Wong and Repatriation Commission

[2005] AATA 216

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 216

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/791

VETERANS’ APPEALS DIVISION		)
Re		VINCE WONG

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date14 March 2005

PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution  decides that: ·     Mr Wong is permanently incapacitated for work under section 37AA of the Veterans’ Entitlement Act 1986 and Veterans’ Entitlement (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999. · Pursuant to section 37 of the Veterans’ Entitlement Act 1986, Mr Wong is eligible for an Invalidity Service Pension with effect on and from 12 August 2002.   ………..…[sgd]…………..
  Ms R Hunt
  Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Invalidity Service Pension – PTSD – Permanent Incapacity for Work

LEGISLATION

Veterans’ Entitlements Act 1986 ss 7A, 37, 37AA, 119,120

Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999 Clause 5

AUTHORITIES

Hill v Repatriation Commission [2004] FCA 832

Wright v Repatriation Commission [2005] FCA 7

Dragojlovic v Director-General of Social Security 5 ALN N416

Repatration Commission v Haskard (2002) 71 ALD 29

Wright v Repatriation Commission [2002] 126 FCR 1

Repatriation Commission v Smith (1987) 12 ALD 798

Briginshaw v Briginshaw (1938) 60 CLR 336

Quan Phi Tran and Repatriation Commission [2004] AATA 1083

REASONS FOR DECISION

14 March 2005	Robin Hunt, Senior Member
summary

1.The Applicant, Mr Vince Wong, has made an application for review of a determination of a delegate of the Repatriation Commission, dated 27 February 2003, affirming the original decision of the Commission made on 17 October 2002. The delegate found that Mr Wong was not eligible for payment of an Invalidity Service Pension (ISP) under section 57A of the Veterans’ Entitlements Act 1986 (the Act). The Tribunal has set aside this decision and substituted a new decision as set out in detail below.

background

2.Mr Wong applied for an ISP on 12 August 2002. On 16 May 2003, Mr Wong’s treating medical practitioner, Dr Pope, lodged an application for review of the decision refusing Mr Wong an ISP. Mr Wong, in a written statement, dated 15 September 2004, for the Tribunal, wrote that he was born on 2 January 1947 in Vietnam...Mr Wong went on to state in his statement made for the current proceedings that he left school in 1965 and then joined the Army. He served as a member of the Civilian Intelligence Defence Guard, which was part of the US 5^th Special Forces, from 1966 to 1969.  He then served in the Air Force as ground staff involved in aircraft maintenance until 1975. The Respondent does not dispute his service record. Mr Wong came to Australia in 1988.

issues

3.The issue for the Tribunal’s determination is whether, at the date of the primary decision, 17 October 2002, Mr Wong was eligible for the ISP in accordance with section 37 of the Veterans’ Entitlements Act 1986. For Mr Wong to obtain an ISP, he must satisfy a number of requirements under the legislation.  The Respondent agrees that Mr Wong has qualifying service and is a veteran under the terms of the legislation. Thus he satisfies two of the requirements.

4.Mr Wong further claims impairment according to subclause 5(2) of the Veterans’ Entitlements (Invalidity Service Pension-Permanent Incapacity for Work) Determination 1999 (Determination 1999). The Tribunal must decide whether Mr Wong is permanently incapacitated for work. To satisfy this requirement, Mr Wong must have a combined impairment rating of a minimum of 40 points according to Table 18.1 in the Guide to the Assessment of Rates of Veterans’ Pensions (GARP).

5.Mr Wong has presented evidence that he suffers from certain medical conditions which have impaired his ability to work. Mr Wong has not worked for some years but Mr Wong’s inability to work must be solely attributable to his physical and mental impairment before the Tribunal can determine that he is permanently unable to work. Not only that, he must demonstrate that solely because of his impairment he cannot work for periods adding up to more than eight hours per week.

legislation

6.The eligibility criteria for ISP are found in section 37 of the Act which states, in part:

“37 Eligibility for invalidity service pension

(1)Subject to subsection (6), a person is eligible for an invalidity service pension if the person:

(a)       is a veteran; and

(b)       has rendered qualifying service; and

(c)       is permanently incapacitated for work in accordance with a determination under section 37AA.

…”

7.Section 37AA states, in part, that the Commission must make a written determination as to the circumstances in which persons are permanently incapacitated for work. The agreed determination in the present case is Veterans’ Entitlement (Invalidity Service Pension - Permanent Incapacity for Work) Determination 1999 and, in particular, Clause 5 of that determination.

Clause 5 of the Determination states, in part:

“(2)     A person satisfies this subsection if:

(a)the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide, and

(b)solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week; and

(c)the Commission is satisfied that the impairment is permanent.”

8.Under subsection 120(4) of the Act, a decision in relation to Mr Wong’s Invalidity Service Pension entitlement must be made to the Tribunal’s reasonable satisfaction. 

evidence

9.Mr Wong told the Tribunal that, following army service, he sold clothes at market stalls. He was taken prisoner by the communists and gaoled in 1977/1978. After 3 months of continuous confinement, Mr Wong was required to work as a labourer. Later, he again sold clothes or did jobs as a carpenter’s assistant but was untrained.  Mr Wong came to Australia in 1988 and worked from 1989 to 1990 for a business that made conveyor belts until it closed down in about 1990. He was unable to find other work apart from helping a friend for one or two weeks in a clothing business. He told the Tribunal his friend sacked him because he was too slow and it was never a real job anyway. Mr Wong said it was true that he was slow at work and unable to perform well as he was always tired. He told the Tribunal that his tiredness was because of his trouble in sleeping at night and this had become worse. In 2002, Dr Law gave him medication that helped him sleep but he did not feel any better.

10.Mr Wong said he had been on Newstart allowance since 1991 and had not even an occasional job since 2001. He could not work because he felt tired all the time and suffered from headaches, poor concentration and poor memory. Since the mid-70s he had been easily nervous, depressed and irritable and had bad dreams associated with dead or injured people. More recently, he had back pain some of the time, pain in his foot and pain in his elbows if he carried a couple of kilograms.

11.Mr Wong contends that he suffers from various health problems that impair his ability to work. He has told the Tribunal that he has post-traumatic stress disorder (PTSD), depression, lumbar spondylosis, gastric ulcers with gastritis, a troublesome elbow and headaches. He claimed that all these conditions, apart from the headaches, were likely to continue into the future and made him permanently impaired for work. He mainly relied on the medical reports of Drs Zwatrzka, Law and Dinnen and referred to the assessment by Dr Burns, which were before the Tribunal. Mr Wong gave oral evidence before the Tribunal that he was taking 50mg of Deptran at night and produced the box which showed this dose as prescribed by Dr Law and dispensed on 24 September 2004. He also produced a box of Naprosyn, which he indicated was another medication he was taking.

12.Mr Wong told the Tribunal that he had seen many doctors but did not seek help more frequently because he did not like waiting. He had difficulty remembering some matters. He gave evidence about various jobs he had done for short periods and said he no longer wanted to work because he was very tired and had a sore back. He told the Tribunal he took one or half a tablet of Deptran every night and saw Dr Law when he needed another prescription, that being about every two months. He also took Naprosyn for sleeping and for his back and he had stopped taking medication for stomach pains. He had been taking one Deptran at night but they made him very tired so he had dropped back to a half about a year ago.

13.The Respondent called Dr Skinner and Dr Burns and also referred to a report of Dr George, Consultant Psychiatrist, dated 3 October 2002. The Respondent conceded that Mr Wong’s lumbar spondylosis was permanent but argued that his other conditions were temporary and that, if he had PTSD, it was temporary because it had not been treated properly. Mr Wong and Drs Dinnen, Skinner and Burns gave oral evidence before the Tribunal.

14.Dr Law’s reports were before the Tribunal. Dr Law, psychiatrist, commenced treating Mr Wong in January 2002 and concluded, in his certificate dated 4 January 2002, that Mr Wong was suffering from PTSD. In his later report, dated 17 July 2002, Dr Law gave his GARP assessment as 46 points. He considered Mr Wong “totally and permanently incapacitated for work”.  He described Mr Wong’s condition as having deteriorated in the last two years.

15.On the other hand, Dr George, Consultant Psychiatrist, reporting to the Respondent on 3 October 2002, wrote that Mr Wong had elements of PTSD “but not sufficient to justify an ongoing diagnosis…” Dr George believed that Mr Wong was “quite capable of some part-time work”.  Further, on 15 October 2002, Dr N Zwatrzka advised the Commission that, in taking into account the psychiatric reports, she calculated a GARP rating of 30 points, of which 17 points were based on emotional and behavioural disorder.

16.However, on 5 September 2003, Dr Dinnen reported his diagnosis of chronic PTSD with major depression and he calculated a GARP rating of 52 points. Dr Burns, Occupational Physician, provided a report on 10 September 2003, the same day that he saw Mr Wong. The report dealt with Mr Wong’s complaints of pain in the low back, stomach ulcers and psychological problems. Dr Burns rated Mr Wong’s physical impairments of lumbar spondylosis as permanent and rated at 11 points. Dr Burns rated gastritis as a temporary condition at 5 points. Dr Burns noted that Mr Wong took 25mg of Deptran at night and that this was below the therapeutic dose. He found Mr Wong’s degree of impairment for PTSD was 23 points and assessed a total point score of 35.

17.Mr Wong underwent further examinations in 2004. Dr Skinner saw him and produced a report on 16 January 2004, diagnosing dysthymic disorder, “a low grade form of depression”. Dr Skinner noted that Mr Wong sought psychiatric help when he was advised to see Dr Law if he wanted to apply for a veterans’ pension. She thought his condition would not prevent him from working full time “if suitable employment could be found for him”. Dr Skinner thought he should commence part time employment as he had been out of the workforce for a long time. She stated that he appeared composed until he spoke of his separation from his sons and his isolation. Dr Skinner formed the impression that Mr Wong derived pleasure from some of his activities. She commented that Mr Wong was not taking any psychotropic medication.

18.Dr Skinner said that she found it “difficult to account for the significant discrepancies” between her findings and those of Dr Law and Dr Dinnen. She thought this might have been attributable to difficulties in language through interpreters. Dr Skinner further thought that the treatment offered by Dr Law was inconsistent with a severe deteriorating psychiatric disorder. His assessment of 46 indicated a severe degree of psychiatric impairment but he saw Mr Wong only 3 monthly. When making the GARP rating, she referred to Mr Wong’s seeing Dr Law ”about once in two or three months”. She reported that Mr Wong denied taking the “very low dose of anti-depressant”, 25mg daily, that Dr Law had prescribed.

19.Dr Dinnen produced a second report on 2 February 2004 and a third report on 19 March 2004, after seeing Mr Wong on 15 March 2004. Dr Dinnen referred to his earlier reports and to Dr Skinner’s report of 16 January 2004. Dr Dinnen described some more of Mr Wong’s history that he had learned at the later re-examination and addressed specific questions. He concluded, firstly, that Mr Wong’s symptoms constituted a psychiatric disorder, secondly, that the disorder was PTSD and, thirdly, “I am content to rely on the report from Dr Law of July 2002, as indicated in my original report. He rated the patient’s PTSD at 46 points. I believe the assessment would be at least that great. “

20.Dr Dinnen’s final point was that Mr Wong was not capable of working at least 8 hours a week because of his chronic psychiatric illness. At the Tribunal hearing, Dr Dinnen and Dr Skinner gave oral evidence. Dr Dinnen defended his opinion expressed in his first report that Mr Wong had some English language skills. Dr Dinnen did not accept Dr Skinner’s suggestion that he may have had less response from Mr Wong than did Dr Skinner because he had less assistance from an interpreter and no interpreter was present at the early stage of his interview. He still rated Mr Wong as having a high degree of impairment, around 52 points, but had said he was happy to go along with Dr Law’s assessment of 46 points as it was still a very significant degree of impairment.

21.Dr Dinnen was convinced that Mr Wong had suffered from PTSD for a very long time, probably 25 years, but that Drs Skinner and George had not fully explored and understood his history and rather concentrated on whether he could work. They did not learn his full history because of the language problems and this explained the difference in their opinions. He believed that Mr Wong had been told to get on with his life in the 1970’s and that prison had exacerbated his condition and that he had been punished when he had tried to escape imprisonment. The breakdown of his marriage and his isolated life in Australia had all made his condition worse.

analysis

22.Mr Wong has made a different impression on the various doctors he has seen in connection with his claim and treatment. Dr Dinnen found him “almost mute” but others found him responsive and Dr Skinner found him coherent with no signs of persistent depression. She and other doctors noted that Mr Wong became distressed when he spoke of his separation from his sons and isolation. Mr Wong gave adequate responses to questions at the Tribunal hearing but was extremely reserved and economic in his replies.

23.Dr Forssman of Health Services Australia found Mr Wong flat and with apparently depressed mood on 26 August 2002. Dr Forssman referred Mr Wong to Dr George for psychiatric assessment. Dr George found him cooperative and able to understand the implications of the assessment on 3 October 2002. His assessment was that Mr Wong had elements of PTSD but not sufficient to justify ongoing diagnosis. Dr Burns thought Mr Wong’s body language appropriate and that he did not seem depressed.

24.I note that although Dr Zwatrzka on 15 October 2002 found that Mr Wong did not meet ISP criteria, she expressed the opinion that Mr Wong suffered the permanent and stable conditions of PTSD, lumbar spondylosis and gastric ulcer with gastritis. Dr Law, who has been treating Mr Wong over the years since January 2002, was of the opinion that he had been suffering moderately severe and disabling PTSD in the past 2 years and was totally and permanently incapacitated for work. Dr Burns thought Mr Wong’s psychological problems might improve further with appropriate treatment but I note that he is an occupational physician and not a specialist psychiatrist. All the doctors who have supplied reports and given evidence agree that Mr Wong does have some impairment.

25.Dr Dinnen thought that his difficulty in obtaining information from Mr Wong was a result of a major psychiatric illness. In Dr Dinnen’s opinion, Mr Wong suffered from chronic and established psychiatric disease not likely to respond to any treatment. Dr Dinnen found, in his later report of 5 September 2003, that Mr Wong was permanently disabled by his major depression. Dr Dinnen was still of this opinion at the time of the Tribunal’s hearing in late 2004. Dr Dinnen and Dr Skinner were strongly at odds when giving evidence before the Tribunal.

26.Dr Dinnen told the Tribunal that, while Dr Skinner had elicited some more recent information from Mr Wong, he believed Drs Skinner and George did not understand Mr Wong’s history, the effect of his imprisonment by the communists and his traumatic experiences because of language. This explained the difference in their assessments. He had seen both reports and had not changed his view. Dr Dinnen thought Mr Wong had suffered from PTSD for a very long time. In 1977 Mr Wong had tried to escape. He would have been told to get on with his life and would not have seen a psychiatrist. He would have denied he had any problem and tried to cope. But Mr Wong’s condition had been present for at least 25 years and had worsened due to the breakdown of his marriage and his life here. He had been unable to find work and that was part of the problem too. He could not move on after losing his last job. Another factor had been the birth of his child in Australia which he had hoped would improve his life but which had been a failure in this regard because he did not have a good relationship with his child. Mr Wong’s poor recall was a clinical indicator of his depression. Dr Dinnen referred to Dr Skinner’s observations that Mr Wong exhibited a less severe psychiatric condition as he showed positive signs that he was coping with daily life. Dr Dinnen did not think the indicators of getting on with life such as doing household chores, reading, watching videos and walking were as important indicators of the severity of his disorder as sleeplessness, nightmares, tiredness, why he was divorced, the poor relationship with his family and inability to find work over so many years. Dr Dinnen said he did not know the extent of the household chores which Dr Skinner found that Mr Wong carried out and they might be very little.

27.Dr Dinnen said the best prognosis for Mr Wong was continuing management by Dr Law. Dr Law had been monitoring and encouraging Dr Wong and prescribing medication for mild sedation and to assist sleeping problems. This was what Dr Dinnen would do, as stronger medication would be of limited use with Mr Wong’s long standing condition. Dr Skinner, on the other hand, thought the low dosage showed Mr Wong was not suffering a severe disorder.

28.Dr Skinner found no problem interviewing Mr Wong and placed more emphasis than Dr Dinnen on Mr Wong’s history in Australia. While Dr Skinner obtained information from Mr Wong of his activities that suggested more enjoyment of life than did Dr Dinnen, she did consider that he was suffering from a disorder that was relatively permanent and had probably been present for years. Dr Skinner placed some importance on the low dosage of medication that Dr Law prescribed and did not agree with his summation that Mr Wong’s façade and manner of speaking would reveal to a casual observer that he was depressed. Dr Skinner also thought that being able to find work would help Mr Wong by increasing his self esteem and self confidence and put his difficulty in finding work down to poor English skills and not his psychiatric problems. Although Dr Skinner conceded that “his capture and imprisonment by the Communists would meet the criteria for the first arm of the diagnosis”, she thought he did not display symptoms and characteristics. She found it “difficult to account for discrepancies” between her view and that of Dr Law and Dr Dinnen. 

29.While Dr Dinnen might, on one reading, be said to have expressed the view in his second report that he was happy to accept Dr Law’s assessment that Mr Wong’s disablement rating 46 points, rather than his own earlier assessment of 52 points, Dr Dinnen made it clear at the hearing that he had no doubt that his own opinion was correct. He was simply pointing out in his second report that Mr Wong was severely disabled and at least to the extent assessed by Dr Law.

30.On balance, the Tribunal prefers the evidence and opinion of Dr Dinnen and Dr Law. Dr Dinnen’s view is partly based on the background medical evidence of Mr Wong’s treating medical practitioner, Dr Law, who has been seeing Mr Wong since 1996 and has recorded Mr Wong’s deterioration. Dr Law particularly noted Mr Wong’s mental deterioration since 2002. Dr Dinnen noted that Dr Law understood Mr Wong’s condition and was treating it appropriately. He gave more recognition to the effect on Mr Wong of events in Vietnam than did Dr Skinner, although Dr Skinner acknowledged that these events would meet the first part of the factors for PTSD. Taking all the medical evidence before the Tribunal into account, the Tribunal is reasonable satisfied that the psychiatric disorder suffered by Mr Wong is sufficient to bring him within the criteria for the ISP without consideration of any physical afflictions. The evidence before the Tribunal, while conflicting in some respects, is not indefinite or inexact and well established in my view by coherent and expert opinions. See Repatriation Commission v Smith(1987) 12 ALD 798 and Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

31.The Respondent drew my attention to the decision of the Tribunal in Ngoc Than Nguyen and Repatriation Commission [2004] AATA 362 where the Tribunal found that the applicant would need to be on a higher level of medication for it to be satisfied that the psychiatric condition in that case was permanent. I do not find this decision persuasive as Dr Dinnen has explained that he would take the same path as Dr Law in the present case, that is, maintain a low dosage of medication and monitor and encourage Mr Wong. Dr Dinnen is of the opinion that a high dosage would not assist Mr Wong’s long standing condition.

32.I have also considered whether Mr Wong is permanently incapable of working more than 8 hours per week. The medical reports as to Mr Wong’s work capacity vary in the same manner as for assessment of his psychiatric condition. Dr Skinner and Dr George believe that Mr Wong is capable of some part time work. Dr Law and Dr Dinnen advise that Mr Wong is totally and permanently incapacitated for work. While Dr Law’s opinion is scant, he has been Mr Wong’s doctor for many years. Dr Dinnen’s reports are thorough and considered and he gave oral evidence to the same effect. In addition, Mr Wong gave evidence about his work history, such as it was. His physical ailments are not severe but he has trouble working for psychiatric reasons. Dr Skinner believes his poor English language skills are responsible. Mr Wong gave evidence that he is always too tired to be able to work effectively. There is no evidence before the Tribunal that Mr Wong gave up work voluntarily. His situation is therefore distinguishable from cases such as Wright v Repatriation Commission [2005] FCA 7. His former work has not continued or simply declined as in RepatriationCommission v Haskard(2002) 71 ALD 29, but has ceased.

33.I again prefer the opinions of Drs Law and Dinnen taken together with the oral evidence of Mr Wong himself about his difficulties. Dr Law has been treating Mr Wong for many years and has assessed him as unfit for work. Similarly, Dr Dinnen has concluded that Mr Wong is not capable of working at least 8 hours a week because of his chronic psychiatric illness.

34.As well, I take note of the comments of Mansfield J in Hill V Repatriation Commission [2004] FCA 832, where the Federal Court set aside a decision of the Administrative Appeals Tribunal which involved a determination as to incapacity for work. Her Honour observed that, in her view, there is no reason why the words ‘permanently incapacitated for work’ used in sections 37(1)(c), 37AA and in s 5 of Determination 1999 and the words ‘permanently unable to do work’ for a certain period or periods in s 5(2)(b) of Determination 1999 should not be given the meaning which they have traditionally been given in similar legislation. Moreover, Her Honour thought the words in s 5(2)(b) should be given that meaning.

35.Her Honour further expanded on the meaning of work, referring to several cases as to what the word “work” meant. She observed that that the word ‘work’ in Determination 1999 should refer to non-employment activity. Short of being bedridden, a person may be able to attend to daily personal or domestic chores which involve activity of a few hours a day or more than eight hours a week. The capacity to engage in such activity does not necessarily equate with the capacity to engage in meaningful employment for such periods

36.The Respondent has argued that it is not correct to limit the meaning of ‘work’ in this fashion and pointed out that the judgment of Mansfield J in Hill is subject to an appeal not yet heard. However, I do not rely on Her Honour’s view in finding that, on balance, I accept that Mr Wong is incapable of working as contemplated in the Determination 1999. I accept the evidence before the Tribunal that Mr Wong is not capable of working for at least 8 hours per week.  As Dr Dinnen has pointed out, there is little evidence before the Tribunal about the quality of Mr Wong’s capacity to care for himself and the effectiveness of his efforts at housework. In addition, the fact is that Mr Wong has been unable to obtain work for several years and he has given evidence that he now feels unable to work because of his continual tiredness. His usually neat presentation noted by the doctors whom have examined him does not lead to a conclusion that he is not permanently incapacitated for work. I also do not accept that his difficulties in finding work stem from language problems. There are many gainfully employed people in Australia who have poor English language skills. Although the Respondent drew my attention to the Tribunal’s findings in the case of Quan Phi Tran and Repatriation Commission [2004] AATA 1083, I am not convinced that other factors such as Mr Wong’s personal characteristics, language and work skills prevents a finding that his psychiatric condition is solely responsible for his unemployment predicament.

37.The preponderance of evidence before the Tribunal is that Mr Wong cannot work because of his psychiatric condition. It follows that the Tribunal finds that Mr Wong satisfies the provisions of section 37AA of the Act and the relevant disallowable instrument pursuant to section 5(1) and (2), that is the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity of Work) Determination 1999.

38.As well, Mr Wong’s condition is unlikely to improve. Dr Dinnen has given evidence that he would not recommend any increase in Mr Wong’s medication as he has suffered PTSD for over 25 years and that his condition is permanent. This is not a situation comparable to that in Dragojlovic v Director-General of Social Security 5 ALN N416, where there was a possibility that appropriate treatment might ameliorate the condition in question. Dr Dinnen has assessed Mr Wong’s disablement at 52 or at least 46 by reference to Dr Law’s assessment. I have already stated that I accept these assessments. It is immaterial that Dr Dinnen has conceded a willingness to express his opinion as at least that of Dr Law’s as both assessments are over the required impairment rating of 40 or more. It follows that the Tribunal further finds that Mr Wong has an impairment rating of 40 or more according to Table 18.1 in the Guide to the Assessment of Rates of Veterans’ Pensions (GARP), that Mr Wong’s impairment is permanent and that Mr Wong is permanently unable to do work for periods adding up to more than eight (8) hours per week.

39.As the Respondent has already conceded that that Mr Wong has qualifying service and is a veteran under the terms of the legislation, the Tribunal finds that Mr Wong satisfies the remaining requirements, and is entitled to an invalidity service pension from the date of his application on 12 August 2002.

determination

40.The Tribunal sets aside the decision under review and in substitution decides that:

· Mr Wong is permanently incapacitated for work under section 37AA of the Act and Determination 1999.

· Pursuant to section 37 of the Act, Mr Wong is eligible for an Invalidity Service Pension with effect on and from 12 August 2002.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member.

Signed: .....................................................................................
                   Associate: Reuben Mansour

Date of hearing  10 November 2004
Date of decision     14 March 2005
Representative for the Applicant  Legal Aid Commission of NSW

Representative for the Respondent  Department of Veterans’ Affairs