Sharp and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 719

Sharp and Repatriation Commission (Veterans’ entitlements) [2016] AATA 719 (16 September 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/3842
Re	Brian Sharp
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	16 September 2016
Place	Sydney

The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the Intermediate Rate provided for in s 23 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 1 May 2014 and at the Special Rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 20 June 2014.

...............................[sgd].........................................

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – special rate – intermediate rate –  the alone test – whether veteran incapable of undertaking remunerative work for eight or more hours per week – whether veteran prevented by accepted disabilities alone from continuing in remunerative work – decision under review set aside and substituted

LEGISLATION

Veterans’ Entitlements Act 1986 ss 5, 23, 24

CASES

Cavell v Repatriation Commission (1988) 9 AAR 534, [1998] FCA 464

Chambers v Repatriation Commission (1995) 55 FCR 9, (1995) 129 ALR 219
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50, [2000] FCA 328
Repatriation Commission v Buckingham, [1996] FCA 1218
Repatriation Commission v Hendy (2002) 76 ALD 47, [2002] FCAFC 424
Richmond v Repatriation Commission [2014] FCAFC 124

Smith v Repatriation Commission [2014] FCAFC 53

REASONS FOR DECISION

Ms N Isenberg, Senior Member

16 September 2016

INTRODUCTION

1. The applicant, Brian Sharp served for over 20 years in the RAAF.  He currently has accepted disabilities of sensorineural deafness, anxiety neurosis with phobic features, and bruxism. 

2. On 17 April 2014 Mr Sharp sought an increase in his pension, in particular, the Special Rate of pension, provided for in s 24 of the Veterans’ Entitlements Act 1986 (the “VE Act”). A delegate of the Repatriation Commission refused that application but increased his pension to 90% of the General Rate. This decision was affirmed on review by the Veterans’ Review Board (“VRB”) in a reviewable decision dated 2 July 2015. Mr Sharp has applied for review of the VRB’s decision. His submission to this Tribunal is that he is entitled to the Special Rate of pension, or in the alternative the Intermediate Rate of pension, or that his pension should be at least increased to 100% of the General Rate.

3. Mr Sharp’s entitlement to the pension at the Special Rate is to be determined under s 24 of the VE Act.

   LEGISLATIVE SCHEME

4. The criteria for payment of the Special Rate of pension are set out in s 24 of the VE Act. Generally speaking, if any one of the criteria is not met, the applicant will not be eligible for payment of pension at that rate. The Tribunal has no discretion in this regard. To qualify for pension at the Special Rate, s 24 requires that the applicant must be under the age of 65 years and, be in receipt of pension of at least 70% of the General Rate. The respondent acknowledged that the applicant satisfies these criteria. The respondent conceded at the outset that the evidence would support a rating of 100% of the General Rate.

5. In addition the applicant must meet other specific tests.

6. Firstly, the applicant must be totally and permanently incapacitated from his accepted disabilities which alone, render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week: s 24(1)(b). (In the case of the Intermediate Rate, periods aggregating more than 20 hours per week: s 23.)

7. Secondly, the applicant is by reason of incapacity from accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking and is thereby suffering a loss of salary or wages that he would not be suffering if he was free of that incapacity: s 24(1)(c). This test is qualified by s 24(2)(a) which provides that an applicant who is incapacitated by his accepted disabilities shall not be taken to be suffering a loss of income by reason of that incapacity if:

   ·he had ceased to engage in remunerative work for reasons other than incapacity from his service-caused conditions, or;

   ·he is incapacitated or prevented, from engaging in remunerative work for some other reason. 

8. It was common ground that Mr Sharp had not sought to engage in remunerative work, and so the ameliorating provisions of s 24(2)(b) are not applicable.

   BACKGROUND AND EVIDENCE

9. Mr Sharp provided extensive written submissions, and gave detailed, albeit sometimes confusing, evidence.  He gave evidence of traumatic events which had occurred during his service, and of earlier events of which he has only now become aware through counselling.

10. He gave evidence of working in senior positions and that he felt empowered because of those positions.  However, he was easily stressed and especially could not cope when there were staff problems.  He worked himself to exhaustion.

11. He has had four failed marriages and attributes the breakup of his marriages to his anxiety condition.  In 2013 he met his present wife, who is Indonesian.  Following cessation of work in mid-2014 they married and moved to Indonesia.  He stays at home, rarely leaving the house unless accompanied by his wife.  He fills his day watching TV and doing little else.  He has no social life.  He has an intense fear of flying, and required medication to make the flight to Australia for the hearing.  His wife owns a successful business and, if he were able, he could work in that business.

12. He currently drinks, he told me, six cans of beer a day, but never commencing before 6 PM.  Over the years he has self-medicated with alcohol.  As to his “shakes” he said these are a nervous response and are not related to alcohol.  He is heavily medicated, as he has been for some years. 

    Work history

13. Mr Sharp left the RAAF in 1989 after more than 20 years’ service.  Although he was only a junior member, by the end of his career he was performing the role of a Flight Lieutenant and was responsible for stores for the whole of Northern Australia.

14. During his service however he experienced some events to which he attributed his anxiety condition.  He was hospitalised at that time, and since then he has never been free from his anxiety symptoms.  For example, when he is stressed he is unable to cope, will shake and sweat profusely. 

15. After he left the RAAF he had a number of roles, mainly in the public sector, until 1996 when he worked for a private company.  At first he was the general manager and was then appointed to board.  Because he considered that the company engaged in some unethical business practices, he became very stressed and left that role.  He said that, at that time, he was given “a medical certificate” not to work for 12 months.  He did not accept that advice because working gave him self-esteem.  He explained that he had had no formal training and was proud of his achievements, given that he had a number of unfortunate incidents in his youth.

16. For a short time in 2002-2003 he operated his own company, undertaking contract project work, but it was not successful, he said, because of his anxiety issues.  In 2003 he obtained a role with the Health Insurance Commission as a “strategic relations manager”, reporting to the Deputy Chairman of the Commission.  He said he resigned to move interstate because of his then wife’s ill-health. 

17. In 2005 he returned to Canberra, taking up the position of Director of Property for a government department, with an important role of reducing the department’s property assets.  He managed between 10 and 30 staff.  He started having problems with his staff and was unable to cope; he was anxious and worrying all the time.  His contract was terminated.

18. He took a few months off and then undertook a short contract with the Health Insurance Commission for a couple of months, rewriting its procurement manuals.  He did not feel well but needed the money because he had a huge mortgage.

19. In 2008 he had a contract position as the National Property Manager for the Family Court.  He was not successful in his application for the permanent position.  One of the difficulties was that his flying phobia affected his ability to undertake the interstate visits which the job required, and he would experience panic attacks.  Furthermore, he had difficulties getting on with his direct supervisor.

20. From 2009 to 2011 he operated his own company undertaking contract assignments.  He said there was really only one contract over 3 to 4 months for a government department which involved managing the several million-dollar fitout of a building.  He also undertook energy audits will for the government.  All the time he was looking for jobs at the EL1 and EL2 level within government.

    Mr Sharp’s last job

21. Mr Sharp said that in 2011 he was headhunted by a person with whom he had worked at the Health Insurance Commission because of his change management skills.  The temporary contract with the Department of Human Services involved change management for procurement for a number of agencies that were being amalgamated.  At the age of 61 he was appointed to the permanent EL1 position and immediately commenced acting at the EL2 position as the Director.  Because it was so unusual for someone of his age to be appointed to a senior role, for some months a recording was played to potential employees about his success, by way of demonstrating an aspect of diversity within the department. 

    Ceasing work

22. By the end of 2013 however, he was having difficulties at work; there were staff issues and, in particular, he was required to performance-manage a difficult staff member who was “a troublemaker”.  There was enormous pressure; he was worrying all the time.  He would sweat profusely and had to leave meetings.  He said his staff were trying to cover for him.  He started making mistakes.  He was panicking.  While he had previously gone to work to “feed” his self-esteem he was now finding that work was in fact destroying his self-esteem.  He said he went to his GP, Dr Thomson and was given a couple of weeks of leave.  Dr Thomson, he said, reminded him that she had told him five years previously that he should give up work.  From the end of 2013 he acknowledged she was right and he began considering giving up work.

23. He said that in late March or early April 2014, after a week or two of sick leave, Dr Thomson again said he should give up work.  He was concerned about handing over the work.  An agreement was reached between himself and his manager, Mr P Lindenmayer, and Dr Thomson that he should work for 20 hours a week for a short period in order to facilitate handover, providing that he saw Dr Thomson once a week for a long consultation. 

24. The applicant was cross-examined in detail about the sequence of events.  When asked about when he had decided to move to Indonesia, he said that at the end of 2013 when he was having extreme difficulty with his work he decided that if he had to give up work, he would marry and move to Indonesia.  There were no fixed plans as to when that would occur.  He was referred to the entry of 4 November 2013 in Dr Thomson’s notes that he was “very stressed and would like to retire with TPI”, and said that this was consistent with his evidence of difficulties at work from the end of 2013.  He noted that as an indication of his failure to cope, in February 2014 his psychologist, Ms Gianakis, was recommending in-patient treatment.

25. It was not until early 2014, he said, that they set a date to get married.  On 26 February 2014 Dr Thomson recorded that he was getting married in June and moving to Indonesia.  He was, she wrote, “considering” DVA pension.  He said that this was prior to a discussion about his work hours. 

26. He was asked about an entry on 5 March 2014 wherein Dr Thomson had written “anxiety ++, sweat pouring off.  Finalised retirement around 30.6”.  He noted that this entry was made while he was on sick leave, and that it was at that time that he had decided when to leave work.  On 12 March 2014 Dr Thomson recorded “very nervy, sweating all the time…”.  The following week he saw Dr Thomson again and mentioned staff problems and that he was “dithering more” and that he had started the “DVA paperwork”.  He was reviewed again on 2 and 14 April 2014.

27. Between 17 and 28 April 2014 the applicant took some recreation leave because his partner was visiting from Indonesia.  It was on 17 April 2014, while he was on his scheduled recreation leave, that Mr Sharp put in his application for the Special Rate. 

28. On 30 April 2014 he again consulted Dr Thomson who recorded he was feeling “deflated and uncertain”.  She recorded that he “doesn’t want to be at work. 52 days left”.  In cross examination it was suggested that this demonstrated some calculation as to when he would leave work, and the applicant said that it precisely demonstrated his inability to continue and was counting down the days.  The applicant said that he was supposed to work two days a week and half a day on Wednesdays and go to Dr Thomson for an extended consultation that afternoon.  In fact, he said, he only went in for meetings, or as required, but attended Dr Thomson every week.

29. When he saw Dr Thomson on 7 May 2014 she recorded that he had said “doesn’t think he can see his time out. Has option of doing 20h[our] week till leaves or take a chunk of time off and then just handover before goes. Impacting on whole workplace… Still drinking heavily as stressed about things”.  The applicant said this notation meant that if he were unable to manage the 20 hours he should just leave.

30. There were some further consultations with Dr Thomson, including that on 25 June 2014 where she recorded that “gave up work end of last week and suddenly wants to get out of bed! Feeling so much better…”  He said that this was entirely accurate.

31. Mr Lindenmayer the former National Manager, Procurement and Contract Management, (now the National Manager, Commercial Partner Manager), Department of Human Services, provided two letters in support of the applicant’s claim – dated 14 August 2014 and 2 May 2016.  In his first letter Mr Lindenmayer wrote that he had been the applicant’s direct supervisor for approximately three years until he, the applicant, left work.  He regarded the applicant as having been a fully effective and highly valued officer until early 2014 when medical issues began to have a clear impact on his capacity to continue to work.  In the second week of April 2014 the applicant told him that his doctor had advised him that he could no longer work full-time and would be able to work no more than 20 hours a week, and that, only for a transitional period prior to permanent separation in June 2014.  He said that he agreed with the applicant that he would work part-time from 17 April until 20 June, strictly in line with the conditions advised by his doctor and supported by frequent medical appointments to ensure his condition was monitored.

32. In his second letter, Mr Lindenmayer provided some more information about the role the applicant had been undertaking.  He wrote that the applicant was a change manager for the integration of procurement services for a large number of departments and that this was the largest activity of its type ever undertaken by the Australian Public Service.  He noted that the applicant had kept him informed about his mental health issues throughout his time in the department and was very open about the impact of the issues on his work and personal life.  He said it was clear from early 2014 that the applicant was having considerable health difficulties in continuing to work.  He thought it was to the applicant’s credit that he undertook the transition and succession arrangements notwithstanding that his obvious difficulties in doing so.  He indicated that if the applicant were fit for work he would have no hesitation in employing him in a senior role.

    Medical evidence

33. In 1989 the applicant was examined at the request of the respondent by Dr Rosalee Troup, psychiatrist, who wrote in a report dated 17 April 1989 that the applicant had a long-standing phobic anxiety state.  She recorded that in 1980 he had been treated at the Northside Clinic for anxiety state with generalised anxiety and phobic features.  She noted that the applicant would require further treatment in the future and that although he was functioning satisfactorily at that time, he was doing so by avoiding phobic situations.

34. In 1990 the applicant was under the care of Dr Alan Freed, psychiatrist, who provided a report dated 12 November 1990.  Dr Freed wrote that the applicant had been seeing him for some months for treatment for anxiety and phobia and noted that the applicant had, in addition, well established alcohol abuse.  He regarded the Applicant as moderately to seriously debilitated.  He noted he was having panic attacks at the rate of about 20 per month.  He considered that his prognosis in respect of his anxiety disorder was only fair, as was his prognosis with respect to episodic excessive alcohol consumption.

35. The Applicant was seen by Dr John Saboisky, consultant psychiatrist, whose clinical notes record that the applicant was admitted to Hyson Green, the psychiatric unit of a Canberra hospital in June 2004 with “depression with suicidal ideation and excessive alcohol ingestion – multiple social problems”.  Another admission was in September 2005 for “distress over complex marital situation.  Alcohol abuse”.  The notes record that he was unable to work.  Dr Saboisky wrote in a report dated 18 April 2008 that he had seen the applicant in September 2004 after he had “hit rock bottom”.  He recorded that the applicant had picked himself up and obtained employment with the federal government in a responsible position.  At that time, he had been drinking only moderately.  He noted that the applicant was having problems at work which affected his anxiety symptoms.  The Applicant was referred to Dr Saboisky again in April 2008.  The notes refer to him “struggling with nerves” and “anxiety +++”.

36. The applicant’s former treating general practitioner, Dr K Thomson, wrote in a work ability report dated 19 May 2014 that she had been the applicant’s GP since 2005.  She wrote that the applicant was able to work between eight and 20 hours a week but from 20 June 2014 could only work less than eight hours per week.  She wrote that she had considered him unfit for work for the past five years or so.  In a letter dated 1 August 2014 she wrote that the applicant was unfit for any kind of work from 20 June 2014 and had been unable to work for a number of years but “due to his high work ethics he has continued in his previous position up to that date”.  She noted his ongoing mental health issues which she described as “depression anxiety and PTSD”.  She noted that the applicant was not under the care of a psychiatrist at that time because he had had bad experience with psychiatrists in the past and that his medication was adequate and he was seeing a psychologist which was more helpful [to him] than a psychiatrist.

37. The applicant provided a report from Mary Gianakis, clinical psychologist, dated 18 March 2015.  Ms Gianakis wrote that she treated the applicant from February 2012 to May 2013 and again for one session in February 2014.  Her treatment focused on anxiety management skills, motivational interviewing and behaviour therapy for alcoholism, and cognitive behaviour therapy.  The notes record that on 26 February 2014 she recommended that the applicant be admitted to Hyson Green because his “anxiety levels [were] through the roof”.

38. The applicant provided medical reports from his current treating psychiatrist, Dr Myrni Dunda, dated 20 February 2015.  Dr Dunda wrote that the applicant’s symptoms include panic attacks, shortness of breath, shaking, profuse sweating, irrational behaviour, self-isolation with no contact, severely disrupted sleep patterns, escapism reaction to perceived conflict or stress situations and a feeling of anger.  He also referred to the applicant’s history of relationship breakdowns and alcohol consumption.  He regarded the applicant’s prognosis as poor and considered that he would require long-term treatment.  He sees the applicant fortnightly.

1. The applicant was examined at the respondent’s request by Dr Robin Chase, occupational physician, who provided a report dated 23 August 2016, and who also gave evidence.  On the basis of the history given to him by the applicant, Dr Chase considered that the subjective distress suffered by the applicant was continuous and causing him overwhelming distress.  He noted that the applicant reported difficulties travelling on public and private transportation and that he had travelled to Australia with some difficulty.  The applicant reported high levels of disability as a result of his anxiety to the point that he cannot leave the house unless accompanied by his wife.  Dr Chase wrote that the applicant’s accepted disabilities alone were responsible for his incapacity to work, but observed that he was not genuinely attempting to engage in remunerative employment because of his anxiety disorder and alcohol abuse.  Dr Chase was asked in his evidence about the possibility that the applicant self-medicated with alcohol and Dr Chase agreed that this may be the case, noting that his anxiety disorder predates his alcohol abuse. 

2. Dr Chase wrote that he came to the view that the applicant was overstating his disability.  When asked about the basis for coming to this view he said he considered the applicant to be a very unreliable historian, but he was obliged to accept the history he was given.  He referred, for example, to discrepancies in the various medical reports with which he had been provided which refer to the applicant suffering from PTSD; he observed that the applicant denied having an alcohol problem, whereas he observed there were multiple hospital admissions for “detox”; and the applicant failed to take any responsibility for workplace issues.  He conceded that someone with a psychiatric condition may provide an unreliable history.

3. Dr Selwyn Smith, consultant psychiatrist, examined the applicant at the request of the respondent.  Dr Smith considered that the applicant suffers generalised anxiety disorder, panic disorder agoraphobia, and substance use disorder.  In respect of alcohol use, he noted that the applicant had associated impaired liver functioning.  Dr Smith considered that the applicant’s ongoing utilisation of alcohol and excessive tobacco intake are associated substantial contributors to his generalised anxiety disorder and comorbid conditions.  He considered that the main reason for the applicant’s clinical deterioration related to excessive alcohol intake and the dissolution of his marital relationships, although in his evidence observed that the applicant’s early history was “sketchy” and that he did not know what the financial arrangements were between the applicant and all his former wives.  He was of the view that the applicant’s psychiatric condition affects his ability to work but noted that despite his long-standing psychiatric symptoms he had in fact been able to engage in work in a productive manner for some years.  He was his opinion that the applicant has the capacity to work 8 to 20 hours per week and that that capacity would be significantly enhanced if he ceased his reliance on alcohol; he considered the applicant’s alcohol use disorder as the main factor that causes him to be impaired at work. 

4. In his evidence Dr Smith said the applicant’s alcohol abuse is a discrete condition from his anxiety disorder.  He was critical of Dr Thomson’s assessment of the applicant work ability as 20 hours per week but from 20 June 2014 would be less than eight hours per week.  He said there was no reason for change in the applicant’s work ability from a technical point of view, in that his psychiatric condition did not change.  He said the applicant told him he found alcohol consumption to be calming and believes it has tranquilizing effects.  In fact, in Dr Smith’s view, it has the opposite effect.  He noted the applicant had resorted to alcohol as a coping mechanism, but consumption in excess carries with it its own problems and that “self-medicating” is a rationalisation.  He referred to the applicant’s use of Frisium which he said could be responsible for his excessive sweating.  He considered that it would be advisable that the applicant further reduce his alcohol intake and that even at six beers a day, there is no question that he fulfils the criteria for “alcohol dependence” and that in his assessment the applicant met all the diagnostic criteria for that condition.  He said it was not clear why the applicant had relinquished work.  In his view anxiety does not deteriorate over time and that the applicant had suffered the condition for most of his life and there was no indication why he had suddenly needed to cease work.  In his view a reduction in symptoms would be expected but the applicant’s symptoms were “fuelled” by alcohol and serious family issues.  He noted that work had always been positive for the applicant. 

5. Dr Smith was referred to the suite of anxiety disorders referred to in DSM III, which had been in operation at the time the applicant’s condition was accepted by the respondent as being related to his service.  Some of the disorders (including panic disorder with agoraphobia) referred to a “complication” of psychoactive substance use disorders particularly alcohol.  Dr Smith explained that that entry referred to a comment that a person may resort to, for example, alcohol as a means of self-medicating.

   CONSIDERATION

6. In Smith v Repatriation Commission [2014] FCAFC 53 the Full Court said in relation to s 24 that:

   Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than 8 hours per week. Second, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (not for other reasons) from continuing earlier remunerative work. Third, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourth, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.  The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2).

7. With regard to the “alone” test, in an interpretation approved on appeal by the Full Court, the Federal Court stated in Richmond v Repatriation Commission [2014] FCAFC 124

   ... if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.

   Does Mr Sharp’s anxiety neurosis with phobic features of itself alone render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week?: s 24(1)(b)

8. This test requires an examination of the Applicant’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration.  This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work.

9. Section 28 provides assistance in determining whether an Applicant is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question.

   What are Mr Sharp’s trade and professional skills, qualifications and experience?

10. Section 24(1)(b) requires an examination of the applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out; the test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission (1995) 129 ALR 219.

11. There was no evidence that Mr Sharp had formal qualifications of any kind.  His evidence though was of a successful military career, culminating with a role, well beyond expected of his rank.  In civilian life he had a number of responsible strategic roles, including contract-based project management in property management and procurement.  He was successful in obtaining reasonably high level senior public service positions as a change-manager. 

    What kinds of remunerative work might a person with Mr Sharp’s skills, qualifications and experience reasonably undertake?

12. The test requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the applicant might reasonably undertake: Repatriation Commission v Buckingham [1996] FCA 1218. The remunerative work referred to in s 23(1)(b) accordingly has a broad meaning. Further, the term "remunerative work" is broadly defined to include "any remunerative activity": s.5(1) VE Act.

13. With his skills, qualifications and experience, Mr Sharp could reasonably undertake roles associated with change management at a senior level. 

    To what degree do Mr Sharp’s service-caused conditions reduce his capacity to undertake the kinds of remunerative work referred to above?

14. In considering this question, the Tribunal must disregard all of an applicant’s non-accepted disabilities or any other factors that might have an impact on his capacity to undertake those kinds of remunerative work.  I must decide whether Mr Sharp’s incapacity from his service-caused conditions alone prevent him from working more than 8 hours a week in any kinds of work that a person with his skills, qualifications and experience might reasonably undertake.

15. As the Respondent pointed out, the applicant had in fact been able to work 20 hours per week from the date of his return to work after his recreation leave, namely 1 May 2014 until he ceased work on 20 June 2014.  However he did so with the difficulty and with the support of his supervisor and continued weekly counselling by his doctor.

16. The respondent submitted that the evidence of Dr Smith was to be preferred to that of Dr Thomson, because he is a specialist psychiatrist.  I note that Dr Thomson had, at that time, been the applicant’s doctor for about 8 years – seeing him very regularly, whereas Dr Smith, although a consultant psychiatrist, had formed his view on the basis of one appointment only.

17. Dr Smith observed that the applicant’s psychiatric condition affects his ability to work but noted that despite his long-standing psychiatric symptoms, he had been able to work.  Dr Smith though, did not refer to the fact that many of the Applicant’s jobs had ended due to his anxiety or because of workplace disagreements. 

18. Dr Smith’s opinion was that the applicant has the capacity to work at least 8 to 20 hours per week and could see no reason for change in the applicant’s work ability from 20 June 2014, because there was no change in his psychiatric condition.  Dr Smith, in my view, has overlooked circumstances which led to the cessation of the Applicant’s employment.  There was a long history of failure to cope when work situations became stressful.  Dr Thomson had advocated for some years that the applicant should leave work.  It was at the end of 2013 that the applicant conceded that he could no longer continue working.  Rather than immediately walk away from his significant role, he commenced setting in train an orderly exit from the workplace.  He did this at some personal cost because his psychologist was, even in February 2014, recommending in-patient treatment.  To his credit, the applicant negotiated with his supervisor Mr Lindenmayer for a staged handover, and, for a period worked part-time, so as to facilitate that handover.  The Applicant’s evidence, which was unchallenged, was that he only went in for meetings, or as required.

19. Dr Thomson’s clinical notes clearly record that the applicant’s condition during that period that he worked part-time in no way improved, and, may in fact be indicative of further deterioration.

20. I therefore find that from 17 April 2014 to 19 June 2014 the Applicant was able to work in roles associated with change management at a senior level for more than 8 but less than 20 hours per week, but that from 20 June 2014 he could not work more than 8 hours per week, in such roles. 

    Is Mr Sharp’s incapacity from anxiety neurosis with phobic features the only factor preventing him from continuing to undertake work? As a result is Mr Sharp suffering a loss of salary, wages or earnings that he would not be suffering if he were free from that incapacity?: s 24(1)(c)

21. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the Applicant’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in his inability to work or to obtain and hold remunerative employment, is sufficient to displace his case for pension at the special rate. In Cavell, Burchett J said further, at [539], that the true task of the Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was:

    … to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well.  It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide. 

22. In Forbes, RD Nicholson J said at [39]: 

    The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists.

23. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] – [37] as follows:

    [36]     The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period.  The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past.  That is the exercise that the tribunal undertook.  The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.

    [37]     The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise.  The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work.  The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working.  The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work.  If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act.  The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.

24. The respondent submitted that the applicant clearly had a non-accepted disability of alcohol dependence, or as it is currently described, substance abuse disorder.  I agree that there are multiple references to the applicant’s inappropriate consumption of alcohol.  As early as 1990 Dr Freed, psychiatrist, noted, in addition to the anxiety condition, that the applicant had well established “episodic” excessive alcohol consumption, which, even from that time, tends to support the applicant’s contention that he used alcohol as a coping mechanism, rather than a separate condition.  In June 2004 the applicant was treated as an in-patient for depression with suicidal ideation and excessive alcohol ingestion.  Another admission the following year also noted alcohol abuse.  In 2008 however, he was said to be drinking only moderately, and this had followed his return to work in a responsible position.  An analysis of the records of Dr Thomson’s practice from 2004 show multiple entries in relation to alcohol consumption.  The consumption history was not consistent, and appears to have significantly fluctuated over time, including with periods of complete abstinence.  The applicant’s psychologist, Ms Gianakis recorded in 2012 that the applicant had a dependency on alcohol, using it to self-medicate, and, in 2013 described a reduction in his consumption but that it remained ‘problematic’.  She noted that he had periods of only minimal drinking and again referred to alcohol consumption as a coping strategy.  In early March 2014 Dr Thomson recorded that the applicant was endeavouring to reduce to 2 beers a day, and by mid-March had achieved that goal.  In early May 2014 he was under further stress and was drinking heavily again.  The applicant’s current treating psychiatrist, Dr Dunda recorded, amongst the applicant’s current symptoms, a history of relationship breakdowns and “alcohol consumption”. 

25. Dr Chase considered that the applicant was not working because of his alcohol abuse, in addition to his anxiety disorder, although conceded that the applicant may have self-medicated with alcohol.  Further, Dr Chase considered the applicant was overstating his disability; he found the applicant to be an unreliable historian.  In support of this view he referred to discrepancies in some medical reports in which the applicant was said to be suffering from PTSD, but diagnoses are not matters over which the applicant has control.  He also observed that, with respect to alcohol there were multiple hospital admissions for “detox”.  This does not accord with the hospital admissions, all of which refer to the Applicant’s anxiety state, with only subsidiary references, if at all, to alcohol.  His view was that the applicant failed to take any responsibility for workplace issues, but this is inconsistent with the evidence of Mr Lindenmayer who, as the applicant’s immediate supervisor over some years, was in a better position, in my view, to assess the applicant’s contribution to the workplace. 

26. Dr Smith, on the basis of a single appointment, considered that the applicant suffers three separate conditions: generalised anxiety disorder, panic disorder agoraphobia, and substance use disorder and that the latter was an associated substantial contributor to his generalised anxiety disorder.  There was no evidence however that alcohol had played any part in bringing about the Applicant’s generalised anxiety disorder, and the only evidence in that context was that the Applicant self-medicated as a coping mechanism.  Dr Smith conceded that self-medication with alcohol was a “complication” of some of the suite of anxiety disorders referred to in DSM III, which was in operation at the time the applicant’s condition was accepted by the respondent as being related to his service. 

27. He referred to the applicant’s use of Frisium, which he said could be responsible for his excessive sweating, but that symptom of his anxiety pre-dates the prescription of Frisium by years.  He considered that that the applicant should further reduce his alcohol intake.  While he considered the applicant fulfils the diagnostic criteria for “alcohol dependence” there was, to me, insufficient indication, on what basis he formed that view, especially as the applicant’s long-standing GP, Dr Thomson, did not make such a diagnosis, notwithstanding the applicant’s history of excessive alcohol consumption from time to time as a means of self-medication.      

1. Dr Smith considered that the main reason for the applicant’s clinical deterioration related to excessive alcohol intake and the dissolution of his marital relationships, and questioned the effect of the financial arrangements between the applicant and all his former wives.  Dr Smith did not go so far as to speculate that, free of his former wives and with a new wife who is apparently affluent, the applicant’s mental health would improve.  In any event, his current psychiatrist, recorded his on-going problems.  

2. Dr Smith agreed that the applicant’s psychiatric condition affects his ability to work but noted that, nonetheless, he had in fact been able to engage in work in a productive manner for some years.  Dr Smith, in my view, however did not take into account the failure of the Applicant to sustain his roles.  Dr Smith considered that the applicant’s capacity for work would be significantly enhanced if he ceased his reliance on alcohol and considered the applicant’s alcohol use disorder as the main factor that causes him to be impaired at work.  In my view this is unsupported by the applicant’s history of job difficulties and ultimately, job loss, in circumstances where there was no evidence that, at the time, he was abusing alcohol. 

3. Dr Smith disagreed with Dr Thomson’s assessment of the applicant’s work ability as 20 hours per week for a period but that from 20 June 2014 would only be eight hours per week or less.  He said there was no change in the applicant’s psychiatric condition such as to impact upon his work ability.  In my view this analysis does not take into account the ongoing deterioration of the applicant’s condition over many years, with the applicant finally accepting his doctor’s long-standing advice to give up work.  That the applicant, his supervisor and doctor reached agreement as to the ordered manner of his departure is a matter for which he should be commended, not criticised.    

4. Dr Smith said it was not clear why the applicant had relinquished work, but Dr Thomson’s records and the applicant’s evidence are clear: he simply, after years of struggle, could not continue, and he finally accepted her advice to leave work.  In Dr Smith’s view anxiety does not deteriorate over time and in fact improves.  This appears to be at odds with the applicant’s documented increasing symptomatology over the years. 

5. I am reasonably satisfied that Mr Sharp’s incapacity from anxiety neurosis with phobic features is the only factor preventing him from continuing to undertake work. 

6. I am also satisfied that the applicant has suffered a loss of wages or earnings that he otherwise would not have suffered but for his service-caused conditions. 

   Conclusion

7. I am therefore reasonably satisfied that the applicant meets all the criteria for the Intermediate Rate of pension from 1 May 2014 when he reduced his hours and at the Special Rate from 20 June 2014 when he ceased work. 

   DECISION

8. The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the Intermediate Rate provided for in s 23 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 1 May 2014 and at the Special Rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 20 June 2014.

I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

................................[sgd]........................................

Associate

Dated 16 September 2016

Date(s) of hearing	24 – 25 August 2016
Applicant	In person
Solicitors for the Respondent	Sparke Helmore