Walden and Repatriation Commission - [2002] AATA 154

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 154

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/10

VETERANS' APPEALS DIVISION       )
           Re      GRAHAM FRANCIS WALDEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date25 February 2002
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review, only insofar as it refused the claim for otitis externa of both ears, and substitutes a decision that the condition of otitis externa of both ears is war-caused, but otherwise the Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – whether applicant's pension is appropriately assessed at 100% of the general rate
Veterans' Entitlements Act 1986 sections 24, 120,

ORAL REASONS FOR DECISION

25 February 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Repatriation Commission (the Commission) dated 14 April 2000, which rejected otitis externa of both ears as war-caused and assessed pension at 100% of the general rate with effect from 10 November 1999. The Veteran's Review Board (VRB) affirmed the decision on 14 November 2000.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the applicant. Mr White represented the applicant, who gave oral evidence. Mr Doube represented the Commission.
At the commencement of the Hearing, I was informed that the Commission concedes now, that the condition of otitis externa of both ears is a war-caused condition.
The applicant, who is 59 years of age, served in the Australian Army from 6 November 1963 to 5 November 1969, as an electrician. He has operational service from 17 December 1964 to 26 June 1965, 16 March 1966 to 6 September 1966 and 26 June 1967 to 11 June 1968. He has the following accepted disabilities: sensorineural hearing loss with tinnitus, post traumatic stress disorder, irritable bowel syndrome, haemorrhoids, tinea, hypertension and otitis externa of both ears. The standard of proof in relation to the question of assessment is reasonable satisfaction in accordance with section 120(4) of the Veterans' Entitlements Act 1986 (the Act).
After leaving the Army, the applicant worked as an electrician, with South Australian Railways from November 1969 to 1973 and with Australian National Railways (ANR) from 1973 to 29 March 1996, a total of 27 years until he took a redundancy package at the age of 53.
On the applicant's evidence the work at the railways was of a fairly light nature. His duties involved undertaking general maintenance on the trains at the depot, and also maintaining equipment whilst travelling on the trains from Adelaide to Sydney, Alice Springs and Perth.
He said that whilst working with ANR he did not have any work related back or knee injury claims, nor did he take any extended periods of time off work because of knee and/or back problems. He had experienced flashbacks, bad dreams and sleeping problems since his return from Vietnam. Towards the end of his working career, he noticed more and more that he was becoming forgetful, having difficulty concentrating, generally feeling anxious and having difficulty interacting with fellow employees. He was leaving tasks unfinished and his work mates had to complete these tasks and "cover" for him. He tended to avoid contact with other employees, because he was short tempered and regularly got into arguments.
The applicant said in evidence that in March 1996 he was the only electrician to be approached by management about accepting a separation package, and due to the problems he was having at work, which he felt were caused by the symptoms of his post traumatic stress disorder (PTSD), he decided to accept. If it were not for his symptoms from the PTSD, he would not have accepted the package.
The applicant maintains that he ceased work because of his war-caused condition of PTSD alone; that he is suffering loss of salary or wages and that he satisfies section 24 of the Act and is entitled to payment of pension at the special rate. Section 24 of the Act, as far as is relevant for the purpose of this review, provides:
"(1)     This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)      either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)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
(d)      section 25 does not apply to the veteran.
(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.
…"
10. The Commission argues that the applicant does not satisfy the "alone test", that he ceased work because of his non-war-caused back and knee problems, and although the Commission concedes that from 29 May 2000 he satisfies section 24(1)(f) of the Act, in that incapacity from war-caused conditions do now render him incapable of undertaking remunerative work for periods aggregating 8 hours per week, the ameliorating provisions of section 24(2)(b) of the Act do not apply.
11. The applicant gave lengthy oral evidence. I found him an unconvincing witness whose testimony was at times convoluted and contradictory; and I gained the impression that he tailored his complaints as expressed to the medical practitioners subsequently and his evidence to this Tribunal in a deliberate attempt to satisfy section 24 of the Act. This does not mean that I reject the whole of his evidence, but that I prefer to rely upon the testimony of Dr Oakeshott, and upon the documentary evidence, in any area of dispute in the evidence.
12.      The documentary evidence discloses that when the applicant completed his application for Disability Pension, with the assistance of Mr Coppock, his pensions officer from the Vietnam Veterans' Association, on 4 February 2000, he stated that he ceased work because of "knee replacements" [T5/58]. The applicant said in evidence that at the time of his redundancy his knees were all right. He had no problems, and they were not the reason he ceased work.
13.      The documentary evidence discloses that on 10 January 1996 his treating General Practitioner, Dr Daniel, noted in part "to quit job – due to L sciatica (? for surgery) OAR knee". Dr Oakeshott, the applicant's treating Orthopaedic Surgeon, reported on 9 April 2001 that when he first saw the applicant on 27 February 1997 he sighted a radiology report by Dr Brian Benson dated 11 March 1996, of x-rays of both hips and knees. Dr Oakeshott's report [Exhibit A3] reads in part:
"6.1 … He gave the history of having had an arthroscopy by Dr Francis Ghan in April of 1996 subsequent to which he continued to be in significant pain. He experienced this pain both anteriorly and medially and his symptoms were worse with all bent knee activity.
6.2      At examination on that occasion [h]is knees were both hyperextensile and valgus, and the ligaments were quite stable. I investigated him with a bone scan and CT scan of his knee and saw him with the result of those on the 17th of March 1997. On the basis of the results of this investigation, I recommended bilateral knee arthroscopies and this surgery was carried out on the 1st of April 1997.
6.3      He was then seen on the 14th of April 1997, 10th of July 1997 and the 9th of January 1998. At this time he had more significant symptoms from his knees and x-rays showed severe osteoarthritis of his knees. I recommended bilateral total knee replacements and these were carried out on a stage basis on the 1st of April 1998 and the 8th of April 1998. …"
Dr Oakeshott said in evidence that the applicant would have complained of knee symptoms before the arthroscopy was performed by Dr Ghan, but that he did not have access to Dr Ghan's notes. He said also that the applicant told him on 27 February 1997 that he retired because of arthritis in the hips and knees. I accept Dr Oakeshott's evidence.
When the applicant first saw Dr Ewer for psychiatric assessment, at the suggestion of the Vietnam Veterans' Association, on 9 March 2000, Dr Ewer recorded in relation to the applicant's personal history [T7/68]:
"… Mr. Walden accepted a voluntary separation package in 1994 because of the problems he was having with his knees. He accepted this after twenty-six years of service.
…"
In the course of its decision of 14 April 2000, accepting war-caused conditions and setting pension at 100% of the general rate, the Commission stated [T12/88]:
"…
One of the requirements for grant of Special Rate or Intermediate Rate pension is that I must determine that there are no factors other than service related disabilities which contribute to the veteran's inability to work. As you ceased employment in 1994 due to your knees and have not sought further employment since that time, it is my opinion that you would not now be working even if you were not suffering your service related disabilities and so I cannot grant either of these rates.
…"

I note that the Commission, as did Dr Ewer, incorrectly referred to the applicant ceasing work in 1994 instead of 1996. Attached to the Commission's decision was an 11-page Information Booklet outlining, amongst other things, the requirements for payment of pension at special rate.

When Mr Coxon, the applicant's advocate from the Vietnam Veterans' Association, requested a further report from Dr Ewer, Dr Ewer interviewed the applicant again, on 29 May 2000, and reported on 30 May 2000, in part, as follows [T15/116-118]:
"…
I asked Mr. Walden to tell me a little more about the circumstances under which he finished work. He explained to me that he was an Electrician with the Railways. His capacity to function safely as an Electrician was severely hampered by his emotional problems. He told me that on occasions he forgot to complete jobs. His poor memory and concentration resulted in frequent mistakes and on a number of occasions he left exposed, live wires. On a few occasions fellow workers were given electric shocks as a result of Mr. Walden's mistakes. They were aware of the problems he was having and they tried to compensate for Mr. Walden. Mr. Walden said "they carried me for a long time". Eventually Mr. Walden's employer called him into the office and counselled him about his poor work performance. Mr. Walden's irritability also interfered with his ability to work. He said "I used to jump down the men's throats".
…
With the benefit of further history it is clear that Mr. Walden was unable to continue to work as an Electrician because of his psychiatric problems. Indeed he was unsafe in the workplace and he placed both himself and others at risk. He frequently made mistakes because of his poor memory and concentration. His irritability led him into conflict with others. His lethargy and insomnia further compromised his ability to work. He was unable to cope with minor stresses. I note these problems and his retirement preceded the difficulties he had with his knees.
This equates to an impairment rating of 8.
…"
Dr Ewer has relied, of necessity, upon the veracity of the information provided by the applicant. This information was not accurate, in my view, and I take this into account in assessing the weight to be given to Dr Ewer's opinion.
I consider that the applicant accepted voluntary redundancy for reasons other than his PTSD. He had expressed an intention to his treating General Practitioner to "quit" in January 1996. He was offered a redundancy package subsequently, which enabled him to access retirement pension at 53 years of age rather than 55 and receive in excess of 2 years salary if he took the package. I consider that he was experiencing knee pain of sufficient intensity for him to undertake an x-ray in March 1996 prior to his taking the package, and subsequent arthroscopy in April 1996.
I have examined the whole of the evidence carefully and in detail, and I have taken into account the parties' submissions. I am reasonably satisfied on the evidence that the applicant did not cease his employment because of his war-caused disability of PTSD alone, and that he does not satisfy section 24 of the Act.
For these reasons, the Tribunal sets aside the decision under review, only insofar as it refused the claim for otitis externa of both ears, and substitutes a decision that the condition of otitis externa of both ears is war-caused, but the Tribunal otherwise affirms the decision under review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  25 February 2002
Date of Decision  25 February 2002
Counsel for the Applicant        Mr T White
Solicitor for the Applicant         Tindall Gask Bentley
Counsel for the Respondent    Mr G Doube
Solicitor for the Respondent    DVA