Smith and Repatriation Commission - [2000] AATA 269

DECISION AND REASONS FOR DECISION [2000] AATA 269

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/979

VETERANS' APPEALS DIVISION )

Re Trevor John SMITH
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date7 April 2000
PlaceSydney

Decision The Tribunal sets aside that part of the decision of the Repatriation Commission dated 7 August 1997 that assessed pension payable to Trevor John Smith ("the Applicant") at 70 percent of the General Rate, and in substitution therefore determines that – 1. On and from 25 August 1996 until and including 7 August 1997 the Applicant is entitled to payment of pension at the Intermediate Rate pursuant to s 23 of the Veterans' Entitlements Act 1986 ("the Act"); and 2. On and from 8 August 1997 the Applicant is entitled to payment of pension at the Special (Totally and Permanently Incapacitated) Rate pursuant to s 24 of the Act.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – whether veteran entitled to pension at intermediate or special rate –- whether veteran prevented from continuing to undertake remunerative work by reason of war-caused disabilities alone
Veterans' Entitlement Act 1986 – ss 23 (1)(b), 23 (1)(c), 24(1)(b), 24 (1)(c), 24(2)(b)

REASONS FOR DECISION

7 April 2000 Mrs M T Lewis, Senior Member

Trevor John Smith ("the Applicant") lodged an application for review by this Tribunal on 24 July 1998 to review a decision of a delegate of the Repatriation Commission ("the Respondent") dated 7 August 1997. That decision assessed disability pension at 70% of the General Rate with effect from 25 August 1996, following the acceptance of a number of conditions as being war-caused. The Veterans' Review Board subsequently affirmed the decision on 6 April 1998. The application date is 25 November 1996.
The Tribunal had before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. Both the Applicant and his wife, Barbara Clemence Smith, gave oral evidence at the hearing. Dr Pidcock, consultant psychiatrist, also gave oral evidence at the hearing, called by the Applicant.
The following documentary evidence was tendered on behalf of the Applicant:

Undated statement of the Applicant (exhibit A);
Statement of Barbara Clemence Smith dated 30 June 1999 (exhibit B);
Report of Dr Martha Baz, occupational physician, dated 19 November 1998 (exhibit C);
Report by Dr C P Pidcock, general medical practitioner, dated 23 July 1999 (exhibit D).

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

Clinical notes of Dr C P Pidcock (exhibit 1);
Clinical notes of Dr J J Nichols, consultant psychiatrist (exhibit 2);
Sundry documents from the Respondent's file regarding assessment of a claim by the Applicant in respect of cerebral ischaemia (exhibit 3);
Report of Dr Nichols, dated 12 October 1998 (exhibit 4);
Report of Dr V C Dalton, dated 28 May 1999 (exhibit 5).

background

The Applicant has the following disabilities accepted as due to war service:

solar skin damage
impotence
tinea
bilateral sensori-neural hearing loss
post traumatic stress disorder ("PTSD") with alcohol addiction.

In addition, the Applicant suffered a stroke in October 1998. The condition of cerebral ischaemia was accepted on 13 July 1999 as a war-caused disease, and his pension was increased to 90% of the General Rate with effect from 11 February 1999. This condition arose only after the application for review was lodged with the Tribunal.

The Applicant also suffers from a fracture of the left scaphoid and thoraco-lumbar spondylosis. Those conditions have not been accepted as war-caused disabilities. The issue before the Tribunal is whether the Applicant's back and arm conditions contributed in any material way to his ceasing work and whether at the application date (25 November 1996) they prevented him from continuing to work. The Respondent conceded that there was no issue in respect of the Applicant's loss of earnings.
the applicant's evidence
The Applicant was born on 11 October 1934 and was aged 64 years at the time of the hearing. He left school was he was aged sixteen years and worked as an apprentice carpenter for three months. He then enlisted in the Royal Australian Air Force ("the RAAF") in 1951 where he trained as an aircraft engine fitter. He left the RAAF in 1970.
On discharge the Applicant then worked as a headwaiter in a hotel for twelve months before starting his own business fabricating steel frames and welding. He continued to operate the business for thirteen years until in 1985 when it failed financially. He then bought the crane from the business for about $40,000 and started a crane business. He drove the crane and maintained it, and was responsible for all aspects of the business with the exception of the bookwork, which was done by his wife, also a partner in the business. He sold that business two years ago.
In his oral evidence the Applicant's attention was drawn to the application form he completed, dated 18 November 1996. He said an advocate assisted him in making his claim. He said he did not read the application form until he got home and said "we thought she had gone over the top with the crook back". He did not remember having a sore back, but then added that he "must have had one because I went to the doctor about it when I was in the Air Force". He said he did have a bad back, but it was mainly his left shoulder and neck which caused his difficulty. He described how his whole left arm and hand used to go numb and he could not pick things up, mainly small things. He still has the numbness in his left hand but after the carpel tunnel operation in 1997, which fixed his shoulder and neck problems, all the pain stopped. He has not regained feeling in three fingers
The Applicant said that prior to the carpel tunnel operation, he had problems with his shoulder and neck every day. His arm would go numb whenever he lied on it, which affected his sleep. At work he would "get attacks", and his hand became numb when he was driving. He used to keep his arm by his side and steer with his right hand, but he had to use his left hand changing gears, so he "used to put up with the pain". He said this happened "pretty well every day" and it did not stop him from working.
The Applicant said that he had always thought he would work until he was aged 70 years, and he noted that his "father worked until he was 70 and I couldn't see any reason why I couldn't".
Prior to going to Malaysia in 1958 with the RAAF the Applicant said he did not drink, except socially. His drinking habit changed whilst he was in Malaysia, where he began drinking scotch. He said he became depressed as he was away from his family for two months. At the time his wife was pregnant with their second child. He said he was "pretty well drunk every night by 10 o'clock". He continued to drink heavily when he returned to Australia. In more recent years he was drinking approximately three bottles of scotch per week, and in addition about six schooners of beer per night. This continued, more or less, until he had a stroke in October 1998. After the stroke he did not drink for six months, and now has about three half-scotches per night.
The Applicant said that prior to his stroke he had problems sleeping. He would go to bed at 9 pm and wake up at 2 am. As a result he was always tired when he went to work. He said that since his stroke his short-term memory has been bad. He became overweight when he started drinking heavily but he considered that his weight did not cause him any problems at work.
The Applicant said his hearing is not very good, particularly where there is background noise. This affected his work because he could not hear whistle signals. This was significant because he could not always see the load and relied on the dogman to give signals, which at times was by use of a whistle. He ceased driving the crane about 1992 because he could not hear and he then did the job of dogman or chaser. He clarified that the person in that position "slings the load, directs the crane and generally all the hard work". He performed those duties for about two years and considered that this job was less stressful.
The Applicant said that he also stopped driving the crane because he lost his confidence. He "was frightened of the machine because it was so easy to kill someone". He lost confidence mainly due to his hearing problems, but he said he was also under a lot of stress, he was "abusing people and carrying on". He found the job as a dogman more "physical", but less stressful because he was not taking the responsibility. As a dogman he used to abuse his drivers whenever they made a mistake. He said he clashed "just about daily" with some of the builders for whom he worked. He said "I was losing business just through my attitude".
He also referred to his concentration problems at work. He said towards the end he would "drift off and suddenly I wouldn't hear a signal…". He said that when he was working he used to worry a lot:
"Well, I'd worry about the job, whether the crane would do it and all that, or whether it would fall over or whether I'd kill someone. They're the main things. Other than that I'd worry about people – like, were people going to pay…"
He said that before he stopped working completely, he reduced his work to about eight hours per week. He would "just go out and check the trucks over and change tyres and just keep everything running and I put a driver and a dogman on. They were casuals but they just about worked permanent". He did not work more than eight hours a week because "I couldn't be bothered with the business any more. It was just too much". Further, he said that the stress of dealing with people became too much. Reducing his work to eight hours per week was "an improvement" but after a while he "lost interest in everything because we were waiting to sell the business".
The Applicant also experienced problems with tinea, which began whilst he was in the RAAF. He said that sometimes his feet became so sore it was difficult to put the ball of his foot on the pedal when driving. These problems occurred mainly in winter, but he seldom has these problems since he has stopped working. He attributed this to a new cream he uses, and also because he can walk barefooted.
The Applicant said that his stroke has affected his speech, his ability to swallow, and he can no longer walk. In addition, his memory and concentration have been affected.
The Applicant said that he decided to sell the business in 1994. At that time he was still driving the crane. He maintained that when he was thinking of selling he did not have any particular business worries. He said that his main reason for selling was his "inability to drive and having to hire people to do the work and pay them wages was knocking all the cream off the job". However, he said he was still making "good money". He said a few people looked at the business, but no one made an offer. He believed that one could do just as well investing the money. In the end he assisted the buyer to purchase the business.
The Applicant sold the business in September 1997. In a statement provided by Paul Reid, the new proprietor of the business (T24), he said that two months after the Applicant sold the business he withdrew from all operation and management. Furthermore, he said –
On assuming control it was apparent that his outbursts of irritability and anger and his most abrupt attitude to clients has affected the business reputation, even though he had only limited involvement for quite a considerable time, presumably for these very reasons.
In cross-examination the Applicant was again referred to inconsistencies between his claim form (T3) and his oral evidence. He said that he told his advocate the facts and she wrote everything down, and she "made the stories up". In relation to 'back injury from falling off an aircraft' he said, "she invented that". However he also said that they did fall off aircraft quite often. Similarly when asked about his wrist injury he could not recall what happened, but "she said I hit it with a tool".
In relation to question 26 (T3, p23) the Applicant said that he stopped doing particular things at work because of depression, not because of chronic pain as stated in his claim form. Further, he disagreed that the pain in his back was "chronic and extreme". He also disagreed that he had to employ someone to do the physical work.
When questioned about his back problem, the Applicant said his upper back was always a problem. He described it as "similar to a toothache but it wouldn't go away". He stated that it did not cause him to sell the business, but he agreed that it was one of the problems he had.
In reference to problems with his hands and carpel tunnel, the Applicant said he could still lift the blocks, but his arm would ache when he was driving. He said –
"You'd have to hang it down. I'd get home and I'd get out of bed and walk around or something just to get the pain out of the arm. Just pins and needles. But at work it never really affected me".

He agreed, however, that he had problems with the gears and the particular crane he drove had 15 gears - he had to "miss a few gears".

The Applicant said he did not remember ever going to Dr Pidcock for his back condition, but he did go for his arm condition, although he could not remember when he first consulted Dr Pidcock about that. He thought he had told Dr Pidcock about it when he was still at work, but it was after he finished work that he decided to have the operation.
evidence of barbara smith
Mrs Smith said that she had always been a full partner in the business, mainly handling the clerical and accounting tasks.
Mrs Smith said that the Applicant's sleep had been very poor for about 30 years. She described it as "a gradual state of affairs where he would only have two or three hours sleep – a good sleep, and then the rest would be intermittent or broken".
Mrs Smith said the Applicant had problems with tinea until the last 12 to 18 months. Prior to that it was "pretty severe. His heels used to split all the way around and across the pads on the soles of his feet". This occurred "fairly constantly". She believed that his condition was very painful, and did not think that it changed at any particular time of the year. She said that there were certain things he avoided because of this; he gradually gave up playing golf, and found it difficult to drive the car and the machinery. She said that driving the machinery was worse than driving the car. His condition changed when he was no longer doing heavy work or wearing heavy boots.
Mrs Smith said that the Applicant's main problem was in his shoulders and she understood that it was mostly muscular. She said this made his work harder because he was required to perform a lot of gear changes when driving machinery. This required him to be using his arms all the time while sitting in the one position. She said that his problem was mostly on his left side. She dated this problem to when the Applicant suffered from mumps when he was in his mid forties. At that time he returned to work against medical advice and suffered a relapse of mumps. She thought that his problem in his arm had been relatively constant over the years. She said that the Applicant attended doctors only when it was absolutely necessary, and usually after encouragement from her.
Mrs Smith said that originally the Applicant got on very well with the people he worked with, but this deteriorated with his "lack of acceptance that people had their own ideas and didn't conform to what he thought they ought to be conforming to". She did not know how often altercations occurred at work, but was aware that they happened. She said he became very intolerant to noise. In the work situation he found it very difficult to hear normal conversation when there was any background noise. She said that after the introduction of the dogman the Applicant tried to use mobile telephones, two-way radios and a whistle, but he found it impossible to hear because of the noise of the machinery.
Mrs Smith said that the health conditions that led the Applicant to give up the business included the problems he encountered having to rely on the use of a mobile telephone. She said from his point of view the business was virtually run via the mobile telephone. This was problematic from where they lived because the mobile telephone would "drop out" and he would go to a public telephone box and call her to call Telecom to find out what the problem was. He could not cope with the difficulties it involved, and he also found it difficult dealing with customers. She believed that he had poor skills in coping with conflict. In cross-examination she said that she did not think his neck, shoulder and arm problems had any affect on his work. She said, "if he needed to drive, he drove".
In the years prior to his stroke Mrs Smith said that the Applicant drank "far too much". She estimated that he drank four or five schooners of an afternoon and from six to ten scotches of an evening. While she did not think his drinking affected his capacity to work she questioned whether it added to his poor sleeping pattern and difficulty in coping generally.
Mrs Smith said that but for the Applicant's health problems, he would have continued working probably "for another couple of years". She said –
"I have to be honest – I sort of felt it was time we started easing back on it but he would have – he didn't – initially enjoyed having the business – always planned to work until he was a lot older than he is now". She said, "his father worked until he was 70 and he couldn't see any reason why he shouldn't either".
Mrs Smith said that the Applicant was not sure what he would do when he sold the business, but he was "mechanically and engineeringly minded". She did not think he had any specific alternative business in mind but she knew that whatever he decided to do she would do the bookwork.
In relation to the Applicant filling in his claim form, Mrs Smith said the advocate went through all the medical documents and asked the Applicant questions and then filled in the form. Mrs Smith "flicked through it" and thought the Applicant was –
"… aware of basically what was in it, but not the wording, the precise wording and if he took it home to read, he would have only glanced through it. He would not have read the whole form from front to back".

She said that the Applicant would usually get her to do that, but in this case he did not.
medical evidence

Dr Pidcock has known the Applicant for about 30 years. However, records earlier than February 1995 are no longer available. In relation to the period for which medical records are unavailable, Dr Pidcock recalled that he had only seen the Applicant in relation to minor illnesses, and this had occurred infrequently. Since 1995 the Applicant has seen Dr Pidcock for a variety of reasons, but mainly for skin cancer. In 1996 the Applicant saw Dr Pidcock in the process of making his claim. At that time he told Dr Pidcock that he was having "difficulty working, difficulty managing". In 1997 the Applicant informed Dr Pidcock that he had been granted a pension. It was at that time he complained of poor sleeping which he said had been a problem for some time. Prior to this date, Dr Pidcock had not been aware of the Applicant's symptoms associated with PTSD.
In January 1998 the Applicant complained of symptoms suggestive of a carpel tunnel syndrome on his left side. Dr Pidcock did not have any recollection or notes to suggest that the Applicant had previously complained of this problem. However, he said that if it had been mentioned, and it was interfering with the Applicant's work an operation would have been suggested sooner.

Dr Pidcock could not recall whether prior to his claim the Applicant had seen him about his shoulder and neck problems. He said that the Applicant had a prominent business in town and he was not aware of any large level of disability. He said it was "not impossible" that the Applicant had made complaints, but Dr Pidcock had no recollection of it, there were no records, he had never prescribed any medication for it or referred the Applicant to physiotherapy or rehabilitation.
Dr Pidcock said he was not aware of the level of symptoms that the Applicant was suffering in relation to his PTSD nor was he aware of the level of his alcohol intake. He was surprised to learn about this, but he believed that because the Applicant and his wife knew him personally for quite some time they might have been embarrassed to raise it with him.
Dr Pidcock opined that the symptomatology described in his report (T7) in respect of the Applicant's back condition would have affected his capacity to work only in a very minor way. He said –
to say that they were the sole reason why he stopped work or to say that there was no other reason would be incorrect. Either one. I think it's – it was one of – my recollection of it was that when he was making application for it, it was one of the several complaints that he had at the time and so I've answered accordingly.

To the extent that it played some sort of role, he said it would only be a minor one. In his opinion the Applicant would not have ceased work if the only disability he had were his neck and his back condition. He did not think that tolerating his physical condition would have had any deleterious effect on his PTSD. He said that the significant factor in forcing the Applicant to stop work was the PTSD and alcohol abuse. The Applicant came to see him because he was having difficulty coping, difficulty managing work and not being able to do his job and said he would like to apply for a pension. Dr Pidcock opined that it would be "clinically unlikely" that the Applicant worked until March 1997, then reduced his hours to 8 per week between March and August 1997, and then left work as a result of his back condition.

Dr Nichols, consultant psychiatrist, provided a report dated 27 March 1997 in respect of the Applicant's claim for his psychiatric condition (T10). The Applicant was still working 8 to 10 hours per week in the office when he saw Dr Nichols. His chief complaint at that time was anxiety. In his report Dr Nichols has remarked –
…Trevor has a chronic inability to relax and this is associated with difficulty in concentration in the form of obsessive worrying …
A sense of a foreshortened future is present and it would appear that Trevor is at the end of his career path. The persistent symptoms of increased arousal such as difficulty in falling or staying asleep, irritability or outbursts of anger, difficulty in concentrating, hypervigillance and an exaggerated startle response are present.
In a letter dated 24 September 1997 (T23), Dr Nichols stated –
"Trevor ceased work on the 7.8.97. That is, he is considered to be totally and permanently incapacitated for all forms of remunerative employment and is unsuited for rehabilitation"
Dr Baz, occupational health physician, examined the Applicant on 15 October 1998 arranged by the Applicant's solicitor, before his stroke occurred on 29 October 1998. She reported on 19 November 1998 (exhibit C). Dr Baz opined that the Applicant was unfit for his usual work for eight or more hours per week because of his accepted disabilities, and that he was similarly unfit for work since August 1997 when he ceased work. Additionally, she considered that he would have been unfit for work of twenty or more hours per week from August 1996, but at that time he was not restricted to work of less than eight hours per week. Moreover she considered that while he had other disabilities in addition to his accepted disabilities, particularly musculo-skeletal disabilities, she did not consider that they prevented him from working.
Dr Baz undertook a GARP V assessment and assessed a medical impairment rating of 58 and lifestyle rating of 4. This provided a general rate assessment of 100 percent, before the condition of cerebral ischaemia was added to his accepted disabilities with effect from 11 February 1999.
Dr Dalton, occupational physician, examined the Applicant in May 1999 on behalf of the Respondent (exhibit 5). The Tribunal notes that Dr Dalton did not undertake a general rate assessment. Indeed, he considered he could not properly assess the Applicant because by the time of his consultation the Applicant had already suffered the stroke. Dr Dalton was of the view that no worthwhile purpose would be served by undertaking an assessment when the Applicant's circumstances had changed very significantly.
Dr Dalton noted that the Applicant had ceased work by the time he consulted Dr Nichols in September 1997. Dr Dalton opined that the Applicant's "thoraco-lumbar spondylosis does not seem to be a major problem to him at the moment". He also said, however, that the Applicant's PTSD would have been a significant factor in his ceasing work, but then added –
… but I suspect that at that time the thoraco-lumbar spondylosis was also a major factor but I must admit that this is only an impression (Tribunal's emphasis).

Dr Dalton also noted that by the time he saw the Applicant the major factor impacting on his inability to work was the stroke, from which he was unlikely to make a full recovery.
the relevant legislation

Intermediate rate of pension
23. (1) This section applies to a veteran if:
…
(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
…
(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 capable of undertaking, that work for 20 or more hours per week.
Special rate of pension
24. (1) This section applies to a veteran if:
(aa) …
(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 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       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) …
    (2) For the purpose of paragraph (1)(c):
(a) …
(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 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.

applicant's submissions

It was submitted that the Applicant's problems with his back, neck and left shoulder did not make a material contribution to his inability to continue work as a crane driver or a dogman, or in an administrative and management capacity. It was submitted that the Applicant satisfies the requirement in s 24(1)(c) of the Act in that his accepted disabilities prevented him from undertaking the remunerative work he was undertaking, because of the deeming provision in s 24(2)(b). Extensive submissions were made in respect of the case law regarding the application of s 24(2)(b).
It was conceded for the Applicant on the evidence that he retired and did not seek work actively after that time.
respondent's submissions
It was submitted for the Respondent that the Applicant does not qualify for pension at the special rate because he does not satisfy s 24(1)(c) insofar as it was not his war-caused disabilities 'alone' that caused him to cease work. It was submitted that the Applicant's non-accepted back, neck and left shoulder problems contributed to his cessation of employment.
It was submitted for the Respondent that the Applicant was close to normal retirement age when he sold his business and ceased work. It was submitted that this is not the case of a person with a potential of many years of employment ahead of him. Furthermore, not only did the Applicant's non-accepted disabilities contribute to his decision to retire, it was his evidence that the sale of his business did not cause him to suffer a loss of income or earnings. He acknowledged that he knew he would receive as much income by investing the capital upon the sale of the business as by way of profit from operating his business. It was submitted that this was another motivating factor in his decision to retire.
consideration of evidence and finding of fact
The Tribunal finds that the Applicant's evidence about his musculo-skeletal problems was at times inconsistent and it is probable that he was attempting to minimise the effects of that condition on his capacity to work. The Tribunal notes the Applicant's evidence that his advocate at the time he lodged his claim had completed the form for him and had exaggerated the extent to which his back condition affected his capacity to continue to work. Without evidence from the advocate, the Tribunal is left with the evidence of the Applicant and his wife on that point. The Tribunal finds that the information provided by the Applicant on his claim form in respect of his back disability was an exaggeration and that he did not specifically authorise its inclusion or read it before he signed it.
Notwithstanding any attempt by the Applicant in his evidence to minimise the effects of his musculo-skeletal problems however, there is no evidence that he sought medical treatment for the condition while he was working. There is evidence that he tolerated significant discomfort from his back, neck and shoulder in order to continue to work. It was not until after he ceased work that he sought medical assistance in relation to his carpal tunnel syndrome, and after surgical treatment that condition does not now prevent him from undertaking the work that he performed previously.
Importantly, Dr Baz did not consider that the Applicant's musculo-skeletal problems prevented him from working. While Dr Dalton suspected that they might have been a major factor, that was no more than an "impression". He did not and apparently could not provide any evidence to support that "impression". That is not sufficient for the Tribunal to prefer Dr Dalton's opinion over that of Dr Baz on that issue. While the nature of the Applicant's musculo-skeletal problems may have caused others who were more work-shy than the Applicant to cease work, the Tribunal finds that they were a problem which the Applicant tolerated, and which he would have continued to tolerate were it not for the effects of his accepted disabilities on his work capacity.
The Tribunal finds that the Applicant is, by reason of his war caused conditions alone, prevented from continuing to undertake his remunerative work operating his own crane business and he is, by reason thereof, suffering a loss of salary or wages or earnings on his own account that he would not be suffering if he were free of his war caused incapacities. Therefore he meets the provision of s 24(1)(c), without needing to rely on the ameliorating provisions of s 24(2)(b) notwithstanding that it was open to him to seek to rely on s 24(2)(b) in that as he was born on 11 October 1934 he was aged 62 at the application date (25 November 1996). At the time he ceased work on 7 August 1997 he was also under the age of 65 years, and had intended to continue to undertake remunerative work until the age of about 70 years. While the Tribunal accepts, on Mrs Smith's evidence, that they had got to the stage of "easing back" in their business activities, that is not consistent with a decision to retire altogether. The Tribunal does not accept the Respondent's submission that the Applicant could have made a similar income from investing the money from his business in some other way that did not require his own labour. While that is probably based on the Applicant's evidence, that evidence was not tested and does not appear to the Tribunal to be reliable without detailed exposition that was not provided.
Having come to this finding that the Applicant's non-accepted disabilities did not prevent him from continuing to undertake the remunerative work that he was undertaking in the operation of his crane business, the Tribunal does not need to and does not propose to consider the extensive submissions made by the parties in respect of the interpretation of s 24(2)(b) of the Act, the relevant case law and previous Tribunal decisions.
The Tribunal finds that the Applicant meets the provisions of s 24(1)(a) of the Act, and because of the findings which follow it is not necessary to consider whether the Applicant is entitled to payment higher than 70 percent of the General Rate for any part of the relevant period under review.
The Applicant ceased work on 7 August 1997. The parties agreed, and the Tribunal so finds, that the earliest effective date in this matter is 25 August 1996. At that time the Applicant was still running his crane business, but on his own evidence and that of Dr Baz he had reduced his hours at work per week to 8 or 10. The Tribunal is not reasonably satisfied that the Applicant was working 8 hours or less per week before he sold his business, but is reasonably satisfied that he was working less than 20 hours per week from 25 August 1996 until 7 August 1997 when he ceased work. On the basis of this finding the Applicant would be entitled to payment of pension at the Intermediate Rate pursuant to s 23(1)(b) of the Act from 25 August 1996 until 7 August 1997. The Applicant's inability to work eight or more hours per week because of his war caused disabilities alone is not at issue, and the Tribunal finds that he meets the provision of s 24(1)(b) of the Act with effect on and from 8 August 1997.
Although the Applicant has become more incapacitated for work following the development of cerebral ischaemia in October 1999, that has no material affect on the outcome of the Tribunal's decision.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  28 July 1999 and 25 August 1999
Date of Decision  7 April 2000
Counsel for the Applicant        Mr C Colborne
Solicitor for Applicant               Vardanega Roberts
Advocate for the Respondent Mr J Sylvester