Rockliffe and Repatriation Commission - [2001] AATA 332

DECISION AND REASONS FOR DECISION [2001] AATA 332

ADMINISTRATIVE APPEALS TRIBUNAL )

) N2000/450

VETERANS' APPEALS DIVISION       )
           Re      RONALD JOHN ROCKLIFFE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date24 April 2001
PlaceSydney

Decision      The Administrative Appeals Tribunal sets aside that part of the decision of the Respondent Repatriation Commission dated 26 October 1998 as affirmed by the Veterans' Review Board on 23 February 2000 in respect of the assessment of the rate of pension payable to the Applicant, Mr Ronald John Rockliffe. In substitution for the part of the decision set aside, the Administrative Tribunal finds that Applicant is eligible to be paid pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 on and from 28 February 1998.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans' appeal - whether ameliorating provision applies - whether special rate - decision set aside - war-caused injuries alone render applicant unfit for work of 8 hours or more per week.

LEGISLATION
Veterans' Entitlements Act 1986ss 24 and 120(4)

CASES
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Hall v Repatriation Commission (1994) 33 ALD 454

REASONS FOR DECISION

24 April 2001 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Repatriation Commission of 26 October 1998 (T2) as affirmed by the Veterans Review Board on 23 February 2000 (T15), which increased the disability pension of the Applicant Mr Ronald John Rockliffe to 100% of the General Rate with effect from 28 February 1998 following the acceptance of Post Traumatic Stress Disorder ("PTSD") with alcohol dependence as a war-caused condition.
The Applicant was represented by Mr C Colborne of counsel, who was instructed by Rockliffs Solicitors and the Respondent Repatriation Commission by its advocate Ms M Doggett.
ISSUES BEFORE THE TRIBUNAL
The issues to be decided was:

Whether Mr Rockliffe was eligible for pension at the Special Rate pursuant to section 24 of the Veterans Entitlements Act 1986 ("the Act");
Whether the ameliorating provisions in section 24(2)(b) of the Act applied to Mr Rockliffe's circumstances.

LEGISLATION

The relevant legislation in this matter was section 24 of the Veterans' Entitlements Act 1986. As relevant, section 24 provides:
"24 Special rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
……
(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 of 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."
The burden of proof applicable to the assessment of pensions is set out in section 120(4) of the Act. According to this section, the Tribunal must decide all relevant matters to its reasonable satisfaction.
Section 120(4) provides as follows:
"120 Standard of proof
….
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B."

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") and the following other exhibits:
ITEM DATE NAME
Medical Report of Dr A Hordern    23 August 2000       Exhibit A1
Medical Report of Dr M Baz          21 August 2000       Exhibit A2
T-Documents Exhibit R1
Clinical Notes of Dr D Weinman              Exhibit R2
Medical Report of Mr D Cipriani 12 September 2000 Exhibit R3
Report of Vocational Capacity Centre Pty Ltd    18 September 2000 Exhibit R4

Oral evidence was given by the Applicant, Mr Rockliffe, his wife Mrs Annette Rockliffe and Dr A Hordern, consultant psychiatrist.
EVIDENCE OF THE APPLICANT - MR RONALD JOHN ROCKLIFFE

Mr Rockliffe, whose date of birth was 30 May 1937, told the Tribunal that he was born in England and came to Australia at the age of 14 years. He said that he attended school until approximately age 15 after which he did a year as an apprentice plumber, followed by shearing and then three months national service in 1956. He then joined the Australian Armed Forces ("the Army") attached to what he described as the engineer's unit and remained in the Army for the next 12 years.
As to his war service; Mr Rockliffe said he served on operational duty for various periods, in particular in Vietnam from 25 May 1966 to 15 June 1967. I noted that he experienced various distressing events during his service as described in Exhibit A1, the report of Dr Hordern. Mr Rockliffe described the problems he experienced on his return, which included problems at home because he was uptight, drank excessively, and demonstrated aggressive, abusive and violent behaviour towards his family.
After his discharge, Mr Rockliffe became an operator of heavy plant and machinery for four years followed by two years in Papua New Guinea training others in the use of heavy machinery. Mr Rockliffe said that he re-enlisted in 1974 into the engineers' unit for a further next eight years. He said that he did not think the skills he acquired in the Army were transferable to civilian life.
After his second discharge in 1982, Mr Rockliffe said that he worked first at a marina for approximately a year, before joining the NSW Parliament House as the House Officer in 1984. He described his duties as supervisory in that he was responsible to the building manager for the cleaning and maintenance of both the exterior and interior of the buildings. He described the organisational structure as having two supervisors and approximately 60 staff reporting to him. Mr Rockliffe said that he was employed at Parliament House for 13 years from 1984 to 28 August 1997.
Mr Rockliffe said that since his service, he drank to excess every day and did not ease off until he had a stroke which I noted occurred on 5 January 1999. He said that heavy drinking was an ongoing thing until recently, but that he still sometimes drank to excess. At present he suffers headaches after approximately three glasses of alcohol. Mr Rockliffe gave evidence that he currently drinks three to four glasses of red wine which is his limit, but he also added that he did not do so every day.
Mr Rockliffe reported that his violent behaviour subsided somewhat after he curbed his drinking, and since seeking treatment with a psychiatrist. He said that he was a disciplinarian with his daughters and that he did not get on with them. One daughter had stayed at home for a time to give support to her mother instead of moving out due to the problems he caused at home, Mr Rockliffe said.
As to work; Mr Rockliffe described doing his job at Parliament House well, but said he did not relate well to other people, and never socialised with them. He said that in Vietnam one had to be a "people person" and relate to others, but that there was no one he could relate to after leaving the Army.
Mr Rockliffe said that he got on well his manager, Ms B, who supervised him at Parliament House for four years, and that even though his Post Traumatic Stress Disorder ("PTSD") caused problems in that he was short tempered and uptight, he said he managed. Mr Rockliffe said that on one occasion at work he was at the point of striking a young man who did not obey him, someone he described as a bludger who was reading a book instead of working. He also admitted there had been two occasions at work when he had been reprimanded for drinking.
Following the departure of Ms B in 1987, there was an internal promotion of a male person, ("Mr SB") whom Mr Rockliffe had heard about previously. Mr Rockliffe said further that they did not get on, to the point that towards the end of his time at Parliament House, there was mutual dislike on both sides. He said that Mr SB did not like people of ethnic origins, or ex-service personnel, and that he knew Mr Rockliffe had served in Vietnam. He said that Mr SB belittled him in meetings, and was sarcastic towards him. He said that Mr SB had threatened to replace the cleaning force with contractors and had obtained quotes for that service so that the staff, including Mr Rockliffe were disquieted and felt their jobs were at risk. Mr Rockliffe gave evidence that while he was on leave having knee surgery, there was a strong rumour about that he would be replaced. He said that he felt very upset by the rumour and felt victimised.
I noted that the evidence regarding Mr Rockliffe's view of the work atmosphere at Parliament House was corroborated in the statements of Mr A Beverstock, who from 1989 to 1998 was Manager, Parliamentary Security Services (T15/68), and Mr R Pickering, Cleaning Supervisor, who stated that he had known and worked with the Applicant from 1992 to 1997 (T15/69).
When asked why he left the position at Parliament House in 1997, Mr Rockliffe replied that it was due to his back problems, his drinking and his behaviour at home which led his wife to give him an ultimatum that if he did not leave his job and seek medical help, the marriage would fail. There were, of course, also the pressures associated with working under Mr SB.
Mr Rockliffe said that he had been blaming everyone else for his problems rather than himself, and said that he knew he needed to get medical assistance for his PTSD. He said that if he had not been suffering from PTSD, he could have continued in the job, and was, in fact, due to financial considerations, intending to work until the age of 65.
Mr Rockliffe said that he had not sought work since leaving Parliament House because he had not been able to, due to the state of his general health, and his PTSD. When asked whether he could return to his position if Ms B returned as manager, Mr Rockliffe said that he would not be able to do the job now. He said that he had left to seek treatment and that was an ongoing activity.
Mr Rockliffe also gave evidence that his PTSD affected him, and that his concentration and memory were not reliable, and had deteriorated since his stroke. He said that he lost concentration and at times forgot where he was headed when driving. He said that he suffered a spasm and pain in the neck when he looked up, and had some problems with balance.
EVIDENCE OF MRS ANNETTE ROCKLIFFE - WIFE OF THE APPLICANT

Mrs Rockliffe gave oral evidence before the Tribunal. She corroborated her husband's accounts of his drinking, and violent and anti-social behaviour, and told me that she left her work as a hairdresser not long after Mr Rockliffe left Parliament House because she wanted to attend treatment with him. She agreed that she had issued him with an ultimatum about leaving work and seeking treatment. When asked her occupation, she described herself as housewife and carer.
Mrs Rockliffe said that she had met her husband in 1964, before his Vietnam service, and that they had married in November 1965. She said that on his return from service, the pattern over the years was that he drank heavily, and was violent and abusive. She said that he was drunk most evenings.
When questioned about Mr Rockliffe's memory, Mrs Rockliffe said that he had been forgetful before the stroke, but that since then, it was worse. She also said that her husband's concentration was poor.
Mrs Rockliffe also confirmed her husband's evidence about his aversion regarding social events, and his attitude to his daughters.
Mrs Rockliffe told me that without the pressure of work, and with treatment, her husband's condition had improved a little. She said that they had even discussed him returning to work, but with his back operation, stroke and memory problems, that was no longer a possibility.
EVIDENCE OF DR A HORDERN - CONSULTANT PSYCHIATRIST

Dr Hordern, whose report of 23 August 2000 was before the Tribunal as Exhibit A1, gave oral evidence.
He told me that Mr Rockliffe suffered very serious PTSD and that the effect of ceasing work had had a beneficial effect. Notwithstanding, Dr Hordern said that Mr Rockliffe had no capacity to work.
Dr Hordern was asked in cross-examination whether Mr Rockliffe's responses to the stressful situation he described at work were normal. Dr Hordern's response indicated that it was reasonable for Mr Rockliffe to be upset if he was indeed treated as he had described. Dr Hordern added that each person's response was, of course, a little different.
When asked whether he had done any tests of current mental health or memory, Dr Hordern replied that he had not, but that he expected memory problems of a person who had suffered two strokes, PTSD, and drinking problems.
In his written report, Dr Hordern stated:
"From 1987 onwards … pressures on Mr. Rockliffe escalated and they aggravated his symptoms of Post Traumatic Stress Disorder with Alcohol Dependence. This war-caused disability was in my opinion the substantial cause of Mr. Rockliffe's inability to continue in his employment with the New South Wales Parliament."

EVIDENCE OF DR M BAZ - OCCUPATIONAL PHYSICIAN

A report of Dr Baz of 21 August 2000 was before the Tribunal as Exhibit A2. After a description of her examination findings, Dr Baz opined as follows:
"Mr Rockliffe experiences significant disability as a consequence of his post-traumatic stress disorder….
I consider he was able to cope well in his civilian work in the years immediately following his discharge from the Army because of a supportive relationship from a manager who was the wife of an ex-Army officer.
I consider his difficulties relating to his subsequent manager directly related to the post-traumatic stress disorder. …
I consider he was using alcohol as a coping mechanism to help deal with the stresses at work.
While he considered that employment in another department would be suitable I doubt he would have been able to successfully undertake administrative and clerical duties, maintaining appropriate interpersonal relationships with co-workers, in an alternative position. In my opinion Mr Rockliffe's problems in the workplace related specifically to his difficulty with interpersonal relationships, related in turn to the post-traumatic stress disorder, rather than to any particular stresses involved in tasks or responsibilities of the position he held….
In my opinion Mr Rockliffe is unfit for work of 8 or more hours duration weekly."

EVIDENCE OF DR ALTMAN - CONSULTANT PSYCHIATRIST

Dr Altman, who was the Applicant's treating psychiatrist, had a number of reports before the Tribunal: T3/16 of 6 April 1998; T15/73 of 9 February 1999 and T15/77 of 24 November 1999.
Dr Altman, in his report of 6 April 1998, opined that:
"… in my opinion as a result of his Vietnam experience Mr Rockliffe suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence… as a result of the above mentioned war-related psychiatric disorders alone he is totally and permanently unfit to work…"
In a later report dated 9 February 1999, in which Dr Altman stated that he was still treating Mr Rockliffe, he opined:
"In that latter report [6 April 1998] I stated that in my opinion as a result of his Vietnam experience Mr Rockliffe suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression and Alcohol Dependence…
I am still of the opinion that he suffers from the above-mentioned war-related psychiatric disorders…
Furthermore I am still of the opinion that as a result of the above mentioned war-related psychiatric disorders alone he is totally and permanently unfit to work….
In his third report dated 24 November 1999, Dr Altman stated:
"There has been no major change in Mr Rockliffe's above mentioned war-related psychiatric disorders since last writing to you. I am still of the opinion that he suffers from the above mentioned war-related psychiatric disorders, that his impairment rating is 45 points and that he should be placed on the "T&PI" disability pension…
He continues to suffer from severe symptoms of a Post-traumatic Stress Disorder."

EVIDENCE OF DR D WEINMAN – GENERAL PRACTITIONER

Dr Weinman completed two Medical Impairment Assessment forms with regard to the Applicant dated 22 July 1998 (T5/27) and 16 February 2000 (T14/56). His clinical notes were before the Tribunal as Exhibit R2. There were contemporaneous records within those notes of Mr Rockliffe's distress at work and other problems.
In considering Dr Weinman's assessment on 22 July 1998, I have focused for purposes of these reasons for decision, in particular on the opinions which impacted on Mr Rockliffe's ability to work. Dr Weinman stated that Mr Rockliffe could not concentrate well; could not work with others; could not take instructions; and that he was forgetful.
Dr Weinman, when commenting on the impact of Mr Rockliffe's cerebral ischaemia in his report dated 16 February 2000, stated that the Applicant had vertigo on looking upwards or with sudden neck movement. He also had mild ataxia particularly when tired.
EVIDENCE OF MR D CIPRIANI - CLINICAL PSYCHOLOGIST

Mr Cipriani, whose report of 12 September 2000 was before the Tribunal as Exhibit R3, opined that Mr Rockliffe remained capable of light sedentary work in which he could change position as required. He concluded that:
"… Mr Rockliffe developed PTSD as a result of his exposure to traumatic events and situations, however, PTSD symptoms, back and hip pain, deafness and two
CVAs have not seriously affected his ability to work at least part-time in a number of clerical and service positions. Mr Rockliffe would also be capable of working as a house officer, particularly given his long experience in the position. He could have remained in the position until age 65 but for conflict with a particular building manager."

EVIDENCE OF MR D CIPRIANI, CLINICAL PSYCHOLOGIST and MS A FIGG PHYSIOTHERAPIST - VOCATIONAL CAPACITY CENTRE PTY LTD

Mr D Cipriani and Ms A Figg prepared a joint report dated 18 September 2000, and a further Functional Capacity Evaluation – Summary Report, based on tests carried out on 3 & 4 August 2000 and in September 2000, was prepared by Ms Figg (Exhibit R4).
Ms Figg, in the Functional Capacity Evaluation – Summary Report, concluded that Mr Rockliffe would be physically capable of undertaking work in the "sedentary or semi-sedentary manual work categories for more than eight hours per week or alternately 20 hours per week".
In the joint report of Ms Figg and Mr Cipriani dated 18 September 2000, the writers affirmed the earlier view expressed in the paragraph directly above, that Mr Rockliffe could work in sedentary or semi-sedentary manual work. The report further concluded that Mr Rockliffe's PTSD symptoms had not seriously affected his ability to work part-time.
SUBMISSIONS AND CONCLUSIONS
In coming to a conclusion, I had to take into account all the evidence both written and oral, and the case law, legislation and submissions to make the correct and preferable decision regarding whether Mr Rockliffe is eligible to receive pension at the Special Rate, pursuant to section 24 of the Act. I noted that there was no disagreement between the parties that the earliest date of effect was 28 February 1998. I also had to consider whether the ameliorating provisions in section 24(2)(b) of the Act applied.
The application of section 24 of the Act to Mr Rockliffe required a consideration of whether his war-caused disabilities rendered him totally and permanently incapacitated, that is to say that his war-caused conditions alone rendered him incapable of undertaking remunerative work for periods more than eight hours a week. If so, then I had to decide whether, by reason of that incapacity, Mr Rockliffe was suffering a loss of salary, wages or earnings that he would not be suffering but for the war-caused incapacity.
At the outset I say that I found both Mr and Mrs Rockliffe to be extremely credible witnesses, and noted that both Counsel agreed that there were no issues of credit with regard to the Applicant.
In considering the Applicant's claim for an increase in pension to the Special Rate, I was mindful that the disabilities accepted as war-caused were ununited fracture of tip of right medial malleolus, sensori-neural deafness, lumbar spondylosis and PTSD with alcohol dependence. I noted that the stroke which Mr Rockliffe had suffered on 5 January 1999 had been accepted as war-caused on and from 18 October 1999, well after the application to the Respondent originally made on 29 May 1998.
The Respondent conceded that Mr Rockliffe satisfied sections 24(1)(aa), (aab), (a) and (d). I was satisfied that Mr Rockliffe had made a claim for an increase in the rate of pension he had been receiving pursuant to section 24(1)(aa) of the Act. In satisfaction of section 24(1)(aab) of the Act, I was satisfied that Mr Rockliffe (date of birth 30 May 1937), had not yet turned 65 at the date of his claim on 29 May 1998. His incapacity from war-caused disability had been assessed at 100% in satisfaction of section 24(1)(a) of the Act, and he satisfied the requirement of section 24(1)(d) of the Act in that his condition was not of a temporary nature and as a result, section 25 of the Act was not applicable.
The Respondent did not accept that Mr Rockliffe satisfied the requirements of sections 24(1)(b) or 24(1)(c) of the Act, neither that the ameliorating provisions of section 24(2)(b) of the Act applied.
In considering Mr Rockliffe's eligibility for pension at the Special Rate, I was mindful that the reasons for Mr Rockliffe leaving his position at Parliament House were a matter of contention. At T7, there was a report of Mr J Gunn, Assistant Manager, Parliamentary Building Services dated 20 October 1998 which indicated that the reason for the cessation of Mr Rockliffe's employment on 28 August 1997 was that he was retiring. The Veterans' Review Board found at T15/67, that Mr Rockliffe had:
"resigned from his job because he was not getting on with his supervisor and because of other stressors at work such as the threat by the supervisor to hire contract workers. He told the Board that if his first supervisor was still there he would have remained at work. His letter of resignation made no mention of why he resigned and his application for service pension relied on age…"
I accepted Mr Rockliffe's evidence that Mr SB who replaced the previous supervisor caused him to feel victimised, and I accepted that this aggravated his PTSD to the extent that he felt he could no longer work in his employment at Parliament House. I accepted his evidence that he resigned because he was convinced that he required medical treatment, and was encouraged by his wife to seek such treatment. I was mindful of his letter at T15/72 where he stated that:
"However army training had instilled in me that going sick was not accepted, and I was not a malingerer… My intention was to remain in my job until at least 65 years of age for financial reasons, but at 60 years the victimisation became too much, and if I wished to regain some sort of family and home life, then I should quit rather than going through the embarrassment of being replaced or, in serious trouble for something I will regret."
I understood the phrase: "in serious trouble for something I will regret" to refer to Mr Rockliffe's irritability, and his inability to cope with the stressors in his job.
In reply to a question regarding why he had ceased work on the Respondent's "Employment Questionnaire', (T8), Mr Rockliffe wrote: "I retired due to a back condition and personal problems later diagnosed as P.T.S.D. …"
Mr Colborne submitted that the Applicant relied on the opinions of Drs Altman and Weinman, who had treated Mr Rockliffe over a period of time and also interviewed his wife, rather than the report of Mr Cipriani who had seen the Applicant for medico-legal purposes only, and had not interviewed Mrs Rockliffe. The Applicant also relied on the opinion of Dr Hordern.
Mr Colborne drew to my attention several points from Mr Cipriani's report, who had found at paragraphs 11.4 and 11.5 of his report (Exhibit R3), in particular as a result of the Beck Depression Inventory (BDI-2) discussed at paragraph 11.5, that Mr Rockliffe's score of 41 suggested a "severe level of depression". Mr Colborne emphasised what he saw as inconsistency with the contents of paragraph 15.2 where Mr Cipriani had indicated his view that Mr Rockliffe was exaggerating memory impairment. By way of support of Mr Rockliffe's condition, Mr Colborne drew my attention to Dr Hordern's report (Exhibit A1), in which Dr Hordern indicated that it was unfortunate Mr Rockliffe had not sought medical advice before he resigned his position. He opined:
"This was probably due to his lifelong aversion, strengthened by Army service, to report sick."
Mr Colborne also drew my attention to the fact Ms Figg (Exhibit R4) considered that Mr Rockliffe's pain reporting was:
"… consistent with observed physical limitations and weakness in the trunk, lumbo pelvic girdle and lower limbs. Pain behaviours and pain reporting however were not the major limiting factors to task performance during the assessment and it was considered that there was no exaggerated reporting of pain or symptom embellishment … The reader is referred to other assessors for assessment of the impact of Mr Rockliffe's reported deafness, psychological disorder, and elevated blood pressure on his ability to return to work."
Ms Doggett, relying on the report of Mr Cipriani, submitted that he was the only vocational expert retained in these proceedings, and the only one who used objective testing.
I noted that Dr Cipriani, whose opinion was shared by Ms Figg, opined that Mr Rockliffe was capable of undertaking light, sedentary work:
"… Mr Rockliffe developed PTSD as a result of his exposure to traumatic events and situations, however, PTSD symptoms, back and hip pain, deafness and two
CVAs have not seriously affected his ability to work at least part-time in a number of clerical and service positions. Mr Rockliffe would also be capable of working as a house officer, particularly given his long experience in the position. He could have remained in the position until age 65 but for conflict with a particular building manager."
Mr Colborne submitted that Dr Altman, the treating psychiatrist, had opined in two separate reports (T15), that Mr Rockliffe was totally and permanently unfit for work and that he should be awarded the "TPI disability pension".
Mr Colborne also drew to my attention the comments of Dr Weinman, Mr Rockliffe's General Practitioner, in the Medical Impairment Assessment Form at T5 and the questionnaire he completed on 21 February 2000 at T15/70, which post-dated the stroke. I noted in particular that Dr Weinman had replied in the affirmative to the question on the questionnaire which inquired as to whether the Applicant's incapacity for employment was due entirely to the effects of service related disabilities.
Dr Baz, Mr Colborne submitted, had written her report before Mr Rockliffe had suffered the stroke, and I noted that even then she had concluded that he was unfit for work of 8 hours or more duration weekly. I noted that her reasoning was that the substantial reason for the unfitness was Mr Rockliffe's accepted disabilities, in particular the PTSD.
Mr Colborne submitted further that it was the evidence of both Mr and Mrs Rockliffe that he could not work from the date of his retirement from Parliament House due to his PTSD and other accepted disabilities.
In considering Mr Rockliffe's situation pursuant to section 24(1)(b) of the Act, Ms Doggett submitted that he had residual work capacity. She submitted that the case law contemplated neither a benevolent, nor an inappropriate work place, but rather a "normal" workplace. Ms Doggett submitted that the Tribunal should distinguish between a temporary and appropriate response to the difficulties Mr Rockliffe encountered regarding the supervisor and stress at work. She acknowledged that the Applicant felt victimised and threatened by the prospect of his work being contracted out. She said that the Respondent understood that Mr Rockliffe's feelings were an appropriate response to the situation, and agreed the PTSD did not make it any easier for the Applicant to cope.
Ms Doggett submitted that if the influence of Mr Rockliffe's supervisor at Parliament House was a factor in the aggravation of his PTSD, then that was to be considered a separate incident. She likened it to the situation where a person with a leg injury accepted as war-caused, hurt his leg again in a separate fall. Mr Colborne did not agree with that scenario and submitted that the aggravation due to the supervision by Mr SB was part of the same event, and not to be characterised as a separate injury. He emphasised that Mr Rockliffe could have coped with Mr SB but for his PTSD.
Ms Doggett also submitted that Mr Rockliffe was "like-minded" with one or two of his supervisors, and indicated from the statement of Mr Beverstock (T15/68) that the Applicant and the writer got along well. She drew my attention to a form at T7/36, where I noted that in response to a question dealing with reasons for termination of employment (which included a prompt regarding ill health), Mr Gunn, who completed the form had not indicated anything other than "retire" in his reply. Notwithstanding, I noted that the form was completed Mr Gunn, who at the time was the Assistant Manager of Parliamentary Building Services and not Mr Rockliffe, and accordingly, the weight attached to the document should be reflect this fact. Ms Doggett also reminded me that Mr Rockliffe had indicated that the job he did was not difficult, and that he had done it satisfactorily for 13 years.
Ms Doggett then drew my attention to the fact that Mr Rockliffe answered questions and appeared to have good recall in the witness box. Mr Colborne explained, submitting that in his evidence before the Tribunal, Mr Rockliffe was traversing ground he had covered on many occasions for his examining doctors and for his lawyers.
I found Mr Rockliffe to be concentrating quite well until he became visibly more tired towards the end of the cross-examination and asked for a question to be repeated. Further, I found he did not remember certain dates accurately.
I was also mindful that in the submissions of the Respondent regarding the report of Dr Weinman at T5/27 who, in reply to question 6 regarding social and interpersonal relationships, had written that Mr Rockliffe:
"Cannot react with people
Cannot easily follow thread & purpose of conversation
Cannot restrict conversation to appropriate topics
Can respond unsuitably"
I was also mindful that Dr Baz had opined:
"While he considered that employment in another department would be suitable I doubt he would have been able to successfully undertake administrative and clerical duties, maintaining appropriate interpersonal relationships with co-workers, in an alternative position. In my opinion Mr Rockliffe's problems in the workplace related specifically to his difficulty with interpersonal relationships, related in turn to the post-traumatic stress disorder, rather than to any particular stresses involved in tasks or responsibilities of the position he held….
In my opinion Mr Rockliffe is unfit for work of 8 or more hours duration weekly."
In conclusion, Ms Doggett submitted that the Applicant had a residual capacity to work, and that his retirement was not due to his war-caused disabilities alone because clearly it was his workplace which contributed.
In coming to a decision, I was mindful that to be eligible for Special Rate of pension, I had to be satisfied that Mr Rockliffe's incapacity from his war-caused disabilities was of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week, and that I had to determine whether by reason of his war-caused disabilities Mr Rockliffe was suffering a loss of earnings he would not have been suffering but for his war-caused disabilities.
In this regard, I noted the decision of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, where he made the following comments in relation to the "alone" test:
"The tendency of that is to distract the tribunal from its true task - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
Having considered the applicable case law and the medical evidence, as well as that of the Applicant and his wife, I preferred the submissions of Mr Colborne that Mr Rockliffe's treating doctors Altman and Weinman, who having seen him over a period of time, were far more qualified to comment on the Applicant's memory and other characteristics than those of us who had observed him for but a few hours in the Tribunal. In this regard, I was persuaded by the opinions of Drs Weinman, Altman, and Baz, who opined that Mr Rockliffe's incapacity from war-caused disabilities were of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. I noted that Dr Hordern opined that Mr Rockliffe's PTSD with Alcohol Dependence was the substantial cause of the Applicant's inability to continue with his employment at Parliament House. I accepted the evidence of Mr and Mrs Rockliffe that the war-caused conditions, in particular the effects of stroke, alcoholism and PTSD caused Mr Rockliffe difficulties at work, culminating in his not being able to work further after 28 August 1997.
I acknowledged Ms Doggett's submissions that Mr Cipriani was the only professional to have carried out tests, and noted both his and Ms Figg's assessments, which found that Mr Rockliffe had a residual work capacity.
However, from the material before me, I preferred the opinions of the other medical practitioners listed above over those of Ms Figg and Mr Cipriani in relation to Mr Rockliffe. I found from Mr Rockliffe's evidence and the submissions made on his behalf that he could not undertake remunerative work for periods aggregating more than eight hours per week, and therefore satisfied the requirements pursuant to section 24(1)(b) of the Act.
I then considered the application of section 24(1)(c) of the Act and found from the evidence before me that Mr and Mrs Rockliffe gave, as well as that of Drs Weinman, Altman and Baz that Mr Rockliffe was by reason of his incapacity from his accepted war-caused injuries alone prevented from undertaking remunerative work that he had been undertaking. I was satisfied to the requisite standard pursuant to section 120(4) of the Act that Mr Rockliffe was suffering a loss of income that he would not have been suffering had he been free of those incapacities. In coming to that decision, I did not accept the opinions of Ms Figg and Mr Cipriani and the submissions of Ms Doggett that Mr Rockliffe had residual work capacity. I was mindful that Mr Cipriani stated that: "Mr Rockliffe presented quite normally at clinical interview and his PTSD symptoms would not be evident to prospective employers." I was mindful of Mr Rockliffe's serious moral stance about his work, instilled through his army training, and his evidence that "going sick was not accepted…".
I relied on the fact he had memory loss, concentration loss, and that he was not capable of dealing with situations in the workplace as a result of his PTSD and stroke. I was satisfied that he did not demonstrate substantial memory loss or loss of concentration at the Tribunal hearing, but was satisfied with the submissions of Mr Colborne that he had been talked through his situation in many interviews with doctors and his lawyers and was very familiar with it.
WHETHER SECTION 24(2)(b) OF THE ACT APPLIED TO THE APPLICANT'S CIRCUMSTANCES

For the sake of completion, I then moved to also consider the application of section 24(2)(b) of the Act. Mr Colborne submitted that the ameliorating provisions contained in section 24(2)(b) of the Act applied to Mr Rockliffe's case. As relevant section 24(2)(b) of the Act follows:
"24…
(2)…
(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."
Mr Colborne cited case law, relying in particular on Hall v Repatriation Commission (1994) 33 ALD 454 to at least be persuasive if not binding on this Tribunal. He submitted that Mr Rockliffe who retired before the age of 65, was not precluded from receiving a benefit merely because he did not actively seek work after leaving Parliament House. Mr Colborne was of the view that the deemed provision could apply because Mr Rockliffe had a stated intention that he wanted to work to age 65, and would have, but for his war-caused disabilities, and the effects on his PTSD of Mr SB's treatment of him.
Ms Doggett on the other hand, argued that section 24(2)(b) of the Act did not apply in Mr Rockliffe's case. She submitted that he had left work due to the disagreements with the supervisor and if that had resulted in a separate injury, then a situation apposite with that in Banovich v Repatriation Commission (1986) 69 ALR 395 had arisen. I noted in that case that the Applicant suffered osteoarthrosis of the hip and fell damaging his hip further. Ms Doggett submitted that the Respondent relied on Banovich (supra) as authority. In Banovich the aggravation of the hip problem resulting from a further fall had not been accepted as part of the same condition, but had been considered a separate injury. Similarly, if Mr Rockliffe suffered aggravation of his PTSD through the reaction to his supervisor's actions, then it was a separate injury she submitted. Ms Doggett accepted that Mr Rockliffe was an honest and reliable witness submitting that clearly it was the circumstances regarding his supervisor and job which were the problem.

In contrast, Mr Colborne submitted that the effects of the problems at work had to be viewed in the full context of all Mr Rockliffe's problems, that the work problem was an aggravation of his PTSD, and that the incapacity was not divisible and could not be distinguished as a separate condition.
I was mindful that in considering the application of section 24(2)(b) of the Act, I had to consider whether Mr Rockliffe who was engaged neither in seeking nor in undertaking active remunerative work since leaving Parliament House, would but for his war-caused disabilities have been continuing to seek to engage in remunerative work, and whether those disabilities were the substantial cause of his inability to seek or obtain remunerative work in which he could be engaged.
I was satisfied from the evidence before me that Mr Rockliffe intended for financial reasons to work until the age of 65, and that he left his job at Parliament House because his war-caused disabilities caused him to be unable to continue in that employment. I was satisfied that the effect of working under Mr SB caused aggravation to Mr Rockliffe's PTSD to the extent that he could no longer work in his position as House Officer. Mr Rockliffe also told me in evidence that he could not return to that job even if his previous manager returned. Moreover, I noted that his doctors opined that he had no residual work capacity. I further noted that Mrs Rockliffe left her employment to assist her husband with access to his medical treatment.
I was therefore satisfied that Mr Rockliffe also met the conditions required to satisfy section 24(2(b) of the Act.
The decision of the Tribunal is therefore that the Applicant satisfies the requirements for sections 24(1)(b) and 24(1)(c) of the Act as well as section 24(2)(b) of the Act. He is entitled to be paid a pension at the Special Rate on and from 28 February 1998.
DECISION
The Administrative Appeals Tribunal sets aside that part of the decision of the Respondent, Repatriation Commission, dated 26 October 1998 as affirmed by the Veterans' Review Board on 23 February 2000 in respect of the assessment of the rate of pension payable to the Applicant, Mr Ronald John Rockliffe.
In substitution for that part of the decision set aside, the Administrative Tribunal finds that Applicant is eligible to be paid pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 on and from 28 February 1998.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  28 February 2001
Date of Decision  24 April 2001
Counsel for the Applicant        Mr C Colborne
Solicitor for the Applicant         Mr B Winship
Counsel for the Respondent    N/A
Solicitor for the Respondent    Ms M Doggett