SUMMERS and REPATRIATION COMMISSION

[2010] AATA 803

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 803

ADMINISTRATIVE APPEALS TRIBUNAL      )

)Nos 2007/3957, 2009/2689

VETERANS' APPEALS DIVISION		)
Re		RONALD JOHN SUMMERS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date20 October 2010

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

..................[signed]......................

Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – posttraumatic stress disorder – traumatic events – whether condition diagnosed and war-caused – alcohol dependence – whether war-caused – whether special rate of pension applies

Veterans' Entitlements Act 1986 ss 9, 24, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Mines v Repatriation Commission (2004) 86 ALD 62

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Hill [2002] FCAFC 192

Repatriation Commission v Hill [2008] FCA 50

Stoddart v Repatriation Commission (2003) 197 ALR 283

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

20 October 2010   G. D. Friedman, Senior Member

1.      Ronald Summers served in the Australian Army from 12 July 1967 to 11 July 1969.  His service in Vietnam from 24 June 1968 to 14 October 1968, and in Australia from 14 October 1968 to 28 October 1968 (when he returned to Australia on emergency leave on compassionate grounds) constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).

2.      Mr Summers is currently receiving a disability pension at 100 per cent of the general rate.  The Commission has previously accepted that Mr Summers’ medical conditions of bilateral sensorineural hearing loss, chronic bronchitis and emphysema, and lumbar spondylosis are war-caused.  The respondent previously rejected his claims that gout and cervical spondylosis are war-caused conditions.

3.      On 10 December 2007 Mr Summers lodged a claim which was interpreted by the respondent as being for post-traumatic stress disorder (PTSD) and alcohol dependence to be accepted as war-caused.  He is also seeking a special rate pension, which is a higher rate of pension, paid to a working-age recipient who is unable to work due to accepted disabilities alone.  His applications were refused, and he is seeking review of those decisions.

ISSUES

4.      There was no dispute that Mr Summers suffers from alcohol dependence.  Therefore the issues before the Tribunal are:

·     Does Mr Summers suffer from PTSD?  If so, is the condition war-caused?

·     Is alcohol dependence war-caused?

·     Does Mr Summers qualify for a special rate pension?

DOES MR SUMMERS SUFFER FROM PTSD?

5.      The Tribunal is required to determine to its reasonable satisfaction whether Mr Summers suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).

6.      In the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV) a diagnosis of PTSD requires that:

A.The person has been exposed to a traumatic event in which both of the following were present:

(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others

(2)       the person’s response involved intense fear, helplessness, or horror…

Using this definition there must be both a traumatic event, which answers the description given, and a response of the required intensity.  In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said at 74:

If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service it must be answered by saying that the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.

This reasoning was followed in Repatriation Commission v Hill [2008] FCA 50.

7.      In Woodward v Repatriation Commission (2003) 131 FCR 473 the Full Federal Court approved the decision in Stoddart v Repatriation Commission [2003] FCA 334. The Court held at 498-499:

It would be open to the AAT to conclude the situation involving MrWoodward was similar, in relevant respects, to that considered by Mansfield J in Stoddart. It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger whilst he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to MrWoodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more "events" which precipitated the perception and that the events were real in the sense that they had an objective existence. If the reasoning of Mansfield J is accepted, the material before the AAT was capable of satisfying the requirements of the definition of "experiencing a severe stressor" in the SoP in relation to the incident on patrol.

8.      Mr Summers told the Tribunal that after leaving school in Year 10 he worked in the retail industry before being called up for National Service.  He explained that he was posted to the Ordnance Corps and when the opportunity to serve in Vietnam arose he volunteered.  He said that he was assigned to the Other Ranks canteen at Vung Tau, where he was the sole person operating the bar.  He said that there were a number of events during his three and a half months’ service in Vietnam that caused significant distress.  The first event occurred on his first night when he closed the bar at 10 pm in accordance with orders but was confronted by angry soldiers who threatened and abused him, and threw objects such as chairs and cans at the closed shutter (the canteen event), as apparently the bar had never closed at the designated time.  Mr Summers told the Tribunal that he was uninjured but frightened, although the situation improved on the second and subsequent nights after he was advised to close the shutter but to continue serving drinks through a small door.  He said that there were no further incidents of this nature.  He did not report the disturbance until a later date.

9.      The second event concerned his accommodation behind the canteen (the accommodation event).  He said that he had to sleep by himself away from other personnel and guards at the main gate and he was scared because he was situated near the perimeter fence of the Australian base, which consisted of strands of wire.  He was afraid that he would be killed by enemy forces, and stated that he did not sleep for the first three nights.  Mr Summers said that the noise from distant American bombers heightened his fear, although he gradually became used to his environment, and no serious incidents occurred.

10.     The third event occurred when he received news while in Vietnam that his father had died (the father’s death event).  He said that he had lived with his father before joining the army and they had a close relationship.  Mr Summers explained that he was extremely upset because he believed he would not be able to reach Australia in time for the funeral, but ultimately he managed to attend with the assistance of the Salvation Army.

11.     The fourth event concerned an alleged assault near Watson’s Bay, Sydney on 26 October 1968 (the Watson’s Bay event).  Mr Summers stated that after his father’s funeral in Melbourne he travelled to Sydney to await transport to Vietnam to resume his normal duties.  He said that he and a colleague were drinking at a hotel when they became involved in an altercation with a group of sailors.  As they left the hotel to walk back to the army base near a cliff face the sailors followed, and he awoke in hospital the next day with life-threatening injuries to his neck, head and back.  His spleen had to be removed.  Mr Summers said that he was told that he had been found unconscious that morning at the base of the cliff, and was fortunate that he had not been swept out to sea.  Mr Summers stated that he was kept in hospital for several weeks and was unable to return to Vietnam.  His remaining commitment to National Service was served as a steward in the Officers’ Mess at Victoria Barracks, Melbourne.

12.     Under cross-examination Mr Summers agreed that in an injury report dated 5 November 1968 he stated that he had no clear recollection of the Watson’s Bay event, but maintained that he did not remember making the statement as he was interviewed only ten days after suffering serious injuries and was probably taking prescribed medication at the time.  He also agreed that the investigating officer’s report dated 6 November 1968 referred to the injuries having occurred …as a result of a fall down a cliff face at South Head… following a brawl between Mr Summers and a sailor from HMAS Watson.  The investigating officer noted:

After wrestling around on the ground they both fell over a cliff onto the rock ledge below.  From the statements made by the five sailors interviewed it would appear that everybody was affected by alcohol.

Mr Summers stated that he was never interviewed by military authorities about the incident, and that no other person was found with him at the base of the cliff the next day.  He was not aware of any charges or disciplinary action against the sailors, but believed that they threw him over the cliff and left him there.  Mr Summers agreed that before the Watson’s Bay event he had been looking forward to returning to Vietnam, as he enjoyed his role operating the canteen and had settled in well at Vung Tau.

13.     The Tribunal had before it reports from a number of psychiatrists who have examined Mr Summers.  In a report dated 5 March 2003 Dr N Pomorin, consultant psychiatrist, stated that Mr Summers did not experience any emotionally traumatic event during his period of service, and there was no history of re-experiencing symptoms, anxiety or depressive illness.  In respect of the accommodation event he took a history of Mr Summers being unable to sleep well for a few nights because he was frightened about being so close to the perimeter of the Base.  Dr Pomorin concluded that the symptoms of irritability, nervous tension and sleep disturbance were caused by the effects of alcohol.

14.     In reports dated 14 May 2008 and 17 February 2010 Dr N Strauss, consultant psychiatrist, stated that Mr Summers had given a history of nightmares at times about the father’s death event and the Watson’s Bay event, and flashbacks about fearful experiences in Vietnam, particularly the canteen event and the accommodation event about which Mr Summers had been apprehensive, but that Mr Summers did not have a diagnosable PTSD as there was insufficient reliable information to substantiate the claim of risk of death or serious injury.  Dr Strauss noted that Mr Summers was unable to remember the alleged assault and being thrown over the cliff because he was unconscious when found, although Dr Strauss said that Mr Summers had claimed to dream about the incident despite having a vague recollection of the events and no memory of any actual assault.  Dr Strauss concluded that there was no psychological impairment arising from the alleged assault.

15.     In a report dated 23 June 2008 Dr A Velakoulis, consultant psychiatrist, stated that he has been Mr Summers’ treating psychiatrist since January 2007.  Dr Velakoulis diagnosed PTSD on the basis of the canteen event and the accommodation event, which he described as …potentially life-threatening traumatic incidents (that were perceived as highly life threatening)…  Dr Velakoulis made no mention of the father’s death event or the Watson’s Bay event, but he told the Tribunal that both events could have exacerbated Mr Summers’ alcohol and psychological conditions as an accumulation of trauma.  Under cross-examination he agreed that his conclusions were based on the history given by Mr Summers, and that if the shutter on the canteen was closed then the risk of harm to Mr Summers would be lessened.  He also agreed that, in respect of the Watson’s Bay event, conscious recall is normally required before a diagnosis of PTSD may be made, but acknowledged that he is not an expert in this field.  He said that he had taken a more detailed history of that event on 1 September 2010, and agreed that this was after the first day of the Tribunal’s hearing when the issue was raised as a severe traumatic event.

16.     In a report dated 6 March 2006 Dr P Debenham, consultant psychiatrist, Austin Hospital PTSD Program, stated that Mr Summers had been assessed and was suffering from service-related PTSD.  No reasons were given.

17.     In a report dated 27 November 2009 on behalf of Writeway Research Services Pty Ltd Mr W Barsley stated that, in relation to the canteen event, there was no official record of any disturbance when Mr Summers closed the bar at 10 pm, and that there was no evidence of a brawl when he did so.  Mr Barsley said that there would only have been about six personnel present in the bar, and that the shutter was made of solid timber.  In relation to the accommodation event, Mr Barsley stated that the canteen complex at Vung Tau was secured after hours and was patrolled by the guard commander and roving armed personnel to protect the area from break-ins and burglary.  He added that the main gate guard was adjacent to Mr Summers’ unit, and that his fears should have been minimal.

18.     In assessing the claimed stressors, the Tribunal takes into account that the descriptions given by Mr Summers to medical practitioners, the Veterans’ Review Board and the Department of Veterans’ Affairs have varied widely.

19.     In respect of the canteen event the Tribunal accepts that Mr Summers was frightened on the first night when he closed the bar at 10 pm and the soldiers abused him and threw objects at the wooden shutter.  However from the third night the fear ceased as Mr Summers developed strategies to deal with the situation, and he stated that he enjoyed his role in the canteen and was looking forward to returning after his father’s funeral.  The Tribunal finds that this does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror as defined in DSM-IV.

20.     In respect of the accommodation event the Tribunal accepts that initially Mr Summers was apprehensive about his personal safety when he arrived at Vung Tau.  However he appears to have settled in well after a relatively short time, and the Tribunal is satisfied that the canteen was located near the main gate guards and was patrolled regularly.  As Mr Summers was keen to return to his duties in Vietnam after his father’s funeral he does not appear to have had any lasting concerns for his personal safety.  The Tribunal finds this does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.

21.     In respect of the father’s death event the Tribunal accepts that Mr Summers was close to his father and was upset by the death and the thought that he might not be able to attend the funeral.  However with the assistance of the Salvation Army he arrived just before the service and was able to spend time with his family, and after two weeks he travelled to Sydney for the return trip to Vietnam.  Although he said that he was concerned about his mother having to care for his siblings on her own, he gave no indication that his father’s death would in any way affect his desire to resume his position at the canteen in Vung Tau as soon as possible, and said that he was looking forward to returning to Vietnam.  Dr Velakoulis made no mention of the incident in his report.  The Tribunal finds this does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.

22.     In respect of the Watson’s Bay event the Tribunal takes into account that Mr Summers suffered life-threatening injuries and was not discovered until the day after his altercation with the sailors.  The Tribunal accepts that the incident prevented Mr Summers from returning to Vietnam and had far-reaching consequences regarding his physical and psychological health.  However Mr Summers admitted that he was intoxicated at the time and had no recollection of the incident itself, and only remembered the altercation at the hotel and its immediate aftermath when he said that the sailors followed him.  Dr Velakoulis made no mention of the incident in his report, and only clarified the matter with Mr Summers on 1 September 2010, which was after the matter had been raised as a significant stressor by Mr Summers on the first day of the Tribunal hearing.  Dr Debenham diagnosed PTSD but gave no reasons.

23.     The only objective report of the incident was by an investigating officer shortly after the event.  That officer referred to a fall over the cliff after wrestling and that the personnel involved were intoxicated.  The Tribunal takes into account that Dr Pomorin referred to the incident as a fight but reported Mr Summers had not described any emotionally traumatic event.  In all the circumstances the Tribunal concludes that the material supports Dr Strauss’ evidence that there is insufficient reliable information to substantiate the claim of risk of death or serious injury, particularly as Mr Summers had only a vague memory of events on the night in question and no recollection of any assault or accidental fall from the cliff.  Therefore the Tribunal finds that the Watson’s Bay event does not constitute a traumatic event and does not have the required response involving intense fear, helplessness or horror.

24.     In view of its findings on each of the claimed stressors, the Tribunal is reasonably satisfied that Mr Summers was not exposed to an event or events that could be described meaningfully as traumatic as is required for a diagnosis of PTSD, and the Tribunal concludes that Mr Summers does not suffer from PTSD, so there is no need to determine whether this condition is war-caused.

IS ALCOHOL DEPENDENCE WAR-CAUSED?

25. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

26.     In the circumstances of this case, where Mr Summers has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

27.     Mr Summers told the Tribunal that before joining the army he was a light social drinker, but that when he was assigned to operate the Other Ranks canteen at Vung Tau he began to drink to excess, especially as he did not pay for drinks and had unlimited access to beer, the weather was hot and humid, and drinking helped him sleep.  He said that he had a good job at the canteen, was his own boss and no-one bothered him.  He could wake up at 11 am each day.  He could drink whenever he wanted to, and was soon consuming about 18 to 24 cans of beer each day, and spent every day operating the bar.  Mr Summers stated that he continued to drink heavily after leaving the army and for 20 years he consumed about 10 pots of beer each day at a hotel and then continued drinking at home.  He conceded that his drinking caused him to become angry and abusive, which led to marriage problems, and he has reduced his consumption to about six cans of beer each night.

28.     Mrs D Summers told the Tribunal that she met Mr Summers when she was aged 14 years and has been married to him since 1969.  She confirmed that he was a light social drinker before joining the army and that when he returned to Australia in October 1968 for his father’s funeral he was a changed person.  He arrived drunk and has been drinking since then.  She stated that excessive alcohol consumption has caused enormous difficulties in their relationship and they lost a furniture franchise in 1985 because of his alcohol dependence, despite Mr Summers’ success as a salesperson.  Mrs Summers explained that Mr Summers had completed numerous alcohol courses but his drinking still affects him and his family relationships.

29.     In his reports Dr Strauss stated that Mr Summers’ alcohol consumption increased greatly while he was in Vietnam because of the nature of his work in operating a bar seven days per week and associating with people who were drinking.  Dr Velakoulis took a family history of heavy drinking by Mr Summers’ father and brother, and concluded that during service in Vietnam his alcohol consumption escalated significantly because of the threats he encountered (referring to the canteen event and the accommodation event) and his bar work role.  Dr Pomorin stated that Mr Summers told him …I mainly drank over there because it was more than accessible.

30.     In relation to the first step from Deledio, after considering evidence from Mr Summers and the psychiatrists about his alcohol dependence and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Summers.  Therefore he satisfies the first step.

31.     In respect of the second step from Deledio, there is a SoP in force, being SoP Nº 1 of 2009 concerning Alcohol Dependence or Alcohol Abuse.  Therefore Mr Summers satisfies the second step. If he does not satisfy that SoP, the Tribunal is required to consider SoP Nº 17 of 2008 concerning Alcohol Dependence or Alcohol Abuse, which has now been revoked but was in force at the time Mr Summers made his claim (Repatriation Commission v Gorton (2001) 110 FCR 321). In SoP Nº 1 of 2009 the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are stated in paragraph 6:

(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

(d)experiencing the death of a significant other within the five years before the clinical onset of alcohol dependence or alcohol abuse;

…

Paragraph 5 of the SoP states:

Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Paragraph 9 of the SoP states:

For the purposes of this Statement of Principles:

"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

"a category 1A stressor" means one or more of the following severe traumatic events:

(a)       experiencing a life-threatening event;

(b)being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;

"a category 1B stressor" means one of the following severe traumatic events:

(a)       being an eyewitness to a person being killed or critically injured;

(b)       viewing corpses or critically injured casualties as an eyewitness;

(c)       being an eyewitness to atrocities inflicted on another person or persons;

(d)       killing or maiming a person; or

(e)being an eyewitness to or participating in, the clearance of critically injured casualties;

"a significant other" means a person who has a close family bond or a close personal relationship and is important or influential in one’s life;

Paragraph 6 in SoP Nº 17 of 2008 provides:

(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or

(d)experiencing the death of a significant other within the two years before the clinical onset of alcohol dependence or alcohol abuse;

…

32.     In relation to the third step from Deledio the Tribunal takes into account that in Repatriation Commission v Hill [2002] FCAFC 192 the Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373 the Federal Court held that a reasonable hypothesis involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.

33.     At this step the Tribunal is not making any findings of fact.  In view of its finding that none of the four claimed stressful events constituted a traumatic event that evoked a response involving intense fear, helplessness or horror that would satisfy the criteria for a diagnosis of PTSD, the material does not point to the reasonable hypothesis linking Mr Summers’ alcohol dependence to his operational service with respect to factors 6(a), (b) and (c) of SoP Nº 1 of 2009, and also factors 6(a), (b) and (c) of SoP Nº 17 of 2008.  With respect to factor 6(d) of SoP Nº 1 of 2009 and factor 6(d) of SoP Nº 17 of 2008 concerning the father’s death event, on all the material and without making any findings of fact on whether Mr Summers experienced the death of a significant other within the five years or two years before the clinical onset of alcohol dependence respectively, the circumstances are that he commenced drinking to excess while in Vietnam and after two and a half months his father died.  There is no relationship between the factors and his operational service.

34.     For these reasons the hypothesis does not fit the relevant SoPs, and Mr Summers does not satisfy the third step.  Therefore the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between Mr Summers’ alcohol dependence and his operational service during the relevant period, and there is no sufficient ground for determining that Mr Summers’ alcohol dependence was war-caused.

DOES MR SUMMERS QUALIFY FOR SPECIAL RATE PENSION?

35. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:

(1)       This section applies to a veteran if:

…

(a)       either:

(i)the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c)the veteran is, by reason of incapacity from that war-caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

…

(2)       For the purpose of paragraph (1)(c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war‑caused disease, or both; or

(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

…

36. Mr Summers is receiving 100 per cent disability pension so he meets the criteria in s 24(1)(a) of the Act. In view of the Tribunal’s findings that Mr Summers does not suffer from PTSD and that alcohol dependence is not war-caused, the only conditions relevant to the question of eligibility for the special rate pension are the accepted conditions of bilateral sensorineural hearing loss, chronic bronchitis and emphysema, and lumbar spondylosis.

37. In relation to s 24(1)(b) of the Act Mr Summers told the Tribunal that after his discharge from the army he returned to the retail industry, where he worked for Myer for three years, then Capt’n Snooze for four years before purchasing a franchise with the company, but lost the franchise in 1985 because his alcohol problems prevented him from managing the business properly. He was also having problems with lifting objects and with breathing. He commenced working with Stan Cash as a salesperson for five years, Billy Guyatt’s for three years and back to Stan Cash for two years. In 1995 he took up a sales position with Greensborough Bulk (trading as Betta Electrical) and remained for ten years. In a written statement dated 27 November 2007 he said that he left in 2005 because he could not walk up the stairs. He also stated that his back was causing considerable pain and he became angry with staff and customers.

38.     In a written statement dated 6 July 2010 Mr Summers clarified his employment history and said that he was made redundant by Betta Electrical even though he considered himself to be one of the better salespersons.  He said that at the time he was not sleeping well, was over-indulging in alcohol and suffered from anxiety and felt angry at the world.  He had an aggressive manner with colleagues and his supervisor.  He stated his belief that if he had not been suffering from anxiety and alcohol dependence he would still be employed by Betta Electrical.

39.     In oral evidence Mr Summers reiterated that his breathing difficulties and alcohol problems, plus his anger towards other staff, were the major factors in preventing him from working.  He agreed that he learnt after his redundancy that the company had been experiencing financial difficulties and had been placed in receivership in 2006, although he said that a less-qualified salesperson had been appointed to replace him.

40.     Mrs Summers told the Tribunal that Mr Summers lost his franchise business in 1985 because of alcohol addiction.  She said that he also had problems with his back and chest and difficulty in relating to other people.  In an undated written statement received by the Tribunal on 3 August 2010 Mrs Summers said: I believe 100% that anger with fellow workers... caused Mr Summers to lose his job, and in oral evidence she confirmed her belief that anxiety and alcohol were the major factors in his redundancy, although she said that he was shocked when he was told of the decision.

41.     Dr R Horsley, occupational physician, stated in a report dated 20 December 2007 that Mr Summers ceased work because of a redundancy.  She also said that he was experiencing aggressiveness as a result of alcohol abuse and PTSD.  Dr Horsley concluded that Mr Summers would have great difficulty returning to the workforce because of his respiratory condition, his age and lack of computer skills, and that he does not have a realistic capacity to work.

42.     Dr A Sillcock, occupational physician, stated in a report dated 28 November 2007 that Mr Summers’ accepted condition of chronic bronchitis and emphysema is the main reason that he is unable to work, and that he is not capable of working more than eight hours per week.  She told the Tribunal that the sensorineural hearing loss does not affect his ability to work, although his back condition prevents him from lifting heavy objects.

43.     Dr Strauss also agreed that Mr Summers gave up working because of respiratory problems rather than alcohol abuse, but that from a psychiatric perspective he is capable of undertaking remunerative work, subject to any physical incapacity.

44.     The Tribunal accepts the evidence from Dr Horsley and Dr Sillcock that Mr Summers is unable to work for more than eight hours per week.  However the evidence from Dr Horsley about the impact of aggressiveness resulting from alcohol abuse and his psychological condition is strongly supported by the evidence from Mr Summers and his wife.  Although Mr Summers’ accepted conditions of chronic bronchitis and emphysema, and lumbar spondylosis have contributed to his incapacity, the non-accepted conditions of alcohol dependence and his psychological condition have also contributed significantly.

45. For these reasons the Tribunal finds that Mr Summers’ incapacity from war-caused injury is not of such a nature as, of itself alone, to render him incapable of working for more than eight hours per week. Consequently Mr Summers does not satisfy s 24(1)(b) of the Act, and as he cannot satisfy s 24(1) of the Act, he is not eligible for disability pension at the special rate.

DECISION

46.     The Tribunal affirm the decisions under review.

I certify that the forty-six [46] preceding paragraphs are a true copy of the reasons for the decision of:

G. D. Friedman, Senior Member

Signed:……………………….[signed]……………………………..

Grace Horzitski  Associate

Dates of hearing:  10 August 2010, 14 October 2010
Date of decision:  20 October 2010
Counsel for the applicant:                  Mr D. De Marchi
Solicitor for the applicant:                   De Marchi & Associates
Advocate for the respondent:             Mr K. Rudge, Department of Veterans’ Affairs