250 days per year. He reduced those hours in Melbourne to about 40 days per year.  In Melbourne, most of his duties were attending and managing the delivery of courses.

    The Applicant’s evidence

18. The Tribunal had before it two written statements from Mr Potterat.  The first was dated 6 March 2017 (Exhibit A2) and the second was dated 14 September 2017 (Exhibit A3).

19. In Exhibit A2, Mr Potterat stated that he had not undertaken any paid work since he was discharged from the Army Reserve on 15 May 2016.  In terms of moving to the Melbourne University Regiment, Mr Potterat stated:

    Unfortunately, I soon discovered that I was not coping with the reduced hours of work following my move to Melbourne and I obtained a discharge from the Army Reserve on 15 May 2016 as a consequence.  The sole reason for ceasing work in May 2016 was the mental health issues and I disagree with the findings of the Veterans’ Review Board that physical problems (such as the low back, right knee or any gastrointestinal problems) played any part in my decisions to obtain discharge from the Regular Army, seek transfer from Adelaide to Melbourne in the Army Reserve and then to finally cease duties completely in May 2016.

20. He gave evidence that when in the Regular Army he undertook an annual physical test which involved push ups, sit ups, a run or (if the participant cannot run) a 5 kilometre walk.  Mr Potterat said he always chose to undertake the run.  Mr Potterat said he had a knee operation in 1994, which was not related to his war service.

21. Mr Potterat gave evidence that he rose up through the ranks to be a senior Non-Commissioned Officer and held the rank of Sergeant for 10 years.  Prior to his discharge from the Regular Army, Mr Potterat said he undertook a resettlement course and uploaded his curriculum vitae to some job recruitment websites.  He said he was offered a job in Papua New Guinea for a mining company, to revise their occupational health and safety (OH&S) manuals. He also said he was offered a position in Port Hedland as an OH&S manager, but a condition of that offer was that he would have to travel there at his own expense. So he did not take up the offer.

22. Mr Potterat said that he was successful in obtaining a job with a training organisation in China.  It was an intensive job, working seven days a week with two paid trips home to Australia a year.  Mr Potterat said that he went to China to take up the job but only lasted two weeks because he found he could not handle the stress. He also observed that he was followed by persons whom he suspected were government agents, which he found additionally stressful.  He then returned to Adelaide and took up the position with the Adelaide University Regiment.

23. Mr Potterat said he continued to look for other work and contacted a local municipal council seeking general labouring work, which he selected because he thought it would keep him out of an office environment and would not require frequent contact with other people.  He also applied for night stacking jobs with two major supermarket chains.  Mr Potterat told the Tribunal he did not receive any invitations to interviews or job offers in relation to these applications.

24. Mr Potterat told the Tribunal that his wife has a café in Melbourne and he assists her by going there in the morning and helping to set up, but leaves before customers arrive. He also goes there again at 5 pm and helps her to lock up.  He said the café is open seven days a week and he estimated he undertook this task around five or six days a week for about half an hour at the beginning and the end of the day.  He said that if a customer happens to come into the café when he is there, he tends to walk out the back to avoid contact, and he attributes this to his PTSD condition.

    Evidence of Mrs Doreen Benyon

25. Mrs Benyon, Mr Potterat’s sister, provided a written statement to the Tribunal dated 2 October 2017 (Exhibit A4) and gave evidence by telephone.  She said she is 10 years older than her brother and, because she lives in Queensland, only sees him about twice a year.  Mrs Benyon said her brother visited her around 1999 on returning from service in Kosovo, and she noticed a marked difference in his mental attitude. She said that he wouldn’t eat and was particularly averse to meat. He was uptight and told her he was on antidepressants.  She said he seemed stressed and worried.  Her view was that once he returned from Kosovo, he continued to have anger management issues and was never very good after that.

    Evidence of Mr James Boatwright

26. Mr Boatwright provided a written statement dated 10 March 2017 (Exhibit A5).  He is a Warrant Officer serving in the Australian Army and gave evidence by telephone.  He said that he had known Mr Potterat for about 10 years and served in the same location with him for two years prior to Mr Potterat’s discharge from the Regular Army.

27. Mr Boatwright gave evidence that Mr Potterat always did well in the basic fitness assessments, always opted to do the run, rather than the walk, and scored high passes. He had no difficulty undertaking a 12-day field assessment at that time.  Mr Boatwright said that he noticed that Mr Potterat was becoming short and abrupt with people, and appeared not to have a filter when dealing with people.  This began to cause difficulties with private soldiers and others more senior.  Mr Boatwright said he referred Mr Potterat to a psychiatrist and there seemed to be some improvement. However, he came to have to act as a buffer between Mr Potterat and colleagues higher up in the chain of command, because of Mr Potterat’s abruptness.

1. Mr Boatwright said it was his view that Mr Potterat had skills that would be transferable to civilian work with some cross-training. But it was also his considered opinion that Mr Potterat would find it very hard with his PTSD and his manner.  He said he could possibly see Mr Potterat working in security or an ordered job along similar lines.

2. Under cross-examination, Mr Boatwright said that Mr Potterat was removed from being a squad divisional sergeant in 2012 because of his abrupt and blunt manner which some other personnel found unacceptable.  He said this removal had quite an effect on Mr Potterat.  Mr Boatwright said he had known Mr Potterat when they briefly worked together in Darwin and had not found him to be at all abrupt at that earlier time.

   Evidence of Mrs Monica Potterat

3. Mrs Potterat provided a written statement dated 5 October 2017 (Exhibit A6).  She said she met Mr Potterat in early 2014 and commenced a de facto relationship with him soon after, marrying him in July 2016.  Mrs Potterat wrote:

   My own observations are that Guy becomes angry very easily and has trouble interacting with others.  For example, he has never spoken with our neighbours.  I feel he is scared of people.  He does not, for instance, want to go shopping and on the occasions that he has come shopping with me I have noticed that he is very sensitive around other people.  If he comes shopping he feels rushed and under pressure.

4. In terms of her café, Mrs Potterat said that her husband opens the business up in the morning, unlocking the door and doing a security and alarm check, and sets up an outside umbrella. At the end of the working day, he takes the umbrella down and helps her lock up the premises.  She said if a customer comes into the café, he cannot handle it and retreats into the kitchen area.  Mrs Potterat said she did not believe her husband could undertake customer service because he becomes too angry and stressed.

   Evidence of Dr Robyn Horsley

5. The Tribunal had before it a medical report prepared for the Respondent by Dr Robyn Horsley, occupational physician, dated 20 July 2017 (Exhibit R3), the day she examined Mr Potterat.  Dr Horsley said it was her opinion that Mr Potterat has a chronic back and right knee disability which is wearing and that she thought his capacity for work is up to 20 hours a week.  She said that she administered a Beck’s Assessment of Mr Potterat’s mental state during her examination, which suggested severe depression on that day; but she would rely on expert psychiatric opinion in relation to that because mental health is not her field of speciality.

6. In terms of Dr Horsley’s recital in her report of the physical duties of Mr Potterat as a military instructor, Mr Potterat said that she had misunderstood his duties. He said his role was not unduly physical and relied on showing recruits how to undertake tasks, rather than undertaking them himself.  Mr Potterat gave detailed evidence about the nature of the duties and the Tribunal found his evidence in this regard persuasive.

   Evidence of Dr Nigel Strauss

7. The Tribunal had before it a medical report dated 2 May 2017 from Dr Nigel Strauss, consultant psychiatrist (Exhibit A1). In the report, Dr Strauss stated:

   He now leads a quiet restricted life with the support of his current wife and I do not believe that this man is employable to any extent.  He could not cope with regular attendance in a workplace, he would have great difficulty with interpersonal relationships and I note that his motivation is low as a result of his post traumatic stress disorder and his associated depression which was apparent at interview.  He does have a significant post traumatic stress disorder which greatly restricts his employability and adversely affects his interpersonal relationships.  I therefore believe that his accepted war caused injuries from a psychiatric perspective are preventing him from undertaking remunerative work for periods aggregating more than eight hours per week.  In my opinion his physical problems are adding to his disability but this needs to be commented upon by an orthopaedic specialist.  However from a purely psychiatric point of view this man is totally and permanently incapacitated as a result of his accepted war caused injuries.   He has had psychiatric and psychological treatment but in my opinion he has been left with moderately severe psychiatric problems and his prognosis must be guarded.

8. Dr Strauss, in his oral evidence, said he did not see the justification for the conclusion that Mr Potterat could undertake 20 hours of work a week.  Dr Strauss told the Tribunal that he has significant experience with PTSD victims from working in the aftermath of the Port Arthur massacre and the Black Saturday bushfires, and with many veterans with the condition.  Dr Strauss said there are six factors which he measures when assessing the ability of a person with PTSD to work. They are:

   
   

   1. Regularly reporting for work;

   
   

   2. Ability to assist at work tasks;

   
   

   3. Ability to follow instructions;

   
   

   4. Ability to communicate with fellow workers;

   
   

   5. Ability to travel to and from work;

   
   

   6. General work behaviour. 

   Dr Strauss stated that in his clinical opinion, Mr Potterat would have difficulties with factors 2, 3, 4 and 5.  In particular, it was his view that Mr Potterat would have difficulty persisting with work tasks.

9. Under cross-examination, Dr Strauss was asked by Mr Rudge whether he thought Mr Potterat could work in a job outside  an office, with only occasional contact with others; such as work for a municipal council in an outside job, such as in a parks and gardens role.  Dr Strauss said his view was that Mr Potterat could not undertake such work.  He added that a maximum of eight hours a week was the limit because of severe trauma from what Mr Potterat saw in Kosovo and how the trauma has played out since in terms of his chronic PTSD condition.

   Evidence of Dr Chris Grant

10. The Tribunal had before it a medical report dated 30 June 2017 (Exhibit R4) from Dr Chris Grant, psychiatrist, who examined Mr Potterat on 13 June 2017.  Dr Grant concluded that Mr Potterat had mild posttraumatic stress disorder, complicated by a previous alcohol use disorder which is now in remission.  The only current active psychiatric condition is the posttraumatic stress disorder.

11. Dr Grant’s opinion was that the psychiatric condition, in and of itself, would not prevent Mr Potterat from undertaking remunerative employment for more than eight hours a week but that the psychiatric condition would probably prevent him undertaking employment for more than 20 hours a week, because of his irritability, lack of tolerance for people and capacity to sustain relationships.

12. In his evidence, Dr Grant said he agreed with Dr Strauss’s diagnosis and with the six factors that he had enunciated as measuring employability for persons with PTSD, which he said were widely-applied measures.  Dr Grant said that he found that Mr Potterat’s mood and anxiety conditions were not, in his opinion, sufficiently severe to militate against any work capacity; but that Mr Potterat’s inability to get on with people might limit possible work placements.

13. Under cross-examination, Dr Grant agreed that the usual trajectory of PTSD conditions is deterioration, but stated that this can vary widely from patient to patient, and depend on other events.  When asked whether he agreed with the view of Dr Strauss that resilience declines, Dr Grant said that usually occurs if a person is depressed as well as having PTSD; and he agreed that this is the case with Mr Potterat.

14. Dr Grant said that he did not think that Mr Potterat could do work which required a lot of new learning.  Mr Potterat had significant issues but not, in his view, no work capacity.  He said that Mr Potterat was different and delicate compared to a person without his symptomology, and agreed that there was a risk of unpredictability in the course of the condition.  Dr Grant said it was his view that Mr Potterat could not work an eight-hour day but could work in 3 or 4 hour lumps.

    Consideration

15. To satisfy section 24(1)(b) of the Act, Mr Potterat must be totally and permanently incapacitated by his war-caused conditions, which alone prevent him from continuing to undertake remunerative work for periods aggregating more than eight hours per week.

16. Ms Spencer submitted that Mr Potterat’s career in the Army was cut short by his PTSD condition.  She said that he was up for promotion and there is no evidence he ceased for any reason other than the PTSD.  Ms Spencer pointed to Mr Boatwright’s evidence about Mr Potterat’s physical fitness and the high scores in the annual basic fitness tests that he undertook.  Ms Spencer said that the only evidence among all the medical reports that Mr Potterat’s physical conditions were affecting him was in Dr Horsley’s report. She submitted that Dr Horsley had, in her report summary, misunderstood the physical tasks Mr Potterat had been undertaking as a military instructor.

17. Ms Spencer drew the Tribunal’s attention to the medical report of Dr Marty Ewer, psychiatrist, dated 2 December 2014 (T11, p 42).  Dr Ewer concluded:

    In my clinical opinion, based upon a reasonable degree of medical probability Mr Potterat is suffering from a chronic post-traumatic stress disorder.  He was exposed to a number of traumatic events during his time in Kosovo and Bosnia during his time in the army and these distressed him greatly.  He has re-experienced the traumas in the form of flashbacks and intrusive recollections.  There is evidence of avoidant symptoms and increased physiological arousal in the form of sleep disturbance and an exaggerated startle reaction.

    (Emphasis in original.)

18. At T11, p 51, Dr Ewer, after quantifying Mr Potterat’s disability by referring to chapter four of the Guide to the Assessment of Rates of Veteran’s Pensions (GARP), edition 5, concluded that the Applicant was unfit to work 8 hours per week.  This equates to an impairment rating of 8.

19. Later in the report (T11, p 52), Dr Ewer wrote:

    Given that Mr Potterat has yet to receive the benefit of psychiatric treatment I would take a conservative approach and rate his current mental state as “temporary”.  Should there be no change with eight to ten months of psychiatric treatment I would consider his psychiatric state to be “permanent.”

20. It would seem to the Tribunal that Dr Ewer’s diagnosis at the end of 2014 and his assessment of work capacity has unfortunately been confirmed by Dr Strauss’s clinical opinion of May 2017, some 29 months later.  The Tribunal is satisfied, on the medical evidence, that the condition is permanent.

21. In terms of the Applicant’s age, that does not appear to the Tribunal to have been a factor in affecting his employability; as he was, in fact, offered work in PNG, Port Hedland and China after leaving the Regular Army; and briefly started a new job in China.  On his evidence, his PTSD condition was a major factor in him abandoning that job after only two weeks, a fact that was not contested by the Respondent.

22. Dr Horsley’s expertise is as an occupational physician, and in her clinical opinion set out in her report, Mr Potterat could not work. To the extent that she did advance an opinion on the contribution of his psychiatric state to his lack of employability, Dr Horsley was of the view that it was a significant factor.

23. Mrs Potterat’s evidence was of only limited value in temporal terms, because she met Mr Potterat when he was in Adelaide and about to move to Melbourne. However, the Tribunal found her account of his conduct at her café compelling, particularly his inability to face, or even be present in the same room as, customers in an otherwise quite unthreatening environment. 

24. Mr Rudge accepted in his submissions that Mr Potterat had genuinely been trying to seek work. He submitted that the Tribunal must be satisfied that the substantive cause of Mr Potterat’s inability to obtain remunerative work must be his war-caused PTSD condition (see Fox v Repatriation Commission [1997] FCA 176.)

25. After careful consideration, the Tribunal is satisfied that the other non-war caused medical conditions of Mr Potterat (his right knee and back conditions) have not contributed to his inability to obtain remunerative work.  He had those conditions well before his discharge from the Regular Army, let alone his service in the Army Reserve.  The evidence from Mr Boatwright about the practical impact of Mr Potterat’s PTSD condition in Adelaide, including becoming abrupt, and suddenly having to hide from fellow soldiers because he had become teary for no apparent reason, support that conclusion.  In addition, the unchallenged evidence about Mr Potterat’s successful completion of the annual basic fitness test inclines the Tribunal to the view that, while his physical conditions may have caused him some problems, he had found them completely surmountable.

26. The Tribunal has considered the ameliorating provisions in section 24(2)(b) of the Act, which applies to veterans under the age of 65 and contains exclusionary provisions for the purpose of the alone test.  On the evidence, conceded by the Respondent, Mr Potterat genuinely sought to engage in paid work. But for the incapacity arising from his accepted war-caused disabilities, I am satisfied that he would still be engaged in paid work or actively seeking it.

27. There were no submissions about the appropriateness of temporary payment of pension at the special rate for Mr Potterat.  The Tribunal is satisfied that this is not appropriate because of the consistent evidence of Dr Ewer, Dr Strauss and Dr Grant, that the PTSD is a permanent condition.  Therefore, the provisions of section 25 of the Act relating to payability of the special rate for a temporary period are not engaged. 

28. Equally, on the evidence of Dr Strauss and Dr Horsley, and the oral evidence of Dr Grant, the Tribunal is satisfied that the intermediate rate provisions, which the Respondent contended apply to Mr Potterat, do not, in fact, apply in Mr Potterat’s case.  I conclude on the medical evidence that he cannot work for more than 8 but less than 20 hours per week.

29. On the medical and factual evidence before it, the Tribunal is reasonably satisfied, to borrow the words of Beaumont J in Smith, that Mr Potterat is totally and permanently incapacitated by his war-caused condition alone, to render him incapable of undertaking remunerative work for a period aggregating more than eight hours per week.  Therefore, he satisfies section 24(1)(b) of the Act; and he satisfies section 24(1)(c) in suffering a loss of salary or wages which he would not be suffering if he was free of his incapacity.

    Conclusion and date of effect

30. For the reasons set out above, the Tribunal finds that Mr Potterat satisfies the requirements of section 24 of the Act and is eligible to be paid pension at the special rate.  Mr Potterat lodged his application for review with the Tribunal on 9 February 2017.  The Board’s decision was made on 13 September 2016.  As the application to the Tribunal was lodged more than three months after the Board’s decision, the Respondent submitted that the earliest date of effect of a decision increasing the rate of pension under        section 177(2)(b) of the Act would be 9 August 2016.

31. The Tribunal accepts this submission, as section 177(b)(i) sets out that if a review relates to a claim in accordance with section 14 (as this claim does), the Tribunal may approve payment of a pension at an increased rate from a date not more than 6 months before the date on which the application was made.  Given that Mr Potterat’s application was lodged with the Tribunal on 9 February 2017, that date cannot be earlier than 9 August 2016.

    DECISION

    The Tribunal sets aside the decision under review and substitutes a decision that Mr Potterat is entitled to the payment of pension at the special rate with a date of effect of 9 August 2016.

I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

....[SGD]....................................................................

Associate

Dated: 5 September 2018

Date(s) of hearing:	6 - 7 June 2018
Counsel for the Applicant:	Fiona Spencer
Solicitors for the Applicant:	Williams Winter Solicitors
Respondent:	In person
Advocate for the Respondent:	Ken Rudge