Scorgie and Repatriation Commission
[2004] AATA 839
•11 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 839
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/215 and V03/485
VETERANS' APPEALS DIVISION ) Re GEORGE SCORGIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date11 August 2004
PlaceMelbourne
Decision The decisions under review, in so far as it was found that pension should continue at 100% of the General Rate is set aside and in substitution IT IS DECIDED from 1 May 2002 the applicant has been entitled to pension at the Special Rate. The remaining parts of the decisions under review are affirmed. (Sgd) J Handley
Senior Member
VETERANS’ AFFAIRS – application for increase in pension above 100% ‑ applicant 55 years – previously employed as a bus driver – PTSD accepted as war-caused – whether PTSD and other accepted injuries alone responsible for incapacity for more than 8 hours per week – decision set aside – applicant entitled to special rate
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424
Cavell v Repatriation Commission (1988) 9 AAR 534
Counsel v Repatriation Commission [2002] FCAFC 201
REASONS FOR DECISION
11 August 2004 Mr J Handley, Senior Member 1. The applicant applies to review two decisions made by the Veterans’ Review Board (“VRB”) on 16 December 2002. The VRB then decided to:
(i)affirm a decision made by the respondent to refuse acceptance of right rotator cuff as war-caused; and
(ii)accepted a withdrawal of a claim for acceptance of chronic bronchitis and asthma; and
(iii)continue pension at 100% of the general rate.
2. The hearing of the application commenced in Wangaratta on 28 May 2004. The applicant then gave evidence. The hearing resumed in Melbourne on 23 July 2004 and evidence was heard from Drs Walton and Silcock.
3. Mr Roach of counsel appeared on behalf of the applicant and Mr Rudge appeared on behalf of the respondent.
4. A number of documents were received into evidence and will be referred to in these reasons.
5. Mr Scorgie is presently 55 years of age having been born on 21 August 1948. He enlisted in the Australian Army on 4 June 1966 and was discharged on 3 November 1986. He was engaged in four periods of operational service between January and April 1969, December 1969 to February 1970, between May and June 1970 and in October 1971. During those periods of service the applicant served on board shipping vessels under the control of the Australian Army. In 1971 he suffered a right shoulder injury during a storm at sea when a 20 tonne derrick was loosened and he was struck about the right shoulder. Mr Scorgie had symptoms thereafter and was issued with painkilling medication. He was not incapacitated, he continued to serve and first sought treatment for shoulder pain in 1989. An MRI report recorded the presence of a right rotator cuff tear but at surgery with Mr Falkenberg in Wangaratta, a tear was not found but rather the presence of a spur. This apparently was the cause of right shoulder pain the applicant was then suffering. It was conceded at the hearing that the applicant did not have a rotator cuff tear.
6. The applicant presently has the following conditions accepted as war-caused:
Duodenal Ulcer
Arthritis Both Knee Joints
Unstable Right Ankle Joint
Injury to Left Foot
Injury to Left Elbow Joint
Injury to Fifth Metacarpophangeal Joint Right Hand
Post Traumatic Stress Disorder
Bilateral Senorineural Hearing Loss
Bilateral Tinnitus
Chronic Solar Skin DamageHutchinson’s Melanotic Freckle
7. The conditions of:
Chronic Asthmatic Bronchitis
Chronic Airflow Limitation
Asthma
Rotator Cuff Syndrome Of The Right ShoulderSimple Chronic Bronchitis
have been rejected as war-caused.
8. By this application Mr Scorgie seeks pension at either the Intermediate or Special Rate.
9. It was submitted by counsel at the commencement of the hearing that the applicant is totally and permanently incapacitated by the combined effects of his accepted disabilities, particularly the effects of post traumatic stress disorder (“PTSD”). It was submitted that Mr Scorgie is “unemployable” and his PTSD alone would prevent him from undertaking any employment.
10. Mr Rudge on behalf of the respondent submitted that the applicant continues to suffer the effects of right shoulder injury and from sleep apnoea. It was submitted that he does possess clerical skills and would be capable of exploiting those skills in employment.
george scorgie
11. The applicant gave evidence and adopted a Statement prepared by him on 26 February 2002 which was received into evidence as Exhibit A. That statement (omitting formal and irrelevant parts) is reproduced as follows:
My right shoulder was injured while on board the Army ship AS3051 JOHN MONASH while on our way back to Australia from South Vietnam in October 1971. A statement from a witness was attached to my original statement. My shoulder was pinned between the ships mast and the ships heavy lift 20th cargo derrick. The result of this accident was that I was helped down from the mast, I was then fronted to the ships captain who referred me to the ships Sgt Medic, Doctors were not carried on board any Army Ship. The Sgt Medic placed me on light duties, watch keeping duties only for the rest of the return voyage to Australia, approx 14 days.
During this part of the voyage I fronted the Sgt Medic daily where he massaged my shoulder and was given Panadol to ease the pain. On the arrival back in Australian waters the Sgt Medic said that more movement was obvious in my shoulder, he doubted if anything was broken and that if I rubbed deep heat into it, it would heal itself with time. This I believed would happen and just got on with things.
The pain in my shoulder did not go completely away and on another voyage I again fronted the Sgt Medic. It was this time that he said that a bit of arthritis might have entered my shoulder and that the best remedy was keeping it moving. If I would have continued with medication it would have meant that my share of the work would have been handed out to the few other crew on board and in those days one did not allow that to happen.
Over the coming years I found that Panadol helped to reduce the ache. I continued my Army service and had the occasional problem with it, the most notable being the inability to pull myself up on the heaves bar and do chin ups as required in our battle pt test requirements. While under going my Warrant Officers Course at Canungra in 1981 I passed the promotional course but failed the upper body fitness test requirements, (heaves,) this was entered on my end of course report. I still believed that the problem was arthritis.
In 1986 I took my discharge from the Army and went to work for Deluxe Coach lines, working as the assistant National Manager Tours and Charters in the main office at Wangaratta.
In 1989 I visited the outpatient at Wangaratta Hospital over pain in my shoulder, which was gradually becoming worse. Once again I was told to take Panadol and rub Deep heat into it as he thought that it was arthritis, I was to go to my own doctor if it did not get any better.
My first visit to my local doctor was in 1990 for pain to my shoulder. Over a period of time and different medications I asked to be referred to a specialist who after X-rays, ultra sounds and Mri’s discovered a spur growing on my shoulder joint and that each time I lifted my arm over my shoulder height the spur was pushing on the shoulder tendons. I asked him how this happened and he stated that it was probably from an injury to my shoulder dating back 20 odd years; the calcium build up was because of this.
He operated on my shoulder, removed the spur and did the tendons as well.
My shoulder still aches but is getting better with time. It was because of the continuous pain in my shoulder and my shortness of temper with my passengers. Outbursts with other people over stupid things and flashbacks that I decided to sell my business before the doctor withdrew my coach drivers certificate on medical grounds, which he said was likely to happen.
It was then that I was advised to apply for a service pension while I was not working. This I did thinking that it was the right thing to do as I have no income, the money obtained by selling my coach paid all of my then accounts out standing leaving nil to live on or any way of earning an income.
The service pension department said that this was wrong and that I had to apply for an increase to my disability pension which I have now done and hence this appeal.
I believe that my full time employment is at an end because of the following reasons.
I will soon have to have my right knee operated on as I am having continuous trouble walking, I have put a hand rail on my stairs to assist me in getting up and down. I can not lift anything heavy with my right arm because of my shoulder, when I do continuous paper work I cannot use a pen for long lengths of time because it brings on aches in my shoulder. I can not enter a room unless I can see an exit point at all time, I can not stand having people standing behind me as it brings a nervous attack and I suffer intolerable claustrophobic problems which my doctor tells me is part of my PTSD.
I have no patience with people and as such do not go out if I can possibly avoid it in case it leads to an argument with somebody. I often yell out to my self to stop my self, thing about things that I don’t want to think about.
When I get bad I go to my local Doctor or I ring up a Vietnam counsellor who talks me through the rough times.
Because of the above I personally believe that I could not possibly consider working for somebody else as I would be a liability and not an asset to their business and I do not think that it would be fair on them.
I joined the army in 6/6/1966 for three years and in this period did my first trip to South Vietnam taking my discharge on the 3/7/1969. With in a week of my discharge I had a serious fight with my best friend who I went to school with over some comments that he made that I disagreed with. I then re joined the army and stayed in until my discharge in 1986. In this second engagement I completed three more trips to South Vietnam as well as Singapore and New Guinea.
. . .
12. Mr Scorgie said that he was initially advised by a shipboard medic that he had bruised his shoulder after it was struck by the cargo derrick. Whilst there was pain present from time to time, Mr Scorgie did not consult a doctor until 1989 and did not have any treatment for shoulder pain between 1971 and 1989. He said that he assumed that he was suffering from the effects of arthritis and took painkilling medication when needed. The symptoms were described as if a “pin was inserted” into the shoulder but he was otherwise not precluded from undertaking employment. Mr Scorgie attended Dr Nankervis in Wangaratta in 1989 who eventually referred him to Mr Falkenberg an orthopaedic surgeon. Surgery was performed in 2001. Presently Mr Scorgie said that he is unable to lift above head height or carry heavy objects.
13. Mr Scorgie was discharged from service in 1986 and said that he was first offered employment by Deluxe Coach Lines (“Deluxe”) as a Tour and Charter Supervisor. Deluxe operated a chain of interstate buses. Mr Scorgie said that he was principally responsible for supervising overseas tourists and was employed between 1986 and 1990. The employment ceased in 1990 when he “flared up” at a female co-worker. He recalled that he was abusive and used a number of offensive words by way of description. He resigned his employment because of his surprise at his behaviour and his short temper. Mr Scorgie was adamant that he did not leave that employment because of shoulder pain.
14. Thereafter Mr Scorgie said that he sought work elsewhere and made more than 20 applications for employment, all of which were unsuccessful. He recalled an occasion when he attended the Commonwealth Employment Service (“CES”) in Wangaratta and was abusive of a counter officer. He eventually did not register for unemployment and did not seek CES assistance.
15. Mr Scorgie then commenced self-employment. He purchased a bus and entered into partnership with two other persons, operating the bus and conducting tours. The partnership continued until 1997. During that period of time the partnership also obtained a franchise over Avis rental motor cars. During this period of employment Mr Scorgie recalled that he mainly completed administrative work but did undertake some interstate driving. He recalled that towards 1997 he and his partners were frequently arguing, he was then binge drinking and the partnership was dissolved
16. Mr Scorgie then entered into partnership with his wife and together they purchased a bus which was financed by mortgage over their home. His wife was employed elsewhere as a nurse and she completed administrative and clerical work. Mr Scorgie was involved only with driving. That self-employment continued until October 2001 when, following a succession of arguments with passengers, Mr Scorgie ceased driving, the bus was sold and has not worked since. In 2001 he recalled that he was poked in the chest by a passenger whereupon he then grabbed hold of that person’s finger and twisted it with the intention of injury. He recalled at or about that time he frequently had Asian passengers which caused him to be “paranoid when they were sitting behind him and he was frequently abusive of Asian persons. On another occasion Mr Scorgie recalled that he abandoned a tour group at a passenger ship in Melbourne and left the passengers stranded. Tour operators, who had sub-contracted work to him learnt of his behaviour and gradually withdrew contracts. He said sub-contract work had come from Deakin University, Chris’s Coaches in Melbourne, Wales Coaches and from the Yarrawonga Motel who organised pokie tours along the Murray River.
17. In answer to questions from Mr Rudge, Mr Scorgie said the duodenal ulcer is managed by him consuming Mylanta medication when necessary and being alert to a proper diet with reduced quantities of alcohol. Mr Scorgie described his right knee as causing restrictions – despite surgery in 2002. Painkillers are frequently consumed and he is unable to squat or kneel or walk long distances. Similar symptoms are experienced in the left knee but not to the same severity. His home has been modified by the installation of hand rails. The applicant thought that his knee injuries would interfere with employment because periods of sitting caused his knees to lock and stiffen and he is required then to stand and walk. Mr Scorgie thought that he would be unable to drive motor vehicles because of the use of pedals. He described his right ankle as “giving way” from time to time, particularly when walking on loose surfaces. He said that he did not have any problem associated with his left foot or his right finger and his left elbow only caused discomfort if he applied weight to it, for example, when leaning on it.
18. Mr Scorgie said that his predominant injury was PTSD. He says he suffers flashbacks on a regular basis and nightmares. He said that he is argumentative, wants to “fight people” and argue and is unable to “tolerate stupidity” in other persons. He says he worries about mistakes that he frequently makes and is concerned that he will “hurt” other people. He acknowledged that he is unable to control his temper. He described suffering from poor concentration, loss of memory and sleep disturbance. There have also been occasions where he has experienced “road rage” whilst driving. He is not treated by a psychiatrist but when he becomes “uptight” he is able to telephone a Vietnam Veterans’ Counsellor who also rings him on at least one occasion per week. He said that the counsellors support him and give him some comfort. Additionally he said that Dr Nankervis – who he continues to attend – has advised him that he does not need psychiatric treatment and that the PTSD can be managed locally.
19. The applicant said that he has been told by his doctors that he does suffer from sleep apnoea but he does not regard it as being “a problem”. He recalled there was an occasion when he was admitted to hospital for observation in a sleep clinic but apparently whilst asleep he suffered nightmares or flashbacks and removed a number of wires and leads which were attached to him to monitor his sleep pattern.
20. Mr Scorgie said that his deafness, tinnitus and solar skin damage does not interfere with his ability to work, nor does his bronchitis or asthma.
21. From October 2001 he said that he has attempted to obtain employment. On one occasion he managed a Motel in Yarrawonga between a Friday evening and a Sunday evening to allow the owners to have time away. He recalled that he then “went off the deep end” and was argumentative with customers. By reason of that experience and his prior employment driving buses Mr Scorgie is now of the view that he would either never be employed or would not be able to work in any position where he is exposed to members of the public. He says that he holds no expectation that any employer would ever offer him employment, having regard to his past history.
22. Mr Scorgie said that were it not for his accepted disabilities he would be able to drive a bus. He said that his right shoulder injury would not preclude him from driving nor would the sleep apnoea.
23. Mr Scorgie was aware of a medical report completed by Dr Lester Walton, a medico-legal psychiatrist, engaged by the respondent. He agreed with the opinions of Dr Walton that his PTSD would preclude him from employment as a bus driver and that he also suffers from interpersonal conflict. Whilst he agreed with an observation of Dr Walton that he suffers obesity, he said that he had been obese since enlistment and it had not ever interfered with employment.
24. Mr Scorgie was referred to a medical assessment completed by Dr Nankervis in January 2002. At page 196 of the T-documents the “major diagnosis” was described as “obesity, sleep apnoea, osteoarthritis – especially knees and ankles”. At page 199 – being a continuation of the assessment – Dr Nankervis recorded he would be fit to perform work between 30 and 40 hours per week. Mr Scorgie said that he was present with Dr Nankervis when that assessment was completed. He said he was unable to explain why there was no reference to PTSD being the “major diagnosis”. With respect to the assessment of the number of hours that he would be able to work, Mr Scorgie recalled that he and Dr Nankervis discussed his capacity and he recalled that he indicated to Dr Nankervis that he would prefer to be able to work between 30 and 40 hours per week but he did not know that Dr Nankervis would record that he had that capacity.
25. Mr Rudge asked Mr Scorgie to comment upon whether his sleep apnoea would interfere with his ability to undertake interstate bus driving. Mr Scorgie agreed that he would not be able to perform that work but said that the sleep apnoea would not interfere with driving within Victoria. He thought that only long distance trips would be of concern to potential employers. He said he would be able to undertake local bus driving – particularly in the Wangaratta district – where he said that he would be required to drive for no more than 40 minutes and would then be required to rest for 20 minutes (apparently as part of Enterprise Bargaining Agreements operating over local bus drivers). He said that within the Wangaratta township he would never “be out of second gear”.
26. With respect to his right shoulder injury Mr Scorgie agreed that in 1993 he felt sudden pain when lifting passenger luggage from a bus that he was then driving. He sought treatment at that time and thought that the shoulder injury, was associated with that activity. He agreed that Dr Nankervis and Mr Isbister, an orthopaedic surgeon in Albury, did not have any history of service-related shoulder injury because he, and the doctors, associated shoulder pain with lifting passenger luggage. He said that he had not been advised that at surgery a spur was found. At this point in cross-examination, Mr Scorgie said that he instituted these proceedings because the Department of Veterans’ Affairs had denied that he ever suffered a shoulder injury in service. He agreed that in forms completed on his discharge medical examination there is no reference to any shoulder injury in service yet eleven other illnesses or injuries are disclosed. Mr Scorgie said that at discharge he was not suffering right shoulder pain and that he “had forgotten” about the episode in service.
27. Mr Scorgie was aware that Mr Warren Barsley of Wrightway Research Service had provided a report at the request of the respondent concerning the allegation of being struck by a derrick in service. Mr Barsley reported that enquiries made by him did not disclose any documented record nor was he able to locate any witnesses to the episode other than Mr Alf Smith who provided a Statement which was received into evidence as Exhibit B. Mr Scorgie said that Mr Barsley previously held the rank of Lieutenant Barsley who had been his captain on one of the voyages. He said that there was an occasion during service when he threatened to “bash” him and recalled that he was known in service as “Warren the bungler” (because on occasions when ships under the command of Mr Barsley had berthed, they would be “smashed”). He said that Mr Barsley continues to “crucify” him to the present time. He acknowledged that Captain Moyes and Captain McDerrmot were consulted by Mr Barsley and they had no recollection of the event. Mr Scorgie said that he had assumed that the incident would have been reported, that he was adamant that in fact the incident did occur and he said that he was not “a liar”.
28. With respect to his employment with Deluxe Mr Scorgie agreed that it had been liquidated but nine months before it ceased trading he had been engaged as a casual driver, permanently completing a return trip to Sydney once a week. He said he did not leave that employment because Deluxe liquidated but rather because of his temperament and his abuse of other employees. Mr Scorgie also agreed that he and his wife, when in partnership, had suffered financial loss and the inability to earn a profit was a reason to cease driving.
29. With respect to his ability to obtain employment, Mr Scorgie agreed that his age, his domicile in a rural community, his limited qualifications and his temperament all contributed to his inability to obtain employment.
30. The hearing of the application resumed in Melbourne on 23 July 2004.
31. On review of the evidence from the first day of hearing and, having regard to the medical reports, Mr Roach conceded that the claim for rotator cuff injury could not be connected with service. Additionally it was conceded that the spur found upon surgery (and apparently responsible for the applicant’s complaints of shoulder pain) were not related to service.
lester walton
32. Dr Walton is a psychiatrist who was engaged by the respondent and who examined Mr Scorgie on 31 July 2003. He provided two reports dated 4 September 2003 and 29 June 2004.
33. In his first report Dr Walton said that he was prepared to place weight upon the observations of Dr Nankervis the applicant’s general practitioner who observed that there was a deterioration in the applicant’s mental state subsequent to the sale of his business and until that time there appeared to have been an ability to maintain self employment. He concluded however that on the basis of the PTSD, alone, Mr Scorgie would not be able to work as a bus driver. He acknowledged that Mr Scorgie suffered from interpersonal conflict that would regularly arise in a work environment, probably excluding any possibility of working in an occupation where he would be exposed to members of the public. Nonetheless, he thought that he had clerical and administrative skills that would permit him to work for more than eight hours per week. In his second report of 29 June 2004, apparently provided to clarify his earlier opinions, Dr Walton reported that Mr Scorgie was capable of working more than eight hours per week but not more than 20 hours per week.
34. In evidence Dr Walton said that he remained of the opinion that the applicant was not totally incapacitated. He thought that his psychiatric state in isolation did compromise the ability of the applicant to undertake employment but he remained of the opinion that the applicant could work for more than eight hours per week but less than 20 hours per week.
35. With respect to an opinion he expressed in his former report concerning the observations made by the general practitioner, he noted that Dr Nankervis had known the applicant for many years and had the opportunity to observe contemporaneous changes. He thought that having regard to those observations it was unlikely that the PTSD was the principle cause of sale of the business in which the applicant was engaged in self employment with his wife. He thought that the ending of that business contributed to a sense of loss or failure which caused the applicant’s mental state to deteriorate. He thought, by reference to the observations of Dr Nankervis, that the applicant’s mental state had been “stable” prior to the sale of the business.
36. Dr Walton reaffirmed the contents of his first report that the applicant should avoid contact with persons in employment and preferably he should work in isolation. He declined to give any opinion concerning the applicant’s capacity by reference to his other injuries – both war-caused and not accepted as war-caused.
37. In cross-examination Dr Walton agreed with a suggestion put to him by Mr Roach that the applicant was capable of working more than eight hours but less than 20 hours per week by reference to his PTSD alone. He also agreed that the PTSD alone would prevent the applicant working as a bus driver. Whilst acknowledging that the applicant had worked as a bus driver from the mid-1980’s he thought he was capable of undertaking clerical work and he was not immune from being retrained. He thought the applicant should preferably be engaged in self employment and not under the direction of an employer. Dr Walton thought that retail type work was not an option for the applicant.
38. With respect to the opinions expressed by Dr Nankervis, Dr Walton was of the view that the opinion expressed of a capacity on behalf of Mr Scorgie to undertake work between 30 and 40 hours per week was “optimistic”. Whilst reaffirming the view that he expressed previously that the applicant was capable of working more than eight hours per week but less than 20 hours per week and whilst acknowledging also that the applicant did have a partial capacity to undertake employment not involving retail sales or in partnership with other persons (other than his wife) or in employment where he would be exposed to the public Dr Walton agreed that it would be remote that the applicant would in fact attract employment.
amanda sillcock
39. Dr Sillcock is an occupational physician who examined Mr Scorgie on behalf of the respondent on 29 July 2002 and 20 November 2003. She provided reports dated 5 August 2002 and 26 February 2004. She has been engaged in occupational medicine for an excess of 20 years.
40. Dr Sillcock acknowledge that her second report contained an error to the extent that she assessed the applicant’s capacity for work by reference to his knee injuries which she understood were not war-caused. Despite this misunderstanding she remained of the view that it is the applicant’s shoulder injury and his sleep apnoea which prevent him from working. She said that his sleep apnoea causes daytime drowsiness which would prevent him from undertaking bus driving because it would increase him and passengers and other road users to the risk of an accident. She said that his shoulder injury limits his range of movement which would also affect driving and the ability to lift luggage.
41. With respect to the applicant’s accepted disabilities Dr Sillcock said that his “main problems” were his PTSD, his knee injuries, his ankle injury and his hearing loss and tinnitus. She thought that the other accepted disabilities did not affect his ability to work. She said that the applicant’s obesity would contribute to incapacity because it aggravates the effects of sleep apnoea and also contributes to the limitation of use of his knees. She acknowledged that he suffers from chronic bronchitis and despite observing that at the second consultation it seemed to be under better control than at the first consultation she said that this condition “adds up” and contributes to incapacity.
42. With respect to the employment that the applicant might be able to undertake Dr Sillcock thought that his sleep apnoea (contributing therefore to drowsiness) and his knee injuries would present him with difficulties undertaking office type employment. She also acknowledged however that Mr Scorgie had little experience in an office environment.
43. In cross-examination Dr Sillcock acknowledged that PTSD was a major contributing factor to the applicant’s incapacity however she thought that his shoulder injury and his sleep apnoea “were more important”.
44. Dr Sillcock was aware that opinions had been expressed by Dr Walton. She said that she would defer to his expertise as a psychiatrist and noted that he was of the opinion that PTSD alone would prevent the applicant from driving.
45. With respect to the second report completed by Dr Sillcock under the sub-headings of “Progress and Current Treatment” she acknowledged that she had not referred to the applicant’s right shoulder nor his sleep apnoea. She said that both of these conditions were referred to in her first report. She also agreed that at the time of the first consultation the applicant had undertaken right shoulder surgery and he was not then being treated. She did note however that in her second report, sleep apnoea is referred to under the sub-heading “Progress” but only to the extent that she noted that it continued to exist. She thought that the applicant had achieved a good result from his right shoulder surgery but it had left him vulnerable to further injury. She thought that the limited range of movement would prevent him lifting bags onto overhead racks in buses or lifting generally above shoulder height and it would not be prudent for him to work as a bus driver. She thought also that the sleep apnoea would contribute to “road safety issues” because he would be exposed to the risk of injury as would his passengers and other road users.
46. The capacity of Mr Scorgie was pursued with Dr Sillcock. She agreed that she first saw him on 29 July 2002 being nine months after the right shoulder surgery. She agreed that at that time she would have expected a good recovery from surgery.
47. When asked to accept that Dr Walton was of the opinion that PTSD alone prevented the applicant from driving, that in effect he was unable to work in a partnership, that he has a good range of movement of his shoulder and without treatment of it in recent times that in fact the PTSD, the knee injuries and the other accepted disabilities were responsible for total incapacity, Dr Sillcock said that those injuries were substantial contributing factors to incapacity but were not responsible alone. She said, again, whilst deferring to the opinions of Dr Walton, that all of the applicant’s injuries – both accepted and rejected – contributed to incapacity.
48. In answer to some questions from me Dr Sillcock acknowledged that in her first report at page 5 she rated all of the applicant’s injuries and illnesses “in order of prominence and importance”. She identified 16 injuries and illnesses. The first five injuries were recorded, “in order of prominence and importance”, as PTSD, claustrophobia, rotator cuff syndrome of the right shoulder, osteoarthritis of both knees (the right being worse than the left) and noise induced hearing loss and tinnitus. The condition of obstructive sleep apnoea was rated sixth on her list. Dr Sillcock said that she made the ranking of injuries and illnesses based then on the applicant’s complaints. She would now rank sleep apnoea as number two on the list and explained that she would do so because “as I rethink the list in terms of what stops him from working I would put it at number two”.
submissions
49. Mr Roach submitted that the applicant should be regarded effectively as totally incapacitated by his accepted disabilities alone and should be awarded special rate pension or at least intermediate rate pension. He conceded that the rejected disabilities exacerbated the applicant’s unemployability but his accepted disabilities alone, principally PTSD should be found to be the substantial cause of the applicant’s total incapacity.
50. It was noted that subsequent to the applicant’s discharge from service in 1986 he was engaged as a bus driver until 1990 but left the employment by reason of a “flare up” with a female co-worker. Between 1990 and 1997 the applicant was in partnership but it was dissolved by reason of frequent arguments, binge drinking and paranoid ideation concerning the other partners. Between 1997 until the partnership with the applicant’s wife ended when the bus they owned was sold, the applicant had significant difficulty with members of the public, particularly Asian persons and he lost contracts. He suffered a loss of income and this was a consequence of the loss of those contracts.
51. It was submitted that the applicant is incapable of working with members of the public, in a retail type occupation or in any occupation where he is subject to the direction of an employer. He should realistically be regarded as being totally incapacitated by reason of his PTSD alone. Additionally the other accepted disabilities all contribute to the applicant’s total incapacity.
52. It was submitted that the evidence of Dr Sillcock should be disregarded. It was noted that in her report of 2004 there was nothing to justify her conclusion that the shoulder injury contributed to incapacity nor could the sleep apnoea contribute to incapacity. It was noted that Dr Sillcock conceded that she was confused as to what constituted the accepted disabilities and at her first consultation with the applicant in 2002 and 2004 she found that the most prominent and important illness or injury suffered by the applicant was PTSD. On balance it was submitted that there was “no good reason” to conclude that her reports nor her evidence would justify a finding that the shoulder injury and sleep apnoea should be regarded with any priority above PTSD nor could it be said that those conditions contribute to the applicant’s total incapacity.
53. It was noted that Dr Nankervis – who was not called to give evidence –was not of the same opinion as Dr Walton nor Dr Sillcock as to the applicant’s incapacity or ability to undertake employment and his conclusions should be regarded as being “overly optimistic”. On balance it was submitted that the applicant achieves special rate entitlement on the evidence of Dr Walton alone.
54. Mr Rudge on behalf of the respondent submitted that the attacks upon Dr Sillcock were not warranted. He submitted that her second report incorporated the findings and conclusions of her first report.
55. With respect to all of the medical reports and the evidence heard it was acknowledged that the applicant’s accepted disabilities prevent him working more than 20 hours per week but not more than eight hours per week. Indeed it was acknowledged that there maybe material which would leave open the possibility of the accepted disabilities preventing the applicant working more than eight hours per week however the applicant cannot satisfy the “alone” test under s24 of the Act. That is to say the accepted disabilities alone do not prevent the applicant from working.
56. It was submitted that an examination of the applicant’s work history indicates (refer VRB transcript at page 14) that the applicant ceased employment with Deluxe Coach Lines because it ceased to trade. That is the reason the applicant became unemployed, upon the submissions of Mr Rudge, not by reason of interpersonal conflict with other employees. Additionally, on the applicant’s evidence the CES found that the applicant, by reason of his age and qualifications would be virtually unemployable.
57. It was also submitted that an examination of the records of Dr Nankervis would suggest that the applicant’s right shoulder was a principle contributing cause to incapacity at July 2001. Additionally the report of Mr Falkenberg the treating surgeon suggests that the applicant adopted a lifestyle subsequent to the shoulder surgery of retirement and income from superannuation.
58. A further examination of the medical records within the T-documents suggest that the shoulder injury would become a permanent disability and that it would contribute to incapacity. An examination of an employment questionnaire within the T-documents suggested that the business in which the applicant was engaged with his wife was sold to eliminate debts. The tax returns also found within the T-documents indicate that the business consistently operated at a loss. These issues, upon the submissions of Mr Rudge, contribute to the cause of the applicant’s incapacity and the alone test under s24 of the Act cannot, therefore, be satisfied.
59. It was submitted that upon the evidence of Dr Sillcock, the applicant’s sleep apnoea and his right shoulder caused his present incapacity to commence and is responsible for it. Additionally the presence of bronchitis, obesity and the prior insertion of a cardiac pacemaker were also contributors to incapacity, none of which have been found to be associated with service.
60. It was noted that Dr Nankervis found the applicant to be capable of working between 30 and 40 hours per week however Mr Rudge conceded that on the probabilities this could not be found. Nonetheless, the PTSD suffered by the applicant has worsened subsequent to ceasing employment and this is associated with loss of self-esteem and loss of employment, none of which can be associated with service.
61. Mr Rudge submitted, on the basis of the Full Court decision in Repatriation Commission v Hendy [2002] FCAFC 424 (“Hendy”) that the applicant cannot establish that his war-caused injuries alone contribute to incapacity for more than eight hours or 20 hours per week and the decisions under review should therefore be affirmed.
62. In reply Mr Roach submitted that the tax returns revealed losses but only because the applicant lost significant contracts which would otherwise have provided him with a profit. It was submitted that the contracts were lost because of the effects of PTSD.
conclusion and reasons for decision
63. By reason of the concession made during the hearing of the injury of rotator cuff syndrome not being war-caused, this application in effect was to review that part of the VRB decision where it was decided that pension be paid to the applicant at 100 per cent of the general rate. Any increase in pension beyond this rate would require an examination of the “alone” test.
64. For reasons which follow I am satisfied that the applicant is entitled to pension at the special rate, qualification for which is to be found at s24 of the Act which is reproduced relevantly as follows:
(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.
65. On behalf of the respondent it was submitted that the applicant could not satisfy the “alone” test under s24 of the Act and thereby qualify for special rate pension.
66. In the first instance Mr Rudge pointed to the comments of Dr Nankervis, the applicant’s general practitioner in a questionnaire completed on 30 October 2001. At page 88 of the T-documents Dr Nankervis records that the applicant’s right shoulder, sleep apnoea and right knee pain were responsible for his incapacity. At that date Dr Nankervis certified Mr Scorgie as having a capacity to work for less than eight hours per week. At page 89 of the T-documents Dr Nankervis records that Mr Scorgie ceased work on 29 September 2001. It is noted that the applicant had right shoulder surgery on 15 November 2001 and accordingly the opinions expressed by Dr Nankervis were made approximately two weeks prior to surgery.
67. Dr Nankervis’ findings as to capacity and ability to work are in marked contrast to the findings made by him on 23 January 2002 approximately three months later and then approximately two months after the surgery. On the one hand it is suggested by comments made by Dr Nankervis (page 198) that Mr Scorgie ceased driving because he was “unable to load/unload luggage with shoulder injury. Difficulty with [illegible] and sleep apnoea precluded ability to pass further medical examination”. However on page 199 in answer to the question “In your opinion which medical opinions reduce the veteran’s ability to work and how?” Dr Nankervis has answered “right rotator cuff repair – limited ROM. Bilateral knee and ankle arthritis. Post-Traumatic Stress, would find it very difficult to work for an employer. Resents taking orders.” On the same page Dr Nankervis has recorded that Mr Scorgie would be able to work between 30 and 40 hours per week. Other factors which Dr Nankervis considered would prevent Mr Scorgie returning to the workforce were recorded as “age, obesity”. At page 198 he recorded that “obesity is a major deterrent for employers. George may consider becoming self employed again in the future after rehabilitation after his recent rotator cuff repair. Possibly in retailing”.
68. The absence of PTSD as a cause of incapacity in October 2001 but it being a cause at January 2002 (p199) is not explained by the documents. Additionally the ability to work for less than eight hours per week at October 2001 with having a capacity of between 30 and 40 hours per week at January 2002 – two months after shoulder surgery – is also unexplained save that Mr Scorgie said in evidence that it would appear that Dr Nankervis apparently misunderstood comments made by him at consultation where he then expressed a preference to be able to work between 30 and 40 hours per week. (In fairness, Dr Nankervis may have also been of the opinion that the shoulder surgery improved his capacity).
69. The failure to give sufficient weight to the presence of PTSD continues to be a mystery because Dr Nankervis recorded at page 94 of the T-documents that he was first consulted about PTSD in January 2001. He must have therefore been aware of the presence of the condition at October 2001. Additionally at January 2002 (pages 210-215) Dr Nankervis has provided extensive detail of the nature and effect of PTSD. At page 210 he recorded that the applicant had a “preoccupation with service in Vietnam; frequent flashbacks, evasive behaviour to avoid confrontation with Vietnamese civilians, always highly strung and defensive”. He described the PTSD as causing subjective distress with persistent symptoms. At page 211 he recorded that the distress suffered by Mr Scorgie was perceived by him and was apparent. He recorded “George always appears to be just in control of his emotions. Has multiple somatic signs of stress or labile BB, tachycardia tremor and sweating”. With respect to the effect of the disability upon the applicant’s ability to cope in day to day situations Dr Nankervis recorded “Unable to come face to face with Vietnamese people without violent reaction. Behaviour causes problems with upbringing of his two children but now in adulthood his children are very supportive” (page 212). At page 213 it is noted that the applicant has two friends only outside of his family who are both Vietnam veterans.
70. Perhaps it was not until January 2002 that Dr Nankervis fully understood the significance of the PTSD suffered by the applicant. The differences in the assessment of the ability to work between October 2001 and January 2002 remain unexplained, other than the explanation offered by Mr Scorgie, yet it would appear from the comments made by Dr Nankervis in January 2002 that the applicant was then – in his post-operative phase – severely limited and incapacitated by PTSD. It would also appear from those comments that that condition – despite the date of first presentation for treatment – was long standing indeed Dr Nankervis recorded at page 212 that the applicant was of the view that there was minimal interference with capacity to work because work was considered “as an outlet – was able to channel a lot of his nervous energy into his job”.
71. Perhaps the applicant was able to “channel” nervous energy into his job however conversely – or indeed paradoxically – his nervous energy would appear to be – on the evidence heard – the reason why he lost his business.
72. The applicant had a long history of interpersonal conflict in the workforce. This was evident from 1986 when he was initially employed by Deluxe Coach Lines. It is true that that entity did eventually enter into liquidation but on the evidence of Mr Scorgie he resigned that employment because of an argument he had with another employee. Additionally he said that he left the employment voluntarily before Deluxe was placed into liquidation. He then entered into partnership with two other persons but there was frequent conflict and that partnership ended in approximately 1997. Thereafter the applicant entered into partnership with his wife and they purchased their own bus. The behaviour of Mr Scorgie apparently towards his passengers was so erratic and abusive that it is little wonder that contracts which he had previously enjoyed were taken away. Consequently there was a loss of remuneration.
73. The episodes of conflict and abuse of passengers were not isolated. Florid and abusive language was heard from Mr Scorgie in his evidence by way of description of the manner in which he dealt with his passengers. There is also evidence of the occasion where the applicant took hold of a passenger’s extended index finger with the intention of injuring it when that passenger was poking him in the chest. There was an occasion where the applicant left a tour party stranded at the Melbourne docks. There were frequent references made in his evidence and throughout the documents to the applicant being abusive towards Asian persons and a feeling of deep discomfort when Asian persons were seated in the bus behind him. The VRB also heard a description of a number of events involving abuse and hostility by Mr Scorgie towards his passengers (refer T-documents xxii) including abuse by the applicant of a 14 year old passenger and throwing a bucket at the parent of an Asian infant who was a passenger. The applicant also suffers “road rage” a phenomenon which should prohibit him from driving any vehicle and certainly a passenger bus. On the medical reports and on the applicant’s evidence, “road rage” is a symptom or consequence of PTSD.
74. The evidence of the applicant’s abusive and erratic behaviour, his evidence generally as read and as heard in Wangaratta, my observations of the applicant and the opinions expressed by Dr Walton and Dr Sillcock satisfy me that on the probabilities the most predominant injury suffered by the applicant is PTSD and that that condition is principally responsible for his incapacity and it prevents him from working for more than eight hours per week.
75. Mr Rudge pointed to the employment questionnaire completed by Mr Scorgie found at page 112 where he recorded that the business owned by the applicant and his wife had ceased to trade and the bus owned by them was sold on 2 October 2001 with the proceeds being used to meet debts. That of in itself in my view is not the reason for the applicant ceasing to be engaged in remunerative work but rather is a consequence of the applicant’s inability to continue with self employment by reason of his erratic and abusive behaviour causing a loss of business and an inability to generate an income.
76. The applicant’s tax returns were also suggested as indicative of the reason for ceasing employment because losses were claimed however the returns for the years 1999 and 2000 when compared indicate that in both years there were gross receipts but unfortunately in both years the expenses exceeded income.
77. I thought the evidence of Dr Walton was sound and balanced and I would agree with him and find as a fact that the PTSD alone would prevent the applicant working as a bus driver. I would however take issue with him as to his assessment of the capacity of the applicant to undergo employment elsewhere for more than eight hours per week. It was suggested that the applicant might be fit for retail work, the source of this opinion is to be found in the notes of Dr Nankervis. Dr Walton is of the view, with which I agree, that by reason of the applicant’s personality he should not be exposed to members of the public. He thought the applicant might be fit to engage in administrative or clerical type work however in my view the other accepted disabilities of knee and ankle injuries and hearing loss would contribute to incapacity.
78. Dr Sillcock was of the view that the PTSD was the predominant injury but the applicant’s inability to work was heavily influenced by the presence of sleep apnoea and the right shoulder injury.
79. It is my view that the applicant’s right shoulder injury would not prevent him from undertaking employment as a bus driver. The applicant certainly does have a restricted range of movement and on the evidence of Dr Sillcock he would be unable to lift bags or luggage above head height. However the applicant in his evidence in Wangaratta said that there would be no impediment upon him undertaking employment as a local bus driver particularly in the Wangaratta district. This would not expose him to lifting luggage and in the event that he obtained employment driving a passenger bus, for example, in the Wangaratta township, he said that by reason of enterprise bargaining agreements entered into by other local drivers, the employment comprises driving for 40 minutes and resting for 20 minutes. As a measure of the ability of Mr Scorgie to undertake that work he said that driving in the Wangaratta township would not cause him to travel beyond the use of the second gear.
80. Additionally I would be of the view that the sleep apnoea apparently suffered by Mr Scorgie would not prevent him from undertaking employment of that type. The applicant agreed in evidence that sleep apnoe would prohibit him from undertaking interstate bus driving but he felt confident that he could drive within Victoria. I would be confident that even with sleep apnoea he would be able to undertake work as a driver of a passenger bus within Wangaratta upon the employment regime as described above.
81. In the first opinion expressed by Dr Sillcock by her report of 5 August 2002 she rated 16 illnesses and conditions “in order of prominence and importance”. Except for the right shoulder injury, four of the first five conditions are all accepted disabilities. Obstructive sleep apnoea is rated as number six on the list of “prominence and importance” behind noise induced hearing loss and tinnitus. That opinion was expressed eight months after the shoulder surgery. By way of explanation Dr Sillcock said in evidence that the opinion expressed in her first report was made upon the basis of the applicant’s complaints however her evidence at the hearing of rating sleep apnoea as number two behind PTSD was as a result of her “rethinking” the ranking of the injuries contributing to incapacity.
82. On balance I am not satisfied nor am I prepared to find as a fact that the illnesses and injuries suffered by Mr Scorgie other than his accepted disabilities contribute to his incapacity. Put in the alternative I am satisfied that the accepted disabilities – principally PTSD – alone are responsible for his incapacity and his inability to work for more than eight hours per week.
83. With respect to s24(a) of the Act the applicant has met the threshold of at least 70 per cent of incapacity.
84. With respect to s24(b) of the Act the total and permanent incapacity of which I find as a fact arises from war-caused injuries alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
85. By reference to s24(c) of the Act the incapacity by the war-caused injuries prevent the applicant from continuing to undertake remunerative work. If it is not clear from the foregoing, I am satisfied that the effects upon the applicant of his PTSD are so overwhelming and so profound as to prevent him from having any capacity for employment.
86. Additionally, as I now reflect on the evidence and the submissions, the emphasis on the word “alone” was too stringent. Burchett J decided in Cavell v Repatriation Commission (1988) 9 AAR 534 that “alone” does not mean “sole, unique and absolute”. At p539 His Honour decided that a “practical decision” of whether there has been a loss of remuneration attributable to service injuries “should not be made upon nice philosophical distinctions, but with an eye to reality”.
87. It should also be noted that the submissions with respect to the losses in the applicant’s partnership with his wife (as evident from the tax returns) were not subject to examination in evidence. Despite the inferences drawn by Mr Rudge, the Full Federal Court in Counsel v Repatriation Commission [2002] FCAFC 201 decided that losses did not necessarily indicate a cessation or absence of remunerative activity.
88. For the purposes of s24(2) of the Act I am not satisfied that the applicant ceased to engage in remunerative work for reasons other than his incapacity by war-caused injury and the incapacity is the substantial cause of his inability to obtain remunerative work.
89. In Hendy, the Full Court discussed the hypothetical position of what the veteran would have done, in terms of employment, were it not for his war-caused disabilities. Consideration was given to whether the “relevant condition alone” prevented the veteran from continuing to undertake remunerative work (paragraph 37).
90. In the Full Federal Court decision of Flentjar v Repatriation Commission (1997) 48 ALD 1 the Court at pages 4-5 recorded the approach to be taken to the application of s24(1)(c) of the Act. That approach is summarised by the asking of four questions which are recorded as under:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(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 he would not be suffering if he were free of that incapacity?
91. In answer to those questions I would say that the relevant remunerative work the veteran was undertaking was bus driving. Questions 2, 3 and 4 should be answered in the affirmative.
92. A suggestion put to Mr Scorgie and to the witnesses during the hearing of this application is that he voluntarily withdrew from the workforce at or about the time that arrangements were made for him to undertake right shoulder surgery. In fact comments in the report of Mr Falkenberg of 21 January 2002 were suggested as pointing to the adoption by Mr Scorgie of voluntary retirement for reasons unassociated with his PTSD. I would counsel against that conclusion. The opinion of Mr Falkenberg is expressed approximately two months after surgery and at that time the applicant apparently expressed being “quite happy with the shoulder” but with the presence of pain with extreme movement. At that time the applicant apparently indicated that he did not feel comfortable driving heavy vehicles or buses. It was also suggested that his bus had been sold and he “was able to stay off work on his army superannuation for some time”.
93. Those comments in my view should be observed and understood in the context of a person who was then in a post-operative phase. They are the opinions of a person who was satisfied with the outcome of surgery but was also expressing caution as to the ability at that time to return to work involving heavy vehicles or buses. The reference that the applicant “was able to stay off work on his army superannuation for some time” in my view amounts to the expression of a person who was prepared to undertake a period of convalescence and was not then under financial pressure to return to work because of the presence of superannuation income.
94. The applicant himself has demonstrated some enterprise in obtaining employment since he was discharged from service in 1986. Initially he was employed as a salaried driver but thereafter entered into self employment in partnership with other persons and more recently in partnership with his wife. There is nothing to suggest that the applicant’s enterprise would not have continued upon the ending of a period of convalescence of shoulder surgery were it not for the presence of his PTSD. Indeed these comments seem to be reflected in the concluding opinion of Mr Falkenberg who reported “He will see how the shoulder goes over the next couple of months and then he is thinking of going into some other type of business venture. At this stage however I have not arranged to review him but will be happy to do so if it has not improved by Easter time”. The hypothetical position is therefore, in my view, that Mr Scorgie would have returned to work but for his PTSD (refer Hendy). I am not satisfied that the PTSD worsened or caused incapacity by the effects of surgery or the loss of his bus, as alleged.
95. Those comments suggest to me that despite Mr Scorgie then being in a period of convalescence from the shoulder surgery he had not dismissed the possibility of returning to employment in the future, however unrealistic that opinion may have then been having regard to the profound nature of his PTSD.
96. The application for increased pension was made upon the respondent on 8 January 2002. At that time the applicant was incapacitated by reason of the shoulder surgery. The shoulder injury was conceded during these proceedings as not being war-caused. At 8 January 2002 the applicant could not demonstrate entitlement to special rate pension by reason of war-caused injuries alone.
97. I am satisfied that the inability to work for more than eight hours per week by reason of war-caused injuries alone occurred sometime later than January 2002 and therefore after the commencement of the assessment period. At 21 January when Mr Falkenberg prepared his report the applicant was continuing to be affected by the right shoulder. I cannot identify from a report of Mr Falkenberg to the applicant’s solicitors of 6 March 2003 a date upon which the period of convalescence from the right shoulder surgery would have concluded. Mr Falkenberg reported on 21 January 2002 that he did not propose to review the applicant but would do so if there had not been improvement by Easter of that year. Dr Sillcock noted that at her examination of the applicant on 29 July 2002 that there was some tenderness over the site of the shoulder surgery but there was almost a full range of movement but some limitation of abduction and flexion.
98. On balance I would think that the period of convalescence from the shoulder surgery occurred after January 2002 and before July 2002. For the purposes of this part of the review I would find that the effects of shoulder surgery ceased to affect the applicant’s capacity for employment at 30 April 2002, being six months after the date of surgery. There is no evidence to support this finding, but equally, there is no evidence pointing to a date when the convalescence from surgery ended. The applicant could not establish incapacity by war-caused injuries alone at the date of claim, however, from 1 May 2002 the applicant has had an entitlement to special rate pension because from that date he has been prevented from continuing to undertake remunerative work by war-caused injuries alone for periods aggregating more than eight hours per week. As a consequence of that incapacity he has suffered a loss of salary or wages or of earnings on his own account were he not suffering the effects of the war-caused injuries alone.
99. It follows therefore that the decisions under review should be set aside and in substitution it is decided that from 1 May 2002 the applicant has been entitled to special rate pension.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley, Senior Member
Signed: Grace Carney
Personal AssistantDates of Hearing 28 May and 23 July 2004
Date of Decision 11 August 2004
Counsel for the Applicant Mr M Roach
Solicitor for the Applicant Nevin Lenne Gross
Departmental Advocate Mr K Rudge
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