Tosswill and Repatriation Commission - [2002] AATA 805

DECISION AND REASONS FOR DECISION [2002] AATA 805

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/0482

VETERANS' APPEALS DIVISION       )
           Re      CYRIL DEWITT TOSSWILL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date16 September 2002
PlaceSydney

Decision      The tribunal sets aside the decision under review and substitutes its own decision that the veteran did not qualify for a Disability Pension at intermediate rate at any time but that he qualified for payment at the special rate with effect from the first pension payday on or after 22 July 1999.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – whether veteran qualified for intermediate or special rate – veteran worked 22 hours a week to age 77 as accountant- whether veteran incapacitated for kinds of work consistent with his skills, qualifications and experience despite working 22 hours a week – whether veteran qualified for special rate when he had frequent hospital admissions

Veterans' Entitlements Act 1986 ss 5Q(1)("remunerative work"), 23, 24, 28, 120(4)

Chambers v Repatriation Commission
Smith, Repatriation Commission v (1987) 74 ALR 537

REASONS FOR DECISION

16 September 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by Cyril DeWitt Tosswill (born 5 March 1922, date of death 5 February 2000) ("the applicant", "the veteran") for review of a decision of the Veterans' Review Board ("the VRB") dated 16 February 1999 (T2). The VRB had reviewed a decision of the Repatriation Commission ("the respondent") (T8) that Mr Tosswill qualified for a Disability Pension payable at 100% of the general rate but did not qualify for payment at the intermediate rate. The VRB decided that Mr Tosswill qualified for intermediate rate as of 8 February 1998.
Mr Tosswill applied to the tribunal for a review of the VRB's decision on 6 April 1999, while he was still alive. After his death his executors sought to be permitted to continue Mr Tosswill's claim. On 9 March 2001 a delegate of the respondent approved the executors under s 126 of the Veterans' Entitlements Act 1986 ("the Act") to act on behalf of Mr Tosswill.
THE HEARING
On 12 February 2002 the tribunal convened in Sydney a hearing in this matter. Mr R Sherlock of the NSW Legal Aid Commission represented Mr Tosswill's executors. Mr J Marsh of the DVA Advocacy Service represented the Repatriation Commission. The tribunal heard oral evidence from Ms V Tosswill, the veteran's daughter, and Dr M G Miller, a physician. The tribunal took into evidence the following documentary material:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T15) provided by the respondent.
Exhibit A1 – Applicant's revised statement of facts and contentions, 8 February 2002.
Exhibit A2 – Statement by Ms V Tosswill, 1 December 2001.
Exhibit A3 – Letter dated 4 February 2002 from Mr M Denham, CPA Australia, to the Legal Aid Commission.
Exhibit A4 – Report by Dr M G Miller, physician, 12 October 1993.
Exhibit A5 – Report by Dr P Gianoutsos, thoracic physician, 31 August 1993.
Exhibit A6 – Report by Dr P Henke, rehabilitation medicine consultant, 25 October 1993.
Exhibit A7 – Report by Dr Miller, 23 July 2001.
Exhibit A8 – Report by Dr Miller, 23 March 1994.
Exhibit A9 – Report by Dr M Baz, occupational physician, 8 May 2000.
Exhibit A10 – Ryde Hospital notes.
Exhibit R1 – Respondent's statement of facts and contentions, 11 February 2002.
Exhibit R2 – Concord Repatriation General Hospital medical records.
Exhibit R3 – Mt Wilga Private Hospital medical records.
Exhibit R4 – Dr A Ng's medical records.
Exhibit R5 – Extracts from Service Pension records.
Exhibit R6 – Transcript from VRB hearing, 16 February 1999.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal makes the following uncontroversial findings.

The applicant was aged 71 when he lodged his claim.
The applicant lodged a valid claim on 5 May 1993 (T4).
The standard of proof in relation to eligibility for special or intermediate rate is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The applicant's accepted disabilities were chronic bronchitis and bronchial asthma, allergic rhinitis, deflected septum, chronic laryngitis, anxiety state, dyshidrotic eczema, seborrhoeic capitis and ischaemic heart disease (T8).

The applicant continued his work as an accountant until he was hospitalised shortly before his death. In this application he was seeking an earnings-related pension as from 1993. This could mean a special rate or intermediate rate Disability Pension. As it is more likely that he qualified for an intermediate rate pension this will be the focus of the tribunal discussion. If he succeeds in that claim then any entitlement to special rate can then be considered.
As Mr Tosswill was aged 65 before he made the claim relevant to this appeal s 23(3A) and (3B) of the Act must be satisfied:
Intermediate rate of pension
23.(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
…
(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 is capable of undertaking, that work for 20 or more hours per week.
…
(3A)     This section applies to a veteran if:
(a)       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
(b)       the veteran had turned 65 before the claim or application was made; and
(c)       paragraphs (1) (a) and (1) (b) (as affected by subsection (2)) apply to the veteran; and
(d)       the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)       because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)       when the veteran stopped undertaking his or her last paid work, the veteran:
(i)        if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)       section 24 or 25 does not apply to the veteran.
(3B)     For the purposes of paragraph (3A) (e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1) (b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)       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
(b)       the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
(c)the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.
As already found, paragraphs (a) and (b) of s 23(3A) are satisfied. In so far as paragraph (c) incorporates s 23(1)(a) it too is satisfied. Mr Tosswill's degree of incapacity was assessed as 100% by the respondent (T8). Paragraph (f) of s 23(3A) is satisfied in that Mr Tosswill undertook his last paid work after he had turned 65. The evidence from his daughter was that he worked until he was hospitalised in 1999 at the age of 77. Paragraph (g) of s 23(3A) is satisfied in that Mr Tosswill had been working as a self-employed accountant for at least 10 years before he turned 65 (in 1987). Mr Tosswill became a qualified accountant in 1970 (ex A4/2). Paragraph (h) of s 23(3A) is satisfied in that Mr Tosswill did not receive payment at special rate in any sense during the assessment period.
Section 23(3A)(c) also incorporates s 23(1)(b) as affected by s 23(2). This requires an assessment of the following matters:
(a)Whether Mr Tosswill's incapacity from the accepted disabilities listed in paragraph 4 above was of itself alone of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently (s 23(1)(b)).
(b)As Mr Tosswill was from 1993 to November 1999 working in a particular kind of work, whether he undertook, or was capable of undertaking, that work for 50% or more of the time, excluding overtime, ordinarily worked by persons engaged in that kind of work on a full-time basis (s 23(2)(a)), or if that criterion is inapplicable to Mr Tosswill's kind of work –
(c)Whether Mr Tosswill was undertaking, or capable of undertaking accountancy work for 20 or more hours a week.

The tribunal will return to consider these complex issues below.

The tribunal under s 23(3A)(d) has to consider whether during the assessment period Mr Tosswill was, because of his war-caused disabilities alone, prevented from continuing to undertake the remunerative work ("last paid work") that he was last undertaking before he made the claim in 1993. This will be considered below if Mr Tosswill survives the application of s 23(3A)(c) of the Act.
The tribunal under s 23(3A)(e) has to consider whether during the assessment period Mr Tosswill suffered a loss of earnings on his own account that he would not have suffered if he were free from the incapacity arising from war-caused disabilities. Section 23(3B) of the Act has to be considered in this context. Essentially any loss of earnings will be disregarded if it came about because Mr Tosswill was engaged in remunerative work on a part-time or intermittent basis for reasons other than his incapacity from war-caused injury or disease. These matters will be considered below if Mr Tosswill survives application of s 23(3A)(c) and (d) of the Act.
In considering whether Mr Tosswill's accepted disabilities are alone of such a nature as to render him incapable of working other than on a part-time or intermittent basis, the tribunal notes several factors. Section 28 of the Act sets out the method of assessing a veteran's capacity to undertake remunerative work:
28.      In determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)       the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)       the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)       the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake
the kinds of remunerative work referred to in paragraph (b).
Mr Marsh for the respondent argued that the "kinds" of remunerative work for which Mr Tosswill had the appropriate skills, qualifications and experience were more than merely accountancy. Accountancy is only one example of a broader kind of work for which he was qualified. Thus, he was qualified to work as a clerical officer, in bookkeeping or auditing, and in other similar employment. Mr Marsh was on firm ground in this submission. In Chambers v Repatriation Commission (1995) 36 ALD 207 the full Federal Court of Australia adopted that approach. Several quotations from the judgements will illustrate the point. At page 210 Davies J wrote:
"As Moore and Sackville JJ point out, paras (a) and (b) [of s 28 of the Act] should be applied not technically or restrictively but sensibly and fairly with a view to ascertaining the kinds of remunerative work which the veteran might reasonably undertake absent the war-caused injury or disease. Work experience is a guide but it does not delimit the ambit."
At page 218 Moore and Sackville JJ wrote:
"The phrase 'remunerative work' is defined in the widest terms, to mean 'any remunerative activity'. Thus the ultimate inquiry to which s 28 is directed is whether the veteran's war-caused capacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity. It is in relation to this inquiry that s 28 specifies the matters -–and the only matters – that are to be taken into account. The ultimate inquiry is not expressed to be whether the veteran's war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience."
The tribunal finds that Mr Tosswill's vocational skills equipped to work in clerical kinds of employment such as a clerk, bookkeeper or accountant (s 28(a) and (b) of the Act). The tribunal finds that the accepted disabilities affecting Mr Tosswill's capacity to do clerical work were potentially his asthma and bronchitis, and possibly the ischaemic heart disease and anxiety state.
Dr H M Eisenberg, a cardiologist, on 26 February 1998 (T11) wrote that Mr Tosswill was, in his opinion, unable to undertake any remunerative work, even sedentary work, as a result of his obstructive coronary disease.
General practitioner Dr A Y B Ng wrote on 9 March 1998 (T12) that Mr Tosswill had severe chronic airways disease and severe ischaemic heart disease and that he should give up sedentary accounting work.
The tribunal therefore finds that, of the accepted disabilities, it was only the asthma, bronchitis and ischaemic heart disease that affected his capacity to engage in remunerative employment. The tribunal further finds on the evidence from Drs Eisenberg and Ng that those disabilities alone had the effect of reducing Mr Tosswill's capacity for clerical work. Dr M G Miller, a physician, gave oral evidence in which he saw the anxiety state as a contributing factor. However, Ms Tosswill, the applicant's daughter who was in a better position to know, gave evidence that her father had very good relationships with people and that any irritability said by Dr Ng to affect Mr Tosswill (T12) did not affect his clientele. The tribunal did not see the anxiety state as hampering Mr Tosswill in his work.
The issue then becomes whether Mr Tosswill was reduced to working only part-time or intermittently. The tribunal heard from Ms Tosswill who described how her father worked. Her father had a home office on the ground floor of a two storey house. He had access to oxygen, a computer and electronic office equipment. He had set this up by at least 1996. He had worked only at home since some time in the 1980s. He had had similar home offices since that time, although in the house he occupied before 1996 he had no need for an oxygen supply and the house was on one level only. His clients came to the home office to consult with Mr Tosswill. Mr Tosswill's mobility from 1996 was poor. He had chairs placed strategically on stairs in case he needed rest stops.
Mr Tosswill had traditionally had clients based in country areas. He had visited them to see to their needs. He was said to have ceased country visits when he moved to his last house in 1996 except for the "odd trip" when he was driven by others.
Ms Tosswill said that her father continued working because of a culture of continuity. He did not want to let people down. He wanted to continue to help people. He was frustrated by having to meet deadlines. Ms Tosswill believed that her father's productivity declined in the final years. Reminder notices were arriving and he had difficulty meeting the work output required. Ms Tosswill explained that, while she had not lived at home with Mr Tosswill since 1988 or 1989 when she was 25, she was only about five minutes away and saw her father several times a week. Her knowledge of her father's work was based on her visits and phone conversations with Mr Tosswill. She said that her father had officially retired in 1982 but was doing country trips as late as 1993.
Ms Tosswill mentioned that her father employed casual staff to assist him in his work in the 1990s. She thought there were two assistants who each worked four or five hours a week.
There was some confusion as to how much work each week Mr Tosswill did. Ms Tosswill told the tribunal that her father worked on the computer in mornings until lunch time. He would then take a few hours off before doing afternoon work. He did little, if any, night work. He worked on weekends if necessary for tax returns. She estimated that Mr Tosswill's actual hours were eight or nine a day on three or four days a week and some weekends. However, by the mid-1990s he had stopped working at that rate. In re-examination Ms Tosswill reviewed her estimates of hours worked to reach a figure of some 22 hours a week. She suggested that he worked from 8.00 or 9.00 am to noon. He then had two or three hours off before doing another two hours in the afternoon. He would do more at tax return time. He worked a five day week at those times. The pattern ceased in mid-1999 when he was repeatedly hospitalised.
The picture that emerges from this is that Mr Tosswill worked for at least 22 hours a week and, at tax return time, somewhat more hours. There was evidence from CPA Australia (ex A3) that a best estimate of the average weekly hours worked by an accountant was in the range of 50-60 hours a week. This had increased since the introduction of the goods and services tax. As evidence this was less satisfactory than if the writer, Mr Denham, had been available to give evidence to the tribunal. The evidence spoke only of a "best estimate" and of an imprecise average (suggesting it was not based on scientific surveys). Even that was hedged with a rider about the recently introduced indirect tax reforms. It also did not address fluctuations taking in tax return periods as compared to quieter periods over the yearly cycle. It was, for example, unclear whether the 50-60 hours a week referred to the tax return period, the quiet period, or an average over a full year. The evidence did not address overtime arrangements in the industry. Do they exist? If so, for which workers at what levels in an accountancy firm do overtime provisions apply?

The tribunal finds that Mr Tosswill was not reduced to working "intermittently", as provided for in s 23(1)(b), because his daughter spoke of a constant work effort over many years. However, subject to s 23(2) to be next discussed, the tribunal finds provisionally that Mr Tosswill's accepted disabilities did reduce him to working part-time in accordance with s 23(1)(b) of the Act. The tribunal accepts that a 22 hour week is significantly less than the hours per week one would expect to be a full-time clerical working week.
However, to make such a finding under s 23(1)(b) it is necessary to apply s 23(2) which defines the requirements that must be met for satisfaction of s 23(1)(b). Section 23(2)(b) would exclude Mr Tosswill from qualifying for intermediate rate, if that provision is applicable. Section 23(2)(b) precludes qualification if the veteran could undertake the relevant work for 20 or more hours a week. As Mr Tosswill was working for at least 22 hours a week he would be precluded by the provision. However, that provision applies only if s 23(2)(a) is inapplicable. That provision requires a decision-maker to look at work of the kind undertaken by the veteran and inquire whether the veteran's hours of work added up to 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in that work full-time.
If the evidence as to the average weekly working hours of an accountant in ex A3 were accepted, Mr Tosswill's weekly 22 hours of work would be less than 50% of the time ordinarily devoted to work by an accountant and his claim would survive the application of this provision. However, as decided above, the kinds of work for which Mr Tosswill was equipped through his skills, qualifications and experience were more broadly clerical and there is no evidence to suggest that, excluding overtime, such work is not, absent overtime, normally performed on the basis of a 37 to 40 hour working week. On that basis Mr Tosswill's work performance of 22 hours a week exceeds the 50% hurdle in s 23(2)(a) of the Act. The tribunal therefore finds that Mr Tosswill's situation did not satisfy the requirements of s 23(2)(a) of the Act, and, through incorporation by reference, that situation did not satisfy the requirements of s 23(3A)(c) of the Act. As s 23(3A)(c) must be satisfied if a veteran aged at least 65 is to qualify for intermediate rate then Mr Tosswill did not so qualify until shortly before his death when his hospitalisation possibly qualified him for special rate.
These findings mean that it is not necessary to consider s 23(3A)(d) and (g) or s 23(3B) of the Act.
Mr Tosswill could not have qualified for special rate pension between 1993 and 1999 because the conditions for that rate of pension are more stringent than for intermediate rate. Essentially, Mr Tosswill would fail under the provisions in s 24 of the Act (s 24(1)(b), s 24(2A)(c)) requiring that war-caused disabilities alone must have prevented Mr Tosswill, who worked for 22 hours a week, from undertaking remunerative work for more than eight hours a week.
However, in ex A2 there is material on Mr Tosswill's hospitalisations and the like towards the end of his life. This showed the following:

20 – 28 June 1999: bedridden at home with influenza.
22 – 28 July 1999: Concord Hospital. Exhibit R2, the Concord records, shows that this admission was for unstable angina and possible pleurisy (ex R2/105).
22 August – 3 September 1999: Ryde Hospital for unstable angina, herpes zoster and "history of tobacco use" (ex A10). He presented with pulmonary oedema.
3 – 17 September 1999: Home but with constant visits from physiotherapist and Dr Ng.
18 – 24 September: Concord Hospital for infective exacerbation of chronic airways limitation, raised shortness of breath, ischaemic heart disease, reflux disease and prostate disease (ex R2/37).
4 October 1999: A one-day admission to Concord for an electrocardiogram.(ex R2/2-10).
18 November – 4 December 1999: Ryde Hospital for asthma, hypertension and shingles (ex A10).
6 – 7 December 1999: Ryde Hospital for asthma, chronic airways limitation, hypertension, ischaemic heart disease, MRSA infection (ex A10).
7 – 9 December 1999: Hornsby Hospital (reason not stated).
9 – 12 December 1999: North Shore Private Hospital (reason not stated).
12 January – 4 February 2000: Mt Wilga Private Hospital. Admission was for "rehabilitation – post-cardiac surgery" (ex R3/2). He had had coronary artery bypass surgery on 11 December 1999 and a percutaneous tracheostomy on 15 December 1999 (ex R3/6).
4 – 5 February 2000: Sydney Adventist Hospital for acute care (ex R3/120). Mr Tosswill died on 5 February 2000.

From this evidence the tribunal assesses that, whatever Mr Tosswill's work performance had been up until 22 July 1999, Mr Tosswill's angina and airways limitation were constant problems. The tribunal finds it most unlikely that Mr Tosswill was able to continue working at a rate of even eight hours a week from this time until his death.
Section 24 of the Act prescribes the criteria for special rate of Disability Pension. The tribunal finds that Mr Tosswill satisfied these criteria.
Special rate of pension
24       (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
…
(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
…
(2A)     This section applies to a veteran if:
(a)       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
(b)       the veteran had turned 65 before the claim or application was made; and
(c)       paragraphs (1) (a) and (1) (b) apply to the veteran; and
(d)       the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)       because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)       when the veteran stopped undertaking his or her last paid work, the veteran:
…
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
          for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)       section 25 does not apply to the veteran.
(2B)     For the purposes of paragraph (2A) (e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)       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
(b)       the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
Section 24(2A) is satisfied in that:

Mr Tosswill made a valid claim for a pension under s 14 of the Act (s 24(2A)(a)).
Mr Tosswill had turned 65 before the claim was made (s 24(2A)(b)).
Mr Tosswill undertook his last paid work after reaching age 65 (s 24(2A)(f)).
Mr Tosswill had been working as an accountant for at least 10 years before turning age 65 (s 24(2A)(g)(ii)).
Mr Tosswill was not being paid a temporary special rate (s 24(2A)(h)).
Mr Tosswill's accepted disabilities of ischaemic heart disease, chronic bronchitis and bronchial asthma attracted an impairment rating of 100% and were sufficient, taken by themselves, to preclude him from working eight or more hours a week (s 24(1)(a), (b) and s 24(2A)(c)).
Mr Tosswill's accepted disabilities alone prevented him from continuing to undertake the remunerative work that he last undertook before he claimed in 1993 (s 24(2A)(d)).

Of these findings only the last requires explanation. Although Mr Tosswill was admitted to hospital with herpes zoster or shingles on several occasions, this was a temporary condition that would not prevent a veteran from working indefinitely. The other reasons for the hospital admissions all stem from Mr Tosswill's accepted conditions. Mr Marsh argued that age was a factor in Mr Tosswill giving up employment. The tribunal recognises that this may be so, however we nevertheless consider that, on the balance of probabilities, were it not for the accepted disabilities, Mr Tosswill would have continued his work as an accountant. The evidence was sufficient to convince the tribunal that Mr Tosswill felt a duty to continue working, and derived satisfaction from that work.
In accordance with s 24(2A)(e) of the Act the tribunal finds that Mr Tosswill suffered a loss of earnings on his own account from at least July 1999 when he was no longer in a position to take on and complete work because of his accepted disabilities.
There were a number of medical reports not referred to above in the tribunal's reasons. These were considered but for various reasons were not seen to assist us greatly. The reasons for this follow.

Professor A B X Breslin's report dated 8 February 1998 (T10) addresses the level of impairment attributable to Mr Tosswill's breathing difficulties but does not address intermediate or special rate issues.
Dr Miller provided three reports. The first (ex A4) was written in 1993. In that report Dr Miller confused intermediate and special rate, as he admitted in oral evidence. He also regarded the kind of work for which Mr Tosswill was qualified as work as an accountant, a decision at odds with the tribunal's finding above in paragraph 14. Dr Miller reinforced the same view in ex A7 on 23 July 2001. His report in ex A8 dated 23 March 1994 is brief, contains no explanation, and addresses a period prior to that in contention in this matter.
Dr P Gianoutsos, a thoracic physician, in ex A5 on 31 August 1993 thought that Mr Tosswill could work 20 to 30 hours a week.
Dr P Henke, a rehabilitation medicine consultant, on 25 October 1993 (ex A6) thought that Mr Tosswill would not be able to continue working 22-30 hours a week as he had reported to the doctor. However, experience indicated that Mr Tosswill was able to continue to work at close to that level for considerably more years.
Dr M Baz, an occupational physician (ex A9) provided an assessment on 8 May 2000 without having seen Mr Tosswill and in the absence of access to some of Dr Miller's material. Dr Baz appeared unaware that Mr Tosswill had continued to work considerably in excess of eight hours a week from 1993 onwards. She thought he could work for 20 or more hours a week until some time between 1993 and 1998. Dr Baz's report was described in argument as "curious". The tribunal is accustomed to the generally worthwhile reports emanating from Dr Baz and considered that this report was of little use in the present case because Dr Baz had to complete it working somewhat in the dark.

CONCLUSION

The tribunal has found that Mr Tosswill was insufficiently incapacitated by his accepted disabilities to attract payment of his Disability Pension at the intermediate or special rate between 1993 and 1999. However, the tribunal is satisfied that, once Mr Tosswill was required to enter hospital on a fairly regular basis as of 22 July 1999, he qualified for a special rate pension.
DECISION
The tribunal sets aside the decision under review and substitutes its own decision that the veteran did not qualify for a Disability Pension at intermediate rate at any time but that he qualified for payment at the special rate with effect from the first pension payday on or after 22 July 1999.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  12 February 2002
Date of Decision  16 September 2002
Counsel for the Applicant        Mr R Sherlock
Solicitor for the Applicant         NSW Legal Aid Commission
Counsel for the Respondent    Mr J Marsh, DVA Advocacy Service