Williamson and Repatriation Commission
[2004] AATA 1070
•14 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1070
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/199
VETERANS' APPEALS DIVISION
Re: GARY WILLIAMSON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 14 October 2004
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes therefor the decision that:
1.the applicant suffers from post traumatic stress disorder with alcohol abuse (the condition);
2.the condition is war‑caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act) which entitles the applicant to a disability pension; and
3.at the date of application (24 October 2001) the applicant satisfied the requirements of s 24(1) and s 24(2) of the Act and qualified for the special rate of pension.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – special rate of pension – alone test – interposed motor vehicle accident – worsening of psychiatric condition – incapacity for work
Veterans’ Entitlements Act 1986 ss 9, 24, 120(4)
Banovich v Repatriation Commission (1986) 69 ALR 395
Byrne v Repatriation Commission (2001) 33 AAR 410
Fox v Repatriation Commission (1997) 45 ALD 317
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
Van Ewjk v Repatriation Commission [2004] FCA 19
REASONS FOR DECISION
14 October 2004 Miss E.A. Shanahan, Member
1. This is an application by Gary Williamson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 10 December 2002. The primary decision by a delegate of the Repatriation Commission dated 2 November 2001 had refused the applicant’s application to increase his disability pension from the existing 100 per cent of the general rate to the special rate. The applicant applied to the VRB for review of this decision.
2. At the VRB hearing on 22 May 2002 the applicant requested an adjournment in order to obtain current specialist assessments of his accepted psychological and respiratory disabilities.
3. At the initial hearing the VRB determined the applicant’s degree of incapacity to be at least 70 per cent, as lung function testing on 19 September 2000 had not revealed any abnormality. (The applicant’s respiratory symptoms had previously been assessed at 36 points by a delegate of the respondent.) The VRB found the applicant satisfied the criterion in s 24(1)(b) of the Veterans’ Entitlements Act 1986 (the Act), at the time of the hearing, but his cessation of full‑time employment had followed a motor vehicle accident in December 1994. The applicant had not worked since that date except for short terms of employment. Thus, the alone test was not satisfied and the applicant was not entitled to pension at the special or intermediate rate. The VRB assessed the pension payable to the applicant at 80 per cent of the general rate.
4. On 19 February 2003 a delegate of the respondent increased the applicant’s pension rate to 90 per cent of the general rate.
5. The applicant was represented by Mr C. Thomson of counsel, instructed by Peter J. Liefman, solicitor. The respondent was represented by Ms R. Casamento, an advocate with the Department of Veterans’ Affairs. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T25) (the T‑documents), which were assigned the marking exhibit R1. In addition, the respondent tendered the following documents:
Applicant’s Worker's Compensation file Exhibit R2
Clinical notes of Dr J. Fusca, general practitioner Exhibit R3
VRB transcript dated 22 May 2002 Exhibit R4
VRB transcript dated 10 December 2002 Exhibit R5
Clinical notes of Dr Glaspole, general practitioner Exhibit R6
Report by Dr R Horsley dated 19 September 2003 Exhibit R7
Report by Dr L. Walton, consultant psychiatrist,
dated 27 November 2003 Exhibit R8
Statement of Mike Luke, national operations manager
of Bunker Freight Lines dated 28 June 2004 Exhibit R9
Applicant’s Centrelink file Exhibit R10
The applicant tendered the following documents:
Report by Dr C. Seabridge, consultant psychiatrist,
dated 15 April 2004 Exhibit A1
Report by Dr W. Kemp, rehabilitation medicine
dated 11 May 2004 Exhibit A2
6. The applicant and Dr Seabridge gave evidence at the hearing. The respondent called Dr Walton and Mr Luke.
BACKGROUND TO THE APPLICATION
7. The applicant was born on 22 September 1948. He served in the Australian Army (the army) between May 1969 and 1971, during which time he saw active service in Vietnam for a period of 12 months. He has the following accepted war‑caused disabilities: post traumatic stress disorder (PTSD), alcohol dependence and/or alcohol abuse, chronic bronchitis and emphysema, tinnitus in the right ear, bilateral sensorineural hearing loss, hypertension, gout, and gastro‑oesophageal reflux disease. He ceased work following a motor vehicle accident on 20 December 1994, but claimed he had decided shortly before that date to "resign" from his employment, as he was not coping due to his war‑caused disabilities, particularly his PTSD. He received WorkCover payments until 9 November 1998. The applicant was first granted a disability pension on 4 March 1998 at 40 per cent of the general rate. This was increased to 90 per cent and then 100 per cent in 1999, and reduced to 80 per cent by the VRB on 10 December 2002. On 19 February 2003 the respondent increased the applicant’s pension rate to 90 per cent of the general rate. On 24 October 2001 the applicant applied for an increase in his pension rate and for special rate, but was unsuccessful, as he was found not to meet the "alone test" in light of his motor vehicle accident. His application to the VRB was unsuccessful on the same ground. The VRB also considered his incapacity to be only 80 per cent and reduced his disability pension accordingly.
8. On 19 February 2003 the applicant applied to the Administrative Appeals Tribunal for review of the VRB decision. The effective date of the claim is 24 October 2001.
ISSUES BEFORE THE TRIBUNAL
9. The respondent contended that the applicant did not meet the "alone test" in s 24(1)(c) and s 24(2)(a)(i) of the Act in that he had ceased work for other than his war‑caused diseases, and that he also failed to meet s 24(2)(b) in that he had not been genuinely seeking to engage in remunerative work. The respondent conceded that the applicant met the requirements of s 24(1)(a) in that his degree of incapacity was greater than 70 per cent and also he was currently incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Similarly, s 24(2)(a)(i) was not satisfied on the basis of the respondent's contention that the applicant had ceased remunerative work for reasons other than his war‑caused diseases. While the applicant had sought to engage in remunerative work, the respondent contended that this was not a genuine effort as required by s 24(2)(b) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
10. The applicant gave evidence as to his work history, his personal relationships, his war service and reaction to that, his PTSD symptoms and his alcohol intake history. For clarity, the Tribunal will consider his evidence under those headings, although it was not given in that order.
11. The applicant stated that prior to his service he worked as a laboratory assistant in the then Melbourne and Metropolitan Board of Works (MMBW). This had involved laboratory and field work, both of which he enjoyed. His dedication to the work had been appreciated by his superiors, who had suggested that he should undertake additional training such as a TAFE night school course. Following his return from service in 1971, he resumed employment at the MMBW. His work had altered somewhat in that he was "spending more time in the laboratory than in the field" and he found that he "became conscious of being closed in" (trans p14). He told the Tribunal that he progressively lost interest in his job and increasingly attended a pub, across the road from his place of employment, after work. He said he commenced drinking in the army. Approximately six or seven months after resuming employment with the MMBW he resigned. He found he was dreading going to work as he "could not handle being inside" (trans p15).
12. Through a friend of his mother, the applicant obtained a job delivering plumbing supplies in suburban Melbourne. He found he had difficulty communicating with the customers and he was criticised for his inability to communicate properly. He left that employment after 12 months and soon after commenced working for a stevedoring firm named Tradex on the Melbourne wharves. This involved driving a truck on the waterfront, carting items to and from ships. The existing conditions on the waterfront enabled him and his co‑workers to drink alcohol every day while working. He remained in this employment for 5 to 6 years and left because the company was being sold.
13. The applicant was next offered a job driving a tip truck for Smith Bulk Lines with most of the driving being on country roads within Victoria and occasionally interstate. This employment lasted 18 months and ceased when Smith Bulk Lines became insolvent.
14. Following cessation of employment with Smith Bulk Lines, the applicant said he drifted along to Bunker Freight Lines and subsequently worked for this company from the early 1980s until December 1994. He was employed as a trip money driver, which meant he was paid so much per kilometre when he went on a trip. He drove a Kenworth semi‑trailer and essentially delivered mail between Melbourne and Perth, with a return trip in approximately 5 days. He was required to meet deadlines, which for the Perth to Melbourne run was 36 hours or less. He stated he would be contacted by telephone to undertake a trip and would usually start on a Monday evening at approximately 7 o'clock. He said he would pick up his truck and trailer and drive to the mail depot where the mail was loaded and then to a company depot, named Finemores, where the freight was topped up. Following the loading of the semi‑trailer, the applicant said he would go into a service station to stock up with Coca Cola and cigarettes and drive straight to Adelaide where a small amount of freight would be unloaded, his load topped up again and he would then drive to Ceduna to refuel. He would stop at Nullarbor Station and purchase cans of Bundy and Coke and then drive straight to Perth, following which he would have the next day off work until the evening when he would commence the return trip to Melbourne. He would be home for two days. In order to remain awake while driving he would take various tablets and powders, which seem to have been of an ephedrine base. He found the tablets and powders very beneficial in that he felt less depressed while taking them. He particularly favoured the Melbourne to Perth run as he was by himself, on roads with little traffic, and did not have to speak with many people. He would occasionally catch a few hours sleep on the Nullarbor Plain and when in Perth would sleep in his vehicle rather than share a motel room, or bunk room provided by Bunker Freight Lines, with other drivers.
15. The applicant stated he coped well with this solitary type of work environment and enjoyed his work. At the time there were a few regulations regarding truck driving and he was in the habit of keeping two logbooks, one to show the actual driving hours and the other to record the then prescribed hours.
16. The applicant told the Tribunal that, in late 1994, he had been asked by Tony Cosaleno, operations and assistant Victorian manager, to undertake the Melbourne to Brisbane run with his driving stint ceasing at Goondiwindi. At that time regulations had also changed and a driver was not permitted to drive for more than 10 consecutive hours. The applicant said he was expected to share a motel room with another driver, but found he could not cope with that and started booking his own room at a motel at the cost of $46 per night. The applicant said that he found the run to Brisbane intolerable and had decided to accompany a friend to Broome, on 28 December 1994, as the work with Bunker Freight Lines over Christmas was normally light and he felt that this was an opportunity to visit Broome with his friend and possibly not come back. The applicant said he was living by himself in a farm house at the time, and had no ties and was thus able to undertake such an indefinite visit.
17. On 20 December 1994, just short of Goondiwindi, his truck got the wobbles up for some reason and slipped over the embankment (trans p25). While he got the truck back on the road, the wobbles resumed and the truck rolled over. He was knocked unconscious. He said he was taken to Goondiwindi Hospital for the night. The following day he obtained a ride back to Melbourne on another truck. The applicant had sustained two broken ribs and some soft tissue injury. In light of the accident, he did not go to Broome. The applicant stated that, after his return to Melbourne, he self‑medicated with Bundaberg Rum and did not take the analgesics that had been prescribed. He was subsequently advised to put in a WorkCover claim, which he did, and which he says he now regrets as he became stuck on the "WorkCover rubbish for years" (trans p26). When asked to explain that statement the applicant replied that once he had applied for WorkCover his legal fees were such that he could not pay them and had to continue with his claim so that these fees could be met. He spent most of his time drinking in pubs and at home. He was determined to try to return to work with a friend who had a truck running the waterfront. This appears to be in about 1996. He found he could not tolerate the necessary waiting in queues and he also found that the waterfront had greatly changed from the days when he had been employed by Tradex. It would appear that this employment, for which he was not paid, lasted only one or two weeks.
18. The applicant then attempted delivering vegetables in the Werribee area, where he then lived. Once more he was confronted by long time periods waiting in queues, with which he found he could not cope. At the same time his alcohol consumption escalated and he was drinking vodka and raspberry juice, because this resembled a sports drink when mixed into a common drink bottle. In 1998 the applicant attempted to work at an irrigation business in Werribee South. This involved working in an enclosed shed and after one and a half hours he left as he could not cope with being enclosed.
19. All of the applicant’s short term employment, on the waterfront, carrying vegetables and produce in Werribee and in the irrigation shed, was not salaried, but the applicant had received what he called beer money ($5 to $10) and the occasional use of the truck after hours.
20. When asked by Mr Thomson if he had ever contemplated returning to interstate truck driving, the applicant said that he could not now cope with the regulations in terms of the 10‑hour shift, driving different trucks every day (he had given evidence as to how he looked after his own truck and had it all set up to his liking), and the requirement that he sleep in motels or bunk house[s] with other drivers.
21. The applicant met his former wife to be prior to his service. They married 12 months after his return from Vietnam. The marriage lasted approximately 3 years. The applicant stated that his wife complained that he had lost interest in her. She complained that he could show her no emotion (trans p13). While the marriage effectively ended at that time, they were not divorced for another four years. There were no children of the marriage. The applicant’s subsequent relationships lasted, on average, 6 months. One such relationship resulted in the birth of applicant’s only child, although the child's mother had left him and returned to Adelaide prior to the birth. The applicant did not see his son for many years, but has what appears to be sole custody from approximately 1999. The applicant’s son is reported to have learning difficulties and behavioural problems, which have caused the applicant further stress.
22. The applicant gave evidence that he had not discussed his Vietnam experiences with any one following his return from service as shortly after his return from Vietnam he became involved in an argument in a pub where another patron had accused him of being a baby killer (trans p16). The applicant had not been charged over the incident, but had found it greatly distressing. Shortly after his return from Vietnam, he had been deeply distressed by the news that the soldier who took over his position on the Albert tank, who was a friend of his, was seriously injured in an ambush on the day the applicant returned to Australia. The applicant also described a further episode wherein he had been criticised for his service in Vietnam, and following which he put all his medals and army service documentation into a box and never again mentioned his service.
23. The applicant gave some evidence as to his experiences in Vietnam, flashbacks that he experienced, loss of sleep and his use of alcohol to dull his memories of these experiences. As his PTSD is an accepted disease, the Tribunal will not elaborate further on these matters.
24. The applicant described to the Tribunal his attendance at a barbeque, some time in the late 1990s, at which he was approached by a Mr Pat Crowe, a Vietnam veteran. Mr Crowe said that he had observed the applicant to be standing back and not mingling with the guests, and informed the applicant that, in his opinion, the applicant had PTSD. He recommended that the applicant see a Dr Fusca, a general practitioner, who would arrange a referral to an appropriate psychiatrist. The applicant stated that he had never heard of the condition of PTSD but he was aware that he needed help. Having seen Dr Fusca, the applicant was referred to Dr M. Benjamin. The applicant noted that he had difficulty telling people about his past experiences and his alcohol abuse. The applicant stated that he had been ashamed of his current position being unemployed and depressed. He felt he was a bludger and needed to get his life in order. The applicant attended the Austin Repatriation Hospital. He saw several psychiatrists and psychiatric registrars and was ultimately referred to Dr Seabridge by the Noble Park Veterans Welfare Branch of the Returned & Services League (RSL). It would appear he has a good rapport with Dr Seabridge. He has seen Dr Seabridge on an annual basis and also consults him by telephone when distressed.
25. In more general terms, the applicant stated that he could not watch television because he found it boring and his attention span was limited. Similarly, he could not tolerate driving in heavy traffic as he became angry and at times anxious. While he had tried several jobs unsuccessfully, the applicant had continued to survey advertisements in the newspaper but found he never had the courage to pursue the jobs advertised. He did not believe he could return to interstate truck driving given the changes in the legislation and the need for speed limits, the driving limitation of 10 hours and co‑habitation in bunk houses or change stations with other drivers. Under current legislation he could not be assured of driving "his truck". The applicant admitted to a somewhat obsessive personality with regard to his truck.
26. The applicant drank socially prior to his enlistment. During his service in Vietnam, he commenced drinking to what he said was a high level. On his return to Australia from Vietnam the applicant continued to drink alcohol on a daily basis and while his intake fluctuated over the years it was always excessive. When working for Tradex he drank all day every day, as that was then tolerated on the waterfront. During his periods of employment, delivering plumbing supplies and also working for Smith’s, his drinking was limited to a degree. While in his employment with Bunker Freight Lines, he would drink continuously while driving between Melbourne and Perth, drinking rum and Coca-Cola, and would increase his intake once he crossed the border into South Australia, where the blood alcohol limit was higher than in Victoria. His drinking pattern continued following his motor vehicle accident and in fact accelerated as he became more depressed.
27. In cross‑examination the applicant agreed that his alcohol intake had increased when working on the waterfront for Tradex, given that this was permitted on the wharf at that time. He had certainly drunk less when he was working for the plumbing supplier. Ms Casamento suggested this was, in fact, an environmental effect; to which the applicant replied that he drank because it made him feel good, gave him courage and allowed him to perform his day's work. He said there was no pressure on him to drink. He did it because he liked it.
28. With regard to him taking on the Goondiwindi to Brisbane run, the applicant confirmed that he had been asked to do so by Mr Tony Cosaleno. He also confirmed that, in December 1994, before Christmas, he had determined to cease work and accompany a friend to Broome with the possibility that he would not return. While the applicant could not recall actually resigning, he believed he had told a supervisor by the name of Rob Watts that he would not be continuing with Bunker Freight Lines. The Tribunal notes that the applicant was employed by Bunker Freight Lines on the basis of payment for each trip, was contacted by telephone when needed, had no annual leave or sick leave entitlements and no contract of employment. On that basis it would appear that he was not required to submit a formal, written resignation.
29. Ms Casamento took the applicant to his WorkCover file and various medical reports which stated that he was well motivated and anxious to return to work. The applicant replied that this was what was expected of him, that he should give a positive outlook and a desire to return to work, despite the fact that he had no such desire. He said he "wanted to be able to do a job, but I found that I couldn't" (trans p41). The applicant agreed that he had liked his job, driving between Melbourne and Perth, as it suited his requirements, but that he had difficulty coping with the Goondiwindi run. He also agreed that Bunker Freight Lines would have re‑employed him and that his employment had never been formally terminated.
30. With respect to the motor vehicle accident and his fractured ribs, the applicant agreed with Ms Casamento that his ribs had healed within a few months. Dr Kemp's report stated "…The symptoms resulting from these injuries were temporary and resolved within a few months…". The applicant agreed with this general proposition but stated that he continued to have back and neck pain for some months. He also admitted that he had had intermittent neck and shoulder pain with lower back pain for the previous 30 years. This however had not interfered with his ability to work. The applicant differentiated between the spinal injury and intermittent back pain.
31. The applicant agreed that in 1996 his attempt to work as a driver had resulted in increased back pain. He also agreed that in 1996 when he endeavoured to work on the wharf with Mr D. McLaughlin, he had ceased this attempt because of his increased back pain. The applicant attributed the increase in his back pain to Mr McLaughlin's truck which, he said, was a "shocking thing to drive" (trans p69). Ms Casamento suggested that the applicant could not tolerate waiting in queues because of his back pain rather than his psychological status, to which he replied that it was a combination of the two, but he regarded them as separate issues.
32. In June 1996 WorkCover authorities carried out surveillance of the applicant at work for a period of three days. The surveillance company indicated that they did not believe the applicant was gainfully employed at that time. The applicant stated that he had tried to perform some work, but that his psychiatric problems were the major reason why he could not complete the work. He stated that he had not been asked about his psychiatric disease at that time. The applicant agreed that on the basis of the surveillance, his WorkCover payments were ceased in late 1998. He denied that he had been working for remuneration, but merely helping out friends and trying to regain some experience in the current workforce. His payment had been free vegetables and the occasional use of a truck to move furniture. The applicant confirmed that he had difficulties driving to Melbourne Airport with the produce, as he became angry with the traffic. He had sold his car because of his response to the traffic congestion.
33. Ms Casamento cross‑examined the applicant at some length regarding his attendances on various general practitioners, most of whom were in the same practice, and the history he gave to these practitioners. The applicant replied he had used various general practitioners for certain conditions which he regarded as being separate from his general health. The Tribunal notes that this a common occurrence in multi‑member general practice clinics.
34. The applicant confirmed that he had seen Dr Fusca because a Vietnam veteran had suggested that Dr Fusca could arrange for him to see a psychiatrist. Ms Casamento took the applicant to his newstart allowance application form in which he had not declared that he was suffering from PTSD, although he had been in receipt of a 40 per cent disability pension for some 8 months. The applicant explained that he thought his back and neck conditions and his PTSD were quite separate issues. He seemed to imply that he thought his war‑caused PTSD was not relevant to his Centrelink application, although he did not say so in so many words. The applicant stated that he suffered from neck and back pain and that he still does. However, this was not sufficient to interfere with his ability to work. The applicant denied that his motor vehicle accident was the reason he ceased work and the reason he ceased driving, but he termed it "a spanner in the works" that altered his plans to leave Bunker Freight Lines in late December 1994.
35. In cross‑examination the applicant agreed that he had not been thorough in his search for work after his experiences working on an irrigation farm.
36. The applicant explained his varying alcohol intake estimates, as provided to the medical practitioners, on the basis that he lacked rapport with several of the doctors he had seen and he tended to underestimate his alcohol intake when giving his histories. The applicant said that he had found difficulty admitting to various bodies, including the VRB, that he was, in fact, "a drunk" (trans p80). He concluded that he was able to handle the old ways, the use of drugs and alcohol to keep him going, having his own truck and not having to share accommodation with other persons. He doubted he could deal with the current arrangements for interstate truck drivers.
37. Upon re‑examination the applicant confirmed his examination‑in‑chief and admitted that, prior to the motor vehicle accident, he had suffered from intermittent back pain, or what he said was more of a discomfort. However, this had not been of sufficient intensity to interfere with his work. The motor vehicle accident had exacerbated his pain but it had since improved, although in the early periods after the motor vehicle accident he had used alcohol, Panadeine Forte and Mersyndols to provide relief. Mr Thomson asked the applicant if he had ever seen it as an option to return to work at Bunker Freight Lines. The applicant stated he could not go back on the Goondiwindi run but possibly could have coped with the Perth run, provided the arrangements were the same as when he had performed this run previously. In answer to a question posed by the Tribunal, the applicant said he no longer took ephedrine and amphetamines as these had had a deleterious effect on his blood pressure.
Dr Seabridge – in person
38. Dr Seabridge provided three reports dated 11 September 2001 (T5), 26 February 2002 (T17) and 15 April 2004 (Exhibit A1). He first saw the applicant on referral from his general practitioner and confirmed the diagnosis of PTSD with alcohol abuse. Serzone was prescribed. Dr Seabridge was not made aware of the motor vehicle in December 1994. Dr Seabridge found the applicant unfit to work in any employment for eight or more hours per week. A similar report was provided to the RSL Advocates' Office on 26 June 2002 (T17).
39. Having reviewed the applicant at the request of his solicitor on 31 March 2004, Dr Seabridge provided a detailed report (Exhibit A1). This report also commented on Dr Walton, Dr L. Turecek, psychiatrist, and Dr Benjamin's opinions in addition to those of the occupational physicians. Dr Seabridge noted that the applicant had failed to tell those specialists assessing his motor vehicle accident physical disabilities of his army service and any emotional or anxiety related symptoms and likewise had failed to inform many psychiatrists of his motor vehicle accident and consequent physical injuries. Dr Seabridge believed the applicant’s withholding of information had impacted on the opinions provided, but all psychiatrists had agreed that the applicant suffered from PTSD.
40. Dr Seabridge had no doubt that the applicant currently "demonstrated a significant degree of dysfunction…consistent with the diagnosis of PTSD and that this is not directly attributable to his physical injuries in the accident". In addition, the applicant’s "…abusive alcohol use was…in existence since his Vietnam service" and "…his alcohol consumption increased during this long period of unemployment" (Exhibit A1).
41. In his evidence before the Tribunal, Dr Seabridge confirmed the content of his written reports and said that it was possible that the motor vehicle accident had "…either brought to the surface a previously unrecognised PTSD or had…exacerbated an already existing illness" given that "…Traumas are cumulative and generally result in intensification of symptoms" (trans p50).
42. Dr Seabridge said that a preference for solitary activities and an impaired capacity to make and maintain relationships are characteristics of the avoidant component of PTSD. Similarly, obsessional behaviour is characteristic of PTSD.
43. Dr Seabridge disagreed with Dr Walton's opinion that the applicant had a traffic phobia, as in his opinion "You can't be anxious about driving on the road and be angry about driving on the road. You are one or the other" (trans p55).
44. Dr Seabridge was firmly of the opinion that the applicant’s PTSD related to his Vietnam experiences, as it was these that he re‑experienced (trans p56) and "that if this accident…hadn't thrown it (the PTSD) into greater prominence, then something else would have" (trans p56). The applicant’s inability to obtain or return to employment after the 1994 motor vehicle accident was, in Dr Seabridge's opinion, explainable on the basis only of his PTSD.
45. In cross‑examination Dr Seabridge reiterated his opinion that there was clinical evidence of the applicant’s PTSD prior to the motor vehicle accident, but it remained undiagnosed as the applicant did not seek medical attention.
Dr Walton in person
46. Dr Walton provided a report dated 27 November 2003 (Exhibit R8). He diagnosed PTSD with parallel alcoholism. He confirmed this in his evidence‑in‑chief. While Dr Walton believed the applicant had provided a history of some symptoms from his time in Vietnam, he felt the preferred diagnosis was that of delayed onset of PTSD precipitated by the motor vehicle accident. He said that prior to the accident in December 1994, the applicant’s symptoms had been mild and perhaps not of diagnostic significance. The subsequent traumatic event, that is the motor vehicle accident, had caused a marked deterioration in the applicant. It was put to Dr Walton that Dr Seabridge had stated that the applicant’s symptoms, present before the motor vehicle accident, were part of a PTSD syndrome, persisting since his service. Dr Walton did not feel that there was anything illogical about that conclusion, but it was not the only conclusion that could be arrived at. Dr Walton did not disagree, or agree, with other psychiatrists' diagnoses, as all of them agreed that the applicant had PTSD and he himself had not given exhaustive thought to the question of the date of clinical onset in the applicant’s case. He admitted that the applicant had symptoms of PTSD and that he minimised these symptoms to himself and to the medical profession.
47. Dr Walton opined in his report that the applicant had phobic symptoms in the form of anger relating to his driving and had withdrawn from driving for that reason. He regarded these symptoms as part of PTSD. He disagreed with Dr Seabridge's opinion that one could not experience anger and anxiety in relation to driving. Dr Walton was of the opinion that these two symptoms can co‑exist or rapidly oscillate. However, Dr Walton postulated that the applicant could have developed a travel phobia and anger in the absence of any pre‑existing PTSD symptoms (trans p90).
48. Dr Walton confirmed his written opinion that "this man's inability to work is related to the direct consequence of the truck accident rather than your military experience". He based this on the fact that, even though the applicant might have been suffering from a pre‑existing PTSD state, he had for many, many years driven interstate trucks successfully until the accident occurred. Dr Walton opined that the applicant’s current status was such that he was prevented from working because of his PTSD and alcohol abuse. He acknowledged that at the time of the accident the applicant was struggling to continue in work.
49. In cross‑examination Dr Walton reiterated that he did not think the applicant’s PTSD symptoms were major prior to the motor vehicle accident, but they may have been diagnosable had he presented to a psychiatrist. He agreed that Vietnam veterans did not wish to talk about their experiences, as these were obviously distressing and they attempted to suppress it from memory. He agreed with Mr Thomson's proposition that following his Vietnam service the applicant had drunk to excess, could not stand being confined in enclosed spaces, such as the laboratory at MMBW, and had undertaken interstate truck driving that suited his solitary lifestyle. While not all soldiers experienced a problem readjusting to civilian life some did. Nevertheless, the applicant’s problems were consistent with psychiatric disturbance. He considered the applicant’s use of alcohol and stimulants, such as ephedrine and amphetamine, may have been part of an occupational hazard with truck drivers, but certainly the escalation in his alcohol use might be a maladaptive way of dealing with problems.
50. Mr Thomson put to Dr Walton that the applicant’s employment, for at least 10 years, on the Melbourne to Perth run, had been acceptable in that it allowed him to do what he wanted to do and to have minimal contact with other individuals. Dr Walton could not agree that the applicant’s habits were indicative of any psychiatric disorder and the fact that the applicant had continued to work for such a long period was a "powerful argument against the presence of any concurrent serious psychiatric disorder" (trans p95). However, he did admit that this behavioural pattern could be reflective of PTSD. Dr Walton agreed that the applicant, having been removed from his limited comfort zone by the motor vehicle accident, may have de‑compensated and became more symptomatic without the occurrence of the motor vehicle accident.
51. Dr Walton stated that, if the applicant’s evidence was factual, then his problems prior to the motor vehicle accident were more severe than he had anticipated. He also agreed that persons who tended to bury themselves in their work may do so because of PTSD in order to cope with their day to day stresses, albeit that such behaviour is adaptive or maladaptive, and when prevented can cause the decompensation. In this situation decompensation was usually dramatic (trans, p99). Dr Walton maintained his opinion that the applicant suffers from PTSD arising from his Vietnam experience, but this had been at a sub‑clinical level until the motor vehicle accident. As such it could be termed an aggravation of a pre‑existing condition.
52. The Tribunal asked Dr Walton to elucidate further and advise whether he favoured a diagnosis of delayed onset of PTSD, aggravation of a pre‑existing sub‑clinical PTSD or precipitation of an overt PTSD by the motor vehicle accident. Dr Walton appeared to favour the pre‑existence of a sub‑clinical PTSD un‑diagnosable prior to the motor vehicle accident, but certainly present after that event and related to his Vietnam war experiences.
Mr Luke — by telephone
53. Mr Luke said he was the National Operations Manager for Bunker Freight Lines, for whom he had worked for 26 years. He was well‑acquainted with the applicant. In examination‑in‑chief he recalled that the applicant commenced working with Bunker Freight Lines in either the late 1970s or the early 1980s. At that time Mr Luke was the Victorian Operations Manager.
54. Mr Luke provided a written statement dated 28 June 2004 (Exhibit R9). In his statement and in his evidence Mr Luke described the applicant as a very good worker with a long history with the company. He said the applicant had spent most of this time driving the Melbourne to Perth run, but Mr Luke had written that "he had requested to go on the Melbourne to Goondiwindi run some time before the truck rollover (trans p103). Mr Luke told the Tribunal that the Perth run was the best run a driver could be given. He also said that the applicant had a good customer service record and had been accident free. The Perth run, which was the longest run, was considered a reward for being a good operator. The company would not have taken him off the Melbourne to Perth run unless the applicant had requested the change, because that was in effect a downgrade.
55. The applicant’s evidence had been that he was asked to take on the Goondiwindi run by Tony Cosaleno. Ms Casamento asked Mr Luke if he could recall that Mr Cosaleno had suggested to the applicant that he take on the Goondiwindi run. He said he had no recollection of any such request being made of the applicant but confirmed that Mr Cosaleno worked for Bunker Freight Lines at that time. The Goondiwindi run was not a new run and had been done by Bunker Freight Lines for approximately 30 years. Mr Luke had no knowledge as to where the applicant slept on his trips to Perth, despite the company providing sleeping quarters, but acknowledged it would have been possible for the applicant to sleep in the truck. Mr Luke confirmed that the Melbourne to Perth run that the applicant usually took on a Monday would be the last to leave the depot as it was the mail run. Mr Luke could not recall any reluctance on the part of the applicant to continue with the Goondiwindi run, but agreed that it was a much busier run in terms of road traffic. Mr Luke also could not recall whether the applicant may have tendered his resignation in December 1994. Bunker Freight Lines' normal practice was to sack a driver after an accident. However, it had not contemplated dismissing the applicant because of his reputation as a driver and his overall good history with the company. The company had anticipated that the applicant would resume driving for it once he had recovered from his motor vehicle accident injuries.
56. Cross‑examination did not lead to any new evidence being presented except that Mr Luke had not been aware that the applicant was a Vietnam veteran and to his recollection the applicant had never mentioned any army service, despite Mr Luke himself being a veteran.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Report of Dr Benjamin dated 13 October 1997 (T3)
57. Dr Benjamin saw the applicant at the request of the Department of Veterans' Affairs after referral by Dr Fusca. Dr Benjamin made a diagnosis of "…chronic PTSD with associated anxiety and depression and considerable personality change which seems to be in direct contrast to his previous personality". He attributed the applicant’s PTSD to his war service with a psychiatric impairment rating of 20. He recommended further assessment and treatment. The Tribunal notes that the applicant did not inform Dr Benjamin of his motor vehicle accident in 1994.
Dr Fusca's Clinical Notes (Exhibit R3)
58. These notes are of little benefit to the Tribunal as they are mainly concerned with monitoring of the applicant’s hypertension. However, they do include his attendance and request for referral to a psychiatrist on recommendation from the Vietnam Veterans Association.
Dr Glaspole's Clinical Notes
59. Dr Glaspole has treated the applicant for many years and was the applicant’s treating doctor with respect to the injuries sustained in the motor vehicle accident in 1994. The Tribunal notes that these clinical notes have actually been filed under the heading of "clinical notes of Dr G. Garra", but do contain entries by Dr Glaspole. Dr Glaspole had written several letters to the workers compensation insurer relating to the injuries the applicant sustained in the motor vehicle accident, namely a deep laceration to his left temple, fractures of the left 7th and 8th ribs, bruising of the shoulders and soft tissue injuries to the back, neck and right shoulder. The only continuing ailments as of 20 February 1997 were the soft tissue injuries to back, neck and right shoulder.
60. On 4 October 2001 Dr Glaspole had advised the Vietnam Veterans Pensions Office that, in his opinion, the applicant was totally disabled from all forms of employment due to his accepted, service‑related, PTSD.
Report of Dr Horsley dated 19 September 2003 (Exhibit R7)
61. Dr Horsley had obtained a detailed history and performed a thorough examination of the applicant. She was not prepared to comment on the applicant’s psychiatric status as that was not her field of expertise. She found that the applicant had suffered mechanical cervical dysfunction and mechanical back pain, both of which had resolved at the time of examination. She was under the impression that the applicant had resigned from his job with Bunker Freight Lines prior to the motor vehicle accident, as he was no longer able to cope with the Melbourne to Brisbane run. She was of the opinion that the motor vehicle accident disabled him from commencing different employment and, while recovering from the effects of that, he drank heavily. She did note the applicant’s past heavy drinking and ephedrine and amphetamine use. She was of the opinion that his current alcohol intake rendered him unfit for all employment.
Report of Dr Turecek dated 29 July 1998 (Exhibit R2)
62. Dr Turecek diagnosed a mild post traumatic pain disorder with poor response to psychiatric assessment and treatment. He related the development of this condition to the motor vehicle accident, but assessed the applicant as having a capacity for undertaking suitable employment. Dr Turecek had not obtained any history of the applicant’s Vietnam service.
Report of Dr J. Rowe, Occupational Physician, dated 28 February 2002
(T14 p29)
63. Dr Rowe's history corroborates the applicant’s evidence before the Tribunal regarding his post-Vietnam work history and the reasons why he favoured truck driving between Melbourne and Perth. Dr Rowe had been asked to assess the applicant with respect to his motor vehicle accident injuries and found these to have totally resolved. In his opinion the applicant’s prognosis was not good and the applicant did not have the capacity for work because of his mental state and alcohol dependence.
Report of Dr P. Collier, Senior Psychiatric Registrar, Veterans' Psychiatry
Unit, Austin & Repatriation Medical Centre (T15)
64. Dr Collier provided a very detailed report to the RSL Advocates Office dated 25 March 1999. His report summarises most of the Austin & Repatriation clinical notes. Dr Collier had first seen the applicant on 26 August 1998 and subsequently saw him on five occasions. He detailed the various stresses to which the applicant was subjected while serving in Vietnam. In addition, he related the symptoms of severe hyper‑arousal, sleep disturbance, increase startle response, hyper‑vigilance and difficulties with anger control. He noted that the applicant experienced flashbacks and avoided reminders, conversations and activities that would reactivate these memories. Dr Collier also noted that there was ongoing heavy alcohol use of many years duration to around 400 grams of ethanol per day. The applicant’s interpersonal relationships were poor.
65. Dr Collier diagnosed PTSD, alcohol dependence and a major depressive disorder of moderate degree. Dr Collier was of the opinion that the applicant used alcohol to "blunt the distress re‑experiencing phenomena, anxiety and depressive symptoms". This had commenced during his service in Vietnam. The applicant was assessed as being unable to work in a predictable and regular way, even for a limited period of eight hours per week. At the time it was not possible to make a definitive statement regarding long term functioning and this should be readdressed within 12 months after intensive treatment.
Report of Dr D. Hart dated 22 October 2002 (T17) – respiratory function
testing
66. Dr Hart had performed respiratory function testing on 22 October 2002 and found the applicant’s bronchospirometry and carbon monoxide diffusing capacity to be within normal limits. On the basis of this testing, the VRB had reversed the applicant’s accepted disability of chronic bronchitis and emphysema.
Report of Dr W. Kemp dated 11 May 2004 (Exhibit A2)
67. Dr Kemp had seen the applicant at the request of his legal representative. He opined that the applicant was unfit for any work as a truck driver due entirely to his nervous condition and his alcohol consumption. There was no significant incapacity for work caused by the previous injuries to his back and neck or the rib fractures.
68. The Tribunal also had before it transcripts of the two VRB hearings, the applicant’s Centrelink file and the WorkCover file. The relevant contents of these files were addressed in examination‑in‑chief and cross‑examination.
RELEVANT LEGISLATION
69. The Act provides for a special rate of pension in accordance with s 24, which states:
(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 28 of the Act provides:
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).
SUBMISSIONS
70. The applicant submitted that he met the requirements of s 24(1)(aa), s 24(1)(aab) and s24(1)(a) of the Act, as he was in receipt of disability pension at a rate of 90 per cent of the general rate. The parties had agreed that, at the time of his claim for an increase in the pension rate in 2001, the applicant satisfied s 24(1)(b) in that his incapacity from his war‑caused disease "…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". The applicant also met s 24(1)(c) in that in 2001 his incapacity resulted from war‑caused injuries preventing him from continuing to undertake remunerative work and that the applicant could return to work but for his war‑caused disease.
71. The applicant relied on Banovich v Repatriation Commission (1986) 69 ALR 395 and Starcevich v Repatriation Commission (1987) 18 FCR 221. With respect to s 24(1)(c), the applicant directed the Tribunal to the ameliorating provisions of s 24(2)(a) and (b). In Banovich (at 396) the Full Court of the Federal Court held, in respect of "remunerative work" that:
…a member’s loss of particular employment for a reason unrelated to a war disability would never destroy a member’s subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity — and by that incapacity alone — from continuing in that field of remunerative activity.
The Full Court also determined that the relevant date of determination was the time of the application to the primary decision‑maker. The Full Court went on to state (at 402):
…Consistently with that use, the phrase “remunerative work which the respondent was undertaking” should be read as a reference to the type of work which the member previously undertook and not to any particular job.
72. The decision in Banovich was followed by the Full Federal Court in Starcevich.
73. At the time the applicant lodged his application (in October 2001) his physical injuries from his motor vehicle accident had resolved but his accepted PTSD and alcohol abuse had deteriorated. Dr Kemp and Dr Horsley had opined that the physical injuries had resolved and would not prevent work. Dr Kemp found the applicant unable to work in any capacity because of his PTSD and alcohol abuse and Dr Horsley concurred. The applicant said he would be able to return to truck driving, an occupation in which he had some 23 years' experience but for his war‑accepted conditions of PTSD and alcohol abuse.
74. The applicant, following his return from Vietnam, had taken up his pre‑service employment in the MMBW testing laboratory where he lasted only 6 months as he could not tolerate working indoors. He then undertook driving duties in a delivery van which was also short-lived, followed by work for an intrastate freight company, carrying freight to remote areas where he had little contact with other workers. This latter company became insolvent following which he commenced working with Bunker Freight Lines and remained there for approximately 16 years. He was able to drive large freight vehicles by himself between Melbourne and Perth, with no need to interact with other drivers or the public in general. He was able to maintain this employment with the use of ephedrine and amphetamine tablets and the regular use of alcohol, both of which the applicant contended was a maladaptive method of coping with the underlying PTSD. When confronted by a change in regulations with respect to speed limits, time limitations on periods of driving, the introduction of filming and photographing of trucks and drivers, the increased need for stopovers and shared accommodation in shared bunk‑houses or motel rooms, the applicant was unable to cope.
75. The psychiatric evidence in general found the applicant to be withdrawn, socially isolated, and that it was hard to get him to discuss his experiences in Vietnam. All the psychiatrists noted his few interpersonal relationships; that his marriage had lasted 3 years and thereafter any relationships with the opposite sex had been limited to a period of approximately 6 months. Dr Walton's opinion had been contrary to the majority of psychiatrists, in that he had diagnosed PTSD with parallel alcoholism of delayed onset, the symptoms being precipitated by the motor vehicle accident.
76. The applicant submitted that the motor vehicle accident was relevant primarily in that it shattered the applicant’s veneer. The Melbourne to Perth run and the conditions of conducting that run was the only type of work with which the applicant could cope and once that had changed he decompensated.
77. While Dr Seabridge's initial opinions had been provided without knowledge of the motor vehicle accident, he did not alter his opinion once informed of this event. Dr Seabridge had opined that the applicant suffered from PTSD since his service in Vietnam and that, while his symptoms had not been diagnosed in the early years, they had been unmasked or exacerbated following the accident in December 1994.
78. Despite receiving WorkCover payments at the time, the applicant had attempted in 1996 to obtain work driving trucks or at least to assess his capacity to drive. In the first instance, by driving a friend's truck from the dockyard to various delivery points and then delivering vegetables from Werribee market gardens to Melbourne Airport. Both of these attempts to resume work failed as the applicant could not cope with suburban traffic or queuing to load and unload his vehicle. In 1998 he had attempted alternative employment, working on an irrigation farm in an isolated area but was unable to tolerate this for more than one and a half hours due to being confined in a shed.
79. The applicant drew the Tribunal’s attention to the fact that not even his employer, Bunker Freight Lines, was aware that the applicant was a Vietnam veteran, even though the national manager was himself a veteran. The applicant also avoided contact with other veterans at the RSL and after some disturbing experiences in a hotel had determined never to mention his service.
80. Based on the evidence the applicant submitted that he was not too old to return to work. He had a great deal of experience in interstate truck driving and his last employer had held him in high esteem and would have been happy to re‑employ him. However, his accepted disability of PTSD prevented him from returning to such work after his physical injuries, sustained in the motor vehicle accident, had completely resolved.
81. In the alternative, the applicant submitted that he satisfied s 24(2)(b) of the Act at the time of his claim in 2001, in that he had genuinely sought to engage in remunerative work. This involved the two episodes in 1996 when he attempted to resume driving, or at least test his capacity to perform such work, and in 1998 when he sought work in an irrigation plant. The applicant had been informed after his motor vehicle accident that light duties were not available at Bunker Freight Lines. The applicant contended he was trying in his own somewhat dysfunctional fashion to return to work. He did regularly survey job advertisements but could not bring himself to make a telephone inquiry in response to these advertisements. He contended that this was part of his general despair and incapacity resulting from his PTSD.
82. With respect to s 24(2)(b) of the Act, the applicant relied on Fox v Repatriation Commission (1997) 45 ALD 317 wherein Kiefel J said:
…
“Substantial cause” in para 24(1)(c) of the Act requires that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. …
83. The applicant distinguished Sheehy v Repatriation Commission (1996) 66 FCR 569 on the basis that Mr Sheehy was 74 years of age at the time of applying, that there existed age barriers to working in other prior occupations and Mr Sheehy had been unable to do the other types of remunerative work he had attempted.
84. In 1994 the applicant’s income, including allowances, was $42,000. The applicant concluded there was no age barrier, no physical barrier, no non‑availability of work barrier applying to him and his incapacity to work related solely to his accepted disabilities.
85. The respondent conceded that there was no longer any physical disability preventing the applicant from working, based on the evidence. Dr Rowe, Dr Horsley and Dr Kemp were of the opinion that there was no physical residual incapacity from the motor vehicle accident and that the applicant was prevented from undertaking remunerative work because of his accepted disabilities of PTSD and alcohol abuse. Thus, at the time of the hearing the applicant satisfied s 24(1)(b) of the Act.
86. The respondent identified the issue before the Tribunal as being whether the applicant satisfied s 24(1)(c) of the Act, that is that his accepted disabilities were the actual cause of his cessation of work.
87. The respondent addressed the two limbs of s 24(1)(c): the first limb, whether by reason of his war‑caused incapacity alone, "the veteran is…prevented from continuing to undertake remunerative work that the veteran was undertaking…"; and the second limb, "… is…suffering a loss of salary or wages…". Both of these limbs are further defined in s 24(2)(a). The respondent submitted that the applicant’s three attempts to resume work, two in 1996 and one 1998, were undertaken while he was in receipt of WorkCover payments for his back injury and the receipt of the latter meant the applicant was not present in the workforce at that time. The applicant’s only attempt to work following cessation of WorkCover payments had been in the irrigation business. The respondent contended that this was not a genuine pursuit of remunerative work and relied on Re Hornery and Repatriation Commission (1998) 52 ALD 317, which considered the meaning of the word "genuine". In that case the Tribunal decided that genuinely "indicated a necessity for some objective signs of an active pursuit of remunerative work".
88. The respondent relied primarily on the evidence that the applicant had ceased work as a result of the motor vehicle accident in December 1994. It was argued that there was no evidence that he submitted his resignation prior to his final interstate trip to Goondiwindi and that Mr Luke would have known if such a resignation had been tendered; although in his evidence Mr Luke could not recall whether there was an official tendering of resignation. The respondent submitted that the applicant’s WorkCover file indicated that at all times he was keen to return to work, but that early on in his recuperative period no light duties were available to him.
89. The respondent cited the case of Van Ewjk v Repatriation Commission [2004] FCA 19 because of the similar factual basis to that under consideration. However, Mr Van Ewjk had lost his job because of a back injury and the Tribunal notes that the back injury continued to be a relevant physical injury and remained operative in preventing Mr Van Ewjk from further remunerative work. On this factual basis, the Tribunal distinguishes this decision from that under consideration.
90. The respondent raised, for the first time, the fact that the applicant had sole care of his teenage son at the current time and that this would prevent him from engaging in long haul interstate driving. Evidence had not been presented regarding the applicant’s care of his son.
91. In response the applicant pointed out that he was 53 years old and in good physical health. His 20‑plus years of interstate truck driving and his reputation as a driver held him in good stead. However, his time out of the workforce had resulted in a deterioration of his accepted disabilities of PTSD and alcohol abuse, rendering him unable to work for more than 8 hours per week. The applicant cited the decision of Gyles J in Byrnes v Repatriation Commission (2001) 33 AAR 410 where his Honour considered both the time out of the workplace and the effect of a war‑caused injury or a disease and the resultant incapacity upon obtaining employment.
92. The applicant submitted that many sole parents obtained and held down employment. He also objected that this matter had not been pursued in cross‑examination. The applicant concluded his submissions by stating that his accepted disabilities of PTSD and alcohol abuse has been the substantial reason why his genuine efforts to seek work have been unsuccessful.
APPLICATION OF THE LEGISLATION TO THE EVIDENCE BEFORE THE
TRIBUNAL
93. The Tribunal notes the respondent concessions and the areas of agreement between the parties.
94. The immediately cause of cessation of employment by the applicant was the motor vehicle accident. His injuries were such that a full recovery should have occurred, as it does in the majority of persons so injured, within a few months. On his evidence, the applicant, once idle, increased his drinking substantially. He received WorkCover payments for nearly four years and had no financial need to work. The applicant’s three attempts to gain employment or at least test his capacity for work failed. The applicant continued to search for job advertisements in the newspapers, but could not bring himself to respond to the advertisements, essentially, because of his PTSD. By the time his application for an increase in pension was lodged in October 2001, the parties agreed he was incapable of working more than eight hours per week.
95. The Tribunal finds that the applicant’s accepted disability of PTSD was present from the time of his service in Vietnam, but that he was able to work effectively for some 22 to 23 years by cocooning himself in a solitary work environment. When this changed in 1994 as a result of the legislatively imposed restrictions on interstate and intrastate freight carrying, the applicant decompensated and his PTSD symptomalogy increased to the point where he decided to cease work. Before he could do so, the motor vehicle accident intervened and his enforced idleness resulted in escalating alcohol intake.
96. In her report dated 19 September 2003, Dr Horsley has succinctly encapsulated the chain of events, albeit that she thought the applicant had officially resigned prior to the motor vehicle accident. She had concluded that it appeared that an accepted disability resulted in his resignation; a non‑accepted disability resulted in his cessation of work for some years, but his accepted disability of alcohol abuse prevented any prospect of retraining, active participation in a rehabilitation programme and re-employment with another employer.
97. The medical opinions are unanimous regarding the applicant’s ability to work at the present time and since he lodged his application in October 2001 for increased pension. The applicant’s PTSD and alcohol abuse have rendered him unfit for work for more than eight hours per week. All physical injuries relating to the motor vehicle accident in 1994 have completely resolved. There is some disagreement regarding the severity of the PTSD prior to 1994, with Dr Walton diagnosing late onset PTSD, although he modified that opinion in his oral evidence, to the extent that he might have underestimated the severity of these symptoms at that time.
98. The Tribunal finds that the applicant’s age, time out of the workforce and physical fitness are not barriers to him obtaining suitable work, but his accepted disabilities of PTSD and alcohol abuse do prevent him from working. The question of whether he had made genuine attempts to search for work is difficult given that the nature of his war‑caused disabilities (PTSD and alcohol abuse) are such that they will deleteriously affect his ability to seek remunerative employment. The Tribunal notes that Gyles J stated in Byrne that "…In order to judge the effect of the relevant incapacity, it is necessary to compare the position of the applicant as he is with the position he would be in without the relevant incapacity". The Tribunal finds that the applicant’s war‑caused disabilities were such as to hinder or prevent him from making, what might be considered "a genuine effort" to obtain further employment. It could be argued, but was not, that the applicant’s short term work in 1996, in two driving positions, albeit for remuneration in kind rather than a wage, was a return to work which failed because of his war‑caused disabilities.
99. The Tribunal has relied primarily on the medical reports in reaching its decision. The understanding and delineation of the disease of PTSD has and continues to advance since it was first described in the early 1980s. In the light of these advancements and understanding these particular diagnoses do not sit well with the requirements of s 24 of the Act.
100. Nevertheless, the Tribunal determines that at the time of application for increase pension in October 2001, the applicant satisfied the legislative requirements for special rate of pension.
I certify that the one hundred [100] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDates of Hearing: 12 July 2004
15 July 2004
Date of Decision: 14 October 2004
Counsel for the applicant: Mr C. Thomson
Solicitor for the applicant: Peter J. Liefman
Advocate for the respondent: Ms R. Casamento
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