Warren and Repatriation Commission
[2002] AATA 1218
•22 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1218
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/534
VETERANS' APPEALS DIVISION )
Re THOMAS ANTHONY WARREN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member
Date22 November 2002
PlaceSydney
Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor the Tribunal decides that Mr Warren is eligible for payment of pension at the Special Rate on and from 8 February 1997.
..............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Special Rate – Reasonable Satisfaction – Assessment Period
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 19, 20, 24, 119, 120
AUTHORITIES
Starcevich v Repatriation Commission (1987) 18 FCR 221
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Maley (1991) 24 ALD 43
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Maloney (1993) 29 ALD 684
Forbes v Repatriation Commission (2000) 101 FCR 50
Berry v Repatriation Commission (1992) 27 ALD 330
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 564/1997
Flentjar v Repatriation Commission (1997) 48 ALD 1
Hendy v Repatriation Commission [2002] FCA 602
Lucas v Repatriation Commission (1986) 69 ALR 415
REASONS FOR DECISION
22 November 2002 Ms S M Bullock, Senior Member Dr P D Lynch, Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Thomas Anthony Warren, of a decision made by the Veterans' Review Board ("the Board") dated 6 March 2001 (T17) which varied the diagnosis of the claimed condition of Alzheimer's Disease to include Alzheimer's Disease, no incapacity found, then affirmed the decision of the Repatriation Commission ("the Commission") dated 23 February 1998 (T2). The Board also affirmed the Commission's decision in relation to the assessment of Mr Warren's pension, continuing the Disability Pension at 100 per cent of the General Rate.
A hearing was held in Sydney on 4 April 2002. Mr Warren was represented by Mr M Vincent of Counsel and the Respondent, the Commission, was represented by Ms P Hook, Departmental Advocate. Oral evidence was provided by Mr Warren and his wife, Mrs Ruby Emma Warren. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T21) and the following exhibits:
Exhibit No. Description Date
A1 Statement of Thomas Anthony Warren 12 November 2001
A2 Report by Dr P L Harvey-Sutton, Occupational Physician 20 September 2001
A3 Claim for Disability Pension and Medical Treatment 21 February 1995
A4 Claim for Disability Pension and Medical Treatment 24 July 1995
A5 Lifestyle Questionnaire 20 September 1996
R1 Documents from Mr Warren's Service Pension file Various
R2 Letter from Mr P Cummins, Personnel Services Manager, FreightCorp to Ms P Hook, Departmental Advocate 21 December 2001
R3 Letter from Mr C Dandridge, Business Services Manager, Payroll, State Rail Authority to the Department of Veterans' Affairs 14 December 2001
R4 Clinical Notes from Dr A West, General Practitioner (Pages 1-173) Various
R5 Additional documents from Mr Warren's Departmental Medical File (Pages 1-11) Various
R6 Letter to Mr Warren from B. Salter, Delegate of the Repatriation Commission 16 September 1996
ISSUES
The issue to be determined in this matter is the assessment of Mr Warren's rate of pension and specifically, his qualification for pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 ("the Act"). Mr Warren is currently in receipt of pension at 100 per cent of the General Rate.
At the commencement of the hearing, the parties noted that the only issue in contention is whether or not Mr Warren satisfies subsection 24(1)(c) of the Act. If Mr Warren is found to satisfy that the criteria contained within section 24 of the Act for payment of pension at the Special Rate, a determination must be made as to what is the date from which the Special Rate is to be paid.
LEGISLATIONA determination in this matter requires consideration of the provisions of the Act.
Section 19 of the Act deals with determination of claims and applications and specifically subsection 19(9) provides definitions of a number of matters including that of "Assessment Period" which means:
"in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined."
Section 20 deals with the dates of effect that may be specified in respect of the granting of a claim for pension. As relevant, section 20 states:
"20 Date of operation of grant of claim for pension
(1)Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
(2) Where:
(a)a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a);
(b)the person subsequently makes a claim for the pension in accordance with a form so approved:
(i)at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with a form so approved; or
(ii) within 3 months after the person had been so notified; and
(c)a pension is granted to the person upon consideration of that claim in accordance with a form so approved;
the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.
…"Section 24 of the Act deals with the Special Rate of pension and the eligibility criteria. As relevant, section 24 of the Act states:
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)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.
…"
Section 119 of the Act allows for decision-makers not to be bound by technicalities and acknowledges that decision making under the Act is of an administrative rather than a judicial nature. Accordingly, section 119 of the Act allows decision-makers to take into account matters such as the absence or deficiency in records, the effects of the passage of time and the diminished memory of veterans.
The standard of proof to be used in relation to the assessment of the rate of pension matters must be decided to the Tribunal's reasonable satisfaction as provided under subsection 120(4) of the Act which states:
"(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
SERVICE HISTORY
Mr Warren served in the Royal Australian Navy between 4 April 1951 and 3 April 1957. Mr Warren had operational service in South Korea from 27 October 1953 until 12 April 1954 (T3, p11).
ACCEPTED CONDITIONSMr Warren has the following accepted conditions from the dates detailed:
Bilateral sensorineural hearing loss from 21 November 1994
Anxiety disorder and alcohol abuse and tension headaches from 10 April 1995
Peptic ulcer disease from 10 April 1995
Gastro-oesophageal reflux disease from 10 April 1995
Haemorrhoids from 10 April 1995
Chronic airflow limitation from 10 April 1995
Mr Warren has the following conditions which have not been accepted as war-caused:
Chest pains, no incapacity found
Sleep apnoea, no incapacity found
Alzheimer's disease, no incapacity found
Carpal tunnel syndrome
Mr Warren is also eligible for treatment for post traumatic stress disorder which is determined not to be service related.
EVIDENCE OF THOMAS ANTHONY WARRENMr Warren provided a statement dated 12 November 2001 (Exhibit A1). He informed the Tribunal that this is a correct statement. Mr Warren, whose date of birth is 26 August 1932, stated that he was married to Ruby Emma Warren in 1970. He worked for State Rail for approximately 22 years. Mr Warren worked variously as a labourer, truck driver, ganger and finally as a track inspector. He last worked as an inspector of tracks. Mr Warren noted that he earned very good money and was happy in this position. He was virtually his own boss and did not have to go into the city for meetings. Mr Warren worked out of Granville in 1975 and then worked at various locations including Bathurst, Dubbo, Moree, Gloucester, Wallerawang in 1989, West Wyalong, Lake Cargelligo and Lithgow in about 1989 or 1990. Mr Warren stated that he finds it difficult to recall the exact dates of his various work locations. Because Mr and Mrs Warren were located in a number of different areas, they lived in a 22-foot caravan usually based at the local caravan park. This made it easy for the couple to relocate when this was required.
Mr Warren noted that while the locations of his work with State Rail may have changed, the duties did not. His duties involved inspecting tracks usually between 8am through to about 4pm. His work would involve inspections for four days and then on the fifth day he was required to undertake any necessary paper work. In the execution of his duties, there were often quite large distances to be travelled which required him to drive early in the morning returning at night. It was not unusual for him to travel between 300 and 400 kilometres per day. Mr Warren would undertake sketches of the tracks, take notes about the status of the track, the sleepers, the cuttings, the embankments and platforms for example. Mr Warren used to undertake these duties himself but close to the time when he ceased work in 1992, he would work for short periods of time and then often return home to have a sleep. During the latter stages of his employment, he was helped by his colleagues who would walk the track for him and then he would drive to meet them and receive any data concerning the track.
Mr Warren told the Tribunal that towards 1990 he considered that he was "bludging" by which he meant that he was letting others do his work. Mr Warren stated that he just could not cope and did not know what to do. In this regard he found that he was having difficulties breathing and was in discomfort and pain, also feeling distressed. As his breathing difficulties and anxiety worsened, his job started to become more difficult. Mr Warren told the Tribunal that he was unable to walk the tracks due to his breathing problems. Just bending down made it difficult. He was also arguing with other members of the team. Mr Warren estimated that he was in and out of doctors' surgeries after 1985 for breathing difficulties and for anxiety and stress. Mr Warren recalled attending Moree hospital in a "great state" possibly in 1986, having been at that stage based at Moree for approximately 18 months to two years. He recalls consulting Dr Martin in Gloucester and Dr Toohey in Wallerawang in about 1990. Mr Warren stated that doctors were telling him that he was stressed and had anxiety. He further recalled that much earlier in 1974, when he was working in Dubbo, he was put on tablets for his nerves for a period of approximately one fortnight and then he was alright.
Mr Warren told the Tribunal that he loved his job. He knew what it entailed and he was highly regarded. His team would invariably be able to undertake greater distances in their inspections than the other teams and the team would do this to a higher level of competency. He acknowledged that he was sheltered towards the mid-1980s to 1990 by the good men around him. However, towards 1990, he was relying on one particular ganger who he thought was helping him but who he now believes may have been trying to "set him up" by providing him with incorrect information which Mr Warren would incorporate into his inspection reports. Mr Warren noted that towards the late 1980s he was being criticised by his supervisors for mistakes such as trains running into platforms or goods not being ordered properly for the repair of the tracks or details being left out in the sketches. During this later period, the engineers were not like those with whom Mr Warren had previously worked. They were newly graduated engineers who were out to prove themselves. This was at a time when Mr Warren's health, both physical and emotional, was causing him difficulties. It got to a point where in some locations, Mr Warren would start work at 7am and be back by 9am because he could not cope. Bending over to inspect a rail caused him difficulty in that he would become dizzy and nearly fall over. This contrasted with his previously good record when he and his team could inspect seven kilometres in the same time it took most other teams to inspect three kilometres.
Mr Warren described himself as becoming a "loner" during the late 1980s. There was thus a combination of problems towards the end of his work which included breathing difficulties preventing him walking the track, he was in pain from his ulcers, and suffering anxiety and great frustration at not being able to do his work as he had previously been able to undertake. Mr Warren stated that if he had understood what was happening to him he would have left the job in 1980 as he noted at T17, p70. He explained that he did not know what assistance he might have been able to obtain from the Department of Veterans' Affairs.
Mr Warren began to consume alcohol in great amounts and noted that this provided him with his "only form of relief ". He recalls consulting doctors about his various problems including Dr Sanderson in about 1989 or 1990 and without whose assistance, Mr Warren doubted that he would still be alive today. Mr Warren stated that he reached such a high level of anxiety that he would often find himself crying. He consulted Dr Stanborough who he recalled provided him with "nerve tablets". He then consulted Dr West when Dr Stanborough closed his practice. Mr Warren explained that there was great difficulty with doctors in the "bush" because many of the practices were closing down. This has meant that Mr Warren has had difficulty in obtaining medical records from the numerous doctors that he has consulted over the years.
In 1990, Mr Warren's health had become so bad that he decided that he would take some time off work. To this end, he took long service leave, annual leave and what other leave was available to him which effectively meant that he was not working for two years. It was Mr Warren's view that if he took his leave, he would feel better and then be able to return to work refreshed. In 1992, Mr Warren returned to work but was only able to last for three days. He told the Tribunal he just could not cope. He went to undertake a track inspection and found that he was hobbling two miles behind the rest of the gang. He felt that he was wasting time and was a burden to others. He then decided to fill in a resignation form. During the period of leave, Mr Warren stated that he did not even think about taking sick leave and could not explain why.
Also in 1990, Mr Warren noted that his wife was offered some land and a house in Condobolin which she subsequently purchased. Mr Warren worked with his son on the redeveloping of this house doing a little bit each day. He was not able to undertake a great deal of the work because he would become breathless and/or dizzy. The renovations took place between 1990 until 1992. A few men came and helped lay the cement. The most active Mr Warren became was in looking after the barbecue. He did not think that he did much about the house. What Mr Warren did recall during this period was that he did not do much else except go to the hotel or club and consume alcohol. He stated that during this period he was in agony, having breathing difficulties and could not work.
In 1992, Mr Warren resigned from his employment. He applied for a Service Pension and noted that he had written on the Service Pension Claim and Employment Report that he was ceasing work because he had retired. Mr Warren noted that this is indeed what he had thought he was doing. He was fully aware of his ill health but did not know of the possibility of entitlement for Disability Pension for the various health problems he had. Mr Warren first made a claim for a Disability Pension on 21 February 1995, claiming deafness. Mr Warren noted that he was advised of his possible entitlement when a visiting advocate from the Vietnam Veterans' Association advised him that he may have entitlement for a Disability Pension. Mr Warren stated that he then commenced helping other veterans in the Condobolin area and in about 1995 or thereabouts, he attended a week's course in Sydney to assist him to become a Pension Officer in advising veterans and war widows. Mr Warren also noted that he had been helping the Far West Children's organisation since 1965 until 1968. He also assisted his wife with work for the St Vincent de Paul Society. Mr Warren also noted that he had attempted to do voluntary work with Meals On Wheels but unfortunately could not walk the distances required nor uphills. He has from time to time been involved with Legacy and assisting war widows.
After 1992, Mr Warren tried working on his wife's farm. He could not stand being idle, he told the Tribunal. Mr Warren stated that he was not able to steer the tractor or help move the sheep in the paddocks because his breathing difficulties were so bad. Mr Warren estimated that he stuck at this work for approximately two weeks. Driving the tractor hurt his bottom and he could not catch the sheep. He tried doing the garden around the farm but could not even manage that.
In Condobolin, Mr Warren recalls consulting a doctor, possibly Dr Richards, in about 1992, at about the time he left the State Rail Authority. At the time Mr Warren had been suffering extreme pain with stomach ulcers. He also had back pain but the ulcers provided the greater degree of pain. Referring to Dr West's clinical notes for a consultation on 21 September 1992 (Exhibit R4, p8), it is recorded that Mr Warren was consuming two or three schooners of beer per week. Mr Warren stated that this was just not accurate. He was in fact drinking six or seven middies of beer per day and often more. In relation to the note on 17 May 1993 (Exhibit R4, p9), in which he is described as being extremely well, Mr Warren stated that it is hard to remember back at that time but thought that his ulcer which had been causing him some difficulties was much better on the treatment of "Zantac".
Mr Warren takes "Losec" for his gastro-oesophageal reflux problem. "Dothep", an anti-hypnotic, is taken for his "nerves". Mr Warren also takes "Asasantin", an anti-thrombotic, for his heart and "Panamax" for headaches. He also takes "Imdur Durules", an antiangina agent.
Mr Warren noted that he has consulted many doctors over the years but it was in 1992 he was told by a doctor that if he did not cease work then he would be "put in a box over the hill", which meant that he would be buried in a cemetery. Since leaving work it was very difficult for him, particularly when he was unable to work on Mrs Warren's farm.
Between 1992 and 1994, Mr Warren stated that he would just drink. During this period he would drink on a daily basis consuming anything between 15 to 20 middies of beer per day, sometimes more. Currently, Mr Warren is of the view that his alcohol consumption is under control.
While Mr Warren was less stressed after leaving work, he was still very anxious. Dr M D J Bennett, Consultant Psychiatrist, examined Mr Warren in April 1996. Mr Warren recalls this and stated that at the time he saw Dr Bennett, he was very angry. He was later referred by General Practitioner, Dr West, to Dr J Taylor, Consultant Psychiatrist. Dr Taylor treats him for his anxiety condition prescribing Dothep. Mr Warren first consulted Dr Taylor in June 1997. He has felt better since seeing Dr Taylor on a consistent basis. Before seeing Dr Bennett or Dr Taylor, Mr Warren informed the Tribunal that the medicine he used to try and deal with his nerves was alcohol.
In relation to other health conditions, Mr Warren noted that he has had back pain which has come and gone over the years. He never stopped work because of the back condition. When Mr Warren bends down, he becomes dizzy but this is because of his breathing difficulties and not anything to do with his back. Mr Warren has seen a cardiologist and he has been told to stay calm. Mr Warren stated that he cannot play bowls or golf. He has in recent times started an exercise program involving stretching and strengthening his stomach muscles. He is unable to walk very far and there are some days he cannot get out of bed because of a combination of physical and emotional problems.
In Mr Warren's first claim for Disability Pension, lodged on 21 February 1995, when he was attributing deafness to his service, (Exhibit A3), he noted that he had given up work because of "stupidity and age". This was explained later in the claim form that he was unable to understand conversations, he misread expressions and suffered from anxiety. Mr Warren also noted in that claim that he "could not understand the reason. resigned from the position". He told the Tribunal that he referred to his age because at the time he was aged 60 and he thought that this was making him stupid and unable to cope. He was extremely stressed, anxious and he thought he was depressed at the time.
In a claim for Disability Pension and medical treatment lodged on 24 July 1995 (Exhibit A4), Mr Warren explained that he was not working and would have been dismissed because of conflict with his bosses if he had not have left work. These were the supervisors who were graduates straight out of university. He noted that he could not carry out his duties, he was very aggressive and it was awkward for him driving long distances. Referring to a Lifestyle Questionnaire dated 20 September 1996 (Exhibit A5), at Question 32, Mr Warren had recorded that he gave up work because of ill health and other reasons. Mr Warren explained that he was referring to his physical ill health and the other reasons referred to his anxiety or emotional state. These related to what he thought was depression and alcohol problems and that he had resigned before he got the sack.
From his written statement, Mr Warren noted that he would have liked to have kept working at State Rail for as long as possible if he had physically able to do so. Mr Warren wrote that he had been told that he would have been allowed to work past the age of 65 if he was fit. Mr Warren had thought that he would continue to work up to that age. Unfortunately he was unable to do so because of his breathing difficulties and the stress, he thought. Mr Warren stated that he could have continued working even though he had haemorrhoids, ulcers and headaches. It was the problems with his breathing, his inability to walk the track and his stress/anxiety which caused him to cease work.
In relation to his financial situation, Mr Warren noted that he received a lump sum superannuation pay out of $95 500.00. This is what he would have earned in only two years working at State Rail which indicates how well his job was paid. Mr Warren received this money at the end of the two years during which time he had tried to return to his employment.
EVIDENCE OF MRS EMMA RUBY WARRENMrs Warren told the Tribunal that she married Mr Warren on 9 May 1970 and then lived for a period of approximately 22 years in a caravan living in such locations as Moree, Gloucester, Wallerawang and Ungarie. The locations varied according to postings Mr Warren had through the State Rail Authority. Mrs Warren stated that her husband's health problem became serious in 1986 when they were based at Gloucester. She knew that Mr Warren was having rows with the men at work because of some of the workmen had told her of this and also her grandson was working with Mr Warren at the time.
Mr Warren would come home and have a few beers. He was not very pleasant to her, Mrs Warren stated. Mrs Warren described her husband as not being himself and as being depressed. He also had breathing problems and could not cope with walking along the track to do the inspections. Sometimes Mrs Warren would go along the tracks with him or would wait in the car for him, while he undertook his duties, after which she would drive him home. He used to be able to walk miles along the track and it was important that he did this as his job was that of an inspector. There were many occasions during the latter stages of his employment that Mr Warren would come home from work early to have a sleep. Mrs Warren told the Tribunal that her husband would come home from work and often say "I can't stand this any more I'll have to do something about it". This occurred when they were living in Lithgow and were still in the caravan. Mrs Warren further described her husband as always being irritable and cranky. She in fact told him that if he did not do something about himself, she would leave him.
At the time when the couple lived in Lithgow, Mr Warren was also drinking a great deal although Mrs Warren noted that he would not drink at work. Mrs Warren stated that her husband would in fact sack anyone who was found to be consuming alcohol while at work. Mr Warren would drink immediately after work. Mrs Warren herself does not consume alcohol. She noted that her husband would drink his beer extremely quickly and their daughters would often time him. In 1990, Mr Warren was drinking a great deal. He would go to the club while Mrs Warren did the shopping and then he would not arrive home until very late. Mr Warren would then return to the club in the evening. He drank alone and it was noted that he would become very angry with people in the club. Mrs Warren described the situation in Condobolin where she had been born and raised. It upset her greatly that her husband was drinking so much and also that he was upsetting the locals with whom she had had such a long association. Mr Warren also gambled as was noted by Dr Bennett. Mrs Warren had in fact attended the examination of Mr Warren by Dr Bennett and what he reported was accurate, she told the Tribunal (T7, p17).
Mrs Warren would often talk to her husband's General Practitioners before he went because she was so concerned about him. She recalled a time when Mr Warren had come home so inebriated and depressed and he had gone to the shed. Mr Warren did not know that his wife had followed him and seen him put a rope over the rafters in the shed. Mrs Warren told the Tribunal that to her knowledge, Mr Warren had actively thought about suicide on two occasions. Mrs Warren could not recall precisely when this occurred.
Mrs Warren had been with her husband on a number of occasions when he had consulted doctors. One doctor had told him that if he did not give up work he would end up in the cemetery. Then in 1990, Mr Warren had taken all his long service leave and holiday leave in an effort to try and see if this improved his health. Mrs Warren noted that her husband liked his work very much and was very proud. She noted that other people had told her that Mr Warren was extremely good at his job. He would become very upset when he was not able to undertake the tasks at work that he had so ably attended to prior to about 1986.
After Mr Warren had his extended period of leave he returned to work. Mrs Warren recalled that shortly after returning to work, Mr Warren arrived home saying that he could not take it any longer. He was extremely upset. Mrs Warren told the Tribunal that she reassured her husband that they could cope and told him that he should just give up work. "It was too much for him", Mrs Warren stated, noting that work was very difficult for him. Immediately after ceasing work, Mrs Warren observed that her husband became more depressed and drank more. It was during this period that he had tried to commit suicide on the two occasions, she thought. During this initial period his breathing problems seemed to worsen and he could not even use a mower to do the lawns.
Mrs Warren told the Tribunal that she loved living in a caravan but they knew that they would eventually have to buy a home. The house that she eventually purchased was offered to her by some friends and had occurred unexpectedly. They had in fact intended to live in Dubbo eventually when Mr Warren ceased work. But when the opportunity arose for the house to be purchased at a very reasonable price they decided that they would take up the offer.
After the decision to finally leave work, Mr and Mrs Warren lived from Mr Warren's superannuation payment. By this stage, Mrs Warren had purchased a home in Condobolin and work was undertaken to remodel it. The remodelling of the house in Condobolin took between 12 to 18 months. They did the work when money was available. The funds came from Mr Warren's retirement benefits and superannuation. A new kitchen was installed by professionals. The house was close to being finished when Mr Warren left work in 1992. They had to buy a home because all they had was a caravan. Mr Warren worked with other men and their son in undertaking the renovations. Mr Warren would become extremely upset that he could only work for approximately two hours on any particular task and he would also be upset when Mrs Warren organised for other people to come in to undertake tasks which he would previously have done but he could not manage at that time.
Mrs Warren noted that her husband had tried to work on her farm. One of her farm hands had "left her in the lurch" and Mr Warren had tried to help out by undertaking the fencing. He was certainly unable to undertake this task. There was no power on the farm so they did not live there. He did attempt a small amount of fencing and that was the extent of his ability.
Mrs Warren noted that since being treated by a psychiatrist, Dr Taylor, she believes her husband has improved. He has reduced his alcohol consumption but still has breathing difficulties. These are not as severe as previously. She described Mr Warren's attendance at the Tribunal in Sydney causing him difficulties when walking the two short blocks from St James station to the Tribunal's offices. During that two block walk, Mr Warren had to have a rest
MEDICAL EVIDENCE
DR P L HARVEY-SUTTON, CONSULTANT OCCUPATIONAL PHYSICIANDr Harvey-Sutton examined Mr Warren on 20 August 2001 and provided a report dated 20 September 2001 (Exhibit A2). Dr Harvey-Sutton assessed all of Mr Warren's accepted conditions using the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide") in the following terms: bilateral sensorineural hearing loss, 15 points; anxiety disorder, alcohol abuse and tension headaches, 38 points; peptic ulcer disease, gastro-oesophageal reflux, haemorrhoids, 10 points; and, chronic airflow limitation, 40 points. Dr Harvey-Sutton assessed Mr Warren's lifestyle rating as 5 points, from Chapter 22 of the Guide.
It appeared to Dr Harvey-Sutton that Mr Warren ceased work prior to his retirement age due to his accepted conditions, specifically bilateral sensori-neural hearing loss, anxiety disorder and chronic airflow limitation. Dr Harvey-Sutton concluded that Mr Warren was eligible for the Special Rate of pension at the time he ceased working in 1990. She noted that Mr Warren was a liability at work not being able to hear trains approaching, he could not walk distances along the tracks which was required for his duties as a rail inspector, he was irritable, a loner and working in the confines of a railway station would have resulted in frequent arguments with travelling passengers and fellow workers. Dr Harvey-Sutton further opined that Mr Warren was not eligible for the Extreme Disablement Adjustment.
DR M D J BENNETT, CONSULTANT PSYCHIATRISTDr Bennett examined Mr Warren on 13 April 1996 and provided a report dated 10 August 1996 (T7). Dr Bennett opined that Mr Warren developed a chronic anxiety disorder subsequent to the stress of his navy service and a failed marriage during that period. This disorder was associated with alcohol abuse and maladaptive personality patterns. Furthermore, Dr Bennett opined that there was no evidence of a major depression or of post traumatic stress disorder. Dr Bennett noted that the anxiety disorder interacted with Mr Warren's alcohol abuse in a reinforcing pattern and eventually resulted in organic brain dysfunction predominantly that of sleep apnoea. He appeared to have a chronic dysthymic disorder and not a major depression.
DR J TAYLOR, CONSULTANT PSYCHIATRISTDr Taylor provided a report dated 24 June 1997 having had Mr Warren referred to him by General Practitioner, Dr D Stanborough (Exhibit R4, pp113-115). Dr Taylor opined that Mr Warren satisfies the DSM-IV Diagnostic Criteria for post traumatic stress disorder, major depression and that he also consumed alcohol at dangerous levels. Dr Taylor opined that there is a clear relationship between Mr Warren's post traumatic stress disorder and his naval service. The heavy drinking and major depression are complications of the post traumatic stress disorder. Dr Taylor recommended that Mr Warren attend treatment with him on a monthly basis.
DR A WEST, GENERAL PRACTITIONERThe Tribunal had available to it the clinical notes of Dr West in relation to his treatment of Mr Warren (Exhibit R4, pp1-173). At page 8 of the clinical notes, there is a notation for February 1990 indicating that Mr Warren was feeling stress again and that he was to recommence Sinequan. It was also noted that there was depression. On 12 November 1990, there is a further reference to Mr Warren being "stressed again" with the notation that Sinequan was to be recommenced. On 6 December 1991, there is a notation of upper respiratory tract infection with cough and Mr Warren being quite unwell. On 21 September 1992, there is a record of burning epigastric pain. At page 139 of Dr West's clinical notes, there is an entry on 6 April 1988, which indicated that Mr Warren was "snappy, very uptight, crying ? depressed, sleep disturbance". Sinequan was prescribed. On 18 May 1988, it was noted that Mr Warren was much better regarding his depression but he was to continue the Sinequan (Exhibit R4, p140).
In relation to Mr Warren's respiratory difficulties, there are medical impairment assessment reports provided by Dr N R Richardson on 10 September 1995 in which he noted that Mr Warren had productive phlegm daily and that he had been short winded for more than ten years and that his exercise tolerance is alright on the flat but he could only walk two hundred yards uphill. In relation to effort tolerance, Dr Richardson notes that Mr Warren became symptomatic at 5-6 METS (Exhibit R4, pp101,102)
Dr G J Shannon, Consultant Physician reported on 27 March 1996 that Mr Warren had exertional dyspnoea which was most marked when walking uphills. Dr Shannon noted that Mr Warren has evidence of restrictive lung disease probably associated with his past history of smoking. He also had significant exposure to asbestos but there was no radiological evidence of asbestosis (Exhibit R4, p123).
Dr West provided Medical Impairment Assessment reports for a number of Mr Warren's claimed conditions. Specifically in relation to Mr Warren's chronic airflow limitation, he noted on 10 February 1998 that Mr Warren had an Effort Tolerance of 2-3 METS (T13, p40).
SUBMISSIONSMr Vincent submitted that it was difficult for Mr and Mrs Warren to put timeframes on events but it was quite clear that Mr Warren was suffering from an unhappy combination of a number of factors, both physical and mental, which caused him difficulty with work. There is also a difficulty not only with Mr and Mrs Warren's recollection but with there being few past medical records because of Mr Warren's moving around during the course of his employment with the State Rail Authority and because a number of doctors were now no longer practising in various regional centres. There had also been a difficulty in obtaining any personnel records from either the State Rail Authority or FreightCorp because of the destruction of documents after a certain period of time and also because of the management/structural changes within those two organisations.
Considering Mr Warren's health, Mr Vincent submitted that Mr Warren was not able to perform physically in his work because of his breathing difficulties. He was having others help him at work. At the same time, Mr Warren was becoming increasingly stressed by this set of circumstances, on top of his anxiety condition. The existence of significant breathing difficulties and his anxiety condition is borne out by Mr Warren's medical history, particularly when the clinical notes of General Practitioner, Dr West are examined. Mr Vincent referred the Tribunal to the notation in February 1990 of depression and of 12 November 1990 of Mr Warren being "stressed again" (Exhibit R4, p8). Then on 18 July 1995, there is mention of gastric problems, headaches, bronchitis (Exhibit R4, p9). There is furthermore the entry of 11 February 1988 (Exhibit R4, p139), where it is noted that Mr Warren has a upper respiratory tract infection, stomach cramps, is uptight, depressed and suffering from sleep disturbance with the mention of him crying. Thus, Mr Vincent submitted that there is clear evidence of depression and treatment from 1988 onwards. Mr Vincent noted that Mr Warren had been a long-term employee of the State Rail Authority. His work suited him as he could operate to a large extent as a loner, undertaking his work away from the supervisor's eye. Mr Vincent submitted that in all likelihood, had Mr Warren been working under the more watchful eye of a supervisor, then he probably would have had to leave work much earlier than he did. Mr Vincent submitted that Mr Warren tried to cope using alcohol, but it in fact this made matters worse.
Mr Vincent noted that the diagnosed psychiatric conditions suffered by Mr Warren are anxiety disorder with alcohol abuse and tension headaches. There are references throughout the documents to him also having symptoms of depression. Dr Bennett concluded that Mr Warren did not have a major depression, whereas Dr Taylor indicated that he did. There are notes of depressive symptoms or feeling depressed throughout Dr West's clinical notes. Mr Vincent submitted that the reference to depression is not a separate diagnosable condition but subsumed within the anxiety disorder which is, after all, the condition which has been accepted. Mr Vincent contended that one of the many General Practitioners consulted by Mr Warren over the years, Dr Sanderson, had given Mr Warren initial advice that he should re-arrange his work and then later, give up employment. This is confirmed by Mrs Warren's evidence.
Mr Vincent contended that there is nothing which turns on whether or not Mr Warren "resigned" or he "retired". Mr Vincent submitted that the issue is what was happening in Mr Warren's life that made him so "under the weather" and not able to continue working. The reality for Mr Warren was that he had to leave the job he clearly loved. This was not something that he had planned and was to his financial disadvantage. Mr Vincent submitted that Mr Warren had thought of himself as a physical worker with the thought and hope that his symptoms would go away when he had a rest from work. This did not, unfortunately, happen. Mr Warren left work and then tried working on his wife's farm but he could not do that either. Mr Vincent contended that Mr Warren was very ill before he left work and once ceasing work, he seemed to go downhill. He drank more and became more depressed. He was trying to cope but just "fell apart". When Mr Warren could not hold onto his job, and as he realised this, his health deteriorated further. He had more time on his hands whereas when he was at work, at least there was some direction and perhaps distraction from his physical and emotional problems. Mr Warren, having obtained consistent treatment from Dr Taylor has, on his evidence and on the evidence of Mrs Warren, improved.
Considering the medical records, Mr Vincent submitted that there are no other medical conditions that impacted on Mr Warren's ability to work or to continue to work. The non-accepted medical conditions have no impact on his work capacity. When Mr Warren left work, there is no evidence that he gained benefit from this and in fact, he lost not only his enjoyment but he lost out financially, Mr Vincent contended.
The Tribunal was referred to Mr Warren's various pension claim forms and Lifestyle Questionnaires. In relation to his statement that he gave up work because of age and also at the time of retiring he had done this because of his "stupidity", Mr Warren had explained this by stating that he left at that age because he could no longer undertake the work required of him. Mr Vincent acknowledged that Mr Warren is not the best historian but there is consistency in the evidence he provided and from the documents. Even before anxiety was accepted as a war-caused condition, there is reference to this problem in the documents.
Mr Vincent noted that the assessment period in relation to Mr Warren's application for review commences on 21 May 1997 when Mr Warren made his claim for pension and increase for pension and ceases on the date the Tribunal makes its determination.
The test that the Tribunal should apply in determining whether or not Mr Warren is eligible for Special Rate is that contained in Starcevich v Repatriation Commission (1987) 18 FCR 221 which followed Banovich v Repatriation Commission (1986) 69 ALR 395. In Starcevich v Repatriation Commission (supra), it was concluded by Fox and Jenkinson JJ that section 24(1)(c) of the Act when read with section 24(2) of the Act requires three conditions to be satisfied. In this regard, the veteran must be prevented from continuing to undertake remunerative work that he or she was undertaking. This must be by reason alone of the veterans' war-caused injury or disease referred to in section 24(1)(b). This must also result in the veteran suffering a loss of salary or wages or earnings on his or her own account.
Mr Vincent also noted that in Repatriation Commission v Smith (1987) 15 FCR 327, a decision of the Full Federal Court, it was noted by Beaumont J that:
"the question posed by s24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities. The starting point is an examination or the prospects of employment, including self-employment, in southern Tasmania in early 1985 for a healthy sixty-nine-year-old year old plumber. (at 337)"
Mr Vincent submitted that the Tribunal had to decide what would Mr Warren be doing four and a half years later if he had not been sick. Mr Vincent contended that on all the evidence, Mr Warren would still be working. He loved his job and had intended to work beyond the age of 65 years. As it was, he could only last until he was 60 years old. There are no other intervening factors which would support Mr Warren giving up work for any other reason nor during the assessment period were there any other intervening factors preventing him from working or continuing to work.
The Tribunal was referred to the Full Court of the Federal Court decision in Repatriation Commission v Maley (1991) 24 ALD 43 in which it was noted:
"For the purposes of s24(1) it is necessary to inquire, inter alia, into the hypothetical position which would have obtained if Mr Maley had not suffered his war injuries and had retired at the time when, in that case, he would have retired. He claims he would have worked to age 65 and would then have continued to do consulting work for his former employer and, as well, or alternatively, for Illawarra Engineering until Mr Beattie's death. It is no answer to his claim to point to the difficulties he has now encountered in keeping or obtaining employment because of his war injuries"
Mr Vincent further contended that Mr Warren had war-caused conditions particularly his psychiatric conditions and his breathing difficulties and these were causing him to further withdraw from society. He was forced to give up work. It was not what one would call a planned retirement.
Mr Vincent submitted that part of the problem in this matter is Mr Warren's lack of insight. He did not know nor was it explained to him earlier that his mental and physical health problems could be recognised as service related. This supports the contention that he gave up work not for financial advantage but because he could not work due to his health. It was not until 1995 that he was fully aware of the possibility of his veteran's entitlements in relation to his health.
Mr Vincent expressed his concern that the concession which he had understood to have been given by the Respondent in relation to subsection 24(1)(b) seemed to be withdrawn given Ms Hook's submissions. This was not fair to the Applicant who had not come prepared to answer that proposition but in any event, Mr Vincent noted that Mr Warren could meet subsection 24(1)(b) of the Act. In this regard and specifically in relation to the chronic airways limitation, while there was evidence of a METS rating of 5-6, there was spirometry at page 123 of Exhibit R4, with Consultant Physician, Dr G J Shannon, noting on 27 March 1996, that Mr Warren had restrictive airways problems.
Mr Vincent contended on all the evidence including Mr and Mrs Warren's oral evidence and the documentary medical evidence that Mr Warren was too sick to continue working. The fact that there are no employment records is not Mr Warren's fault and in any event, the evidence should be accepted and a decision made by the Tribunal on all available evidence.
From the Applicant's Statement of Facts and Contentions, it is noted that if Mr Warren was successful in his eligibility for Special Rate, then it would be payable from 8 February 1997, which is a date three months prior to the informal claim lodged for pension increase and various conditions, lodged on 8 May 1997 (T8).
Ms Hook, for the Respondent, submitted that the test for deciding whether Mr Warren was eligible for Special Rate is enunciated in Cavell v Repatriation Commission (1988) 9 AAR 534 in which Burchett J noted that it had not been an error for the Tribunal to refer to significant other factors than war-related diseases or injuries, such as advanced age, absence from the work force, deteriorating health which all contributed to Mr Cavell's inability to obtain employment. Burchett J further noted the Tribunal's findings were not based on theoretical considerations. Ms Hook noted that in Cavell v Repatriation Commission (supra), noting the decision in Lucas v Repatriation Commission (1986) 69 ALR 415, the use of the term "alone" should not be substituted with the description of sole, unique and absolute cause. In Cavell v Repatriation Commission (supra), Burchett J agreed with the reasoning in Lucas v Repatriation Commission (supra) noting that there was a tendency by using the phrase, "sole, unique and absolute" cause:
"… to distract the tribunal from its true task – to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
Ms Hook submitted that Mr Warren gave up work at age 60 years after about 24 years of full-time work in the State Rail Authority and at the time of cessation of work, he had no accepted war-caused conditions. Ms Hook contended that the Tribunal must determine whether or not it was the conditions which were subsequently accepted, alone, which caused Mr Warren to leave work.
Ms Hook further noted that in Mr Warren's claim form, he had given the onset of his problems from the late 1950s and 1960s, yet he worked for the State Rail Authority for 24 years. Ms Hook noted that in his evidence, Mr Warren stated that if he had known about the Department of Veterans' Affairs entitlements, he would have given up work in the 1980s. The fact is, Ms Hook submitted, Mr Warren worked until he was 60 and he worked well as was confirmed by Mrs Warren. Furthermore, Ms Hook noted that Mr Warren's health deteriorated or worsened after he left work. Considering the medical evidence, Ms Hook noted that Dr Bennett, Consultant Psychiatrist,had diagnosed anxiety disorder and alcohol but not depression, while Dr Taylor had diagnosed post traumatic stress disorder and depression. The accepted psychiatric conditions are anxiety disorder and alcohol abuse.
Ms Hook noted that in 1990 Mr Warren was referred by Dr West to a psychiatrist. At page 8 of Dr West's clinical notes (Exhibit R4), depression is noted and this was used by the psychiatrist to describe Mr Warren's state of health, leading to his decision to leave work. In terms of Mr Warren's alcohol consumption, Dr Taylor noted that Mr Warren's drinking had reduced in recent times. Both Dr Taylor and Dr Bennett agreed that there was alcohol abuse present.
Ms Hook submitted that the evidence from Mr and Mrs Warren is that between 1992 and 1994, Mr Warren did nothing much else other than consume alcohol. This was after his work and hence alcohol did not become a feature of his presentation until this time.
In relation to his anxiety condition, Ms Hook submitted that Mr Warren's anxiety was not so bad as to prevent him from working. Mr Warren was able to maintain high standards at work and the anxiety condition did not seem to impact greatly on his employment. Ms Hook noted that the most important documents in terms of Mr Warren's employment and work ability would be contained within the State Rail Authority / FreightCorp documents, the majority of which had not been able to be located or were otherwise destroyed.
Ms Hook contended that the Tribunal is looking at the assessment period commencing approximately five years after Mr Warren ceased work and using Medical Impairment Assessments compiled by Dr Richardson completed on 10 September 1995, three years after Mr Warren ceased work in 1992 but in actuality five years from the date of cessation of actual work in 1990. Mr Warren's METS rating in 1995 was 5-6. There is no objective evidence, Ms Hook submitted, of Mr Warren having chronic airways disease being any more debilitating than at the 5-6 METS level.
Ms Hook stated that the evidence points to the worsening of Mr Warren's conditions since he made his claim for an increase in pension.
Considering subsection 24(1)(b) of the Act, Ms Hook submitted that the Tribunal must consider this from the commencement of the assessment period. Ms Hook noted that the ameliorating provisions contained within subsection 24(2) of the Act do not apply.
Ms Hook submitted that in relation to subsection 24(1)(c), this deals with the "alone test". Ms Hook noted Mr Warren's answer to a question in his pension claim form that he ceased work because of ill health but also ticked the "other" box, indicating additional reasons for the cessation of work. Mr Warren also recorded that he did not intend to seek work. Ms Hook submitted that there were many other factors which impacted on Mr Warren's decision to cease work. In this regard, Mr Warren's age was a factor and not related to his war-caused accepted conditions. At age 60, Ms Hook submitted that Mr Warren was looking at consolidating all his accrued benefits after in excess of 20 years with the State Rail Authority. That was the time in 1990 that the home in Condobolin was purchased and extensively remodelled. Ms Hook submitted that these circumstances provide evidence of Mr Warren adopting a retirement lifestyle to settle down in Condobolin. Ms Hook concluded that thus the issues of Mr Warren's age, his length of time out of the workforce and planning for a retirement lifestyle, were factors quite distinct and unrelated to his war-caused accepted conditions. Furthermore, the gastric and peptic problems were discovered at the end of 1992 after the cessation of work, Ms Hook submitted and at that time, after some treatment for approximately one year, Mr Warren was found to be well and pain free. The two main war-caused conditions of chronic airflow limitation and anxiety state, Ms Hook submitted, provided insufficient reason to prevent Mr Warren from engaging in work.
Ms Hook submitted that currently the conditions of chronic airflow and anxiety would be sufficient to meet the alone test in section 24 of the Act, but not at the time when he ceased work. Ms Hook submitted that Mr Warren could not be the veteran contemplated in the Second Reading Speech referring to the amending provisions to the Veterans' Entitlements Act 1986 in 1995. From the Second Reading Speech, Ms Hook noted that it was clearly the intention of Parliament to provide Special Rate for those very severely disabled veterans who were unable to work and not for veterans who had ceased work and adopted a retirement lifestyle.
Ms Hook noted from Mr Warren's Service Pension claim that he had applied on the basis of age and the claim was lodged with the Department of Veterans' Affairs on 9 September 1992, nine days before he ceased work with the State Rail Authority. Ms Hook noted in her written submissions that Mr Warren did not claim the Service Pension on the basis of permanent incapacity, although there was provision for him to have done so on the form. He has consistently referred to himself in the application as "retired". Furthermore, he received a lump sum retirement benefit.
Ms Hook relied on the decisions in Forbes v Repatriation Commission (2000) 101 FCR 50; Berry v Repatriation Commission (1992) 27 ALD 330; Jackman v Repatriation Commission, Federal Court, 30 June 1997 654/1997; Flentjar v Repatriation Commission (1997) 48 ALD 1 for her submission that Mr Warren did not qualify for the Special Rate.
FINDINGSThe Tribunal has reached a decision in his matter taking into account the oral and documentary evidence, the legislation and case law.
The Tribunal finds that Mr Warren provided evidence to the best of his ability. There are some gaps in the chronology but overall, there was consistency in his evidence when compared with that provided by Mrs Warren and within the documentary medical evidence. Mrs Warren was more clear in her evidence and a very credible witness. Thus, the Tribunal finds that the evidence provided by both Mr and Mrs Warren is truthful.
One of the difficulties in this case is that the nature of Mr Warren's employment with the State Rail Authority involved him moving around. Consequently, any attendances for medical treatment and/or advice which in all probability had been recorded, is now not available to the Tribunal. Furthermore, the employment / personnel records from the State Rail Authority and FreightCorp are also not available. Unsuccessful attempts were made by the parties to obtain the above mentioned records. The Tribunal and the parties have to rely on the material available. Noting the beneficial nature of the legislation and specifically, the application of section 119 of the Act to deal with the very circumstances in Mr Warren's case of having to deal with unavailable records and gaps in memory, the Tribunal has come to its determination.
The Tribunal notes that Mr Warren lodged his claim for pension, the subject of this application for review, on 21 May 1997 (T10). Subsection 19(9) of the Act notes that the assessment period is the period starting on the application day and ending when the claim or application is determined. The effect of subsection 19(9) of the Act on a determination for an earnings-related pension such as the Special Rate, is that it must be assessed throughout the assessment period, not on the date an applicant gave up remunerative work. This principle was considered by the Federal Court in Repatriation Commissionv Braund (1991) 23 ALD 591. Thus the assessment period is from 21 May 1997 until this decision is made.
Ms Hook is concerned that at the time Mr Warren gave up work, it was not because of his war-caused disabilities. Ms Hook maintains that Mr Warren had been able to maintain his employment until age 60 and then, adopting an eye for his future he set about consolidating his entitlements to enable him to settle down and retire. While chronic airways limitation was present as was the anxiety condition, Ms Hook submitted that these conditions did not significantly impact upon Mr Warren's work. This is evidenced, Ms Hook submitted, by the fact that Mr Warren was able to continue working at the State Rail Authority over 20 years until he turned 60.
The Tribunal finds that from Mr and Mrs Warren's evidence, that commencing in the 1980s, there appears to be a deterioration of Mr Warren's health particularly in relation to a chronic airways limitation and his anxiety condition. This is confirmed by documentary medical evidence in April and May 1988, where Mr Warren is noted by his General Practitioner to be depressed and requiring medication (Exhibit R4, pp139, 140). There are further records during 1990 of Mr Warren being depressed again and requiring medication. The implication being that the anxiety/depressive symptoms were an ongoing feature of Mr Warran's life certainly prior to him taking his extended leave in 1990 and continuing through 1990. In relation to Mr Warren's respiratory condition, there is medical evidence, for example provided by Dr Shannon on 27 March 1996 and by Dr Richardson in 1995 of respiratory problems. While the Tribunal notes Dr Richardson's record on 10 September 1995 of a 5-6 METS rating, on 10 February 1998, Dr West records a METS rating of 2-3 (T13, p40).
Mrs Warren's evidence is that her husband was depressed from about 1986 and noted two suicide attempts. She furthermore noted the impact of Mr Warren's mental health on his work. There were absences from work, Mr Warren being extremely upset, drinking excessively and the corroborative evidence from fellow workers and her grandson of the aggressive and irritable nature of her husband during work hours. The Tribunal accepts that Mr Warren took leave to try and sort himself out. He then returned to work, which he need not have done, but it is testament to his attempts to get back to the job that he loved. Mr Warren found that this was not possible because of his breathing difficulties, causing him to become behind in his work and not able to fulfil his work requirements. The Tribunal accepts that Mr Warren's emotional health was such that he simply found he could not cope. The decision to cease work prior to retirement age of 65, the Tribunal finds, on all of the evidence was occasioned by his health. While not accepted as war-caused at the time, the anxiety condition and breathing difficulties were accepted in 1995. These conditions are found by the Tribunal as being certainly present, significant and the sole cause, in the Tribunal's view, for Mr Warren ceasing his work.
The fact that Mr Warren did not claim the conditions before he left work, in the circumstances of this case, does not suggest anything to the Tribunal other than Mr Warren was not aware of his possible entitlements through the Department of Veterans' Affairs and the Repatriation Commission. Mr Warren became aware of his entitlements following a visit to Condobolin by a Vietnam Veterans Association advocate. It would appear that this advice turned out to be sound advice, given that a number of conditions were found by the Commission to be war-caused. Furthermore, when Mr Warren lodged his claim for Service Pension on 9 September 1992 (Exhibit R1), in which he noted that he had retired, at that stage, he had not known anything of the impact of his war service on the very real and ongoing health conditions that he had been experiencing and continues to experience. The fact that Mr Warren was not fully aware of the relationship between his now accepted conditions and his service and the impact upon his work, should not of itself disentitle him for pension. Mr Warren finally lodged his first application for Disability Pension in relation to his hearing difficulties on 21 February 1995 (Exhibit A3).
The Tribunal is satisfied that when Mr Warren ceased work in 1992, he did so because of the accepted conditions alone, most significantly his chronic obstructive airways disease, his anxiety disorder, alcohol abuse and hearing. Mr Warren's reference in the claim form to stupidity refers to his trying to come to terms with and understand why it was that he could not hear his colleagues, take instructions or write down what was required of him. He was 60 years old at the time. For Mr Warren, not knowing the causal relationship between his health, his service and the impact these had on his ability to work, it was quite logical for him to assume that because he was 60 this had caused his health to deteriorate. Mr Warren is not a doctor and the medical evidence is such that there was and continued to be a sole causal relationship between his service, the conditions of anxiety, alcohol abuse and respiratory difficulties and his inability to work. These conditions were after all, accepted by the Repatriation Commission as being service-related.
The Tribunal notes the medical records indicating a differential reporting of emotional health problems. The records note symptoms of crying, depression and anxiety. Dr Bennett diagnosed Mr Warren as having an anxiety disorder, dysthymic symptoms and alcohol abuse. Dr Taylor diagnosed post traumatic stress disorder with alcohol abuse and major depression. Dr West's notes, the most comprehensive of the clinical notes available to the Tribunal, notes anxiety and depression and depressive symptoms. The Tribunal is reasonably satisfied on consideration of all the evidence, that the reference to depression and depressive symptoms is subsumed into the diagnosis of anxiety disorder and alcohol abuse. The Tribunal is also reasonably satisfied that there is not a separate condition of depression which might be operating at the same time.
The Tribunal considers that had Mr Warren applied at the time he left work for the conditions which have been subsequently accepted as war-caused, principally the anxiety disorder, alcohol abuse and hearing difficulties, then he would, at the time he left work, have been eligible for the Special Rate. The Tribunal is confirmed in this view not only on the evidence of Mr and Mrs Warren but on the medical evidence and also the expert opinion of Occupational Physician, Dr Harvey-Sutton. However, returning to the assessment period, that is commencing on 21 May 1997, the Tribunal is satisfied that Mr Warren satisfies the requirements of subsection 24(1)(a) of the Act because he is in receipt of pension at that time of at least 70 per cent and in fact is in receipt pension at the rate of 100 per cent.
In relation to subsection 24(1)(b) of the Act, which requires a determination of whether or not Mr Warren's incapacity and his incapacity alone was responsible for him being unable to work in combination with section 28 of the Act, the Tribunal notes the concession provided in the Respondent's Statement of Facts and Contentions that subsection 24(1)(b) of the Act is satisfied. There appeared to be some doubt thrown on this concession by the Respondent during submissions at the hearing. It is a matter for the Tribunal, when concessions are made in relation to particular matters, to determine whether or not such concessions are properly given. In relation to subsection 24(1)(b) of the Act, the Tribunal has found that in 1992, Mr Warren was unable to work solely because of his now accepted war-caused conditions of anxiety disorder, chronic obstructive airways disease and alcohol abuse. The Tribunal finds on the balance of probabilities that Mr Warren is, during the assessment period and prior to that, totally and permanently incapacitated by his accepted disabilities alone, sufficient to render him incapable of undertaking remunerative work for more than eight hours per week.
In relation to subsection 24(1)(c) of the Act, this deals with whether it is a veteran's war-caused injuries or diseases which have led him or her to be unable to work and also resulted in there being a loss of salary, wages or earnings. Subsection 24(1)(c) of the Act must be read in conjunction with subsection 24(2) of the Act as noted by Fox and Jenkinson JJ in Starcevich v Repatriation Commission (supra). Subsection 24(1)(c) is often referred to as containing the "alone test" and requires consideration of whether there are reasons other than war-related conditions preventing a veteran from working. The Tribunal has already been referred to the consideration of this section by Beaumont J in the Full Federal Court decision in Repatriation Commission v Smith (supra). The Tribunal notes R D Nicholson J's conclusion of subsection 24(1)(c) of the Act in Forbes v Repatriation Commission (supra) in which he noted the decision of Burchett J, in Cavell v Repatriation Commission (supra) which referred to a statement by the Tribunal that:
"… any factor having employment consequences which played a part in the applicant's inability to work or to obtain and hold remunerative employment, is sufficient to displace the Applicant's case for pension at the special rate."
R D Nicholson J continued in Forbes v Repatriation Commission (supra):
"The question whether the veteran by reason of the war-caused condition "alone" has been prevented from continuing to undertake remunerative work can only be answered by reference to all of the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition… Furthermore it is consistent with the application by a Tribunal of a common sense approach "with an eye to reality".
On 21 May 1997, Mr Warren was 64 years old. The Tribunal is of the view, that if Mr Warren had not had his war-caused conditions, he still would have been working at that point. Mr Warren loved his job. In fact, Mr Warren had attempted to return to his work in 1992 having had a significant break which he thought would refresh him and enable him to continue working. Sadly this was not the case. On the Tribunal's consideration of the evidence, it finds that Mr Warren had not ceased employment to engage in a retirement lifestyle. He was pre-retirement age and had planned to work at least to 65 and on his evidence, longer. The Tribunal finds that there are no other intervening reasons causing Mr Warren to give up work or preventing him from continuing to engage in remunerative employment. Referring to his various claim forms and lifestyle questionnaire, where he noted he ceased work because of his stupidity and age, these references, must, in the Tribunal's view, be taken within the context of a man who did not know nor understand what was wrong with him. He thought he was old and that it was age that was causing him to behave in ways in which were not acceptable, having feelings of anxiety and breathing difficulties. As was noted in Cavell v Repatriation Commission (supra) determinations in relation to subsection 24 and specifically subsection 24(1)(c) should be made with an eye to reality and commonsense. A determination in this matter must be seen importantly in the context of Mr Warren loving his job but suffering from war-caused conditions which alone caused his inability to work or continue to work. It is not his age nor his having adopted a retirement mentality which, in the Tribunal's view, can be seen as contributing to the cessation of work and to the continuing inability to work. Furthermore, as noted in Hendy v Repatriation Commission [2002] FCA 602, Majwick J indicated that where incapacity from war-caused injury or disease had been the direct cause of a veteran's time out of the workforce, then it could not be used as a bar to satisfy subsection 24(1)(c) of the Act.
There is no dispute in this matter and the Tribunal so finds that Mr Warren suffered a loss of salary, wages or earnings and accordingly, the Tribunal finds that Mr Warren satisfies subsection 24(1)(c) in conjunction with subsection 24(2) of the Act. The ameliorating provisions contained within subsection 24(2) of the Act do not apply to Mr Warren because he did not attempt to seek further employment once he resigned in 1992.
In all of the circumstances, the Tribunal finds that during the assessment period Mr Warren satisfies the relevant requirements of subsection 24 of the Act and accordingly is entitled to payment of pension at the Special Rate.
Having so decided, the Tribunal must then decide from what date payment of the Special Rate is applicable. In this regard, the Tribunal notes the provisions contained within sections 19 and 20 of the Act. Mr Warren made an informal claim for increase in pension and further entitlements to Disability Pension for additional conditions on 8 May 1997. He followed this up within the legislative time frame with a formal application on 21 May 1997. Accordingly, the informal claim of 8 May 1997 is taken as the date of claim. The legislation permits the backdating of payment of pension three months prior to the date of claim. In relation to the Special Rate, the Tribunal is satisfied that at the date of claim, that is 8 May 1997 and three months prior to that on 8 February 1997, that Mr Warren satisfies the requirements of section 24 of the Act and hence pension is payable at the Special Rate from 8 February 1997.
Accordingly, pursuant to section 43 of Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefor the Tribunal determines that Mr Warren is eligible to receive pension at the Special Rate from and including 8 February 1997.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of: Ms S M Bullock, Senior Member and Dr P D Lynch, Member
Signed: .....................................................................................
AssociateDate of Hearing 4 April 2002
Date of Decision 22 November 2002
Representative for the Applicant Mr M Vincent
Solicitor for the Applicant Ms N Archer, Dibbs Barker Gosling
Representative for the Respondent Ms P Hook, Departmental Advocate
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