Raggatt and Repatriation Commission
[2001] AATA 67
•5 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 67
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1414
VETERANS APPEALS DIVISION )
Re WILLIAM RAGGATT
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date 5 February 2001
PlaceSydney
Decision The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Applicant is: (i) entitled to payment of a disability pension at 50% of the General Rate with date of effect being 28 February 1995; and (ii) entitled to payment of a disability pension at 80% of the General Rate with date of effect being 14 January 1997; and (iii) entitled to payment of a disability pension at the Special Rate with date of effect being 27 March 1999.
{sgn} J D Campbell
Member
CATCHWORDS
VETERANS' AFFAIRS – Veteran's entitlement – Accepted conditions – Assessment – General rate – Special rate - Issues.
Veterans' Entitlement Act 1986 – ss 120(4), 23, 24.
REASONS FOR DECISION
Dr J D Campbell (Member)
Mr William Raggatt ("the Applicant") in this matter seeks a review of the decision of the Veterans' Review Board ("the VRB") dated 27 July 1999 which set aside the decisions of the Repatriation Commission ("the Respondent") made on 19 March 1996. In the substitution therefor it was decided the condition of post traumatic stress disorder was war caused and that a pension be assessed at 50% of the General Rate to operate from and including 28 February 1995, and at 60% of the General Rate to operate from and including 14 January 1997.
A hearing was held before the Tribunal on 4 September 2000 at which the Applicant was represented by Mr Sherlock, an advocate, and the Respondent by Mr Modder, a solicitor from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.
The following material was placed into evidence before the Tribunal:
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T17 PP1 – 60
Statement of the Applicant dated 4 October 1999 Exhibit A1
Statement of Mrs Raggatt dated 4 October 1999 Exhibit A2
Medical Report of Dr Altman dated 30 August 1999 Exhibit A3
Medical Report of Dr Altman dated 28 August 2000 Exhibit A4
Medical Report of Dr Baz dated 6 March 2000 Exhibit A5
Applicant's Statement of Facts and Contentions dated 31 August 2000 Exhibit A6
Medical Report of Dr Burns dated 12 December 1999 Exhibit R1
Medical Report of Dr Schultz dated 20 February 2000 Exhibit R2
Respondent's Statement of Facts and Contentions dated 17 April 2000 Exhibit R3
ISSUES
The relevant issues in this matter are whether:
(a) the Applicant's war caused disabilities have been correctly assessed with pension being determined at 50% of the General Rate with effect from 28 February 1995 and 60% of the General Rate with effect from 14 January 1997; and
(b) whether the Applicant is entitled to a pension at the Special Rate.
LEGISLATION
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular ss 120(4) and 24.
BACKGROUND
On 26 May 1995 the Applicant lodged two applications with the Respondent, the first relating to a claim for increase in disability pension for his war caused lumbar spondylosis, and the second to a claim to have his hearing loss, tinnitus and post traumatic stress disorder accepted as war caused disabilities. The Applicant's hearing loss and tinnitus was accepted as a war caused disability and assessed at 10 points (bilateral sensorineural hearing loss). The lumbar spondylosis (lumbosacral spondylosis without myelopathy) was assessed at 9 points and a total impairment was rated at 20 points (T11). On 19 March 1996 the Applicant was advised that his claim for post traumatic stress disorder was refused and that he would be paid an increased pension of 50% of the General Rate from 28 February 1995 to reflect the assessed impairment and his lifestyle rating of 3. The Veterans' Review Board reviewed these decisions and on 27 July 1999 found that the Applicant's post traumatic stress disorder was war caused and that his rate of pension was assessed at 50% of the General Rate from 28 February 1995 and 60% of the General Rate from 14 January 1997.
It was agreed between the parties that the Applicant does suffer from the following war caused disabilities:
(a) lumboscral spondylosis;
(b) bilateral sensorineural hearing loss with tinnitus; and
(c) post traumatic stress disorder.
Further it was agreed between the parties that these were no non-accepted disabilities suffered by the Applicant and that if his claim for Special Rate were successful, the effective commencement date for payment would be 27 March 1999.
APPLICANT'S EVIDENCE
The Applicant gave the following evidence in relation to each of his war caused disabilities:
(a) Lumbosacral spondylosis: occurred when he slipped and fell down stairs at the underground command post whilst serving with IRAR in Vietnam. He landed on his back, reported the incident to the RMO and the pain in the lower back gradually went away. Between 1969-1973 while serving with IRAR in Malaysia the lower back pain started to re-occur intermittently and radiated to both legs but mainly the right. It was an occasional experience and exacerbation occurred when carrying weights or sitting for a lengthy period of time such as 3 hours. He noticed that it became more persistent after leaving the Army, and particularly when lifting weights, twisting or sitting. In his final Army years, he experienced it more often when sitting for a period. The pain is in the lower back and radiates to the right leg. It is akin to a toothache and goes away after lying down for half an hour. The pain also occasionally occurs in his left leg. The pain lasts for half an hour if able to walk and if extreme for two hours, at which point it is necessary for him to lie down to seek relief. When the pain is present it affects his concentration and he finds himself being short in dealing with people. He has difficulty with domestic tasks, being able to mow the lawn slowly, and vacuum for 10 minutes at a time. He has difficulty lifting weights greater than 15 kilograms.
(b) Hearing loss: the Applicant experiences difficulty in hearing radios and people, particularly where there is background noise. He finds it difficult to determine where noise is coming from and commenced wearing hearing aids in 1999. He is unable to lip read. In the office environment he is able to use a telephone, if there is no background noise. In relation to his tinnitus it is always present and varies in intensity particularly in the morning when tired.
(c) Post traumatic stress disorder:
(i) Nightmares: the Applicant cannot remember the contents of his dreams but they are usually about Army life. He has a disturbed sleep and thrashes about, according to his wife. He experiences cold sweats and cramps in his legs if he moves about. They seem to occur when he has had thoughts about Army experiences. During the day he is able to black out thinking about such experiences. He finds that he is tired the day after, and that he tends to withdraw and isolate himself from people, not being a great mixer at the best of times.(ii) Intrusive thoughts: he seems to have a lack of concentration – drifts off and thinks about distressing aspects of his service life. No stimulus is necessary and he is diverted from the task at hand and essentially withdraws.
(iii) Flashbacks: Depressed state and tired of living with a vision in his mind of the traumatic experience of being mortared. He experiences "fear" and finds it hard to get back to normal.
(iv) Avoidance: tries not to associate with anything that causes emotional thoughts and likes to get away from people.
(v) Distress: "playing of last post", funerals, loss of soldiers in his own company all cause him to be unable to control his emotions. He does attend Anzac Day.
(vi) Loner: he finds it difficult to make friendships, finds it hard to keep up with people and is not tolerant of perceived shortcomings in people.
(vii) Sleep disturbance: nightmares cause sleep disturbance. This makes him feel that he has not rested and the next day he finds it difficult to concentrate and falls asleep during the day.
(viii) Startled response: looks for a safe place away from the door. Always responds to a loud noise and feels stupid as a consequence.
(ix) Hypervigilant: always looking ahead, looking for obstruction and always wary.
In further comment the Applicant stated that when his back is bad and the tinnitus has increased it aggravates his psychiatric condition. Further the Applicant stated that since February 1995 the symptoms of his post traumatic stress disorder have become more apparent, particularly in the employment situation and the ability to handle a job. Further, his hearing and back problems have deteriorated and this seems to make his psychiatric symptoms worse.
The Applicant gave the following evidence in relation to his employment history:
(a) Army service: 1965-1985. South Vietnam IRAR as a Captain in 1968/69. Service in Malaysia, Singapore, Townsville, Wewak, Adelaide and Singleton. He retired as a major in 1985.
The Applicant said that he was unaware of his condition during service, but with hindsight was less tolerant of people who were not performing. Others seemed to have more understanding of soldiers' problems than he did; and he only participated in mess life when he had to. He withdrew from social contact without knowing it and only has close friends, some from the Army and some from after his Army career because of age.
(b) Radiator repair business: the Applicant said that he had trained as a mechanic prior to service, and on leaving the service he and an Army colleague purchased a radiator repair business in Singleton. They co-owned it and worked then for two years as a reasonably successful business. He found it different to service life and he had to treat individuals differently. The business was labour intensive and they broke even on sale.
(c) Avis hire car franchise: the Applicant purchased and co-owned a franchise for five years. Operated it for five years, but found that they were not making money as the Avis business terms were not profitable. Together with other franchisees they took Avis to court and lost, but he did not lose his house. During this activity the Applicant stated that he was able to handle the organisational aspects of the business with the help of his wife and son when home from college. During this period of working seven days a week he had a number of minor conditions, namely hay fever and colds. He also had some back trouble. He stated that he withdrew further, that he would not discuss things with his wife or his business partner and there were long periods of silence with his wife.
(d) Security guard: the Applicant was employed for two years as a security guard at a power station doing shift work, and at the same time his wife was working. He found the job undemanding, mind numbing and that it gave him no sense of achievement. He found he was becoming less tolerant and unreasonable, and having arguments with fellow workers over minor issues.
(e) Self employed bookkeeper: in 1995 the Applicant started as a bookkeeper for a small transport company as a self employed person doing the books for the company and two other clients. He felt he coped well with the wages until the company expanded in March 1999 from five drivers and one mechanic to some forty odd people. At this stage he found that as the increase in work occurred, he was achieving less output and that the harder he tried the less the output. He found it hard to concentrate, tending to vacillate on actions and issues and found it increasingly difficult to make a decision. He sought to consult with his employer, but at times he would seek to avoid confrontation and this was a growing problem between him and the owner. He found he was asleep at his desk, he was having increasing problems with his back and the payment of accounts was getting out of hand, as there was no money to pay them. The Applicant stated that there was a conflict of management style between him and the owner, and that this had been longstanding. The Applicant stated that he made a spur of the moment decision to leave, having considered that he was not performing as he should and because he did not think things would change. All in all he stated he left a year earlier than he intended and with hindsight feels that he should have confronted the owner more on policy and purchasing decisions.
In response to questions asked in cross examination the Applicant gave the following responses:
(a) He believed himself to be a hard working individual and he enjoyed work more than social activity. He had three episodes of conflict with senior officers during his Army service about
the way things should be done and one of them was confrontational. Nevertheless, he enjoyed army life.(b) In the radiator repair business his relationship with his partner was good, the partner being a Vietnam veteran. There were three other employees.
(c) In the Avis franchise there were ten people involved in the court action and he found the nine months litigation period stressful. He found the four years of activity involved, intensive hours and those financial problems caused him stress. His relationship with his partner deteriorated over the last 12 to 18 months of the business and he no longer sees him.
(d) When working as a security guard he did not see much of his wife as she was working and he was on shift work.
(e) In relation to his activities at the transport company he enjoyed the first two and a half years, when he was working eight hours a day and paying the wages. He was of the opinion that he could not go back to doing such a task, as he would not be able to produce the results. After the first two and a half years his hours were increased to 10 a day; the boss was not there much and he would only see him for one to two hours per week. The boss delegated duties to him without the necessary authority to action them. He noticed that he was becoming increasingly stressed; that his physical well being deteriorated; his productivity was decreasing; that he was intolerant and confrontational with other people but not with the boss. During the earlier period he suffered from hay fever and for the whole period received massage for his back from his wife. He took no medication for his back condition. The Applicant said he left work at age 66 that he is a non-drinker and non-smoker and does not frequent hotels or clubs.
In response to questions in re-examination the Applicant stated that at the time prior to ceasing work he found that he was lacking concentration and had an inability to make decisions and this caused his health to deteriorate and made him more withdrawn. Such episodes of depression occur without warning and in such episodes he becomes morose, non-communicative and he avoids people.
MEDICAL EVIDENCE
Dr Lambeth:
In a report dated 23 November 1995 Dr Lambeth, a consultant psychiatrist, made the following comment:
"Unfortunately, or one should really say fortunately for Mr Raggatt, he does not have sufficient symptoms to make a diagnosis of Post Traumatic Stress Disorder or a Generalised Anxiety Disorder." (T10, P.40)
Dr Altman:
In a report dated 14 January 1997 Dr Altman, a consulting psychiatrist, concluded that the Applicant suffers from a chronic post traumatic stress disorder and an associated (major) depression. Dr Altman assessed the Applicant's psychiatric impairment at 30 points under GARP IV. (T14, P.53)
In a report dated 30 August 1999 Dr Altman reported that the Applicant's psychiatric condition had deteriorated; that his assessment for his psychiatric disability was 48 points under GARP V; and that he was permanently unfit for work as a result of his war related psychiatric disability alone, (Exhibit A2).
In a further report of 28 August 2000, Dr Altman, in noting the report of Dr Schultz dated 20 February 2000, concluded that :
"In my opinion one must be extremely cautious and guarded about making a diagnosis of an Adjustment Disorder, when there is a diagnosis of Post Traumatic Stress Disorder. In my opinion his inability to adjust to his work situation is due to his Post Traumatic Stress Disorder." (Exhibit A2)
Dr Schultz:
In a report dated 20 February 2000 Dr Schultz, a consulting psychiatrist, as a result of his examination of the Applicant on 10 December 1999, expressed the following opinion:
"Overall I believe that Mr Raggatt has symptoms that support the diagnosis of post traumatic stress disorder but his level of dysfunction is elevated by the presence of an adjustment disorder with depressed and anxious mood. This second diagnosis is a consequence of the problems that he has had to face with respect to:
i. The loss of his status as a senior officer in the army with the resultant loss of an organised and satisfying environment.
ii. Developing a business.
iii. The pressure of a failing business.
iv. The narcissistic injury brought about by having to work in a job significantly lower level than he has previously done (security and book keeping).
v. The enormous loss of self-confidence associated with losing his home because of his business problems.
It is not possible to accurately delineate the relative contribution of each component of Mr Raggatt's difficulties. However, it is notable that prior to leaving the army, Mr Raggatt already had problems related to post traumatic stress disorder and he was able to work. Further, for a period after he left the army, while the business was still being set up, and he presumably still felt positive about his potential for success, he was also reasonably well. It was only after his civilian career opportunities began to fail and the consequences of these problems were evident that he began to have significant trouble with psychological symptoms. This suggests that the adjustment disorder component is a significant cause of his dysfunction.
At present I do not believe that Mr Raggatt is capable of employment at his premorbid level and it appears that more menial work. And would suggest that ongoing psychological treatment aimed at allowing him to ventilate and manage anxiety would be helpful. However, it is unlikely that he will fully recover until he is able to resolve the financial difficulties and come to a level of acceptance of the implications of this settlement.…" (Exhibit R2)
Dr Schultz assessed the Applicant's mixed psychiatric conditions as 24 points under GARP V.
Dr Burns:Dr Burns, a consultant occupational physician, in his report dated 12 December 1999, came to the following conclusion:
"…Mr Raggatt struck me as a very genuine individual who was obviously having some difficulty in his previous employment. He himself now believes that the employment was very stressful. I believe that it was quite reasonable of him to retire at the age of 66, as he was not performing. I do believe, though, that only part of his problem was associated with his post traumatic stress disorder and that part of it was associated with the inherent stress of the job.
I believe that Mr Raggatt would have been capable of continuing work in a less stressful position. Certainly his post traumatic stress disorder appears to be mild to moderate in severity. It has not stopped him from getting on with his life in other areas. In conclusion, I believe that though Mr Raggatt was having difficulty in a very stressful position, he would have been capable of working for at least 20 hours per week in work with less stress. I thus do not believe that his post traumatic stress disorder was severe enough to have forced him out of the work force.
…
I believe he has a combined impairment rating of 38 points, which would be rounded up to 40. An impairment rating of 40 and a lifestyle rating of 3 would give him an incapacity of 70%.
…" (Exhibit R1)
Dr Baz:
In a report dated 6 March 2000 Dr Baz, a consultant occupational physician, as a result of examining the Applicant on 2 March 2000 stated the following:
"…
CONVERSION TO DEGREE OF INCAPACITY
From February 1995:
Impairment rating 57, lifestyle rating 3: 90%
From March 1999:
Impairment rating 60, lifestyle rating 4: 100%
WORK FITNESS ASSESSMENT
In my opinion Mr Raggatt's work ability has been significantly limited over a number of years by the post-traumatic stress disorder, with some contribution from hearing loss and lumbar spondylosis.
He has had difficulty dealing with stress associated with employment over many years. There is a clear history of difficulty coping with stress in his rent-a-car business, an inability to cope with stress of a less demanding, boring type of work. I consider he developed significant depression during the last years of his employment, and that retirement from that job was appropriate.
I do not consider there are any realistic opportunities for alternative work within Mr Raggatt's physical and psychological abilities. Alternative work which is less demanding, both qualitatively and quantitatively, will have adverse effects on his self-esteem and contribute to further despondency and depression. Work which is appropriate to his skills and experience requires autonomy and responsibility, which he is unable to cope with because of anxiety, fatigue and irritability.
Even out of the workforce, and without the associated stress of regular attendance and maintenance of performance, Mr Raggatt has significant psychiatric symptoms. I consider that if her were to attempt to return to even part-time work of lesser responsibility than he recently performed there would be a significant deterioration in depression and he would be unable to continue.
CONCLUSIONS
In my opinion Mr Raggatt is unfit for work of 8 or more hours duration weekly as a consequence of his accepted disabilities.
I do not consider there are other medical conditions, or other factors, which cause him to be unfit or unable to work.
In my opinion he has been similarly limited in his employability since March 1999.
…" (ExhibitA5)
SUBMISSIONS
The advocate for the Applicant submitted that the Applicant has the particular war caused disabilities as nominated and that all were present and deteriorated during the period commencing with his date of application, namely 26 May 1995 up to the point of his departure from the workforce on 26 March 1999 and thereafter. It is these conditions and these conditions alone, and in particular his post traumatic stress disorder which caused him to cease work and which prevents him from returning to any form of remunerative work. The Applicant relies upon the reports of Drs Lambeth, Altman and Baz to support their contentions that the Applicant is entitled to particular variances in the General Rate pension from 28 February 1995 (90%) and a Special Rate pension from 27 March 1999.
The Respondent contends that the Applicant's pension is correctly assessed at 70% of the General Rate. It is also contended that the Applicant is not totally and permanently incapacitated, in that he does not satisfy subsections 24(1)(b) and (c) of the Act, because it is not his war caused disabilities alone, which are preventing him from working. In this regard the Respondent relies on the report of Dr Schultz and to a lesser extent Dr Burns.
CONSIDERATION AND FINDINGS
The Tribunal, in preliminary comment, observes that the Applicant detailed his case with both clarity and preciseness, as were his responses to questions in cross-examination. Where gaps existed the Tribunal notes that the statements of both the Applicant and his wife provided details, which were of assistance.
From the history of this matter detailed earlier in this decision, and the evidence provided by the Applicant and his wife's statement, the Tribunal has had portrayed to it the nature and cause of the Applicant's war caused disabilities of lumbosacral spondylosis, hearing loss and tinnitus and post traumatic stress disorder and their effect upon the Applicant and the increasing symptomology of each both in his service career and his post service employment.
It is these war caused disabilities that the Applicant did bring to his post service business and employment activities, and it is the interaction between the Applicant with his war caused disabilities and those activities that have led to situations where his war caused disabilities have clearly deteriorated as evidenced by an increase in the symptomology of his war caused disabilities.
The Tribunal further observes that the Applicant's post service employment and business activities were of varying success and satisfaction to the Applicant, with the Avis franchise business obviously causing a financial loss for the Applicant, but not the loss of "the home" as reported by Dr Schultz. The Tribunal also observes that his final employment was initially a satisfactory experience for the Applicant, but as the work increased it is clear to the Tribunal that this increased the stress on the Applicant and that he eventually was unable to cope. As a result he elected to cease employment a year earlier than he intended. The Tribunal notes the scope and nature of the difficulties between the Applicant and his boss and concludes that their work interaction was not beneficial to either of the participants nor to the enterprise and that the Applicant's response, as he has so clearly detailed is clearly indicative of an individual struggling to maintain his equilibrium. The Tribunal also observes that there was nothing grossly untoward about their interactions and it would appear to the Tribunal that the Applicant was slowly being overwhelmed by the situation.
In further considering the issue as to why the Applicant left work and why he is unable to work the Tribunal prefers the particular opinions of Dr Altman, Lambert and Baz, for in the Tribunal's view they are both consistent with the Applicant's evidence and reflect opinions that are consistent with the deterioration of the Applicant's war caused disability. The Tribunal did not consider Dr Schultz's opinion of particular help in that he appeared to detail an inaccurate version of particular events. Dr Schultz stated that the Applicant purchased the radiator business from Avis, lost his house and that he was seeing Dr Dalton, a psychiatrist, on a regular basis. Further he introduced another psychiatric condition to explain the Applicant's cessation of work, but did not explain as to how or why this adjustment disorder has eventuated over a period of some fifteen years. Dr Schultz also did not attempt to explain what part the war caused post traumatic stress disorder may have in the causation or contribution to the continuance of the adjustment disorder. Similarly the Tribunal was not persuaded by Dr Burns' opinion, as it was clearly inconsistent, as regards the Applicant's work capacity, with all the other doctors, including Dr Schultz.
The Tribunal, having considered all the evidence, finds that the Applicant ceased work in March 1999 and is prevented from returning to any form of remunerative work because of his war caused disabilities alone.
In moving to the issue of assessment the Tribunal notes the Applicant's evidence and the opinions of the various doctors. In relation to the assessment at the nominated periods the Tribunal finds the following:
(a) Assessment at 28 February 1995
The Applicant had the following war caused disabilities with the
following assessment of each disability:Condition Rating Assessment
(i) Lumbar Spondylosis 9 Loss of quarter range of movements of thoraco lumbar spine per table 3.3.1 as adjusted by table 3.6 for age.
ii) Lower Limb Sciatic pain 9 Pain in right leg daily per table 3.2.2. as adjusted by table 3.6 for age
(iii) Hearing Loss 10 Per formula 7.1.
(iv) Tinnitus 5 Per table 7.1.11.
The Tribunal in relying upon the evidence of Dr Lambeth expressed particular difficulty in making a clinical assessment of any significance for this condition, as it was not established at that time. The Tribunal considered the Applicant to have a lifestyle rating of 2, composed of 2 for table 22.1, 2 for table 22.2, 2 for table 22.3, 3 for table 22.4 and 2 for table 22.5. Accordingly the Tribunal assesses the Applicant's rate of pension at 50% of the General Rate from 28 February 1995.
(b) Assessment at 14 January 1997
The Applicant had the following war caused disabilities with the following assessment for each disability:
Condition Rating
(i) Lumbar Spondylosis 9
(ii) Lower Limb Sciatic Pain 9
(iii) Hearing Loss 10
(iv) Tinnitus 5
(v) Post Traumatic Stress Disorder 30
(In the Tribunal's view the assessment of 30 for the Post Traumatic Stress Disorder should be the accepted assessment, as it was performed at the time in question and does not suffer the problems of hindsight).
The Tribunal finds that at this point in time the lifestyle rate for the Applicant is 3, in that personal relationships are moderately affected (3) and his mobility is reduced (3). Accordingly the Tribunal assesses the Applicant's rate of pension at 80% of the General Rate from 14 January 1997.
(c) Assessment at 27 March 1999
The Applicant's war caused disabilities have deteriorated by evidence of increasing clinical symptomology. The Tribunal finds the following assessment for each of the Applicant's war caused disabilities:
Condition Rating Assessment
(i)Lumbosacral Spondylosis 18 Half loss of normal range of movement of thoraco lumbar spine, table 3.3.1 as amended for age by table 3.6.1
(ii) Lower Limb Sciatic Pain 9 Difficulty with walking because of pain on uneven ground, per table 3.2.2
(iii) Hearing Loss 10 Per formula 7.1
(iv) Tinnitus 5 Per table 7.1.11
(v) Post Traumatic Stress Disorder 38
Subjective Stress 10 Very frequent symptoms causing moderate distress
Manifest distress 10 Distress is obvious as is preoccupation with symptoms
Functional effects 3 Moderate interference
Functional loss 8 Unable to work
Domestic situation 1 Occasional
Social Interaction 5 Substantial reduction
Leisure Activities 5 Loss of interest in most pursuits
Current Therapy 3 Medication and psychotherapy
Further the Tribunal finds that the Applicant has a lifestyle rating of 4 (domestic activities 4, recreational activities 4, mobility 3, personal relationships 2, employment activities 5). Accordingly the Tribunal finds that the Applicant is entitled to a disability pension at 100% of the General Rate from 27 March 1999.
In further consideration, the Tribunal, noting that the Applicant by virtue of his assessment of this pension at 100% of the General Rate, concludes that the Applicant satisfies subsection 24(1)(a) of the Act.
Further, in the light of the Tribunal's earlier findings in this matter, the Tribunal further finds that:
(a) the Applicant is unable, because of his war caused disabilities alone, to undertake any remunerative work and that he satisfies subsection 24(1)(b) of the Act, and
(b) the Applicant's incapacity from his war caused disabilities alone has prevented him from undertaking remunerative work that he was previously undertaking, and that as a result the Applicant has suffered a loss of earnings on his own account. The Tribunal finds that the Applicant satisfies subsection 24(1)(c).
As a consequence of the Tribunal's findings, the Tribunal concludes that the Applicant is entitled to payment of his disability pension at the Special Rate with effect from 27 March 1999.
DETERMINATION
The Tribunal determines that the decision under review be set aside and in substitution therefor determines that the Applicant is:
(i) entitled to payment of a disability pension at 50% of the General Rate with date of effect being 28 February 1995; and
(ii) entitled to payment of a disability pension at 80% of the General Rate with date of effect being 14 January 1997; and
(iii) entitled to payment of a disability pension at the Special Rate with date of effect being 27 March 1999.
I certify that the preceding thirty-one 31 paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell.
Signed: .....................................................................................
AssociateDate of Hearing 4 August 2000
Date of Decision 5 February 2001
Representative for the Applicant Mr R.SherlockAdvocate for the Respondent Mr Modder
0
0
0