Rogers and Repatriation Commission - [2002] AATA 762

DECISION AND REASONS FOR DECISION [2002] AATA 762

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/202

VETERANS' APPEALS DIVISION        )
           Re      John Lindsay Rogers
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member Professor T Sourdin, Member
Date 5 September 2002

PlaceSydney

Decision      The decision under review is set aside pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. Mr Rogers has a war-caused condition of lumbar spondylosis. He is entitled to Disability Pension for this condition with effect from 14 November 1999. 2. Pension is assessed and payable at the Special Rate with effect from and including 14 November 1999.
  …..………………………….
   Ms SM Bullock
   Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – Disability Pension – Operational Service – Reasonable Hypothesis – Lumbar Spondylosis – Assessment – Reasonable Satisfaction – Special Rate
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 5D, 9, 13, 24, 28, 119, 120, 120A
AUTHORITIES
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission (2000) 62 ALD 174
Arnott v Repatriation Commission (2001) 106 FCR 83
Dixon v Repatriation Commission (1999) 59 ALD 315; (1999) 29 AAR 235
Re Boardman and Repatriation Commission [2001] AATA 764
Chambers v Repatriation Commission (1995) 55 FCR 9
Banovich v Repatriation Commission (1986) 69 ALR 395
Hutton v Repatriation Commission (1998) 49 ALD 8
Repatriation Commission v Bey (1997) 79 FCR 364
Bull v Repatriation Commission (2001) 66 ALD 271
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
Repatriation Commission v Wilson (1996) 43 ALD 777
Jackman v Repatriation Commission (1997) FCA 564
Re Davis and Repatriation Commission (1987) 12 ALD 483
Browne v Dunn (1893) 6 R 67
Magill v Repatriation Commission [2002] FCA 744
Hendy v Repatriation Commission [2002] FCA 602

REASONS FOR DECISION

5 September 2002 Ms S M Bullock, Senior Member Dr P D Lynch, Member Professor T Sourdin, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr John Lindsay Rogers, of a decision made by the Veterans' Review Board ("the Board") dated 13 December 2000 (T21) which varied the decision of the Repatriation Commission dated 24 July 2000 (T2), changing the diagnosis of Mr Rogers' spinal condition from "disc lesion with sciatica" to "lumbar spondylosis" and affirming the decision as varied.
A hearing was held in Sydney on 4 February 2002. Mr Rogers provided oral evidence to the Tribunal and was represented by Mr N Dawson of Counsel. The Respondent, the Repatriation Commission ("the Commission"), was represented by Ms P Hook, Departmental Advocate. Taken into evidence were documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T24) and the following exhibits:
Exhibit No.   Description Date
A1      Statement by Mr J Rogers 26 April 2001
A2      Further statement by Mr J Rogers 10 May 2001
A3      Statement by Retired Wing Commander A K Smorti     10 April 2001
A4      Statement by Mr T McCombe, OAM, President, Vietnam Veterans' Association of Australia, NSW Branch 12 November 2001
A5      Report by Dr P E Giblin, Orthopaedic Surgeon 13 June 2001
A6      Invalidity Service Pension Determination including Combined Impairment Report 8 December 2000
A7      Report by Dr T Nguyen, Medical Adviser, Health Services Australia 27 November 2000
A8      Report by Dr S K Law, Consultant Psychiatrist 5 July 2001
A9      Further report by Dr S K Law, Consultant Psychiatrist 14 January 2002
R1      Report by Dr D Macauley, Consultant Physician in Musculoskeletal Medicine and Rheumatology         27 June 2001
R2      Report by Mr P Defina, Clinical Psychologist     29 August 2001
R3      Report by Dr S K Law, Consultant Psychiatrist 18 June 2001
R4      Employment Records from the Department of Defence          Various
R5      Repatriation Medical Authority Explanatory Notes for tabling in relation to Statement of Principles, Instrument Number 359 of 1995 concerning Lumbar Spondylosis

ISSUES

The issues before the Tribunal are:
(a)Whether or not Mr Rogers has a war-caused condition of lumbar spondylosis; and if so
(b) What is the correct assessment of this condition;
(c)Whether or not Mr Rogers is qualified for payment of pension at the Special Rate.

SERVICE

Mr Rogers served in the Royal Australian Airforce ("the RAAF") from 12 May 1964 until 15 May 1989. Mr Rogers served in South Vietnam from 7 December 1967 until 11 December 1968. This service constitutes operational service for the purposes of the Veterans' Entitlements Act 1986. Mr Rogers also served from 7 December 1972 until 15 May 1989. This service constitutes defence service as defined in Part IV of the Veterans' Entitlements Act 1986 (T3, p11).
LEGISLATION
A decision in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act").
Mr Rogers has both operational and defence service. Because the circumstances relied upon for the decision in relation to entitlement occurred during operational service, the Tribunal will confine its consideration to that period of service.
Section 5D of the Act deals with the definition of injury and disease.
Section 9 of the Act deals with war-caused injuries or diseases and provides as relevant;
" 9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise…"

Section 13 of the Act deals with eligibility for pensions.
Section 24 of the Act deals with qualification for an earnings related pension at the Special Rate. As relevant, section 24 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…"

Section 28 of the Act deals with a veteran's capacity to undertake remunerative work and as relevant states:
"28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(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)…."
Section 119 of the Act deals with the Commission or the decision-maker standing in the Commission's shoes, not being bound by the technicalities. It recognises that decision-making under the Act is of an administrative rather than a judicial nature. Section 119 of the Act allows decision-makers to take into account matters such as the effects of the passage of time, the absence or deficiency in records, and the dimming of a veteran's memories.
The required standard of proof in relation to Mr Rogers' operational service is that of the reasonable hypothesis. The Tribunal is required to apply subsections 120(1) and 120(3) of the Act, which as relevant provide:
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
…"
Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
"120A Reasonableness of hypothesis to be assessed by reference to
Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be…."
In relation to the assessment of the rate of a veteran's Disability Pension, the Tribunal must decide such matters to its reasonable satisfaction as is detailed in subsection 120(4) of the Act. Section 120(4) of the Act states:
" (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.
…"

STATEMENTS OF PRINCIPLES

The relevant Statement of Principles in this matter is Instrument Number 27 of 1999 concerning Lumbar Spondylosis.
EVIDENCE OF MR JOHN LINDSAY ROGERS
Mr Rogers described for the Tribunal an injury which he stated he suffered in October 1968, when he was serving in Vietnam. At that time, Mr Rogers was an Assistant Loadmaster in the RAAF. His duties involved him in such activities as stores inventory, audit, ensuring the provision and consignment of stores and participating in flights to assist in the loading and unloading of supplies or passengers from aircraft. Mr Rogers stated that the incident involved him unloading goods from a Caribou aircraft late in the afternoon, one stop before Saigon. When the aeroplane landed, the engines were kept running and everything had to be undertaken quickly. Mr Rogers noted that he was connected by microphone for communication. He noted that the loading ramp from the aircraft was three or four feet off the ground and there was a gap between the aircraft's ramp and the ground. Mr Rogers believed that something had been spilt on the ramp which caused him to slip. He fell from the aircraft feet first to the ground hitting his lower back, between his belt line to the top of his buttocks. Mr Rogers stated that he did not believe that he lost consciousness.
After the incident, and having being helped back onto the aircraft, Mr Rogers lay across the rear seat in the aeroplane. There was no more work to be done that day and he got back to his base at approximately 6pm which was the time that the evening meal was served. Mr Rogers did not remember eating dinner that night.
Mr Rogers told the Tribunal that immediately after the fall from the aircraft, he felt pain across the middle of his back and lower down his back. When he arrived back at base, he had a hot shower. Mr Rogers was sharing a tent with a medical orderly, Tony Morley, who looked at Mr Rogers back and rubbed it. Mr Rogers was provided with some analgesics which he thought was "Dispirin". Mr Rogers did not think that the medical orderly thought that his back was that bad, but he told Mr Rogers that he would monitor it. Mr Rogers noted that it was considered somewhat of a joke that he had fallen out of the aircraft, but the pain he experienced was no joke. Mr Morley told Mr Rogers that he should monitor his back for one or two nights and if there was no improvement, then he should go to the RAAF doctor. Mr Rogers stated that he and the other men at the time were reluctant to visit the base doctor because it was generally felt that he was not particularly good, he was not respected and there was a general view amongst the men that the doctor consumed far too much alcohol.
Mr Rogers stated that the medical orderly sharing his tent examined his back every day and continued to give him backrubs and analgesic medication. Mr Morley even had to tie Mr Rogers' bootlaces for a number of days because he could not bend down. Mr Rogers stated that his back was sore for ten to 12 days, but gradually improved.
Mr Rogers further stated that he was unable to undertake all his work duties and his supervisor, Wing Commander A K Smorti, helped Mr Rogers in fulfilling his duties. Wing Commander Smorti was a "good boss". In this regard, Mr Rogers could not carry goods around the aircraft hanger. He was assisted by Wing Commander Smorti and other men. Mr Rogers recalled that because he was not able to properly undertake his work in the hanger, he undertook office work for a while, he thought for approximately two weeks. Furthermore, Mr Rogers was unable to travel to his place of work by the usual transport by truck, but had to travel in a jeep because he was unable to get into the truck. If Mr Rogers had officially reported his back injury, he believed that he probably would have been given light duties but he did not want to do that. Mr Rogers explained that it was the culture of servicemen not to whinge and just to get on with the job. He did not wish to report his back. One was meant to be tough, he told the Tribunal.

Mr Rogers flew again one month later. His back was too sore to fly prior to that time. Although Mr Rogers noted that his back pain and symptoms eventually improved, until it did, he was restless, shifting in his positions when seated, and could not walk for long periods.
Mr Rogers' evidence is that while his back improved, he still experienced twinges from time to time until about 1977 when he sought medical attention. It was in the late 1970s that he recalled having a flare-up of sciatica. Mr Rogers noted that he did not take any time off work because of his back condition. If he played golf, his back would become stiff. Mr Rogers had initially thought this occurred because of his lack of physical fitness. In 1975, Mr Rogers had a motor vehicle accident when his right shoulder and neck were injured but he recovered. Mr Rogers disagreed that he had first sought assistance for his back in 1977 (T4, p14), stating that he had received treatment when he was still on service.
In 1979, Mr Rogers was referred to Dr Rowe because of back pain. Mr Rogers had been working in Canberra at that stage. Mr Rogers was advised to use "Dencorub" ointment and had physiotherapy in 1979. In 1983, Mr Rogers had an epidural block injection. He would do exercises as shown to him by the physiotherapist in 1978/79. In the RAAF, Mr Rogers was promoted to Sergeant and then undertook more clerical duties.
Mr Rogers stated that he had applied for a Disability Pension in relation to his back in 1997. He did not know at that time, he explained, that he had to report anything about his fall. Mr Rogers stated that no one had told him that he should report the fall. The initial claim for back condition was refused. Subsequently, Mr Rogers reapplied for Disability Pension in relation to his back condition and, at that time, he related the incident of falling from the Caribou aircraft while serving in Vietnam.
After his service, Mr Rogers was employed as a storeman, but within a few weeks he took up office duties for the Department of Defence where he stayed until October 1999. Mr Rogers stated that he was still experiencing some difficulties with his back. It was often quite sore and he would need to change positions. Mr Rogers also obtained orthotic inserts for his shoes to help with his walking. He tried to maintain his back exercise program.
During his post-service employment, Mr Rogers worked in sedentary positions and did not put stress on his back, he told the Tribunal. As an ASO8 officer of the Department of Defence, he was not required to lift or carry heavy items. Mr Rogers has lived with a sore back for 30 years, he stated, and it was becoming worse. When he consulted doctors about his back, Mr Rogers was not asked about whether or not he had had a fall in the past but rather, there was discussion about his posture, his seating arrangements and configuration of his workspace. Mr Rogers said that he has been on the nonsteroidal anti-inflammatory medication, "Celebrex", for a few years.
Specifically referring to his work for the Department of Defence, Mr Rogers noted that he was there for 35 years but that working was becoming more and more difficult. He had told Mr Defina, Clinical Psychologist, that he had no employment problems prior to 1995 (Exhibit R2, p5) and reiterated that at the hearing. Mr Rogers told the Tribunal that he worked in a section which became the subject of the Defence Reform Program, commencing in 1997. Mr Rogers was responsible for redundancies and redeployment. He managed reductions in staff from 300 down to four, which was the position at the time of his own redundancy. As a result of the implementation of that program, many people left the organisation through redundancies, downsizing and reorganisation. During this period, Mr Rogers was the Redeployment Officer in Sydney for 300 staff. It was not a pleasant position to be in, Mr Rogers stated, as it was difficult telling older and long serving members of staff that their career was at an end. It was particularly hard in regional areas where there was a great deal of resentment. Mr Rogers told the Tribunal that he bore the brunt of some of that resentment and strong feeling against the Department's reorganisation and downsizing strategies.
Working as the Executive Officer for the Defence Quality Assurance Organisation of the Department of Defence, there was a Director who was Mr Rogers' senior. Mr Rogers' position entailed the efficient operation of all personnel and financial matters and he had been seven years in that position. Mr Rogers had to deal with staff lying and not performing. He was required to institute disciplinary procedures, from time to time. This was a difficult position with a great deal of stress. In 1996, the Defence Quality Assurance Organisation became the Defence Acquisition Regional Office.
During the latter stages of Mr Rogers' employment, he described having staff problems. He was accused of being racist and sexist. In his statement, Mr Rogers noted that in his office, he was referred to as having an "age attack" because he would often forget details including names. He began to avoid contact with people. At that time, Mr Rogers held financial and human resources delegations. Mr Rogers' human resources delegations were taken off him however because of many complaints about him. He saw this as a demotion. His financial delegations were also taken away in 1999 and he was asked to return his office credit card. The loss of financial delegations related in part to the new organisational arrangements. Mr Rogers stated that he was increasingly unable to manage the new human resources computer system and its keystrokes. During this period, Mr Rogers considered himself having been relegated to the position of "the office boy". His behaviour at this time was characterised by continual swearing, losing his temper and being accused of intolerance.
Mr Rogers took the redundancy in October 1999 to maximise his financial situation, as he knew his anxiety state was deteriorating and he would have to leave work because of that condition (Exhibit A2). Mr Rogers agreed that he had not taken a great deal of sick leave and the leave he did take related to minor matters such as a cold. Mr Rogers stated that he did not want to tell his colleagues that he was having time off because of anxiety. He worked long hours and then from time to time would take an "half-day flex" and go home at lunchtime because it was all too much for him. Mr Rogers described finding it increasingly difficult to concentrate. He would invent reasons for not attending meetings so he could isolate himself in his office and not have to deal with people or any conflict. He was also drinking a great deal of alcohol in the afternoons at that time.
Prior to accepting the voluntary redundancy, Mr Rogers had attempted to find employment through redeployment. He completed his curriculum vitae and sent copies off to various organisations but was not successful. Mr Rogers told the Tribunal that he tried but could not take on new tasks or training to acquire new skills. He tried to arrange for redeployment to the Electoral Commission and to the Commonwealth Department of Administrative Services. Mr Rogers stated that he had Defence Department experience and had been working in that environment for so long, that he did not know anything else about other systems and found it difficult to learn. Furthermore, the job descriptions he obtained for various positions not only would have required his retraining to acquire new skills, but there were also associated duties requiring bending and/or lifting. If there were any positions requiring customer relations, Mr Rogers said he would be unable to undertake such work. He explained that he had such difficulties in his last place of work concerning dealing not only with internal staffing matters but external dealings with the public or inter-departmental inquiries. Face to face dealing with people left Mr Rogers feeling extremely anxious, often unable to control his anger and then leading to verbally abusive situations. Mr Rogers stated that he could have been redeployed if he had dropped a number of grades or been able to travel long distances to other work locations. Given his back condition, Mr Rogers was not prepared to travel miles. In relation to other types of work, which he on paper could conceivably do because of his experience and skills, Mr Rogers noted that he was unable to follow the new human resources / personnel systems, the software associated with various human resource management and financial management functions.
Mr Rogers told the Tribunal that he did not wish to leave the workforce. He would have liked to have retired during the normal course of events and travelled. By the time he did leave work, this was not possible. At that time, whilst his back was providing intermittent difficulties, he stated that it was not "an issue".
It was in 1997 that Mr Rogers was first treated for his psychiatric condition while he was still at work. Mr Rogers was having difficulties sleeping, Mrs Rogers was also anxious and Mr Rogers had started having significant problems with his memory, concentration and had poor impulse control when he was frustrated. Mr Rogers spoke to other veterans about his problems and was advised by many veterans that they were experiencing similar difficulties. It was recommended to Mr Rogers that he consult Dr Law, Consultant Psychiatrist. Initially, Mr Rogers was seeing Dr Law every three months, then every two months and more recently every six weeks. Mr Rogers takes the medication Zoloft 150mg and medication to assist with his high alcohol consumption. Dr Law had told Mr Rogers that he has depressive symptoms. Each day, Mr Rogers feels terrible, he believes that "life is cheap and not worth living".
Having left work in October 1999, Mr Rogers had a short break and then in January or February 2000, he registered with the then Commonwealth Employment Service ("the CES"). He was shown how to use the CES job screen. Mr Rogers looked for part-time employment, but all the positions included some elements which he believed would aggravate his anxiety condition. In this regard, Mr Rogers tried for positions as a part-time supervisor also in human resource functions and sales positions. Mr Rogers sent letters to various prospective employers but he received "knock backs" and by April or May 2000, he ceased his job seeking activity. The reasons given to him for refusal of employment included him being described as "old fashioned" and that he could not manage the software associated with various management functions. Mr Rogers told the Tribunal that at the time he was looking for various positions, including when he was investigating redeployment options, he came to the conclusion that he would have to have a "crib sheet" to remind himself of what tasks he had to do and prompts as to how to undertake various actions. Mr Rogers was at the stage prior to leaving the Department of Defence, when he would forget where he was up to in a conversation. He just did not feel mentally or physically capable of continuing working.
Mr Rogers told the Tribunal that he still wanted however to try and keep his mind active and to this end, in about February or March 2000, he commenced undertaking voluntary work one day per week with the Vietnam Veterans' Association of Australia ("VVAA"). At that time Mr Rogers was feeling very despondent and he believed that if he went to the VVAA, it might improve his clerical skills and his motivation. By the end of 2000, Mr Rogers formed the view that he could not work at all. It was twelve months since the redundancy.
At the VVAA, Mr Rogers works three or four hours per day on Monday and then less on Tuesday. He has undertaken a three-day training course as a Pension Officer, training provided by the Returned Services League ("RSL") for the VVAA. Mr Rogers told the Tribunal that he had difficulties with this training course including concentration difficulties. He was given notes and a reference book and this was most beneficial because he was not having to rely on his memory. Mr Rogers could simply look up various issues in the handbook. Mr Rogers told the Tribunal that he can type a letter using the "two-finger" approach. He can also use the internet. Mr Rogers' duties at the VVAA include photocopying, helping applicants complete pension claim forms and Lifestyle Questionnaires and also some filing. There are ten or 12 people who work at the Association, some of whom are Vietnam veterans and some of whom are paid. Mr Rogers is able to have breaks during his work time and then he can go home if he is not feeling well.
Referring to Clinical Psychologist, Mr P Defina's suggestions as to various suitable occupations, Mr Rogers told the Tribunal that in terms of human resource functions, he had lost all his personnel delegations while working at the Department of Defence. These delegations were lost because he could not train to update his skills in the relevant software packages. Furthermore, Mr Rogers stated that he lost confidence dealing with people and their problems, be those personal or work-related.
Mr Defina had also suggested that Mr Rogers could undertake work in the quality assurance field. Mr Rogers told the Tribunal that he had done such work in the past, but not recently. He was concerned that he would not be able to retrain because of his concentration and memory problems and because of his propensity for becoming easily frustrated and anxious. In relation to the suggestion of work as a project program administrator, Mr Rogers did not know what that position entailed. In relation to the suggestion he could be a wool classer, this occupation has changed since 1962, when he last worked in this field and Mr Rogers explained that he would have no idea how to work in that area of endeavour now.
Mr Rogers stated that he currently spends his day pottering around the garden. He has long-handled lightweight tools which do not aggravate his back condition. Mr Rogers also reads, shops and talks to friends. He spends time on the internet. Occasionally, Mr Rogers will play golf, but cannot swing properly because of his painful back. He plays on the short courses, or if large, Mr Rogers will use a golf buggy. Walking long distances aggravates his back pain and in fact, his "back gives out".
Mr Rogers stated that he has other health problems besides lumbar spondylosis and his anxiety state. He has a blood condition, haemochromatosis, which is a chronic disease characterised by excessive deposits of iron in the body. This condition may be idiopathic, dietary, due to blood transfusion or erythropoietic. The condition may effect the liver and can be exacerbated by alcohol. Mr Rogers has to have a blood test regularly. He also has heel spurs. Mr Rogers' right foot had a nerve trapped in the spur and in July or August 1999, he had a surgical procedure before ceasing employment. Unfortunately, as a result of this surgery, Mr Rogers suffered deep vein thrombosis. Mr Rogers also suffers from hypertension and has had polyps removed from his bowel. He takes medication for hypertension, arthritis, gastric reflux and anxiety. Mr Rogers has accepted war-caused conditions of bilateral sensorineural hearing loss, anxiety disorder and tinea.
Mr Rogers concluded his evidence by stating that he does not believe he can work either full or part-time. He stated that he cannot be tied down because he becomes too worried about work and having to deal constantly with people. To be retrained is also daunting for him because of his poor memory and concentration.
EVIDENCE OF DR P E GIBLIN, ORTHOPAEDIC SURGEON
Dr Giblin provided a report dated 13 June 2001 (Exhibit A5).
Dr Giblin noted a history of Mr Rogers serving in Vietnam in the RAAF, working as an Assistant Loadmaster. Dr Giblin had taken a history of Mr Rogers slipping off a ramp at the back of a Caribou aircraft and falling three or four feet to the ground landing heavily, flat on his back. There was no previous history of back symptoms, Dr Giblin further reported. Dr Giblin had noted a history of Mr Rogers receiving heat, massage and analgesics for several weeks after the incident. Mr Rogers improved 90 per cent but was restricted in terms of prolonged walking and sitting. During the course of his service in Vietnam, Dr Giblin understood that Mr Rogers had to frequently get up and walk around and was unable to climb into the truck taking him to work, as he usually did, having for some time to travel to work in a jeep. Following service, Dr Giblin noted that Mr Rogers had a history of back pain and treatment which included chiropractic management, physiotherapy, regular "Brufen" medication and an epidural steroid injection in 1988.
At the time of Dr Giblin's report dated 13 June 2001, Mr Rogers was complaining of constant backache, aggravated by physical activity such as coughing, sneezing, twisting and prolonged walking. Mr Rogers had difficulty lifting weights greater than ten kilograms and also difficulty in playing golf more than once every two or three months. Dr Giblin noted that Mr Rogers mows the lawns but cannot garden or undertake heavy domestic responsibilities. At the time of examination, Mr Rogers was taking the medication Celebrex and Zoloft.
Dr Giblin diagnosed a soft tissue injury to the lower back consistent with factor 5(h) of the relevant Statement of Principles concerning Lumbar Spondylosis. Dr Giblin assigned a rating to this condition of ten points from Table 3.3.2 of the "Guide to the Rates of Veterans' Pensions" ("the Guide"). Dr Giblin further opined that from an orthopaedic perspective, Mr Rogers could engage in paid work of a sedentary nature of about 20 hours per week. Mr Rogers' current restrictions were that he could not lift heavy objects and should not do repetitive bending and twisting or experience prolonged periods of uninterrupted sitting or standing.
EVIDENCE OF DR S K LAW, CONSULTANT PSYCHIATRIST
The Tribunal has had the benefit of a number of reports from Dr Law; 21 July 1997 (T4B); 13 March 2000 (T7); 19 June 2000 (T14); 5 July 2001 (Exhibit A8); 14 January 2002 (Exhibit A9); and 18 June 2001 (Exhibit R3).
On 21 July 1997, Dr Law reported that he had seen Mr Rogers on 28 June 1997 and 19 July 1997. Dr Law concluded that Mr Rogers had been suffering from an anxiety disorder as a result of past adverse service experiences. Dr Law opined that Mr Rogers would need outpatient counselling from time to time.
On 13 March 2000 (T7), Dr Law reported a number of physical difficulties experienced by Mr Rogers including having surgery on his right lower limb for a deep vein thrombosis, skin rash in his inguinal area and a bone spur on his right foot. Mrs Rogers has a spinal problem, Dr Law noted. Dr Law's examination of Mr Rogers revealed that he was a worried and anxious man. From Dr Law's consultation on 11 March 2000, it was noted that Mr Rogers was reporting that his alcohol consumption had increased from one or two glasses of wine per day to three glasses per day. At that time, Mr Rogers was working as a volunteer at the VVAA three or four hours per week. Dr Law noted that Mr Rogers was keen to undertake some clerical duties "but he very much doubted if he could do any work (clerical work) and if he was indeed employable". Mr Rogers had undergone a laminectomy three weeks earlier. He was still anxious and dejected.
On 19 June 2000, Dr Law reported that he had seen Mr Rogers two days earlier and Dr Law was convinced that Mr Rogers' anxiety disorder had probably worsened in the past one or two years. A further report dated 18 September 2000, provided advice that Mr Rogers was having physical difficulties in that he could no longer sit for longer than ten or 15 minutes because of his back being sore and stiff. Dr Law further noted that Mr Rogers was frustrated with his own mental and physical problems. He was taking Zoloft, 50mg at night. Dr Law assessed Mr Rogers as having an impairment of 35 points under Chapter 4 of the Guide (T20, p76). At that time, Dr Law diagnosed the condition as post traumatic stress disorder on the Emotional Behavioural Worksheet (T20, p77).

In his report of 18 June 2001 (Exhibit R3), Dr Law noted that Mr Rogers had attended a pension course in an effort to try and help veterans at the VVAA. Dr Law noted that Mr Rogers had reduced his frequency of playing golf and had given up playing the electronic organ because of his impaired concentration. Mr Rogers had attended an eight-week course on "management of alcohol intake".Mr Rogers was finding the medication Zoloft to be helpful and he had no major difficulties with his relationship with his wife. Mr Rogers' mental examination revealed that he was more dejected compared with two months previously. He felt that he was not in control. He was depressed and worried about his poor concentration. Dr Law noted that Mr Rogers could no longer read a book easily, finding it difficult to follow the sequence. He complained of having gastric reflux, abdominal cramps, diarrhoea and constipation episodes. Dr Law increased Mr Rogers' Zoloft to 50mg after dinner and 50mg before bedtime. Mr Rogers was suffering from impaired sleep, some bad dreams and flashbacks to the war in Vietnam. Dr Law concluded that Mr Rogers continued to suffer from significant symptoms which could be described as post traumatic stress disorder.
On 5 July 2001, Dr Law reported that Mr Rogers continued to suffer from very clinically significant symptoms of his service-related anxiety disorder and that he had worsened in the past several months. Zoloft and psychiatric support had not been able, to any significant extent, improve Mr Rogers' mental condition. Dr Law further opined that Mr Rogers' various physical ailments including back pain, gastric reflux and colon polyps had undermined Mr Rogers' mental resilience. Dr Law considered that Mr Rogers was totally and permanently unfit for work by virtue of the various adverse effects of his mental condition (Exhibit A8).
In his report of 14 January 2002 (Exhibit A9), Dr Law noted that in reports of 18 September 2000 and 18 June 2001, he had used the diagnosis of post traumatic stress disorder, whereas in other reports the diagnosis was provided of anxiety disorder. Dr Law explained that he had understood that the diagnosis of anxiety disorder had been accepted as a service-related condition by the Department of Veterans' Affairs. During the course of Dr Law's treatment of Mr Rogers, and particularly in the last two years, the discussion and counselling with Mr Rogers had not entirely been concentrated on his anxiety symptoms but on other symptoms that have been more appropriately described as post traumatic stress disorder. The symptoms were more depressive in nature than anxiety, Dr Law explained. Dr Law further explained that when he was writing his various reports in relation to Mr Rogers, he was not just focussing on the mental condition of anxiety disorder. He noted that he may have caused unnecessary confusion by his reports and apologised. Dr Law noted that when he had been consulted by Mr Rogers on 12 January 2002, Mr Rogers was still very worried about the small matters in life. His concentration was very short and from the "Beck Anxiety Inventory" Mr Rogers' score put him in the middle of the severe range of anxiety severity. The medication being used by Mr Rogers was "Campral", two tablets twice per day to curb Mr Rogers' urge to drink and Zoloft, a medication effective in treating anxiety and depression symptoms, 5mgs with dinner and 100mg when retiring to bed.
Dr Law concluded that Mr Rogers suffers from a very significant degree of anxiety disorder and is now totally and permanently incapacitated for work owing to the adverse effects of his anxiety disorder alone. Dr Law advised Mr Rogers on non-drug techniques for relaxation and encouraged him to persevere with his medication. He was to consult Dr Law in six weeks for review. An updated assessment under Chapter 4 of the Guide yielded an impairment rating of 43 points.
EVIDENCE OF DR T NGUYEN, MEDICAL ADVISER, HEALTH SERVICES AUSTRALIA
Dr Nguyen provided a report dated 27 November 2000 (Exhibit A7). Dr Nguyen noted that Mr Rogers' most recent employment history involved him working full-time for the Department of Defence as an Executive Officer for the Defence Acquisition Regional Office, then taking a redundancy in 1999 after ten years service in that particular area. Dr Nguyen noted that Mr Rogers had suffered a back injury on war service. Mr Rogers' current complaints were of back stiffness and pain most mornings which improved as Mr Rogers mobilised. Dr Nguyen noted that Mr Rogers undertakes some housework including mowing the lawn on occasions but he had stated that this exacerbates his back a few days afterwards. Dr Nguyen further noted a history of reading, undertaking volunteer work at the VVAA of seven or eight hours a week but requiring regular breaks to "to stretch his back" and "rest his mind". Dr Nguyen noted a history of Mr Rogers being isolated, with his circle of friends reducing in size. He is an ex-smoker and consumed approximately 240 grams of alcohol per week which, Dr Nguyen opined, is in the hazardous range. She noted that Mr Rogers had received counselling for his drinking problem from the Vietnam Veterans' Counselling Service in Parramatta. Mr Rogers takes the medication "Zestril" for hypertension and "Arthroaid", 2 tablets daily. Mr Rogers was attending Dr Law since 1997 for anxiety and symptoms of post traumatic stress disorder. The medication prescribed by Dr Law is Zoloft and Mr Rogers had reported a slight improvement in his symptoms. According to Mrs Rogers and Mr Rogers' own discussions with Dr Nguyen, his concentration on tasks is limited to two hours.
In relation to Mr Rogers' occupational capacity, Dr Nguyen noted that although Mr Rogers can attend seven or eight hours of volunteer work per week, this was not in the same environment or conditions as paid work hours. Dr Nguyen concluded:
"In all probability, he will not be able to tolerate the paid work time limits as well as productivity level for more than 8 hours a week. This would only be worsened with time as his back and mental level deteriorate."
Dr Nguyen therefore opined that Mr Rogers is unlikely to be capable of work for more than eight hours per week and that although there had been some slight improvement in his medical conditions with current management, the conditions were likely to deteriorate over time.
EVIDENCE OF DR D MACAULEY, CONSULTANT PHYSICIAN IN MUSCULOSKELETAL MEDICINE AND RHEUMATOLOGY
Dr Macauley provided a report dated 27 June 2001 (Exhibit R1).
In addition to Mr Rogers' accepted war-caused conditions, Dr Macauley noted further medical conditions of hypertension, irritable bowel syndrome and colon polyps. Mr Rogers was taking the medication Zestril for hypertension, Celebrex for lower back pain and Zoloft for his psychiatric condition. Dr Macauley further noted a right heel spur in August 1999 and as this had not responded to cortisone injections, he required surgery from which, unfortunately, Mr Rogers suffered a deep vein thrombosis. Mr Rogers was on "Warfarin" for six months. Dr Macauley noted that Mr Rogers is married and that he and his wife have a 27 year old son. He ceased smoking in 1985 and was reported by Dr Macauley to be a previous heavy drinker but at the time of reporting was drinking only socially. Mr Rogers had reduced his golf and was playing approximately six times per year because of the problem of lower back pain.
In relation to his back, Dr Macauley noted that Mr Rogers injured his back in October 1968 falling off the rear-loading ramp of a Caribou aircraft during flying operations in South Vietnam. It was noted that he was helped back onto the aircraft by American servicemen and that his back was sore at that time. He was assisted back at the base by a medical orderly who gave him some "Dencorub" ointment. Dr Macauley noted that Mr Rogers did not seek other medical advice and that it took approximately two weeks for him to recover from this back injury. From the time of the injury, Mr Rogers reported having occasional pain which would last one or two days, localised across his lower lumbar region.
Dr Macauley noted that in 1977, Mr Rogers had first noted right leg pain after driving to Canberra to attend his work in the Department of Defence. His back was also stiff. In 1978, Mr Rogers reported that he had physiotherapy but was working in a clerical position at the time. Mr Rogers was diagnosed as having sciatica and back pain which he would experience two or three days per week. In 1980, while at Amberley, Mr Rogers was treated for lower back pain by a chiropractor. In 1982, there were continuing back problems and in 1987, Mr Rogers had an epidural steroid block by administered by Dr Collins at 3 RAAF Hospital at Richmond. This did not provide any relief. At that time, Mr Rogers was also taking Brufen, an anti-inflammatory medication. Dr Macauley further noted that in 1989, after Mr Rogers had joined the civilian workforce, whilst working as a storeman, he noticed increasing low back pain after standing. When he moved to clerical work, he was given a special chair and an ergonomic desk which Mr Rogers stated provided some relief. At that stage, Mr Rogers was reporting two or three attacks of lower back pain and right-sided sciatica every week. There have been no distinct back injuries since the first episode, Dr Macauley noted.
Dr Macauley opined that Mr Rogers presented as a markedly obese man with extremely poor abdominal musculature. There is radiological evidence of lumbar disc disease at L1/2 but no evidence of degenerative arthritis or disc disease radiologically below that level. On the balance of probabilities, Dr Macauley opined that it is very unlikely that Mr Rogers damaged his disc in the fall as he described. Furthermore, Dr Macauley reported that over 95 per cent of all lumbar disc protrusions occur below the level of L3, regardless of the mechanism.
Dr Macauley opined that Mr Rogers has some mild degenerative arthritis of the spine (lumbar spondylosis) which is not related to any injury or the nature and conditions of his employment in the armed services. The basis for Mr Rogers' degenerative changes is related to constitutional factors such as age, poor physical fitness, obesity and poor abdominal musculature. Clinically, Mr Rogers was noted by Dr Macauley to have mild limitation of his spine with no evidence of nerve root compression in the lower limbs despite Mr Rogers' complaint of pain in his right leg. Dr Macauley concluded that Mr Rogers is suffering from lumbar spondylosis and that he suffered a musculoligamentous strain of the lumbar spine in the fall from the Caribou aircraft. The changes at L1/L2 are not consistent with the description of the fall and the subsequent clinical course.
Dr Macauley did note however that Mr Rogers had suffered from trauma to the lumbar spine in Vietnam in 1968 but did not consider that the trauma as defined in the relevant Statement of Principles concerning Lumbar Spondylosis was met as medical advice or intervention did not occur. Therefore, Dr Macauley opined that there was no link between Mr Rogers' lumbar spondylosis and his service. The pain which Mr Rogers experiences is not consistent, Dr Macauley opined, with a traumatic injury as described as this should have resolved over a period of two or three weeks.
Dr Macauley further concluded that Mr Rogers was fit to continue in his clerical roles with the Department of Defence after 14 November 1999 and his discontinuation could not be related to lumbar spondylosis either separately or in combination with his accepted disabilities. Mr Rogers' lumbar condition is aggravated by obesity and poor abdominal musculature. These problems would not limit Mr Rogers from undertaking sedentary occupations, Dr Macauley opined.
EVIDENCE OF MR P DEFINA, CLINICAL PSYCHOLOGIST
Mr Defina provided a report dated 29 August 2001 (Exhibit R2).
Mr Defina administered a number of psychological and psychometric tests during an 180 minute interview.
Mr Defina opined that Mr Rogers does not suffer from post traumatic stress disorder and does not meet the DSM IV criteria. Mr Defina noted Mr Rogers to have a sitting tolerance of about 60 minutes, but observed fidgeting and reports of discomfort. During the entire interview, Mr Defina opined that he saw no signs of impaired memory or concentration.
Mr Defina was not convinced that Mr Rogers suffers from generalised anxiety disorder and noted that anxiety disorder is a DSM IV category, not a diagnosis. Generalised anxiety disorder tends to be chronic and fluctuating, Mr Defina opined, often worsening during times of stress. Furthermore, consumption of substances such as alcohol or coffee at high levels could be sufficient to explain many symptoms of anxiety. Mr Defina stated that there was no evidence or reported symptoms causing Mr Rogers any clinical significant distress or impairment in social, occupational or other important areas of his functioning prior to about 1997.
Mr Defina noted that Mr Rogers commenced voluntary work with the VVAA in March 2000, initially working one day per week but then from July or August 2000, he had increased his attendance to two days per week. The work involved administrative and interviewing skills and Mr Rogers had attended a number of courses to assist him with the sort of work required. He was happy with the level of work and did not want to work more than two days per week. Mr Defina noted that although the work is voluntary, the duties Mr Rogers undertakes indicate that he is capable of performing administrative duties at a level of complexity that would be comparable to intermediate or advanced clerical positions. Therefore, Mr Rogers was demonstrating he is able to work although he has a lack of motivation to do other than his current duties. On the basis of evidence available to Mr Defina, he concluded that Mr Rogers' accepted psychiatric condition has not rendered him incapable of undertaking remunerative work for 20 hours or more during the assessment period.
In relation to an indication of impaired memory or concentration, Mr Defina did not note any signs of this. Following the interview, Mr Rogers was given a number of self administering assessment forms to review and complete which he did during a lunch break. This assessment procedure was tiring and demanding, yet Mr Rogers managed without any apparent or reported memory or concentration difficulties, Mr Defina reported. Since his redundancy, Mr Rogers has completed training programs, obtained voluntary employment and his reported difficulties had not proved any impediment to the acquisition of new skills. While Mr Defina noted that anxiety and stress may result in impairment of memory and concentration, this is typically not permanent. Given Mr Rogers' history of alcohol consumption, it was not possible to unequivocally attribute reported symptoms to anxiety. There would need to be neuropsychological and medical assessment of alternate explanations for memory and concentration difficulties.
In relation to Mr Rogers' physical complaints, Mr Defina opined that Mr Rogers' psychological well-being could be affected by those physical stresses. If Mrs Rogers has physical problems then they could also impact on Mr Rogers' psychological well-being. Mr Rogers' concern for his wife's health would serve as a stressor. Mrs Rogers has been an important source of support for Mr Rogers and her physical condition is likely to lead to a reduction in her capacity to continue to provide him with support. Mr Defina concluded that Mr Rogers' accepted psychiatric disability was not the sole cause or substantial cause of any unfitness to work. Mr Rogers' employment history has been one of steady promotion and long term stable employment. Such a history is inconsistent with a psychiatric diagnosis. Furthermore, Mr Rogers remained in employment for a period of two years after his diagnosis of anxiety disorder. The position was very demanding and yet Mr Rogers was able to stay in it until his own redundancy. A perusal of Mr Rogers' sick leave records did not suggest absence from work for psychiatric reasons. Mr Defina opined that the more likely situation is that Mr Rogers' current ability to work is affected by motivational factors and physical concerns. Mr Defina further opined that Mr Rogers had been adversely impacted upon by the demands of his previous employment which was very stressful. Mr Defina concluded that Mr Rogers is not incapacitated for work.
Dealing with Mr Rogers' possible future employment, his employment skills level would best be described as falling under the Australian Standard Classification of Occupations, Category 1, Managers and Administrators. Mr Defina opined that Mr Rogers could be involved in the position of a resource manager whose duties include formulating policy and plans for the area of control, establishing and directing operational and administrative procedures, controlling expenditure, monitoring work conditions and controlling the selection, training and performance of staff. Mr Rogers could also work in positions such as an Human Resource Manager; Quality Assurance Manager; Project / Program Administrator; Wool Classer; Credit Loans Officer; General Clerk; and Social Security Assessor.
It was noted by Mr Defina that Mr Rogers had initially sought employment actively applying for approximately three jobs per week. Mr Rogers informed Mr Defina that he did not want full-time work, he did not need the money and did not want the responsibility. In about June or July 2000, Mr Rogers had ceased looking for work although he had been attending the CES at Baulkham Hills and had been searching for employment in the newspapers. Mr Defina noted that Mr Rogers believed that he had been unsuccessful in trying to obtain work because of his age, although this was not directly stated to him.
It was also noted by Mr Defina that prior to accepting redundancy, Mr Rogers had attempted to arrange redeployment. Mr Rogers was not successful and attributed this to the fact that he did not have the preferred set of skills and did not know the basic systems of other Commonwealth departments. These reasons did not relate to Mr Rogers' accepted psychiatric disability, Mr Defina opined.
In conclusion, Mr Defina opined that Mr Rogers' accepted disability would not be obvious to a prospective employer and would not have prevented him from obtaining employment. Mr Rogers presented as a well-spoken, intelligent individual who displayed good social skills, Mr Defina opined.
EVIDENCE OF WING COMMANDER (RTD) A K SMORTI
Wing Commander Smorti provided a statement dated 10 April 2001 (Exhibit A3).
Wing Commander Smorti noted that he was Mr Rogers' Section Commander during a period towards the end of 1968. At that time, Mr Rogers had an accident when he fell from the back ramp of a Caribou aircraft. Wing Commander Smorti noted that this incident was amusing to the rest of the section. Wing Commander Smorti also noted that Mr Rogers was keen on flying, spending most Sundays as Assistant Loadmaster on aircraft.
Following the incident, Wing Commander Smorti recalled that Mr Rogers had a very sore back for almost two weeks, which affected his walking and sitting in the office. Mr Rogers' duties were modified because of the back condition and he had massages, liniment rubs and analgesics to relieve the pain. Wing Commander Smorti noted that it was not usual to see the doctor for anything other than tablets, as the airmen were not confident in him.
Wing Commander Smorti reported that Mr Rogers was unable to fully undertake his normal duties and allowances were made for him by finding other tasks which placed no strain on his back through either prolonged walking or sitting. Furthermore, Mr Rogers rode to work in the section jeep as he was unable to climb onto the truck. At that time, Mr Rogers was President of the Airmen's Club and he was observed by Wing Commander Smorti to have increased his alcohol intake.

Wing Commander Smorti worked with Mr Rogers on a further two occasions between 1970 and 1972 and again 1977 and 1978. At those times, Mr Rogers still displayed some of the symptoms of his sore back which Wing Commander Smorti had observed in 1968. In this regard, it was noted that Mr Rogers sat awkwardly in chairs and was constantly stretching his back muscles to relieve pressure. There were also a number of complaints during those later periods of him having a sore back. Wing Commander Smorti noted that while Mr Rogers had a sore back, he did not let it interfere with his primary duties and was always willing to partake in whatever section activity was required. Wing Commander Smorti concluded that he had read the statement provided by Mr Rogers concerning the back injury and agreed that it was factual.
EVIDENCE OF MR T McCOMBE OAM, PRESIDENT, VIETNAM VETERANS' ASSOCIATION OF AUSTRALIA, NEW SOUTH WALES BRANCH
Mr McCombe provided a statement dated 12 November 2001 (Exhibit A4).
Mr McCombe noted that the VVAA operates an office in Granville, Sydney, which provides assistance to veterans in various matters. There are full and part-time staff, supplemented by volunteers. The office is operated as a normal office, however it has been discovered that with Vietnam veterans who have health problems, particularly psychological problems, they have difficulties coping with formal structures that often exist in the normal workplace. Mr McCombe noted that to overcome this problem, the office does not operate rosters or have hard and fast rules. When in the past there were rosters, it was producing a continual turnover of people. Mr McCombe noted that Vietnam veterans have a very low stress tolerance, and thus Vietnam veterans are only expected to work short periods, usually no more than two hours per day two or three days per week. Mr McCombe has been involved with the VVAA since 1983 and this experience provides him with knowledge in dealing with Vietnam veterans and observing how they operate in an office environment.
Specifically in relation to Mr Rogers, Mr McCombe noted that he has been attending the VVAA Granville office for the last 18 months, two days per week, for a total of no more than four or six hours per week. Mr Rogers assists veterans with claims and provides general support of a clerical nature to others in the office. Mr McCombe's observations of Mr Rogers are that he falls within the category of veterans who suffer from a low stress tolerance and use the time spent at the Granville office as a form of therapy. Most of the time Mr Rogers is in the office, he uses this as a social outlet, Mr McCombe opined.
DEPARTMENT OF VETERANS' AFFAIRS DETERMINATION CONCERNING INVALIDITY SERVICE PENSION
On 8 December 2000, Mr Rogers was determined to be permanently incapacitated for work and therefore eligible for an Invalidity Service Pension (Exhibit A6).
DEPARTMENT OF DEFENCE EMPLOYMENT RECORDS
The Tribunal had available to it Mr Rogers' Department of Defence Employment Records (Exhibit R4). Mr Rogers accepted voluntary redundancy on 29 October 1999. His sick leave record includes time off for such ailments as: cold; virus; hayfever; headaches; sore throat; foot injury; heel spur; torn stomach muscles; gastric upset; sick wife; and, surgery right foot.
SUBMISSIONS
Mr Dawson commenced his submissions pointing to the difficulties in this matter for Mr Rogers to recall events some 33 years ago. The Tribunal should therefore take into consideration the intent of Section 119 of the Act to deal with such difficulties, Mr Dawson submitted.
Considering the matter of entitlement, Mr Dawson submitted that the Tribunal must use the reasonable hypothesis standard of proof to determine that matter beyond reasonable doubt. That is the reverse onus of proof. The Statement of Principles must then be applied as dealt with under Section 120A of the Act.
The hypothesis in relation to lumbar spondylosis is that Mr Rogers suffered a trauma to his spine when he fell from the ramp of a Caribou aircraft in Vietnam in 1968. This hypothesis is reasonable, Mr Dawson submitted, and support was found for this hypothesis by Dr Giblin who examined Mr Rogers. In Repatriation Commission v Deledio (1998) 49 ALD 193, the Federal Court set out the four steps required to determine entitlement when the veteran had rendered operational service. Mr Dawson submitted that there could be no doubt that from the material before the Tribunal, including the veteran's evidence and the supporting evidence of retired Wing Commander Smorti, that a hypothesis was pointed to indicating a trauma to the lumbar spine. The next step is that if there is Statement of Principles then it has to be considered whether or not the hypothesis is reasonable. It is at this point that the Federal Court noted that there are many errors because at this step, the decision maker should not be involved in fact finding. Mr Dawson referred the Tribunal to Harris v Repatriation Commission (2000) 62 ALD 174 in which Finn J noted:
"It is important to bear in mind that the tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the Applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD 261 at 275), an hypothesis can so be upheld notwithstanding that "one of the disputed facts happens also to be a component of an SoP"."
Furthermore, and similarly, in Arnott v Repatriation Commission (2001) 106 FCR 83, the Federal Court noted:
"… However, as explained above, in carrying out the third step in Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the "particular claim" fits the "template" laid down in the SoP. As was stated by the Full Court at 95-96 in Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage. Thus, in evaluating the material before it and making findings of fact on the basis of that material, the AAT was not confining itself to the facts raised by the claimant but, rather, was putting proof of facts in issue at that stage rather than at the next stage, the fourth step in Deledio. The AAT erred in law in doing so."
Mr Dawson then referred the Tribunal to Dixon v Repatriation Commission (1999) 59 ALD 315; (1999) 29 AAR 235, in which Wilcox J made it clear that there is no question of fact finding at step 3. Wilcox J noted at paragraph 24:
"The Tribunal used its scepticism as a reason for holding that the hypothesis it found to arise on Mr Dixon's evidence did not fit the factors stipulated in the Statement of Principles. But matters of belief did not arise at that stage. The Full Court made this clear in Deledio. Once the decision-maker identifies a relevant Statement of Principles (step 2 in the Deledio summary) the decision-maker must "form the opinion whether the hypothesis raised is a reasonable one". It will be a reasonable one if (and only if) it contains "one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service." However, at this stage the decision-maker is not concerned with the accuracy of the material giving rise to the hypothesis, the decision-maker is still working under s120(3)… As the Full Court said in Deledio, it is only at the step 4 stage of the process "that the Tribunal will be required to find facts from the material before it.". In the present case the Tribunal fused together steps 3 and 4. It should have resolved step 3 by determining whether the claims made in the material before it satisfied the factor requirements of the Statement of Principles relating to generalised anxiety disorder; that is, still considering them as claims and without making any judgement about their truth. If the AAT had answered this question in the affirmative, the final step would have been to consider the truth of the claims, this being a step in carrying out the obligation imposed on the Tribunal by s120(1) of the Act to decide whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused….."
More recently, the Tribunal had considered these issues in Re Boardman and Repatriation Commission [2001] AATA 764. At paragraph 83 of the decision, the Tribunal noted:
"83. It is difficult not to engage in a fact-finding exercise in step three of Deledio [supra]. There is an account given by the Applicant, and there is a rebuttal by the Respondent wherein the Respondent refers to evidence before the Tribunal. However, the Tribunal considers that the correct approach to take is to have regard to the Applicant's version in step three and decide whether that meets the SoP template...
89. Moving on to consider step four of Deledio [supra], the Tribunal must decide whether it is satisfied beyond reasonable doubt that the Applicant's incapacity did not arise from a war-caused injury. It is at this point that many of the arguments put by the Respondent come into play. The Tribunal will assess each of these, and any other relevant matters, to ascertain whether one, some or all serve to satisfy the Tribunal beyond reasonable doubt that the Applicant's chronic alcoholism was not war-caused."
In Mr Rogers' case, Mr Dawson submitted that he suffered a trauma and that Factor 5(h) of Instrument Number 27 of 1999 is met, thus raising a reasonable hypothesis. In the Statement of Principles, "trauma to the lumbar spine" means:
"…. a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by sprinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or

(c) surgery to the lumbar spine…"

In Arnott v Repatriation Commission (supra), there was a discussion of what was meant by acute symptoms and signs of pain. The Federal Court in that case considered the meaning of "acute" to be symptoms or signs of being "sharp" and "acting keenly on the senses" or being "significant manifestations". Furthermore, the Federal Court noted the Macquarie Dictionary definition of "severe" connotes a pain that is extreme or harsh. Thus an acute pain does not necessarily equate with a severe pain. Mr Rogers gave evidence of pain and tenderness and altered mobility for two weeks and thus he met all the requirements of Factor 5(h) of the relevant Statement of Principles.
Mr Dawson noted there was no medical intervention to assist Mr Rogers but medical intervention is not required under the Statement of Principles. Dr Macauley had opined that Mr Rogers' circumstances did not meet the trauma definition because he had not required medical intervention. This was not the proper test, Mr Dawson submitted, and noted that Dr Macauley had a mistaken view of the trauma definition contained within the Statement of Principles.
Dr Macauley asserted that it was unlikely that Mr Rogers had damaged his disc on service. The test is, does the hypothesis fit the template. It is not decided on the balance of probabilities. Mr Dawson contended that Dr Macauley had applied the wrong test. While Dr Macauley asserted that Mr Rogers' degenerative changes in his back are related to constitutional factors such as age, poor physical fitness, obesity and poor abdominal muscles, Mr Dawson submitted that Dr Macauley provided absolutely no explanation as to why in 1979, when Mr Rogers was 37 years old, that he suffered from severe sciatica and back problems. Mr Dawson submitted that Dr Macauley had completely ignored the history of further back problems in the 1980s, the spinal injection in 1983 and the fact that Mr Rogers was not old enough to have such degenerative problems. There must be some other explanation for the back condition, Mr Dawson submitted, which would enable the Tribunal to be convinced beyond reasonable doubt that it could not reject the hypothesis.
Mr Dawson submitted that there was nothing before the Tribunal to suggest anything else other than that there was a back injury in 1968 and that during the 1970s, Mr Rogers experienced sciatica and continuing back pain. There was nothing else to cause this back pain as there were no other injuries. Therefore, Mr Dawson contended that the Tribunal would have to be convinced beyond reasonable doubt that the trauma to his back which occurred on service in 1968 had caused Mr Rogers' lumbar spondylosis.
Mr Dawson noted that there is not satisfactory medical evidence to suggest that the back condition just happened. Mr Rogers was not an old person in the 1970s and it would be unusual to start to suffer from a degenerative disease at that time. The sciatica was present and it appears from x-rays that there was nothing particular in terms of actual pathology. On that basis, Mr Dawson submitted that Mr Rogers is entitled to a pension for lumbar spondylosis. It is agreed between the Applicant and the Respondent that if lumbar spondylosis was found by the Tribunal to be war-caused, then the resulting assessment would be that Mr Rogers would have a Disability Pension at 90 per cent of the General Rate.
In his submissions in reply, Mr Dawson noted that the Respondent's reference to the Explanatory Notes to the Amended Statement of Principles concerning Lumbar Spondylosis is not a statutory instrument and is no more than an explanation. Mr Dawson submitted that more compelling in relation to the definition of acute symptoms and signs was the clear interpretation which was properly dealt with by the Federal Court in Arnott v Repatriation Commission (supra). The pain did not have to be extreme it simply has to act on the senses to be a significant manifestation of an acute trauma, Mr Dawson submitted.
Mr Dawson submitted that there could be no question of Mr Rogers' credit and that the Respondent could not raise issues of credit having not previously raised them during the process of cross examination. Credit is the most important matter to put before a court or Tribunal and must be, Mr Dawson submitted, properly dealt with. There was no issue raised of credit and it is a very basic rule of fairness, even though the rules of evidence do not apply, as asserted in Browne v Dunn (1893) 6 R 67, which requires that anything that is going to be challenged in relation to a veteran's evidence has to be put to him or her.
Because Mr Rogers is in receipt of pension of at least 70 per cent of the General Rate, Mr Dawson submitted that the Tribunal must determine whether or not he is entitled to an earnings-related pension. Section 23 of the Act deals with the Intermediate Rate and Section 24 deals with Special Rate. Mr Dawson submitted that Mr Rogers was not relying on the ameliorating provisions contained within subsection 24(2) of the Act. Mr Dawson submitted that Mr Rogers met all of the criteria contained within subsection 24(1) of the Act.
Mr Rogers meets subsection 24(1)(a) of the Act in that he is not yet over 65 years of age and his pension is at 70 per cent or more.
Mr Dawson submitted that once lumbar spondylosis is accepted, the evidence of the Occupational Physician, Dr Nguyen of Health Services Australia, makes it clear that Mr Rogers is not able to work more than eight hours per week because of the conditions of back pain secondary to lumbar spondylosis and anxiety disorder and hearing loss.
Mr Dawson referred the Tribunal to the reports of Dr Law, Mr Rogers' treating psychiatrist, who has been treating him for some time. Dr Law opined that it is Mr Rogers' anxiety disorder alone which prevents him from working. Dr Giblin, Orthopaedic Surgeon, opined that Mr Rogers' back condition would not prevent him from working.
Referring to Mr Defina's report, Mr Dawson noted that in relation to Mr Rogers' work capacity, Mr Defina provided an assessment of the type of work Mr Rogers was believed to have been able to undertake (Exhibit R2). At page 6 of his report, Mr Defina noted Mr Rogers' report of anxiety building for 15-20 years, leading to his inability to cope with pressures at work. Mr Dawson concluded that Mr Rogers has a war-caused generalised anxiety disorder, but which was worsened by work such that he can no longer work. Mr Dawson contended that the fact is, Mr Rogers has a war-caused disability which stops him from working, whether it gets aggravated by the death of a close relative or by stress at work is immaterial to his claim. Mr Defina further noted that Mr Rogers decided to seek treatment in 1997 because of a deterioration of his memory and concentration. Furthermore, Mr Defina opined that in relation to how Mr Rogers reacts to the psychological strains of life and employment, he is likely to respond inappropriately under pressure and to be self doubting and emotionally vulnerable.
Furthermore, Mr Dawson noted Mr Defina's reference to Mr Rogers being prone to experience frequent and intensive changes of mood, to anticipate disaster and experience physical and psychological distress as a consequence. Mr Defina noted that in a work situation, Mr Rogers could be easily upset and would prefer work where there is not much pressure. This is consistent, Mr Defina had noted, with his currently stated preference for voluntary work for the VVAA. Mr Defina had noted that Mr Rogers would prefer a position where there was little or well controlled social contact and a low demand environment in terms of decision making and ambiguity. Such a description fitted the voluntary work undertaken by Mr Rogers and was understandable, Mr Dawson contended.
Mr Dawson submitted that the psychologist was finding that Mr Rogers can work in a job where it is low demand yet later he finds that he could work in a variety of positions. The report was somewhat internally inconsistent. At page 16, Mr Defina had noted that Mr Rogers demonstrated that he is able to work, but then later he agreed that anxiety and stress may have resulted in impairment of memory and concentration which is typically not permanent. Mr Dawson submitted that putting all of the psychologist's findings together, Mr Rogers could not carry out the role of Manager, be a Human Resource Manager, Quality Assurance Administrator or Project or Program Administrator. Mr Dawson submitted that Mr Defina himself said that he would not cope with pressured jobs.
Mr Dawson submitted that the Tribunal must consider what is reasonable work. Section 28 of the Act sets out what is to be taken into account in relation to capacity to work and it is noted that decision-makers should have regard only to vocational trade and professional skills, qualifications and experience and does not have to be the job that the veteran had done. In Chambers v Repatriation Commission (1995) 55 FCR 9, the Federal Court stated:
"It should also be observed that the primary question posed by par (b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with relevant skills, qualifications and experience 'might reasonably undertake'…"
Section 28 of the Act is a particularly important provision, Mr Dawson submitted, with the focus of attention being on the word "reasonably". Mr Dawson further submitted that veterans who can no longer work with others, for example, are not required to go and sweep the streets because it is a nice job out in the open that anyone could do. In Chambers v Repatriation Commission (supra) the Federal Court further noted:
"…The statutory test is not whether the postulated person already has everything that [is] requisite, but whether a person with his skills, qualifications and experience might reasonably undertake the kind of employment in question. The extent to which in some way he might have to prepare himself bears on whether he might reasonably undertake the employment, which is the ultimate question under the paragraph, but the fact that he must do so does not debar him. It is a question of degree…."

Accordingly, Mr Dawson submitted that Mr Rogers may have word processing and internet and other skills. That however did not suggest that he is capable of obtaining a job either full or part-time, because he is comfortable with typing a letter in his voluntary capacity at the VVAA. The question is, for someone such as Mr Rogers, who held a position in employment of considerable authority, whether it is reasonable in the circumstances to put him into other roles or employment given all his attributes, which included his psychological and physical health. It is not a test of the veteran, with his or her skills, qualifications and experience being required to take on any tasks, clerical or manual that he or she could do for however many hours per week. Mr Dawson submitted that Mr Rogers' work as a volunteer is not akin to remunerative work as noted by Dr Nguyen and agreed by the Respondent. That is also quite clear from the statement provided by Mr McCombe, the President of the VVAA.
Mr Dawson noted that the reason for Mr Rogers' cessation of employment does not necessarily disentitle him to the Special Rate of pension. On this point, Mr Dawson referred the Tribunal to Banovich v Repatriation Commission (1986) 69 ALR 395. At page 402, the Federal Court noted:
"…It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity."
Mr Dawson contended that the test in relation to section 24 is not why a veteran lost a job or why the veteran left work, but why the veteran is unable to continue in the workforce. The language of subsection 24(1)(c) states that the veteran must be prevented from continuing to undertake remunerative work that the veteran was undertaking. Subsection 24(1)(c) of the Act does not deal with why the veteran lost his or her job or why the veteran did not stay in their employment. It is erroneous and confusing, Mr Dawson further contended, to focus on the reason why a veteran left work, because it detracts from what is the proper test to be applied by decision-makers. The evidence from Mr Rogers, as supported by his psychiatrist, is that he is unable to work because of his anxiety condition alone. It is not reasonable to suggest, Mr Dawson submitted, that people who have been in the workforce for a long time holding very senior positions should then accept lesser paid positions at a lesser rank or status and require them to do something that they had never done before, for example, travel long distances to work. It is not reasonable that a veteran stay in the workforce no matter what, Mr Dawson contended, and it would be rare to find workers nearing the end of their working life who thought it was reasonable to accept a demotion and decrease in salary. That is not work which someone might reasonably undertake. Dr Law's reports indicate that Mr Rogers' symptoms are worsening and by July 2001, this is further confirmed. Mr Dawson submitted that there is nothing to displace or disprove the fact that Mr Rogers cannot work and therefore on all of the evidence, his qualification for pension at the Special Rate is confirmed, Mr Dawson concluded.
Ms Hook, for the Respondent, noted that the Applicant has raised a hypothesis that he fell off the loading ramp of a Caribou aircraft from a height of three or four feet off the ground, landing on his lower back and sustaining bruising above his buttocks. His evidence was that at the time, he walked stiffly, had to be treated with painkillers and back rubs and was put on light clerical duties. These symptoms lasted for approximately two weeks. Ms Hook submitted that although this ostensibly fits the template contained within the relevant Statement of Principles, it does not fit the definition of trauma laid down in the Statement of Principles which requires a discrete injury to the lumbar spine that manifests itself within 24 hours with acute signs and symptoms of pain, tenderness and altered mobility. Relying on Harris v Repatriation Commission (supra), and the Explanatory Notes for Tabling in relation to an earlier Statement of Principles, Ms Hook submitted that the definition for trauma contemplates a significant injury.
Ms Hook referred the Tribunal to Dr Macauley's report, in which he described Mr Rogers suffering an injury which was a musculoligamentous strain. In Dr Giblin's report, he characterised the injury as a soft tissue injury. Ms Hook submitted that this did not meet the template laid down in the Statement of Principles. If the Tribunal were to find that step three of the Deledio test had been satisfied, then Ms Hook further submitted that there are issues of credit to be considered and referred the Tribunal to Dixon v Repatriation Commission (supra) where such matters were appropriately addressed at step four of the Deledio test.
Ms Hook noted that Mr Rogers described slipping forward off the ramp and hitting his lower back on the ground causing bruising to just above the buttocks. Dr Macauley's reports states that Mr Rogers has radiological evidence of lumbar disc disease at L1/2 but no evidence of degenerative arthritis or disc disease radiologically below that level. On the balance of probabilities, Ms Hook submitted that it is very unlikely that Mr Rogers damaged his disc in the fall. Furthermore, at page four of Dr Macauley's report, he discusses the possibility of other causes of Mr Rogers' current back problems. In this regard, Dr Macauley opined that Mr Rogers had some mild degenerative arthritis of the spine which is not related to any injuries or the nature and conditions of his employment in the armed services. Rather, Dr Macauley considered that the basis of the degenerative changes related to constitutional factors including age, poor physical fitness, obesity and poor abdominal musculature.
A further credit issue raised by Ms Hook related to Mr Rogers' failure to report the incident at the time. Furthermore, Mr Rogers' evidence was that the medical orderly, Mr Morley, advised him on day one or two after the incident, that Mr Rogers should go to the doctor if his back was no better. The evidence from Mr Rogers was that it did not get better for a period of two weeks, yet Mr Rogers did not go to the doctor. Ms Hook submitted that it was significant that Mr Rogers did not mention this incident to any specialist, although he complained of back pain consistently from approximately 1976 or 1977. He also complained that mowing the lawn or moving furniture aggravated his back. Ms Hook submitted that a final issue of credit was Mr Rogers' failure to mention the fall in an earlier claim for the back problem, which he had made in 1997. The first occasion when the fall from the aeroplane is recorded is mentioned in the year 2000.
Ms Hook submitted that if the Tribunal accepted lumbar spondylosis as a service-related condition, there would still be difficulty in relation to Mr Rogers' claim for Special Rate. Neither of the relevant orthopaedic specialists concluded that Mr Rogers was totally incapacitated for work by his back and in combination with his accepted disability of anxiety disorder, the evidence is equivocal that Mr Rogers was totally incapacitated. Furthermore, Dr Law's most recent report, in Ms Hook's submission, failed to provide any evidence or substantiation of the adverse effects on work capacity from Mr Rogers' anxiety disorder alone. In Dr Law's most recent report and the attached Emotional and Behavioural Worksheet, all Dr Law had stated, without substantiation, was that Mr Rogers was totally and permanently unable to work owing to the deleterious effects of anxiety.
Referring to Mr Rogers' evidence, Dr Law had commented only on an impaired ability to successfully retrain due to poor concentration. Despite this, Ms Hook submitted that Mr Rogers has managed to become trained as a Pension's Officer, although this is on a voluntary basis. Ms Hook confirmed that the Respondent did not intend to equate voluntary work with remunerative work.
The greatest difficulty raised by Ms Hook in relation to Mr Rogers' making a successful claim for Special Rate, lies in his ability to meet the requirements of subsection 24(1)(c) of the Act.
The Tribunal was referred to the decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 in which Branson J noted in relation to subsection 24(1)(c) of the Act, a determination on this provision required responses to four questions, namely:
"1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that would not be suffering if he were free of that incapacity?"
In Forbes v Repatriation Commission (2000) 58 ALD 394, R D Nicholson J considered that any factor having employment consequences and which played a part in the Applicant's inability to work or obtain or hold remunerative employment, is sufficient to displace the Applicant's case for pension at the Special Rate. The reason for cessation of work is therefore an important consideration, Ms Hook submitted. Furthermore, Ms Hook contended that there is nothing in the evidence before the Tribunal to suggest that it was anxiety or back pain alone which caused Mr Rogers to cease work. Mr Rogers ceased work because his section of some 300 staff at the Department of Defence was abolished. Mr Rogers was second to the Director and managed approximately 300 redundancies or redeployments, including his own. There was considerable stress in undertaking this process and this is understandable. There was also a lot of resentment directed at him personally in the first instance. Mr Rogers' evidence was that he did not obtain redeployment because he did not want to take a reduction in level or position and did not want to travel, although positions were offered. Mr Rogers' evidence was that he had planned to continue working if a redundancy had not been offered and he was going to retire when the time was right. Furthermore, Mr Rogers had stated that his back condition had not affected his work performance because he was sufficiently senior in the organisation not to need to undertake manual work.
The evidence before the Tribunal in relation to Mr Rogers' anxiety condition is that this had begun starting to worry him in about 1996. Regardless of this, Mr Rogers remained at the organisation at a high level and in a stressful occupation until he took his redundancy in October 1999. In that period, between 1996 and 1999, his General Practitioner had completed medical impairment assessment forms for the Department of Veterans' Affairs for the initial back claim. Dr Hung had noted on the medical impairment forms that his employment and involvement in the Lions Club diverted Mr Rogers' attention from his inner thoughts and he was concerned about the implications when his was no longer employed. Dr Hung had also stated that his anxiety condition affected Mr Rogers' occupational activities in a small way. Ms Hook contended that the loss of Mr Rogers' financial delegations in 1999 was not as a result of anxiety or his back condition but as a natural result of the section being round up. Furthermore, when Mr Rogers ceased work in 1999, he was suffering from a heel spur which was extremely painful and required surgery.
Ms Hook referred the Tribunal to Mr Defina's description of Mr Rogers' preference for work. Mr Rogers had explained that he preferred employment where there was a little or well controlled social contact and a low demand environment in relation to decision-making. Ms Hook submitted that such requirements could have been met by one of the jobs Mr Rogers could have been deployed into, but he chose not to take up, because he did not wish to travel or occupy a lessor position.
Ms Hook concluded that there was nothing before the Tribunal in Mr Roger's evidence, or from the documentation, that suggested that it was anxiety and back pain alone which prevented him from working or from seeking to engage in remunerative work that he was doing. There were circumstances beyond his control in relation to the section downsizing. What prevented Mr Rogers from continuing to work was his decision not to take a lesser paid role or to travel. In the event that the Tribunal did accept lumbar spondylosis as a service-related condition, section 24 of the Act was not satisfied in Mr Rogers' case and he therefore was not qualified to receive a pension at the Special Rate.
FINDINGS
A determination in this matter must consider entitlement to Disability Pension for the claimed condition of lumbar spondylosis and a further issue of the assessment of the correct rate of Mr Rogers' pension. In reaching a decision, the Tribunal has taken into account the oral and documentary evidence, the legislation and case law.
The Tribunal found that Mr Rogers provided evidence to the best of his ability and does not consider that any inconsistencies or gaps in recall reflect either embellishment or on his overall creditability. The Tribunal is mindful of the provisions of section 119 of the Act. As Davies J stated in Hutton v Repatriation Commission (1998) 49 ALD 8 at page 12:
"In my opinion, in taking administrative decisions under the Act, it is inappropriate to take such a technical approach to decision-making. An administrative decision-maker is bound to deal with the substance of the matter in a sensible, efficient, administrative manner….."
The Tribunal and decision-makers in general, must not however use section 119 of the Act to supplement defects in evidence or to make inferences about evidence which would not objectively be open to it from the material as discussed in Repatriation Commission v Bey (1997) 79 FCR 364.
The Tribunal is reasonably satisfied that the correct diagnosis of Mr Rogers' lower back problem is lumbar spondylosis as opined by both Dr Giblin and Dr Macauley. In relation to Mr Rogers' lumbar spondylosis, the general hypothesis being put is that on operational service in Vietnam, Mr Rogers fell three or four feet off the back of Caribou aircraft loading ramp when he was performing duties as an Assistant Loadmaster. Mr Rogers claims he suffered a low back injury whose effects lasted for approximately two weeks, after which time, the symptoms subsided but from which he suffered lower back problems ever since. Following the approach in Deledio v Repatriation Commission (supra), the Tribunal does not consider that this general hypothesis is fanciful or out of the realms of possibility.
The Tribunal turns to consider Mr Rogers' circumstances against the relevant Statement of Principles, Instrument Number 27 of 1999 concerning Lumbar Spondylosis. Factor 5(h) of the relevant Statement of Principles states:
"(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; …"
Trauma to the lumbar spine is defined earlier in this decision. In ascertaining whether or not a reasonable hypothesis is raised, the Tribunal is not at this stage engaging in a fact finding task. It is a matter of ascertaining whether the material points to the reasonable hypothesis. The Tribunal notes the decision in Bull v Repatriation Commission (2001) 66 ALD 271 in which it was determined by Emmett and Allsop JJ that what is required by subsection 120(3) of the Act is the formulation of an opinion on the material before it, as to whether a reasonable hypothesis is raised connecting the injury, disease or death with the particular circumstances of service. The Tribunal is not, it was noted, at that stage, entitled "to find facts or reject matters". As there is a Statement of Principles in force, then the Tribunal or decision-maker, must form an opinion if the general hypothesis raised is reasonable, by seeing if the hypothesis fits or is consistent with a factor in the Statement of Principles.
In Mr Rogers' case, his circumstances as provided by the material, point to a situation in which he suffered a trauma, as defined, to his back when falling off the Caribou aircraft. The material points to Mr Rogers having symptoms and signs for two weeks, of pain and altered mobility, requiring assistance in his work duties, inability to use his usual transport mode to work and having assistance from a medical orderly in the form of pain killers and liniment rubs. Thus, the Tribunal finds that Factor 5(h) of the Statement of Principles is met on the material and the Tribunal is of the opinion that a reasonable hypothesis has been raised within the meaning of subsection 120(3) of the Act.
The Tribunal's approach is then to consider whether or not it can accept sufficient of the facts to support the raised hypothesis pursuant to subsection 120(1) of the Act.
The Tribunal has accepted that Mr Rogers provided evidence to the best of his ability. There has been a submission that Mr Rogers' failure to mention the fall from the Caribou aircraft in his previous claim for lumbar spondylosis indicates that the incident did not occur or points to some lack of credibility. Mr Rogers' explanation for this omission in detailing the incident in a previous claim, is that he was not asked about the fall or alerted to the possible implication of this. Mr Rogers is not a doctor and not necessarily aware of the possible connection between falls and lumbar spondylosis. Any doubt that the Tribunal might have either that the incident as reported by Mr Rogers, might not have occurred or that he did not suffer the symptoms sufficient to meet the definition of trauma, are dispelled by Retired Wing Commander Smorti's statement confirming that the accident occurred as stated by Mr Rogers and that there were symptoms present sufficient to meet the definition of trauma. Wing Commander Smorti noted two weeks of symptoms affecting Mr Rogers' walking and sitting and his ability to perform his usual duties. Mr Rogers' duties were in fact modified at that time to take account of his back problem.
Dr Giblin's opinion also is that he considers Mr Rogers' circumstances satisfy Factor 5(h) of the relevant Statement of Principles. While Dr Macauley accepts that Mr Rogers suffered a trauma in 1968, he did not consider that the trauma met the required definition. The Tribunal finds that Dr Macauley, in his report, reflected a misunderstanding of the definitional requirements. In this regard, as the Tribunal understands the definition, there is no requirement that medical assistance or treatment is required, for a veteran to meet the definition.
The Tribunal finds that it is not satisfied beyond reasonable doubt that Dr Macauley's opinion can disapprove to the sufficient standard of proof, the fact that a trauma as defined, occurred leading to Mr Rogers developing lumbar spondylosis.
Taking all of the evidence as a whole, the Tribunal considers that while Dr Macauley disagrees with the causation of lumbar spondylosis, the weight of evidence supports that this condition is causally related to Mr Rogers' service in Vietnam. Accordingly, pursuant to subsection 120(1) of the Act, the Tribunal is not satisfied beyond reasonable doubt, that there is no sufficient ground for determining that Mr Rogers' condition of lumbar spondylosis was war-caused. The Tribunal finds that Mr Rogers is qualified for receipt of Disability Pension for the condition of lumbar spondylosis with effect from 14 November 1999.

In relation to the issue of the assessment for that particular condition, this is undertaken by applying subsection 120(4) of the Act which requires that the assessment is made to the reasonable satisfaction of the Tribunal. Dr Giblin opined that the correct assessment for Mr Rogers' lumbar spondylosis is ten points from Table 3.3.2. of the Guide There is an agreement between the Applicant and the Respondent that should the Tribunal accept that lumbar spondylosis is a war-caused condition, then the appropriate assessment would be a Disability Pension at 90 per cent of the General Rate. The Tribunal considers that on all of the available evidence and taking into account the various impairment ratings contained within the T Documents and Exhibits, that this assessment is correct. Accordingly, the Tribunal determines that Mr Rogers should be provided with the Disability Pension at 90 per cent of the General Rate with effect from 14 November 1999.
Turning to the issue of whether or not Mr Rogers is entitled to an earnings-related pension at either the Special or Intermediate Rates, the Tribunal has decided to confine its attention to the qualification for Special Rate, because irrespective of whether or not Special Rate is payable, it is accepted by the Tribunal on the evidence, that Mr Rogers is unable to work beyond eight hours per week. This fact means that Mr Rogers would not fall within section 23 of the Act, which deals with the Intermediate Rate, but brings him under consideration of section 24 of the Act, dealing with qualification for the Special Rate of pension.
Mr Rogers ceased work in October 1999 when he accepted a redundancy. The Tribunal accepts Mr Rogers' evidence that he had tried redeployment options but found those not suitable because of his difficulties in retraining and concentration. Furthermore, the Tribunal also accepts Mr Rogers' evidence, as confirmed by his treating psychiatrist, that he has difficulties dealing with stressful situations, making decisions and dealing with people.
Mr Rogers registered with the CES in January or February 2000 and had also made applications and/or inquiries in relation to potentially suitable employment. He found it difficult to obtain employment because the positions required re-training to develop his skills and he felt unable to do this because of concentration problems, excessive anxiety and lack of confidence. The Tribunal notes Dr Law's evidence that Mr Rogers suffers from very clinically significant symptoms of anxiety disorder and is totally and permanently incapacitated for work owing to the adverse effects of his anxiety disorder alone (Exhibit A8). Mr Rogers first consulted Dr Law in June 1997 and has continued to be treated by Dr Law. The Tribunal also notes Dr Law's reporting of worsening of Mr Rogers' anxiety condition in the last two years.
There are some diagnostic issues arising out of Dr Law's reports as he had noted in some of those reports a diagnosis of Mr Rogers suffering from post traumatic stress disorder. The majority of the reports referred to a diagnosis of anxiety disorder. This has implication for Special Rate in that if Mr Rogers had a non-accepted condition of post traumatic stress disorder which impacted upon his ability to work, then his claim for Special Rate would be unsuccessful as it would not have been his accepted disabilities alone which prevented him from obtaining or continuing to work.
In his report of 14 January 2002, Dr Law apologised for the unnecessary confusion his reports had created, explaining that Mr Rogers had some symptoms similar to post traumatic stress disorder including a depressive condition. The Tribunal has considered this report in addition to the report of Mr P Defina (Exhibit R2) and is reasonably satisfied and so finds, that the appropriate diagnosis of Mr Rogers' psychiatric condition is anxiety disorder. The Tribunal is reasonably satisfied that Mr Rogers does not meet the diagnostic criteria for post traumatic stress disorder and agrees with Mr Defina's detailed discussion of this issue.
The Veterans' Review Board in its deliberations decided that it was not incapacity from Mr Rogers' anxiety disorder or a combination of his accepted conditions alone that prevented him from undertaking remunerative work or prevented him from re-entering the workforce. This was a quite proper conclusion when lumbar spondylosis had not been accepted at that stage. This Tribunal, as is often the case in matters before the Tribunal, had the benefit of further medical and other evidence which allowed it to accept lumbar spondylosis as a war-caused condition, hence bringing Mr Rogers closer to the requirements for Special Rate qualification.
Turning to the specific legislative criteria contained within section 24 of the Act, these are strict criteria which are cumulative. Failure to meet one provision means that the section as a whole is not met.
Mr Rogers satisfies subsection 24(1)(a) of the Act , in that he has a Disability Pension at 70 per cent or more of the General Rate.
Having found that Mr Rogers satisfies subsection 24(1)(a) of the Act, the Tribunal turns its attention to subsection 24(1)(b) of the Act which requires that it is a veteran's war-caused condition/s alone that is/are responsible for him or her being unable to work for periods greater than eight hours per week. The Tribunal must also consider the implications of section 28 which, when read with subsection 24(1)(b) of the Act, include consideration of a veteran's vocation, trade and profession, and the type of work he or she might reasonably undertake and the degree to which the veteran's conditions impact upon his or her capacity to undertake work. Section 28 excludes matters from consideration such as a depressed labour market.
Mr Defina has opined that Mr Rogers is capable of working or training to work in positions such as a Human Resource Manager, Quality Assurance Manager, Project Program Administrator, Wool Classer, Credit Loans Officer, Clerk and Social Security Assessor. It is a fact that Mr Rogers is undertaking voluntary work, mainly clerical duties, at the VVAA. He works four to six hours per week. Mr McCombe, the President of the VVAA, has observed that Mr Rogers falls into the category of veterans who suffer from low stress tolerance and that the time spent working in a voluntary capacity is like therapy. Mr Rogers has been observed in this setting to be anxious, to have a low level of frustration and does not deal well with people. The Tribunal accepts this evidence. Furthermore the Tribunal accepts evidence that there were complaints in his last paid employment about his behaviour and dealing with staff. The symptoms as discussed at hearing and noted by Dr Law and Mr Defina are exactly the type of symptoms which would impact upon his ability to work in such positions as detailed by Mr Defina. Mr Defina on the one hand accepts the anxiety and difficulties Mr Rogers has in dealing with people or stressful situations, yet on the other hand, suggests positions which entail precisely the sorts of stresses and demands which Mr Defina noted caused Mr Rogers considerable stress and anxiety. The Tribunal finds that Mr Rogers, with his war-caused physical and psychological health problems and his skills and experience, could not reasonably be expected to carry out the jobs suggested by Mr Defina. If Mr Rogers did not have his accepted conditions, he may well have continued to work or to redeploy to another organisation undertaking the type of work suggested by Mr Defina.
The Tribunal also does not consider that Mr Rogers should be expected to take on lesser skilled positions, noting the decision in Re Davis and Repatriation Commission (1987) 12 ALD 483. That Tribunal noted the possible harmful effects on a veteran's physical and psychological health of alternate employment which was not commensurate with the veteran's skills and qualifications.
Dr Nguyen, the Medical Adviser with Health Services Australia, reported on 27 November 2000, that Mr Rogers is unlikely to be able to work greater than eight hours per week. Even though he had improved in recent times, her assessment was that his conditions are likely to deteriorate with time.
Thus, the Tribunal finds that in relation to subsection 24(1)(b) of the Act, Mr Rogers is totally incapacitated from his war-caused conditions which cause him to be unable to undertake remunerative work for greater than eight hours.
In relation to subsection 24(1)(c) of the Act, this requires that the Tribunal determine that it was Mr Rogers' war-caused conditions alone which lead him to be unable to work and also cause him to have a loss of earnings. Of relevance here is whether or not there are non-service related reasons causing Mr Rogers' inability to continue to work. The approach to be taken in relation to subsection 24(1)(c) of the Act was discussed, as noted by Ms Hook, in Forbes v Repatriation Commission (supra).
Mr Rogers ceased work when he accepted a redundancy. It was his best option at the time. The Tribunal accepts that Mr Rogers had attempted to continue employment by pursuing redeployment options. He found however that those positions available required either retraining or additional travel requirements beyond that which he was capable, particularly because of his psychological and spinal conditions. The Tribunal finds that in reality, when looking at Mr Rogers' life, had he not been suffering from an anxiety disorder in combination with his lumbar spondylosis, then he would have continued to work. As Lidgren J found in Repatriation Commission v Wilson (1996) 43 ALD 777, in order to meet the "alone" test a positive finding must be made by the decision-maker that it is war-caused disabilities alone which prevent the person from continuing to work. An assessment must therefore be made of what Mr Rogers probably would have done based on the evidence tested against the reasonable satisfaction standard. Thus, in Jackman v Repatriation Commission (1997) FCA 564, Tamberlin J noted:
"The AAT had to determine, to its reasonable satisfaction, whether the applicant's war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon "nice philosophical distinctions", equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an "eye to reality"…."
The reality for Mr Rogers is that at the time he accepted the redundancy, he had been demoted, he had lost his human resource delegations, he had tried redeployment options but found that his anxiety disorder prevented him from taking on new skills, training or travelling to work further distances than his back condition would allow him. Mr Rogers was sadly on a downhill slide. As was noted by Drummond J in Magill v Repatriation Commission [2002] FCA 744, if the Applicant can convince the Tribunal that his [or her] disabilities were the sole reason for his or her not being able to continue remunerative work, it will be irrelevant for the Tribunal to consider whether there were genuine attempts to seek work. Mr Rogers has convinced the Tribunal that it was his accepted disabilities which led to his being unable to continue work and hence accept the voluntary redundancy. Furthermore, in Hendy v Repatriation Commission [2002] FCA 602, Madgwick J noted that as in Banovich v Repatriation Commission (supra), a person who had lost a job for reasons unrelated to service-caused disabilities, would not necessarily be debarred from receiving the Special Rate pension. Madgwick J in that decision found that the Tribunal failed to properly, genuinely and realistically consider the reason underlying Mr Hendy's inability to work.
While the Tribunal does not see the need to have recourse to the ameliorating provisions contained within subsection 24(2) of the Act, the Tribunal does note that Mr Rogers did register for employment and made a number of approaches to prospective employers but was unsuccessful. Furthermore, the suggestion by Mr Defina that Mr Rogers was not motivated to work and that he had in effect adopted a retirement lifestyle, is not supported by Mr Rogers' attempts to continue in voluntary work. Voluntary work is not remunerative work and in the type of position Mr Rogers has at the VVAA, he is in no way required to undertake work which, in the paid workforce, would require him to face the stresses of deadlines, customer relations, retraining and the need to produce measurable outcomes.
In relation to the second leg of subsection 24(1)(c) of the Act, that Mr Rogers needs to show a loss of salary or wages or earnings on his own account, this clearly is the case. He was earning less than what he might reasonably have been expected to earn had he not been incapacitated. This loss in remuneration is directly, as the Tribunal has found, related to Mr Rogers' war-caused incapacities alone. The Tribunal considers that the four questions raised in Flentjar v Repatriation Commission (supra) have been answered in the affirmative in Mr Rogers' case and hence confirm his qualification for Special Rate.
Accordingly, in all of the circumstances, the Tribunal finds that Mr Rogers is qualified to receive the Special Rate of pension as he satisfies the requirements of section 24 of the Act. Mr Rogers is qualified for Special Rate with effect from and including 14 November 1999. Thus, the payment of Special Rate from that date supersedes the Tribunal's earlier finding of Mr Rogers being entitled to a Disability Pension at ninety per cent of the General Rate from 14 November 1999.
In conclusion, for all the reasons expressed above, pursuant to section 43 of Administrative Appeals Tribunal Act 1975, the Tribunal determines that the decision under review is set aside and in substitution therefore the Tribunal decides that:
1)Mr Rogers has a war-caused condition of lumbar spondylosis and is entitled to pension for this condition with effect from 14 November 1999.
2)Disability Pension is assessed and payable at the Special Rate from and including 14 November 1999.
I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member, Dr P D Lynch, Member and Professor T Sourdin, Member
Signed:.....................................................................................  Associate
Dates of Hearings  16 November 2001
4 February 2002
Date of Decision  5 September 2002
Counsel for the Applicant  Mr N Dawson of Counsel
Solicitor for the Applicant  Ms P Robertson, R L Whyburn & Associates
Representative for the Respondent Ms P Hook, Departmental Advocate