Smith and Repatriation Commission - [2000] AATA 681

DECISION AND REASONS FOR DECISION [2000] AATA 681

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1877

VETERANS' APPEALS DIVISION )

Re Brendan John SMITH
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P Lynch, Member

Date9 August 2000
PlaceSydney

Decision The Tribunal – (i) sets aside the decision of the Repatriation Commission of 13 March 1998, being the decision under review, that assessed disability pension payable to Brendan John Smith ("the Applicant") at 90% of the General rate with effect from 13 January 1994 and at 100% of the General Rate with effect from 17 December 1997; (ii) in substitution therefor, determines that the Applicant is entitled to be paid pension at the Intermediate Rate pursuant to s23 of the Veterans' Entitlement Act 1986, with effect from and including 13 January 1994.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – veteran's entitlements – disability pension – whether Applicant is incapacitated for work as a result of accepted disabilities - whether Applicant is entitled to pension at the intermediate rate – whether Applicant able to work longer hours

Veterans' Entitlement Act 1986 – s 23

REASONS FOR DECISION

9 August 2000 Mrs M T Lewis, Senior Member Dr P Lynch, Member

This is a review of a decision of a Delegate of the Repatriation Commission ("the Respondent") dated 13 March 1998 that assessed the disability pension payable to Brendan John Smith ("the Applicant") at 90 percent of the General Rate with effect from 13 January 1994 and at 100 percent of the General Rate with effect from 17 December 1997. That decision was affirmed by the Veterans' Review Board ("the VRB") on 9 November 1998. The Applicant lodged an application for review by this Tribunal on 23 December 1998. All applications for review were in time and therefore the earliest possible effective date is 13 January 1994.
The Applicant has the following conditions accepted as war-caused –
Post traumatic stress disorder ("PTSD")
Sensori-neural hearing loss
Fracture distal ulna
Irritable bowel syndrome
Pruritus ani
Solar skin damage
Migraine
Lumbar spondylosis
Chronic airflow limitation
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant and Ms Helen Clunas gave oral evidence at the hearing. Dr Martha Baz, occupational physician, gave oral evidence at the request of the Applicant. Dr Roderick McEwin, occupational physician, gave telephone evidence at the request of the Respondent.
The following documentary evidence was tendered on behalf of the Applicant:

Statement of Brendan John Smith dated 27 April 1999 (exhibit A);
Report of Dr Martha Baz dated 14 June 1999 (exhibit B); and
Statement of Helen Clunas dated 30 November 1999 (exhibit C).

The following documentary evidence was tendered on behalf of the Respondent:

Report of Dr Roderick McEwin dated 2 June 1999 (exhibit 1);
Letter from Chubb Protective Services, dated 13 July 1999 (exhibit 2); and
Letter from Respondent to Dr McEwin dated 25 May 1999 (exhibit 3).

The issue for the Tribunal is whether the Applicant qualifies for pension at the Intermediate Rate, the central question being whether he is able to work 20 or more hours per week.
the relevant legislation
Section 23 - Intermediate rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) …
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind;
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking – if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings of his or her own account, by reason of that incapacity:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(d) …

the applicant's evidence

The Applicant was born on 21 November 1942. He served in the RAAF from May 1962 to September 1986, a period of 23 years, and reached the rank of Assistant Provost Marshall.
The Applicant currently works as a permanent part-time security officer.
The Applicant left school at the age of 14 years, and obtained his leaving certificate when he was aged in his thirties, presumably while he was in the RAAF. When he left school he helped his father at home in Cootamundra and worked in a store for a short time doing general duties. He worked as an apprentice printer for two years but did not complete his apprenticeship.
In 1962 when the Applicant was aged 20 years, he enlisted in the Royal Australian Airforce and eventually was allotted to the Police and Security Section and became a Service Policeman. His duties included "traffic, issuing passes, gate control and general base security of patrols". He was later transferred to Field Security (now known as counter intelligence). He attained the rank of Warrant Officer, and later was commissioned Assistant Provost Marshal, with a rank of Flight Lieutenant, specialising in counter intelligence. Counter intelligence involved the protection of assets, goods and personnel pertaining to the Defence Force. His work involved liaison with other police forces, government departments and other civilian organisations.
The Applicant said that he met Helen Clunas in 1976 or 1977 when he was stationed at Butterworth. She was a school teacher. They developed a friendship that has continued. On return from Butterworth he continued to correspond with her and when she returned to Australia he continued to see her. Their friendship continued even after they both married different partners. He noted that he did not have many friends.
The Applicant retired from the Air force in 1986. He obtained a position with Grace Bros as a security manager in their Parramatta store, in charge of loss prevention. There was about 20 staff in that position, who worked on split shifts. After about 12 months in that position he was promoted to security manager at the State Office at Broadway. His duties included: formulating and reviewing policy, doing security surveys, and ensuring alarm systems were operating efficiently. The Applicant thought he was in that position for about 12 months. He thought he left Grace Bros. in about 1988 or 1989, but had some difficulty recalling dates. He said whilst at Grace Bros. he suffered from back problems but did not tell his employer because he thought he would not get the job if he did. He also suffered from migraine. He said he coped with these problems because he "basically had to".
When the Applicant left Grace Bros. he became State Security Manager for Brambles. This was an executive position and it doubled his 'salary', and in addition he received other benefits including non-contributory superannuation, car expenses, telephone, and free medical and dental expenses. He understood he obtained this position on merit. He had overall responsibility for Brambles Armoured Security Operations. He was responsible for the maintenance of vehicles, the recruitment of personnel, the purchase and registration of weapons and their handling, training regarding weapons, alarm systems and all coding and safety systems in all seven branches. He was responsible for counting money and for the internal systems, internal locks and access controls. The training cell was then included under his control at his request. When Automatic Teller Machines ("ATMs") were introduced he also had responsibility for servicing them.
The Applicant had some health problems when he worked at Brambles. He said his back was getting "progressively worse" and he initially attributed that to constantly being in the vehicle and travelling around. He said his headaches –
increased dramatically. I got to a stage where I lost that piece of mind, … I 'd come home and go to bed, tired, and sleep, but I'd be awake at 2 o'clock, I'd forgotten something or why didn't I do something, … must have been almost a year I did that.
As a result of his back pain he modified his work activities, cutting down his travelling time by making excuses about travel to certain branches. On many occasions, because of his headache, he shut his office door and turned the lights and telephone off. He said he got his secretary 'to lie for me … that I wasn't in and take a message".
His back problems also prevented him from doing his job at times. He said at times when he was implementing new systems he was required to get into the back of a truck in order to sign a new procedure that was being tested and implemented. However, he was unable to get into the truck. He was unable to qualify the weapons that he was required to do under State law, because he could not stand the noise at the rifle range. He stopped making trips to Wollongong and Newcastle because he could not tolerate the travel, and instead had to send a regional manager.
He did not tell Brambles about his back problems because he believed they would not have employed him. He said they knew little of his background other than that he was an ex-serviceman.
The Applicant said he threatened to leave Brambles a number of times. On the first occasion he arrived at his office early one day and approached his manager, whom he described as a "lovely fellow" and told him he felt he could no longer cope, that he was not sleeping and his back was sore. Instead, he was offered some time off work, which he declined, he was given a pay rise, and his office was shifted to a suburb closer to where he lived. Brambles also hired another person as a regional manager, who took over many of the Applicant's duties, including the armoured vehicles, recruiting and training. He became exempt from executive meetings and his name was removed from the telephone list of persons on call 24 hours a day. The effect of these changes was that he returned more or less to an eight-hour day. Prior to this it was not uncommon for him to work 50 hours a week, comprising eight or nine hour days plus weekends.
However, four to five months later the Applicant resigned. He said he realised that despite his manager's efforts it did not help. He was still waking at 2 or 3 am and was still experiencing back problems. He told his manager that his reason for leaving was because his wife was in the Airforce and was going to Canberra towards the end of the year. He said he used this excuse because he wanted to leave and did not want his manager to try to talk him out of it again.
The Applicant said that in fact his wife had accepted a posting to Canberra for two years on the condition that she would then be posted to Penrith, and thereafter she would retire.
He said that his decision to retire was a culmination of things. His wife believed the job was getting him down. She accused him of having a "split personality", of being nice to people at work and nasty to her at home. He was always complaining of being sick or having headaches, and he found it difficult to go for a drive or do the gardening. She accused him of being lazy. She was very pleased that he resigned. He said that his retirement did not change their plans about when his wife would move to Canberra, she still planned to commute at weekends and when she accumulated time in lieu, and for the Applicant's part he planned to have a break and a rest.
Their plans eventually changed when his wife asked him to move to Canberra with her. He then intended to get a job in Canberra. They had only two months to move and in the process they lost money when they sold their house. His wife had known about her posting well in advance of this. The Applicant and his wife moved to Canberra in January 1993. When they moved to Canberra they did not live in the married quarters because none were available. They occupied a Department of Defence house for the duration of her appointment and then decided to buy their own home.
After leaving Brambles in April or May 1992 and before he moved to Canberra in January 1993, the Applicant did not apply for any jobs. He recalled at least one job offer before he went to Canberra, but it was not full time. He said he applied for about half a dozen jobs when he moved to Canberra, one of which was full time with the Department of Health. He was interviewed for the position, but during the interview he formed the view that the job would be "too much for me" and he withdrew his application. After that interview he did not apply for any other full time positions as he knew he would not be able to cope with the stress of full-time work, given what is expected of a security manager in his field. He also thought that security manager positions had become too 'hands on'. He said he first formed the view that he could not cope with a job like that when he was at Brambles. He thought he would give the Department of Health job 'a go' but realised he could not cope. He said that his back was getting worse and he could not cope with the stress or pressure, and did not want to be involved in decision making.
The Applicant then obtained part-time work in Canberra with MSS in June or July 1993. MSS had a contract with Government Departments. The Applicant's job was to relieve security guards when they had lunch breaks of 20 minutes. This job suited him because there was no pressure. It did not pay much but "kept him busy", and he wanted to work. He did not believe that he would be able to cope with this job on a full time basis because of his back, his stress, and his concern about pressure of full-time work. In this job he was working three to three and a half-hours which suited his "comfort zone". He felt comfortable with it and not pressured. He sometimes worked an extra 20 minutes, but said that he stopped doing this because he felt they were taking advantage of him.
MSS was later taken over by Chubb. The person who recruited him did not transfer with the takeover. The Applicant did not tell Chubb of his medical problems. He said they were going to send him to a medical but he managed to avoid it. The Applicant said that he first came into contact with Col Monger when he was the State Manager for MSS. Mr Monger became the Guards Services Manager after the Chubb takeover. The Applicant said he told Mr Monger when he worked for Chubb, (at about the time of his VRB hearing) about his medical problems, but could not recall if he had mentioned anything to Mr Monger previously. Mr Monger then offered him a position in Chubb's training cell. The hours varied between two and three and a half depending on the day. In the training position he was paid for 20 hours a week, at the rate of a security officer, which is the minimum pay. He had mundane duties such as photocopying and collecting papers. He is currently temporarily back in lunchtime reliefs, but hoped to return to the training cell.
The Applicant said he has not attended work on about a dozen occasions since he commenced work for MSS/Chubb because of migraine and back problems. He said he does not get paid if he does not work. He said, however, that there are days when he goes to work when he knows he should not go, but he does not want to stay home. He said at times he has gone to work and stood like a "scarecrow" because he could not sit down.
When he started at MSS there were negotiations about how long he would work, being the amount of time it took him to relieve about four or five people for lunch. He explained, however, that the award required him to work a minimum period of four hours. In order to make up the minimum period he would arrive early and do paperwork to help the supervisor, or stay back 10 minutes or 20 minutes, to make up the minimum time. He said he would 'physically' work no more than three hours, but would create three and a half hours' work. He explained that paperwork involved maintaining the messenger lists.
The Applicant worked for Group Four Securities during the interim period between MSS and Chubb. He now does the same job. He was unaware of the document showing that his roster was 19.75 hours per week (T 38, p 147). He does not fill in a time sheet showing his hours worked. He said the last shift he worked was "three and a bit" hours. He said he travels to work by bus. When he gets home from work he reads the newspaper, uses his computer or sleeps. He said that he finds using the computer stressful at times. When this happens he turns it off and walks away, something he does "almost every day" because he gets frustrated and impatient.
The Applicant said there were occasions when he had difficulties carrying out his duties at work, such as prolonged sitting. He said that he was at a post where he had to watch five monitors and after an hour or so he started to get headaches and could not watch the monitors. He said in that position one has to be alert at all times, responding to 'bips' and alarms, the monitor itself, and staff. There have been numerous times when he has felt he cannot cope with the MSS job. He has problems concentrating at work and has a poor memory. He was aware that the training manager knew about his background, and believed that Mr Monger might have told him. He said the training manager makes allowances for him.
Since the Applicant has worked with Chubb he goes to bed at 9pm and wakes at 2 am. He is not sure why he wakes, but he wakes tired.
He said a security guard would normally work forty to fifty hours per week. He did not think he would be able to cope with working longer hours than he now works. He believed he would have difficulty remaining in a sedentary position, sitting for long hours or concentrating because of headaches and lack of concentration.

The Applicant and his second wife separated two years ago. He did not know where she was posted currently. He now lives alone and has a housekeeper. Additionally, Ms Clunas helps him with the garden and mows his lawns. He has two daughters, both of whom have moved to Canberra since the Applicant moved there. He does his own shopping but occasionally is assisted by his daughter.
The Applicant receives a pension from the Airforce and received "a pay out" when he left Brambles. He agreed that financially he is "comfortable", and works because he wants to, and not for the money.
The Applicant agreed that in 1994 he was referred to Dr Saboisky, a psychiatrist, but he did not follow up the recommendation that he undergo further psychiatric treatment or counselling. He said he has never had psychiatric treatment or counselling and finds it difficult to trust people. However, he has a trusting relationship with his local medical officer.
evidence of helen clunas
Ms Clunas first met the Applicant in 1977. She said they were "best mates", they had a relationship of "total trust", and had a lot in common. They have provided emotional support to each other when needed.
Ms Clunas said that she was aware from the Applicant that he was having problems at Brambles and she also "picked it up", through his moods and voice, but he was reluctant to admit he was not coping until about 12 months prior to his resignation. She was aware that he spoke to somebody in Brambles who tried to talk him out of it. She was aware that Brambles arranged for the Applicant's office to be relocated to Smithfield to reduce his travelling time, and they employed another regional manager to take over some of his responsibilities. He had accepted the offer, and was prepared to "give it a try". She thought "he was rather pleased that the company thought enough of him to do that". However, it was only a matter of weeks before he was back in the same position as before – "he'd had enough". In part, he had increasing difficulty in driving to work, which caused him to leave earlier in the morning and stay later in the evening in order to avoid the longer peak hour journey. Additionally he was not coping with the stress of the job.
Ms Clunas believed that leaving Brambles had a significant and negative impact on the Applicant's confidence. She described him as reluctant to mix with other people, and he does not like people to see that he is not coping.
Ms Clunas understood that the Applicant's back condition had deteriorated to a stage where for about the last 18 months she has been doing his gardening and mowing his lawns. She noted that both during and prior to Penang, where he was hospitalised because of his back problem, he was "an outstanding sportsman". He now has difficulty walking "around the block". She noted that he has never spoken to her about his war experiences.
Ms Clunas considered that if the Applicant reduced his hours and responsibilities at work he would be less frustrated. She noted that he is performing fairly menial tasks and he did not like to admit that he was limited to these tasks. She noted that he now has difficulty in concentrating and is forgetful.
medical evidence
Dr Baz, occupational physician, in her report dated 14 June 1999 (exhibit B) noted that the Applicant impressed as "strongly motivated to work", so much so that when he could no longer continue in his previous work he took on a lesser responsible position in order to continue working. She considered that the job he was doing now in the training section was probably 'created for him' as they were tasks that would normally be undertaken by general office staff.
Dr Baz opined that memory loss and loss of concentration are common symptoms of PTSD but she agreed that memory loss can also reflect an organic problem. She considered that the Applicant experienced significant disability as a consequence of his PTSD. His migraines relate to stress.
Dr Baz considered that the Applicant is also significantly disabled by lumbar spondylosis, causing considerable low back pain and restricted activity. She noted that he is currently working 18 to 19 hours a week, but she considered he was being "carried" in his position. Dr Baz noted that the Applicant is unable to perform managerial work that he had previously undertaken because of a combination of "pain and irritability", and that his back pain and PTSD preclude him from undertaking the necessary tasks with sufficient concentration and organisational skills. His ability to work in static security is limited by back pain, as he is unable to concentrate for long periods while maintaining a seated posture because this aggravates his pain.
Dr Baz noted that the Applicant was working 18 to 19 hours per week. She considered that he could not extend this to 20 hours per week. She noted an improvement in the Applicant's PTSD symptoms. She noted that his marital conflict and his alcohol consumption has reduced, but was not aware that he had since separated from his wife. She opined this was partly attributed to his changing from a full-time pressured job to a job he was better able to handle. She opined that if he increased his hours or the pressure in his job there would be a deterioration in his psychiatric symptoms.
Dr Baz opined that the Applicant is unfit for work of 20 hours or more per week because of PTSD and lumbar spondylosis, and that he has been so restricted for work from 13 January 1994. She considered that his other accepted disabilities also contribute to his restricted work capacity.
Dr McEwin, occupational physician, examined the Applicant on behalf of the Respondent and provided an assessment dated 2 June 1999 (exhibit 1). Dr McEwin noted that the reason the Applicant reduced his work from full-time to part-time in 1993 was because of low back pain. Dr McEwin noted that the Applicant was being paid for four hours work a day, and he considered that taking into account his accepted disabilities alone he is fit to work more than 20 hours a week. That opinion related to 13 January 1994 to the date of his examination, and continuing. He said he came to that opinion because –
Mr Smith is now working just under four hours a day and I thought that by his symptoms the problem worrying him most was his lower back and it was in my opinion that in the job he was in or in a similar job he would be able to work more than four hours a day. That is, if he worked five days a week that would be over 20 hours a week.
Dr McEwin noted that the Applicant took Disprin or Asprin for his back pain and that he was concerned about taking stronger analgesics. Dr McEwin opined that the Applicant's lumbar spondylosis and PTSD reduced his capacity to work, to the extent that he is only fit for light, semi-sedentary work. He considered that the Applicant's back was the major problem, although he recognised the Applicant was unable to talk about his PTSD. He said he relied on the report of Dr Saboisky of 28 October 1994 (T16) in making his assessment, but noted that did not obtain any history from the Applicant himself about the PTSD symptoms. He agreed that Dr Saboisky's report concentrated on diagnosis rather than symptoms or the degree of incapacity. He agreed that the Applicant's evidence to the Tribunal about his inability to concentrate negatively impacted on his ability to work. He also considered that there were no disabilities other than his accepted disabilities that effected the Applicant's unfitness for work.
Dr Saboisky, psychiatrist, interviewed the Applicant on 26 October 1994 (T16) in relation to his claim for PTSD. Dr Saboisky noted that the Applicant's leaving Brambles was prompted by the posting of his wife to Canberra. Dr Saboisky also noted that this was the Applicant's second marriage. No other history about the Applicant's employment was recorded. Dr Saboisky recommended that the Applicant seek professional help in relation to his PTSD.
consideration of evidence, submissions and findings
The Tribunal notes the submissions of the Respondent about the Applicant's credibility, but finds that despite those concerns the Applicant is a credible witness. The Tribunal finds that any inconsistencies in the evidence arose from the Applicant's memory impairment and the effects of his psychiatric condition.
The Tribunal notes the submissions of the Applicant, with which it agrees, and finds that the Applicant has been highly motivated and successful in his career, both in the RAAF and subsequently in his civilian life. He held an executive position at Brambles in charge of armoured car operations, training and ATMs. His initial attempt to resign from Brambles due to his back problems and migraines resulted in being given a pay increase, the appointment of another person to whom some of his tasks were reallocated, and relocating his office in order to reduce his travel time. Despite this, the Tribunal finds that the Applicant continued to have problems with back pain and sleeplessness, and without telling his wife, he resigned using her appointment to Canberra as an excuse, so that his employer would not try to dissuade him. The Tribunal prefers this evidence to that contained in Dr Saboisky's report that the Applicant's departure from Brambles was prompted by the posting of his wife to Canberra. That evidence could not be tested by cross-examination and the Tribunal notes that the psychiatric examination was focussed on diagnosis rather than the Applicant's employment history or fitness for work. The Tribunal accepts the submissions for the Applicant that, on the evidence of Ms Clunas and the Applicant's own evidence, he was reluctant to admit to anyone that he could not cope, and finds in the circumstances that he was unlikely to admit this to Dr Saboisky. Indeed, on the evidence he was probably unable at that stage to admit even to himself that he could not cope, and using the excuse that his wife was moving to Canberra is consistent with this. He has had no counselling to assist him with this recognition, while at the same time he has had a career as a high achiever. He is now but a shell of his former self.
It was submitted for the Respondent that the evidence shows that the Applicant continues to work approximately 18 to 19 hours per week and that to a large extent he was coping with that work. It was submitted that to the Applicant's recollection the hours were arranged prior to him telling MSS about his disabilities, and that the hours he was working with MSS were not related to any incapacity due to his disabilities.
It is submitted as at June 1998 the Applicant's roster consisted of 19.75 hours per week, just 15 minutes short of the 20 hour requirement for the Intermediate Rate of pension. The hours he works are related to the nature of the Applicant's job, relieving other security officers while they have a lunch break. If this takes two hours then he works for two hours; if it takes longer then he works longer. The hours he works are dependent on his job requirements rather than on any incapacity he may or may not have; indeed he was initially prepared to take on more work if someone needed to go out. He eventually stopped this, not because it was affecting him psychologically and physically but because he thought he was "being taken advantage of". It was submitted that the hours the Applicant works are not an indication of his capacity to work, but of his current working requirements.
It was submitted the Applicant has made it clear that he wants and needs to work, that he does not want to be a recluse, he enjoys contact with people and feeling useful, taking pride in his job. It was submitted that a few extra hours per week would not damage his mental or physical capabilities further. Whilst he might be treated with leniency, there is no indication that his employer considers that he cannot perform his job properly or satisfactorily (see exhibit 2).
The Tribunal finds that the Applicant now performs very mundane work in training, very basic clerical duties, and lunchtime relief as a security guard. He withdrew his application for a full-time security position with the Department of Health following an interview for that position, because he felt he could not cope with it. The Tribunal is reasonably satisfied that the Applicant is unfit for the work that he previously performed at Brambles, and that the nature of the work that he now performs is as much as he is now able to manage. Indeed, it is to his credit that he has persisted with that work, which obviously stresses him both physically and mentally.
It was submitted for the Respondent that the Tribunal should consider the opinion of Dr Quay, the Applicant's general practitioner (T34), that the Applicant's PTSD had no affect on his capacity to work. The Applicant described his relationship with Dr Quay as very good and very supportive. The Respondent submitted that the Tribunal should consider the opinions of Dr Baz and Dr McEwin in the context of the opinion of Dr Quay.
The Tribunal finds that the Applicant suffers from a degree of memory impairment that affected the way in which he gave his evidence and also affects his ability to perform his work. In addition to his memory problems Dr Baz also identified the Applicant's serious concentration problems, and his headaches and back pain, as factors interfering with his capacity to undertake his work. The Applicant's inability to acknowledge that he was having difficulty in coping with work is likely to have affected the assessment of Dr Quay. The fact that he has found Dr Quay very supportive does not mean that he has been prepared to disclose that concern to him.
The Tribunal finds that the Applicant has a sympathetic employer in Mr Monger. The Tribunal finds that although on his evidence the Applicant is expected to perform a 4 hour day, his employer has advised that the Applicant's roster consists of 19.75 hours per week (T38). The Applicant was given the opportunity to work more hours, but he cut them back again, saying that he was concerned that people were taking advantage of him. Taking into account Dr Baz's evidence, however, the Tribunal is reasonably satisfied that the Applicant was unable to cope with the extra hours.
It was submitted for the Applicant that the evidence of Dr McEwin should be given little weight as Dr McEwin gave little consideration to the effects of the Applicant's PTSD. Dr McEwin's opinion was based primarily on the debilitating effects of the Applicant's low back pain. The Tribunal finds on the evidence that the Applicant's PTSD and headaches are a more debilitating problem than his back condition. Whilst not minimising the significance of his back condition in any way, we do not consider his back was a significant incapacitating factor as he did work full time and could have continued to do so except for his psychiatric condition alone.
On the medical evidence in the s37 documents the Tribunal finds that the Applicant has been significantly affected for a number of years by the effects of his psychiatric condition, the sequelae of which is his headaches and irritable bowel syndrome.
The Tribunal finds on the evidence that at the application date, 13 April 1994, the Applicant was unable to undertake work for 50 percent or more of the time ordinarily worked by security officers, which on the Applicant's evidence was significantly more than 40 hours per week. Moreover, for most of the time since the application date the Applicant has not worked and has not been fit to work for 20 or more hours per week. He therefore meets s23(1)(b) and s23(2) of the Act.
There are no other issues relating to s23 that are open in this matter, and therefore the Tribunal decides that the Applicant meets all the requirements of s23 and so he is entitled to payment if pension at the Intermediate Rate with effect on and from 13 January 1994. The decision under review will therefore be set aside.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr P Lynch, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  30 November 1999
Date of Decision  9 August 2000
Counsel for the Applicant        Mr C Colbourne
Solicitor for the Applicant         Vardanega Roberts Solicitors
Solicitor for the Respondent    Ms M Doggett,
  Department of Veterans' Affairs