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Administrative Appeals Tribunal of Australia |
Last Updated: 3 June 1999
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N97/509
VETERANS' APPEALS DIVISION )
Re ALLEN EARL STEEL
Applicant
And REPATRIATION COMMISSION
Respondent
Tribunal Mrs H. E. Hallowes, Senior Member Rear Admiral A. R. Horton, AO, RAN (Rtd), Member Dr M. E. C. Thorpe, Member
Date 27 May 1999
Place Sydney
Decision The decision under review is varied to now provide that from 3 August 1995 Mr Steel shall be paid pension at 60% of the general rate and from 10 March 1999 at 70% of the general rate.
......(Sgd) H. E. Hallowes........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - entitlement - whether obesity a war-caused disease - no claim in respect of obesity - RMA statement about "Being Obese" - no Statement of Principles - evidence that other diseases may be war-caused but no jurisdiction for the Tribunal to determine those matters - applicant originally assessed under Guide 4th Edition later reassessed under Guide 5th Edition
- rate - whether entitled to special rate - date on which applicant ceased work - not yet aged 65 - whether ceased to engage in remunerative work for reasons other than incapacity from war-caused disease
Veterans' Entitlements Act 1986 ss. 5D, 9, 21A, 24, 28, 196B
Guide to the Assessment of Rates of Veterans' Pensions 5th Edition Chapter 4, 11
Re Anderson and Repatriation Commission (AAT 13417, 3 November 1998)
Re Cripps and Repatriation Commission (AAT 12220, 8 September 1997)
27 May 1999 Mrs H. E. Hallowes, Senior Member Rear Admiral A. R. Horton, AO, RAN (Rtd), Member Dr M. E. C. Thorpe, Member
Application for Review
1. This is an application for review of a decision of the Repatriation Commission made on 5 March 1996 which was affirmed by the Veterans' Review Board ("VRB") on 10 February 1997, that Mr Steel's pension be increased to 60% of the general rate, his post traumatic stress disorder, psychoactive substance abuse or dependence, sensorineural hearing loss and solar skin damage being accepted as war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"). Mr Steel lodged a claim with respect of those diseases on 3 November 1995. On 4 July 1967 his claim that his tinea pedis was war-caused was accepted.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") together with further documents with respect to Mr Steel's medical conditions and his financial circumstances lodged by both parties at the hearing. Mr Steel was represented by Mr M. Vincent of counsel. When the hearing commenced the respondent was represented by an advocate of the Department of Veterans' Affairs ("the department"), Mr J. Prince. When the matter resumed, Mr Z. Myjanovic of the department represented the respondent.
Obesity
3. At the commencement of the hearing Mr Vincent expressed his concern that there had been no investigation as to whether Mr Steel's obesity was war-caused nor opinions obtained from specialists on this point. Mr Steel's obesity had been referred to in some of the medical reports. Mr Vincent was concerned that no determination had been made under section 21A of the Act and the Guide to the Assessment of Rates of Veterans' Pensions 4th Edition ("the Guide 4th Ed.") with respect to any incapacity Mr Steel may have arising out of his obesity. Mr Vincent referred the Tribunal to Chapter 1 of the Guide 4th Ed. and it was noted that there was also a reference to obesity in Chapter 6. The Tribunal drew attention to Mr Steel's claim form and the decisions of the Repatriation Commission and the VRB which provide the Tribunal with its jurisdiction to review the Repatriation Commission decision and noted that no claim had been made by Mr Steel in respect of cardio respiratory impairment (Chapter 1) or gastro intestinal impairment (Chapter 6). The Tribunal also noted that it was contended on behalf of Mr Steel that his obesity was associated with his substance abuse arising out of his post traumatic stress disorder to which Chapter 4 "Emotional and Behavioural" of the Guide 4th Ed. is relevant. The Tribunal rejected Mr Vincent's contention that it had jurisdiction to consider whether Mr Steel's obesity was a war-caused disease under the Act and that it should determine a rate of pension with respect to his obesity. Mr Steel had lodged no such claim and the Tribunal said that it was satisfied obesity was not a disease falling under section 5D of the Act.
4. On the second day of hearing Mr Prince provided the Tribunal with a Statement About The Causes of "Being Obese" ("the Statement") made by the Repatriation Medical Authority ("the RMA") on 16 August 1996. The RMA said:
"The Repatriation Medical Authority was not able to determine a Statement of Principles in respect of obesity as it was of the view that 'obesity' is not a 'disease' or 'injury' as defined in subsection 5D(1) of the Veterans' Entitlements Act 1986. However 'being obese' is accepted as a causal factor in a number of diseases."
Mr Prince offered to provide the Tribunal with material which may have been before the RMA when it made its statement with respect to obesity which Mr Prince had obtained from the department's "internal system". Mr Vincent objected to the material being placed before the Tribunal due to its lack of identification. Being unaware of the source of the material and the use to which it had been put, the Tribunal decided not to take the material into evidence but invited Mr Prince to put any authorities or studies referred to in the additional material to medical practitioners who were to give evidence before the Tribunal.
Legislation
5. The Tribunal gave Mr Steel the opportunity to consider whether or not to withdraw his application for review before the Tribunal while he considered whether to lodge a fresh claim with respect to any other disease he may contend was war-caused, before the Tribunal considered the rate of pension payable to him and the issue as to whether he is entitled to be paid pension under section 24 of the Act which provides so far as relevant:
"24. (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:
"In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."
Mr Steel decided to continue with his application before lodging any further claims. On the final day of hearing the Tribunal was advised that Mr Steel intended lodging a claim that his inguinal hernia, oesophogitis and peptic ulcer are war-caused. As part of its enquiry the Tribunal asked for arrangements to be made so that it could speak to Mr Steel's general practitioner, Dr G. Campbell, whose progress notes with respect to Mr Steel were amongst the material before the Tribunal.
The Guide to the Assessment of Rates of Veterans' Pensions
6. One reason for the delay in completing the hearing of this application was the revocation of the Guide 4th Ed. which took effect on the commencement of a new Guide ("the Guide 5th Ed.") which came into operation on 18 April 1998. Instrument No. 8 of 1997, as varied, provides so far as relevant:
"(2) The Guide to the Assessment of Rates of Veterans' Pensions, Instrument No.9 of 1997 as varied by Instrument No's 2 and 3 of 1998 (the new Guide), applies to any decision by the Repatriation Commission, the Veterans' Review Board, or the Administrative Appeals Tribunal on or after 18 April 1998, whether the proceedings relating to the decision commenced before, on, or after that date."
Section 29(4) of the Act provides:
"(4) Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions."
In Re Anderson and Repatriation Commission (AAT 13417, 3 November 1998) the then President of the Tribunal Mathews J said at paragraphs 20 and 21 of her reasons for decision:
"21. It follows that the legislation displays a clear contrary intention to the application of s 50 [of the Acts Interpretation Act 1901]. In this case it means that the fifth edition of the Guide must be applied by the Tribunal.
22. This alone would be sufficient to resolve this issue in favour of the respondent, as the terms of the legislation will clearly override those of the Instrument of Revocation. However Mr Hill in his submissions relied forcefully upon the terms of clause 3 of the Instrument of Revocation and it is thus appropriate to discuss the meaning of that clause."
Mathews J went on to discuss clause 2 of Instrument No. 8 (above) and whether there was any inconsistency between clauses 2 and 3. In paragraph 27 of her reasons Mathews J outlined her interpretation of clause 3 concluding in paragraph 29 that the Guide 5th Ed. now applies. Some medical practitioners whose reports expressing opinions under the Guide 4th Ed. were before the Tribunal, were asked to express opinions under the Guide 5th Ed. which the Tribunal is satisfied now applies to this application.
Hearing loss
7. When all the evidence had been placed before the Tribunal, Mr Vincent advised it that the parties were in agreement that Mr Steel's hearing loss attracted five impairment points under the Guide 5th Ed., his tinnitus a further five points and his skin impairment either five or ten impairment points. Chapter 11 of the Guide 5th Ed. provides, so far as relevant:
"Table 11.1 lists specific impairment ratings for a variety of skin conditions based on inconvenience. One rating only is to be made from this table for any combination of conditions. When more than one criterion is applicable, that associated with the higher rating is chosen."
The Tribunal, in deciding Mr Steel's impairment under Table 11 has taken into account both Mr Steel's tinea and his solar skin damage, both at the time of his claim and throughout the assessment period. In light of the evidence before it the Tribunal is satisfied that it should make the findings under the Guide 5th Ed. with respect to Mr Steel's hearing problems as put to it by Mr Vincent above and it will consider Mr Steel's skin impairment during the assessment period.
Other Impairment points in contention
8. The impairment points attracted by Mr Steel's post traumatic stress disorder was the main issue of contention between the parties and whether the Tribunal should apply Table 6.2 of the Guide 5th Ed., Gastrointestinal Impairment, a body mass index above 30 attracting an impairment rating of five. Part 6.2 provides:
" ABDOMINAL WALL HERNIAS
Impairment
Rating Criteria
NIL Inguinal or ventral hernia surgically repaired.
TWO Inguinal or ventral hernia easily reducible.
FIVE Inguinal or ventral hernia not easily reduced and resulting in mild symptoms.
TEN Large inguinal or ventral hernia resulting in frequent symptoms.
An impairment rating is to be selected from this table for each accepted inguinal and ventral hernia
OBESITY
Impairment
Ratings Criteria
NIL Body mass index equal to or below 30.
FIVE Body mass index above 30.
Body mass index is given by the formula:
(weight in kg)
Body mass index =
(height in m)2
Table 6.2.2 is to be applied only if obesity is an accepted condition or if obesity is an integral feature of an accepted condition."
The Tribunal understands this statement to be a reference to an accepted condition under Chapter 6.
9. The Tribunal had a report before it from Dr M. Burns, occupational physician, dated 7 March 1999 (Exhibit 5) placed before it by the respondent on the last day of hearing in which Mr Burns said:
"When I examined Mr Steel on 23.7.97 his height and weight were 166 cm and 95 kgs. His BMI at that time was 34.5 which places him in the obese category. However the RMA Statement requires that for obesity to be an effect of another factor that there must have been a weight gain of at least 20% of the baseline weight. In Mr Steel's case if his enlistment weight is taken as baseline then his weight gain has been only 18.3% which does not satisfy the Statement.
Weight gain (and weight loss) are seen in a number of psychologically related conditions such as depression and anxiety. Such weight changes are due to increased (or decreased) caloric intake and/or inactivity and are not somatic symptoms in their own right. In the strictest terms the eating disorder could be seen as a somatic symptom and obesity a consequence of it."
10. Despite the ruling the Tribunal had already given on the first day of hearing, Mr Vincent put to it in his closing address that, as no Statement of Principles with respect to obesity had been made by the RMA under section 196B of the Act, the Tribunal should find that Mr Steel has a war-caused disease "obesity" attracting a rating of twenty points. Having considered the parties closing submissions (the respondent's submission and the applicant's reply being in writing) the Tribunal accepts Mr Myjanovic's submission on the issue of Mr Steel's obesity, that it cannot be found to be a war-caused disease. Mr Myjanovic also submitted that Mr Steel's obesity was not a "somatic effect and therefore cannot be associated with Mr Steel's psychiatric disabilities". Mr Vincent contended that whether or not obesity is a somatic effect is of no importance when determining whether it is a sequelae to substance abuse and thus compensable. The Tribunal accepts what was said by the RMA in the Statement, that being obese is "a causal factor in a number of diseases". The advice as to How to Use this Guide 5th Ed. states that:
"In making an assessment the clinical features of war-caused or defence-caused injuries or diseases are to be taken into account. Clinical features of sequelae of accepted conditions can only be assessed after the sequelae have been determined to be war-caused or defence-caused."
In referring to medical impairment Guide 5th Ed. goes on to state:
"Greater emphasis has been given throughout this Guide to functional loss as a basis for assessment. It is measured by reference to an individual's performance efficiency compared with that of an average, healthy person the same age and sex, in a set of defined vital functions. This is a means of compensating for the loss of ability to perform everyday functions."
And further on the scale of impairment points:
"...zero points corresponds to no or negligible impairment from accepted conditions, and 100 points corresponds to death."
The Tribunal is satisfied that Mr Steel's weight gain is a clinical feature of his war-caused substance abuse.
11. Chapter 4, "Emotional and Behavioural", of Guide 5th Ed. refers to Somatic effects and Substance abuse as follows:
"Somatic effects
Psychiatric disease may also be associated with somatic effects such as headache, dyspepsia and psychogenic impotence. If somatic effects occur, they are to be given separate ratings using the respective system-specific tables. It must be clearly established that the somatic effects are part of the psychiatric condition and do not constitute or form part of a separate disease or injury. Conditions in which stress may be implicated as an aetiological agent are not rated under this chapter. These are considered to be separate entitlement issues.
Substance abuse
Substance abuse is to be assessed using Chapter 4 of the Guide. (For purposes of this chapter 'substance abuse' includes 'substance dependence'.) Chapter 4 is also to be used if substance abuse has been diagnosed under a different, but still psychiatric, diagnostic label.
If substance abuse is an accepted condition in its own right, it is to be assessed by applying Tables 4.1 to 4.8.
If substance abuse is not an accepted condition in its own right but the veteran has an accepted psychiatric condition and substance abuse is a clinical feature of that condition, then substance abuse is to be assessed as part of the accepted psychiatric condition (by applying Tables 4.1 to 4.8) only if the substance abuse was present and part of the veteran's psychiatric condition when it was originally accepted."
When Mr Steel's post traumatic stress disorder, psychoactive substance abuse or dependence was accepted as a war-caused disease by the Repatriation Commission on 5 March 1996 he was advised:
"Your psychoactive substance abuse or dependence has been accepted on the basis of your post traumatic stress disorder."
When Mr Steel ceased work
12. Mr Steel lodged his claim on 3 November 1995. He disclosed that he was born on 14 January 1936, being discharged from service in 1968 when he became a self-employed driver/contractor. He advised that he finished working on 30 June 1995. When giving oral evidence to the Tribunal Mr Steel was uncertain as to whether he ceased work in 1995, 1996 or 1997. By letter dated 18 February 1998 (Exhibit D) Mr A. Neal, licensed plumber, advised that Mr Steel had been employed by him as subcontractor from 1968 until "mid 1996". Extracts from Mr Steel's income tax return for the financial year ending 30 June 1996 disclosed a loss from business of $2,873, eligible termination payments, and receipt of service pension On 26 April 1996 Mr Steel stated that his termination payments were received in August 1995 and he used the money to live on until his service pension was granted (T10) but the date he gave as ceasing employment was 1 July 1996. When assessing Mr Steel's psychiatric condition in February 1996 (T7) Dr Campbell noted that Mr Steel had ceased work. He also noted ankle and knee pain and borderline hypertension (T11). On 30 July 1996 Dr Campbell noted, when asked to comment on Mr Steel's ability to undertake employment that Mr Steel's "ankle and knee pain with swelling so unable to perform heavy work" (Exhibit 7). Dr R. Chambers, Mr Steel's psychiatrist, had this to say on 21 November 1995 (T5 page 19):
"Mr Steel mentioned that he was slowing up at work and once stopped he was finding it more difficult to get himself started again, that he tended to forget things and had to 'think real hard' to remember necessary things.
...
Until recently he has worked quite hard..."
Having considered the evidence the Tribunal finds that Mr Steel probably wound down his work activities from 1 July 1995 onwards such that he should be found to have worked less than eight hours per week during most of the first half of 1996. He may have earned some income during 1996 but he made a business loss for the financial year ending 30 June 1996 after taking into account relevant deductions.
Mr Steel's evidence
13. When the hearing commenced Mr Steel gave evidence that he completed two years of National Service in 1956, enlisting in the regular Army in 1957. After three years he returned to civilian life working in timber mills and playing football. He re-enlisted for service in either 1961 or 1962 serving two stints in Malaya, both of 12 months duration as a rifleman and a driver. He undertook ground patrols which were physically demanding although he considered himself to be "fit". He told the Tribunal that drinking went with the job and during his last 12 months in Malaya he drank heavily. In 1965 he chose to again become a private, rather than remaining as a corporal, so that he could see service in Vietnam. The dates of service recorded in the documents may not be accurate (see T3 page 8) but the Tribunal is satisfied that the dates of Mr Steel's service have no bearing on the issues before it. The normal practice of the respondent in providing the Tribunal with service documents under section 37 of the Act was not followed on this occasion although they were provided to the Tribunal, together with the applicant's documents with respect to his claim for service pension, when the hearing was resumed almost 12 months after it had commenced due to delays which were beyond the Tribunal's and the parties' control.
14. Mr Steel's experiences in Vietnam are summarised in the histories obtained from him by the medical practitioners whose reports were before the Tribunal, most particularly, in the first report of Dr Chambers dated 21 November 1995 (T5) to whom Mr Steel was referred by Dr Campbell following contact Mr Steel had with the Vietnam Veterans' Association. He was apparently still working when he first made contact with the Vietnam Veterans' Association. Mr Steel said that he had been knocked about a bit by his experiences during overseas service which made him feel "angry...and savage". "Now and then" his memories come back particularly at night time. Mr Steel tries to forget by "getting a few beers in". Some television programs trigger his memory. He does not believe in pills but consumes a "home brew" to help him forget. There is "unfinished business".
15. In 1968 Mr Steel returned to the country town where he grew up and on the advice of a builder in the district, he bought a truck thereafter making his living as a contractor carting cement, sand and timber and cleaning-up building sites. He later delivered septic tanks. He told the Tribunal that although the building game was one of "booms and busts", things were always good for him. Once he turned 50 however, he "slackened off". He eased up as he was getting older. He felt burnt out, which he assumed was "natural". He became out of breath and giddy when undertaking heavy work such as delivering pipes, gravel and septic tanks for Mr Neal, whose statement dated 24 October 1996 was before the Tribunal (T18). In effect, Mr Neal had made it clear to him that he was "a bit abrupt" with customers. Mr Neal contracted the carting work he had given to Mr Steel to others. Mr Steel said that the work was getting too much for him. He was granted service pension after turning 60 on 4 January 1996. Mr Steel's weight in the Army, which he thought was about 13 stone, increased over the years to approximately 15 stone. He said that he experiences aches and pains in his hips and legs. He has not worried doctors about these aches and pains but treats himself with Denco-rub. He denied having any problems with his back. Approximately two years ago, one of his ankles became very painful and it was X-rayed. He said that one of his legs swells when he stands on it for too long.
16. The Tribunal is satisfied that Mr Steel has structured his life-style to suit himself. He lives for much of the year in his original family home which is out of town. After discharge he lived in the family home with his mother whom he cared for until her death approximately eight years ago. He has a brother who drops in to see him once a week "for a yarn" and Mr Steel sometimes sees his sister at the RSL club, but he indicated to the Tribunal that his siblings have their own families and lives to lead. He now does all his own cleaning, and describes himself as "a good cook". He grows a few vegetables, mows his lawn with a ride-on mower and services his own motor vehicle. He goes fishing when the sun is down and the fish are biting. On Friday nights he meets a couple of friends at the local RSL and he may join another friend there on a Saturday afternoon. These friends have "nothing to do with the army". Although he described himself as "a bit of a loner" he told the Tribunal that he gets on with people. He drops in on the Vietnam Veterans' Association every now and then. Mr Steel said that he visited Thailand in 1975 and, by using his superannuation, he is now able to "duck over there" twice a year depending on his finances. He enjoys the way of life in Thailand which is relaxed and easy-going. He visits his two children and their mother in Thailand. He considers them to be his family. He says that he has "no problems there". He feels more at home and he described the people as "...just orientated like the old families used to be back here, a very simple life."
17. Under cross examination, Mr Steel described himself as having been the "boss of the show" before he left the Army when he became a "loner". He cannot explain why. He does not consume alcohol during the day but its consumption at night helps him sleep. Dr Campbell has told him to cut back on his drinking as liver function tests now indicate that his drinking is starting to affect his liver. He does not take sleeping pills nor medication for his post traumatic stress disorder although pills were once prescribed for him by Dr Chambers. He said that the pills knocked him about and he no longer took them after completing a couple of courses. He now makes appointments to see Dr Chambers when he "feels the need" which may be every couple of months. When the hearing commenced his next appointment was three and a half months away. He said that it was difficult to get an appointment with Dr Chambers. When the hearing resumed Mr Steel said he had not seen Dr Chambers for some time as Dr Chambers had been "out of business for a while". He did not pursue an appointment with any other psychiatrist.
18. Mr Steel told the Tribunal that his solar skin lesions are now getting worse and he needs to have them burnt off every six months. Other lesions need excising. On the final day of hearing he said that his ulcer had been bleeding which had necessitated a blood transfusion.
Evidence of medical practitioners
19. Mr Steel was referred to Dr M. Baz, occupational physician, for assessment under the Guide 4th Ed. In a report dated 4 August 1997 Dr Baz observed that Mr Steel had undressed and climbed on to her examination couch with "agile, free movement". She expressed the opinion that Mr Steel's high calorie intake from beer over many years had probably contributed significantly to his obesity. Using either Table 11.1.1 or 11.2.1, Dr Baz expressed the opinion that Mr Steel's solar skin damage attracted an impairment rating of five and his post traumatic stress disorder an impairment rating of forty-five under Table 4.1.1. In Dr Baz's opinion Mr Steel's physical ability to work was limited by his obesity, his history of low back pain and probable mild knee osteoarthritis. She stated that Mr Steel's post traumatic stress disorder precluded him from changing to more physically suitable work and that he was therefore unfit for work of eight hours or more per week, the substantial cause of his unfitness being his post traumatic stress disorder and psycho-active substance abuse/dependence.
20. When giving oral evidence to the Tribunal Dr Baz said she had not included obesity when expressing her opinion under Chapter 4 of the Guide 4th Ed., but she said:
"You could do that on the grounds that the obesity is a somatic effect of a psychiatric condition but I would think that somatic symptoms are usually subjective symptoms and so they are describing different pains here - headache, dyspepsia and psychogenic impotence (see page 48 GARP 4). I don't know that obesity is usually considered as a somatic symptom although it can be a direct effect of substance abuse when it involves alcohol."
21. In giving Mr Steel a rating of five with respect to his solar skin lesions, Dr Baz said that she had used Table 11.2.1 due to the degree of noticability of Mr Steel's condition although he would not attract a rating of five under Table 11.1.1 as his solar skin lesions did not necessitate removal about four times a year. In a later report dated 29 May 1998 Dr Baz reviewed her earlier reports and applied the Guide 5th Ed. noting that the application of either Table 11.1 or Table 17, Disfigurement and Social Impairment, allowed for an impairment rating of two. The Tribunal must now apply either Table 11.1 or Table 17.1 of the Guide 5th Ed..
22. Turning to Mr Steel's post traumatic stress disorder Dr Baz said that she had given an impairment rating of forty-five points taking into account her understanding that Mr Steel's job involved very little social contact and that his employer was a friend, Mr Steel being able to structure his working day to suit himself. She noted that Mr Steel had a lifting device for septic tanks so that the only part of his work which was heavy was lifting bags of cement which became more difficult, but he did not describe a lot of pain or significant breathlessness to her, rather, he said that he felt fatigued which is a common expression of depression. In her opinion it was of significance that Mr Steel described social withdrawal except for alcohol associated social contact. Dr Baz agreed with Mr Vincent that Mr Steel's situation is unusual in that his family lives in Thailand and that he is much more relaxed with his family but she noted that he is only with his family for a limited part of the year. In response to a question from the Tribunal, Dr Baz said that she did not think Mr Steel's alcohol consumption contributed a great deal to her assessment of forty-five impairment points and she noted that an earlier blood test indicated that he was not consuming excessive amounts of alcohol. However, she said that his consumption of alcohol would be sufficient to increase his weight even if it did not affect his liver function tests at the time she saw him. Looking at Mr Steel's symptoms altogether they formed a picture of severity in Dr Baz's mind. In her opinion, Mr Steel does not have anything significantly wrong with his back or neck although the pain he described might indicate some arthritis in the hip and an ankle problem, but those things were not sufficiently severe to stop him working.
23. A number of witnesses gave evidence with respect to the assessment of Mr Steel's impairment arising out of his post traumatic stress disorder. Dr R. McMurdo, psychiatrist, assessed Mr Steel under Chapter 4 of the Guide 5th Ed.. In calculating an impairment rating a number of steps must be followed. An impairment rating is determined under Tables 4.1 to 4.8 inclusive. The impairment ratings from Table 4.1, Table 4.2 and the three highest impairment ratings from Tables 4.3 to 4.8 inclusive are added together. In his report dated 15 May 1998 (Exhibit 6), placed before the Tribunal on the last day of hearing, Dr McMurdo expressed the opinion that Mr Steel had discontinued working for physical reasons rather than his psychiatric illness and, on the history he obtained, Mr Steel had chosen his way of life rather than having withdrawn into it. Without providing his working figures, Dr McMurdo found that Mr Steel had an impairment rating under Chapter 4 of fifteen impairment points. When he again gave evidence to the Tribunal on the last day of hearing, Dr McMurdo outlined the impairment rating under the Tables in Chapter 4 he gave to the Tribunal which were:
Table 4.1 - six points
Table 4.2 - two points
his three highest impairment ratings under the other Tables being two, two and three, which added together gave an impairment rating of fifteen points.
24. Dr McMurdo had seen Mr Steel on an earlier occasion in July 1997 (Exhibit 3) and he assessed Mr Steel's level of impairment under the Guide 4th Ed. at twenty points. On that occasion he concluded his report by stating:
"On the history given to me the veteran had to discontinue work because of a combination of factors. He had problems with pains due to arthritic problems but also lacked drive, stamina, motivation which is probably a combined result of the post traumatic stress disorder and his heavy consumption of alcohol. It is probable that his accepted disabilities contributed to his inability to continue work but were not the only cause. It can be seen as a substantial factor in his need to discontinue employment."
In oral evidence to the Tribunal on the first occasion Dr McMurdo said that it appeared Mr Steel had been given supportive psychotherapy and, accepting his history, he was drinking a fair amount of alcohol. Dr McMurdo did not get a history from Mr Steel that he was avoiding situations because of anxiety. Mr Steel had not shown any degree of stress during their interview, he relaxed, was calm and smiling and laughed appropriately and there was no evidence of objective distress although Dr McMurdo accepted that he was subjectively distressed. Dr McMurdo took a different view of the reason Mr Steel may have reduced his social contacts to that of Dr Baz who was satisfied that there had been marked social withdrawal arising out of Mr Steel's war-caused post traumatic stress disorder. Dr McMurdo was satisfied that there had only been some reduction in social contacts as a result of Mr Steel's war-caused disease, particularly as there was not very marked interference with his social contacts in respect of his experiences in Thailand. When discussing why Mr Steel has chosen to live "out of town" in the family home, Dr McMurdo noted that Mr Steel likes gardening and in his opinion Mr Steel elected to continue with his way of life after his mother died which did not mean that he was so ill that he became a recluse. Dr McMurdo did not find Mr Steel reclusive. He noted that Mr Steel had no psychiatric treatment until the 1990s and he said that it might have been his normal way of life to live "in the bush" due to his personality. He went on to note that Mr Steel continued with army service after serving in Vietnam and that his post traumatic stress disorder was not disabling during 25 years of working life. He suggested that Mr Steel's post traumatic stress disorder may have been re-awoken following a deterioration in his physical health although, in his opinion, it is a re-awakening of anxiety and not strictly post traumatic stress disorder. Dr McMurdo agreed with Mr Vincent that, if all social contact is mediated through alcohol it would be of significance. He said that Mr Steel's obesity would impact on his ability to do physical work. He was satisfied that the reduction in Mr Steel's physical activities was probably due to physical reasons rather than post traumatic stress. Dr McMurdo considers that if a person has a lot of ongoing pain it wears the person down which reduces stamina. Dr McMurdo concluded his evidence on the last day of hearing by expressing the opinion that Mr Steel was not working because of general wear and tear, joint pain and general tiredness although he agreed that Mr Steel's psychiatric state would have made a contribution to his tiredness.
25. Dr M. Burns, occupational physician, examined Mr Steel on 23 July 1997. He noted that Mr Steel had not sought any psychiatric attention until approximately three years before he saw him. Dr Burns expressed the opinion in a report dated 27 July 1997 that Mr Steel's post traumatic stress disorder attracted an impairment rating of thirty points under Guide 4th Ed.. He also stated that Mr Steel had given up work due to his drinking, psychological problems and muscular-skeletal problems and that he had chosen to leave the workforce to go on service pension. In his opinion Mr Steel had been capable of performing some form of work for more than twenty hours each week, if the work was not of a physical nature. Having later considered Dr McMurdo's report of 11 July 1997, Dr Burns re-assessed Mr Steel's post traumatic stress disorder impairment rating, giving him twenty points.
26. In giving oral evidence to the Tribunal on the second day of hearing, Dr Burns said that during examination of Mr Steel he found no evidence of objective or overt stress. When he saw Mr Steel, Mr Steel was taking medication prescribed by Dr Chambers. Dr Burns noted that Mr Steel did not have marked interference of his every day functioning. Apart from the fact that Mr Steel is no longer working he is able to look after his property. He goes out on Friday nights with friends and visits his family. Mr Steel had told him that he started having a few aches and pains in his knees and a bit of osteoarthritis and he made the decision that the work he was undertaking was too heavy for him. When he reached the age of 59 years he applied for service pension. Dr Burns expressed the opinion that if Mr Steel had continued to work, he would be slightly better off from a psychological point of view. Dr Burns said he does not believe Mr Steel's post traumatic stress disorder was severe enough to force him to give up work but that he gave up work mainly because he was not trained to do anything apart from manual labour which became too heavy for him. He said that in his opinion, Mr Steel would probably have retired even if he had not been eligible for service pension. Dr Burns was of the opinion, however, that Mr Steel's decision to retire was reasonable as he does not have the skills and qualifications, training or experience in other areas to do lighter work. Dr Burns formed a similar view with respect to Mr Steel's presentation as did Dr McMurdo.
27. When Dr Burns gave further evidence on the last day of hearing the Tribunal had two further reports from him before it. Applying the Guide 5th Ed. he gave an impairment rating of twenty-four points under Chapter 4 outlining how he arrived at that rating in oral evidence. He found ten impairment points under Table 4.1, three impairment points under Table 4.2, five impairment points under Table 4.4, and three impairment points each under Tables 4.6 and 4.8. Dr Burns understood that retirement had not been forced upon Mr Steel as he was self-employed but that Mr Steel felt that he had had enough, he did not look for work whereas, in Dr Burns opinion, Mr Steel may have been able to undertake lighter work.
28. The Tribunal had before it a medical report by Mr Steel's general practitioner, Dr Campbell, dated 24 January 1996 (T7), prepared for service pension purposes. Dr Campbell there described Mr Steel's mental state as "...normal. Anxiety episodes at times". He commented that Mr Steel had ceased work but that he had initially sought solace in working long hours after returning from Vietnam. He further stated that Mr Steel used avoidance of stressful situations as a means of treating his psychiatric condition and that he had consulted Dr Chambers. The Tribunal had before it Dr Campbell's progress notes with respect to Mr Steel from April 1985 onwards. The notes disclose very few consultations before September 1995.
29. Dr Campbell gave oral evidence to the Tribunal by telephone. Dr Campbell said that Mr Steel had been a patient of his practice since 1982 but he did not see him until February 1989. On 12 September 1995 Dr Campbell recorded Mr Steel as giving a history that he had been pushing a septic tank and he had noticed a lump about six months earlier. He diagnosed an umbilical hernia. Throughout his notes there are references to the treatment of solar keratoses. On 20 October 1995 a discussion had taken place with respect to Mr Steel's post traumatic stress disorder which Dr Campbell understood to occur on anniversaries and when Mr Steel viewed war movies. By the end of March 1996 Mr Steel's umbilical hernia was causing him pain and he was referred for surgery. On 2 July 1996 he presented with pain down his left leg which was worse with prolonged standing and which ached at night. He also had a painful foot and ankle. He has a plantar fasciitis problem. In February 1997 Mr Steel described thoracic back pain to Dr Campbell which he dated back to the time he played football in the army.
30. Dr Campbell recollected that Mr Steel had problems with his back probably about June 1995. He said:
"I do remember that he had some lower back pain that was an issue with regards to his work and quite often I'd have to fill out reports for medical examinations, social security, or employers or whatever, or insurance companies and, unfortunately, we haven't got copies of those...".
Around June 1996 Mr Steel's main concern was his hernia and pain in the left leg which could have related to lower back pain from sciatica, painful foot and ankle. Dr Campbell said that Mr Steel's hernia would have stopped him lifting heavy objects and, in his opinion, it was incapacitating. Dr Campbell has referred Mr Steel for investigation of his gastro-oesophageal reflux by a gastroenterologist and at that time Mr Steel was found to have a large hiatus hernia which Dr Campbell said would have been quite significant with respect to his ability to work. He was also found to have four ulcers. Dr Campbell left the treatment of Mr Steel's post traumatic stress disorder to Dr Chambers. Turning to Mr Steel's post traumatic stress disorder, when asked whether he could recall Mr Steel consulting him about the time he gave up work, Dr Campbell said "Yes". Dr Campbell agreed with Dr Chambers' description of Mr Steel as "a battle-scarred war veteran much affected by his combat experiences". Dr Campbell told the Tribunal that being overweight would aggravate Mr Steel's muscular-skeletal problems. The Tribunal is satisfied that Dr Campbell aptly described Mr Steel's situation when he said:
"My impression of Mr Steel is that he tried to forget what happened and buried himself in other interests, basically his work, and then particularly when he retired then his experiences in Malaya and in Asia then came to light again and then he had to confront those experiences. So I think he probably was in a state of denial for a number of years after his war time experience and as it often does it catches up later on in life in late middle age or middle age and particularly has been more of a problem when he stopped work. I never had to give him tranquillisers or anything like that for it but it certainly does cause a degree of distress and even the odd tear in the consultation room. So it must be something that he has trouble coping with. He strikes me as being very much of the Australian stock where you deny these sort of symptoms and you present the stiff upper lip."
31. Dr Campbell expressed the opinion that Mr Steel's substance abuse was a contributing factor to his ulcer and that an impairment rating of twenty impairment points was reasonable if Mr Steel's peptic ulcer was found to be war-caused. He also said that Mr Steel's hiatus hernia would affect his ability to work. The Tribunal has no jurisdiction with respect to those issues but it has noted that a claim is to be lodged (paragraph 5 above). Dr Campbell updated the Tribunal when it resumed the hearing in 1999 and his more recent clinical notes were placed before it. He commented on Mr Steel's now mildly enlarged liver, his peptic ulcer, reflux and hiatus hernia and he said that the number of lesions he was now excising indicates an impairment rating of possibly ten points under Chapter 11 although Dr Campbell said that Mr Steel may not have all the symptoms to satisfy that number of points. He commented on the transcript of his earlier evidence and Mr Steel's reports of low back pain which he said had been mentioned "along the way" and he again noted Mr Steel's muscular-skeletal problems which occurred during 1996. He said that he has not treated Mr Steel's lower back pain. The Tribunal was impressed by Dr Campbell's evidence.
32. The documents include two reports by Dr Chambers dated 21 November 1995 and 4 November 1996. The first report is addressed to Dr Campbell. Dr Chambers concluded:
"He appears to have managed well over the years, largely by working very hard, keeping himself distracted and seeking the company of male friends.
With increasing age his capacity to do work which in fact was physically demanding has markedly slumped and so this defence is not now so readily available to him."
On 4 November 1996 Dr Chambers stated that Mr Steel was unfit for work and he assessed Mr Steel under the Guide 4th Ed. as having an impairment of forty-five points. Dr Chambers provided a further report to the Tribunal on 10 March 1998 in which he confirmed an impairment assessment of forty-five points. He also expressed the opinion that Mr Steel could not consistently work up to eight hours each week as a result of his psychiatric condition.
33. In giving oral evidence to the Tribunal Dr Chambers addressed the Guide 5th Ed., Chapter 4. He said he had only seen Mr Steel on three occasions since April 1998. He made general comments with respect to outcomes under the Tables which, in the Tribunal's opinion, did not necessarily accord with the ratings he had given, such as fifteen impairment points under Table 4.1 which states "Persistent symptoms causing considerable distress. Relief for the veteran from that distress is difficult to achieve even with a high level of support and reassurance." Dr Chambers assessed Mr Steel as falling between six and ten points under Table 4.2 requiring "apparent" or "obvious" distress although he acknowledged, under cross-examination, that if Mr Steel's friends were not aware that he had post traumatic stress disorder, an impairment rating of six may be more appropriate. Dr Chambers said that, from what was put to him by Mr Myjanovic, there may have been a physical component affecting Mr Steel's cessation of work although his psychological symptoms would make it hard for Mr Steel to overcome his physical problems. He had "assumed" Mr Steel may be hard to live with and he "gained the impression" that Mr Steel's leisure activities were reduced to drinking (which was not the impression Mr Steel gave the Tribunal), giving him a rating of six impairment points. Dr Chambers agreed under cross-examination that he had not taken into account Mr Steel's trips to Thailand when forming his opinion. He said that Mr Steel was not currently undergoing treatment as an outpatient although he thought that his treatment could be taken to be similar.
34. A report from Dr A. Dinnen, psychiatrist, dated 7 August 1997, was also obtained on behalf of Mr Steel. Dr Dinnen described Mr Steel as a "battle-scarred War veteran". He concluded that Mr Steel had "severe infrequent symptoms causing considerable distress". The Tribunal notes that a rating of forty-five under Table 4.1.1 of the Guide 4th Ed. used by Dr Dinnen refers to "frequent" symptoms. Dr Dinnen agreed with Dr Chambers' opinion expressed in his report dated 4 November 1996.
Tribunal's findings
Table 4.1
35. Turning to Chapter 4 of the Guide 5th Ed. the Tribunal expresses its concern about the substantial variation between the applicant's and the respondent's medical practitioners' opinions with respect to impairment ratings. In considering Mr Steel's subjective stress under Table 4.1, the medical practitioners whose opinions were before the Tribunal provided impairment ratings between six and fifteen points. The Tribunal is not satisfied that relief for Mr Steel from his distress is difficult to achieve "even with a high level of support and reassurance" which would entitle him to a rating of fifteen impairment points. Mr Steel does not avail himself of a high level of support. The Tribunal finds that he is, in the main, coping with his symptoms which, in the Tribunal's opinion, cause him moderate distress. There is "unfinished business". Mr Steel distracts himself and uses alcohol in the evening to this effect but the Tribunal is satisfied there are times when his thoughts remain invasive and distressing. A rating of six is appropriate under Table 4.1. Mr Steel did not give evidence that his symptoms were very frequent and persistent. He did not suggest that he had symptoms when he is in Thailand. The Tribunal accepts that Mr Steel relates well to Dr Chambers who is very supportive of him but when Dr Chambers has been unavailable for consultations, Mr Steel's symptoms have not been such as to drive him to seek other support. Although Dr McMurdo has only seen Mr Steel on one occasion the Tribunal is satisfied that Dr McMurdo's understanding of Mr Steel's subjective stress is correct.
Table 4.2
36. Mr Steel told the Tribunal that the friends he drinks with during weekends are not aware of his post traumatic stress disorder. The evidence does not support a finding of ten points under Table 4.2 as suggested by Dr Chambers and Dr Baz. Mr Steel may be in obvious distress when seen by those medical practitioners but ten impairment points provides that casual observers and persons unfamiliar with Mr Steel would make that observation. Mr Steel does drink to excess and he gave evidence of some differences of opinion with others which could be seen as outbursts of anger but there was no evidence before the Tribunal of most of the examples of manifest stress as outlined beneath Table 4.2. A finding of three impairment points reflects the evidence before the Tribunal.
Table 4.3
37. Mr Steel seeks solace in his home brew in the evening as a means of escape into sleep. He gave evidence of maintaining his home, mowing his lawn and tuning his car. Dr Chambers rated his impairment under Table 4.3 as one, but the Tribunal finds that a rating of two is more appropriate as there may be moderate rather than minor interference with the lifestyle he has chosen which probably reflects to some degree his post traumatic stress disorder.
Table 4.4
38. Mr Steel has ceased work. Medical practitioners are not agreed as to whether or not there is other light work he could undertake. The Tribunal has considered what was said by Mr Neal as to the reasons he now gives his contract work to others. Mr Steel has demonstrated little ability to work with others and has found it difficult in later years to act appropriately with others. In applying Table 4.4 only impairment resulting from Mr Steel's accepted psychiatric condition can be taken into account. A rating of five is therefore appropriate under Table 4.4.
Table 4.5
39. The Tribunal rejects Dr Dinnen's opinion that Mr Steel's family life is virtually non-existent because of conflict. There was no evidence of conflict before the Tribunal. Mr Steel chose to return to his family home after leaving the army and remained there after his mother died. He continues to see his brother and sister who live nearby. He has a good relationship with his family in Thailand but the Tribunal finds that his post traumatic stress disorder and substance abuse has probably had some affect on his family life. The Tribunal is satisfied that he avoids friction and a rating of one is appropriate under Table 4.5.
Table 4.6
40. Mr Steel has chosen a lifestyle to suit himself which could be seen as a substantial reduction in social interaction. His visits to Thailand and contact with his siblings and friends at home suggests that he has not generally withdrawn. A rating of five impairment points is appropriate under Table 4.6.
Tables 4.7 and 4.8
41. Mr Steel has not lost interest in travelling to Thailand where he undertakes some sight-seeing. Nor has he lost interest in fishing. He no longer takes part in physical sporting activities but the Tribunal is satisfied that this is more because of increasing age and physical debility rather than his post traumatic stress disorder, although his general tiredness may to some extent be attributable to his war-caused disease. The Tribunal rates the impairment of his leisure activity as three under Table 4.7. As the parties agreed on a rating of three under Table 4.8 Current Therapy, the Tribunal is not minded to interfere with this submission. Medication has been prescribed and Mr Steel gains assistance from his family in Thailand.
Impairment rating under Chapter 4
42. The Tribunal has reflected on the relevant factors with respect to all the Tables in Chapter 4 and the factors have influenced the Tribunal in finding impairment ratings which are less than those attributed to Mr Steel by the medical practitioners who gave evidence on his behalf. As the Tribunal has already said, it was impressed by the evidence of Mr Steel's general practitioner. He advised that he left the treatment of Mr Steel's post traumatic stress disorder to Dr Chambers and this statement is reflected in his clinical notes. On the other hand, Mr Steel's consultations with Dr Chambers have not been frequent of late. In calculating Mr Steel's impairment rating under Chapter 4, the Tribunal has added Tables 1, 2, 4, 6 and 7 together, making a total of twenty-two impairment points.
Impairment rate with respect to skin impairment
43. Chapter 11 states that Chapter 17 is also to be applied if appropriate but if rating can be made from more than one Table the higher rating is to be chosen. Both Chapters 11 and 17 have one Table, Table 11. And Table 17.1. The Tribunal is satisfied that Chapter 15 (Intermittent Impairment) and Chapter 16 (Activities of Daily Living) for very severe skin conditions are not relevant. Table 11.1 refers to an impairment rating of two if lesions necessitate removal at least once but less than four times a year and five being an appropriate rating if a noticeable skin disorder causes embarrassment or the solar skin lesions necessitate surgical removal three times a year or more of at least 10 lesions over the year. In light of Mr Steel's evidence and Dr Baz's report dated 29 May 1998, the Tribunal finds that Mr Steel's skin impairment attracted a rating of two under the Guide 5th Ed. when Mr Steel lodged his claim but that, following the evidence of Dr Campbell on the last day of hearing, Mr Steel's skin impairment attracted a rating of ten from 10 March 1999. Consideration of Chapter 17 does not provide higher ratings.
Lifestyle
44. Mr Vincent put to the Tribunal that the lifestyle effect of Mr Steel's accepted conditions is three. Chapter 22 of the Guide 5th Ed. deals with lifestyle effects. Mr Myjanovic did not deal with this issue in his closing submission. Having considered Mr Steel's personal relationships, his mobility, recreational and community activities, and domestic activities, the Tribunal accepts Mr Vincent's submission. All Mr Steel's accepted war-caused conditions moderately affect his personal and social relationships. He now confines those relationships to family and his close friends. There may be a mild effect on his mobility due to his post traumatic stress disorder tiredness, although this may be a generous finding, and he no longer pursues what were his accustomed recreational pursuits such as competitive sporting activities but he is still able to go fishing, albeit in the evening when the sun is not out, and to travel. He is able to carry out lighter household tasks. In applying Chapter 22, the Tribunal finds a rating of three, two, three and three which provide an average of three.
Incapacity
45. Applying the Combined Values Chart to Mr Steel's impairment at the beginning of the assessment period, Mr Steel has an impairment of thirty-one points and converting that to a degree of incapacity with a lifestyle rating of three, means Mr Steel had a 60% incapacity when he lodged his claim. This finding accords with the decision of the Repatriation Commission 5 March 1996 which was affirmed by the VRB on 10 February 1997. However, the Tribunal must consider Mr Steel's application throughout the assessment period and the above calculations were done on the basis that Mr Steel's skin impairment attracted an impairment rating of two. Dr Campbell's evidence has persuaded the Tribunal that Mr Steel's skin impairment now attracts a rating of ten under Table 11.1 taking into account his tinea and his solar skin damage. The Tribunal is persuaded by Dr Baz's evidence and that of Dr Campbell, including the material attached to his clinical notes, that from at least the beginning of June 1998 Mr Steel's skin impairment attracted a rating of five and that by the date of hearing it attracted an impairment rating of ten using Table 11.1. However, having applied the Conversion Table to Mr Steel's circumstances as at 1 June 1998 a skin impairment rating of five maintains Mr Steel's entitlement to 60% of the general rate of pension, but by the final day of the hearing an impairment rating of ten entitles him to 70% of the general rate which satisfies paragraph 24(1)(a)(i) of the Act and the Tribunal must go on to consider whether or not Mr Steel is entitled to the special rate of pension, which was Mr Vincent's contention.
Special rate
46. In considering whether Mr Steel is incapable of undertaking remunerative work under paragraph 24(1)(b) of the Act, the Tribunal is satisfied that Mr Steel relied on his physical strength to gain remuneration but that he also gained some business experience working as a contractor after he bought his own truck. He probably had the experience, as suggested by Dr Burns, to undertake light delivery work when the physical work of delivering septic tanks and bags of cement became too demanding for him. On the other hand, the advice from Mr Neal and the evidence of other medical practitioners point to Mr Steel's post traumatic stress disorder reducing his capacity to run his small business. Dr Chambers noted at the end of 1995 that Mr Steel was tending to forget things and that he did not relate well to strangers. Mr Neal reported that he was "a bit abrupt". The Tribunal is satisfied that Mr Steel's hearing loss would also have impacted on his ability to continue to run a small trucking business and his skin impairment meant that he should not expose his skin to the sun. Dr Baz expressed the opinion that Mr Steel's post traumatic stress disorder would preclude him from changing to more suitable work.
47. The Tribunal finds that, even if Mr Steel was not totally and permanently incapacitated for work by the beginning of the assessment period, that early in 1996 he was so incapacitated in light of his skills and experience. By then he was incapable of undertaking remunerative work aggregating more than eight hours per week. Did his war-caused diseases alone render him so incapable? Dr Baz expressed the opinion that Mr Steel's physical ability to work was limited by factors including his low back pain and mild knee osteoarthritis although, in her opinion, the substantial cause of his incapacity was his post traumatic stress disorder and substance abuse. She said that fatigue is a common expression of depression. On the other hand, Dr McMurdo expressed the opinion that Mr Steel discontinued working for physical reasons and this is supported by Dr Campbell's clinical notes. Mr Steel presented in September 1995 with his umbilical hernia and in January 1996 Dr Campbell described Mr Steel's mental state as "normal" with some qualification. Dr Burns concluded that entitlement to service pension played some part in Mr Steel ceasing work as well as the heavy nature of his work and his war-caused diseases. Dr Campbell's evidence points to non war-caused injuries and diseases affecting Mr Steel after September 1995 and it is his evidence which impressed the Tribunal and leads it to the conclusion that a number of factors contributed to Mr Steel ceasing work, some of which were war-caused while others were not, or have not as yet been so determined. The Tribunal finds that it was not until Mr Steel ceased work and had more time to reflect upon his war service, that his post traumatic stress disorder had more impact on him when he was no longer able to distract himself by physical work as acknowledged by Dr Chambers.
48. The Tribunal has found that Mr Steel did not satisfy paragraph 24(1)(a) of the Act until 10 March 1999. Applying paragraphs 24(1)(b) and (c) of the Act to Mr Steel's circumstances, and having considered paragraph 24(a), the Tribunal finds that Mr Steel ceased to engage in remunerative work for reasons other than his incapacity from war-caused diseases. His hernia and his muscular-skeletal symptoms partly contributed to his decision to stop working and they, as well as his war-caused diseases have prevented him from engaging in remunerative work since then. His war-caused diseases alone did not render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. If Mr Steel was free of his incapacity from war-caused diseases he would be suffering a loss of earnings as a result of other factors, such as his ankle, knee and back pain as well as his hernia and ulcers which have contributed to his incapacity. Mr Steel does not satisfy paragraph 24(2)(a) of the Act.
49. Mr Vincent put to the Tribunal that, but for Mr Steel's incapacity arising out of his war-caused diseases, Mr Steel would have continued to engage in remunerative work and that the "substantial cause" of his inability to obtain remunerative work was his war-caused incapacity (paragraph 24(2)(b)). In Re Cripps and Repatriation Commission (AAT 12220, 8 September 1997) Deputy President McDonald said at paragraph 25:
"25. With respect sub-clause (b), there was no suggestion that the veteran had been seeking work since he had taken his redundancy. As was commented on in Re Martin and Repatriation Commission (1987) 13 ALD 83 and Re Harpley and Repatriation Commission (1996) 20 ALD 64 an inherent difficulty arises if s.24(2)(b) is applied literally in circumstances where a veteran is, because of his/her war-caused injuries or diseases, disabled from working, in being required to seek work. The Tribunal pointed out the rationale for the inclusion of sub-clause (b) in Martin as follows:
'It is not there to provide a further hurdle for veterans who were engaged in remunerative work before their retirement due to incapacity. Its role was described as a 'ameliorating' one in Re Sanfead and Repatriation Commission (1986) 11 ALN N77. It is there to cover the case of a veteran who was unemployed but genuinely seeking to engage in remunerative work when his incapacity from war-caused injury or disease became such as to prevent him continuing to undertake remunerative work. It allows such a veteran to satisfy the requirements of s.24(1)(c) even though at the relevant time he was not undertaking remunerative work. If s.24(2)(b) were not in the Act, veterans who had been unemployed at the time when their incapacity became so severe as to remove their capacity for work would never be able to qualify for pension at the special or intermediate rate.' (p.95)
The inherent difficulty has also been pointed out by Spender J in Hall v Repatriation Commission (1994) 33 ALD 454 at 461 in the following terms:
'It seems to me that the question of whether a veteran has been "genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing to so seek" has to be addressed in a realistic way, having regard to the nature and extent of the incapacity. Many veterans are permanently incapacitated by war-caused injury or disease for any form of remunerative work, and the requirement that such persons should be genuinely seeking work seems to involve something of a charade.'
In the instant case, the veteran ceased work as the result of not being able to continue because of suffering from the accepted disability of headaches. The evidence, including that from Dr Pointon, indicates that that condition has, if anything, increased in severity since his retirement. In those circumstances the Tribunal accepts that, while the veteran may have been willing to continue working, he has been precluded from working as the result of the accepted disability. Accordingly, the Tribunal is satisfied that the provisions of s.24(2)(b) are satisfied."
50. Dr McMurdo agreed with Dr Baz that the substantial factor in Mr Steel ceasing work was his post traumatic stress disorder although other factors contributed. However, the Tribunal has rejected Dr Baz's opinion with respect to the severity of Mr Steel's post traumatic stress disorder and substance abuse having found that Mr Steel's impairment attracts twenty-two impairment points rather than the forty-five impairment points attributed to Mr Steel's post traumatic stress disorder and substance abuse by Dr Baz. Dr McMurdo gave a rating of fifteen impairment points. The Tribunal has found that a number of factors contributed to Mr Steel's decision to cease work. He has not attained the age of 65 years. The Tribunal is satisfied that paragraph 24(2)(b) of the Act is not an additional hurdle for Mr Steel to meet but rather an ameliorating provision. The Tribunal is however of the opinion that Mr Steel's war-caused incapacity was not the substantial cause of his inability to obtain remunerative work if he had sought it. The substantial cause is a range of other factors including non-war-caused disabilities and the lifestyle Mr Steel has chosen for himself which, with his entitlement to service pension, enables him to travel from time to time.
51. It is for these reasons that the decision under review will be varied to reflect the Tribunal's findings.
I certify that the fifty-one (51) preceding paragraphs are a true copy of the reasons for the decision herein of
Rear Admiral A. R. Horton, AO, RAN (Rtd), Member
Dr M. E. C. Thorpe, Member
Signed: .....................................................................................
Personal Assistant
Date/s of Hearing 25 and 25 March 1998, and10 March 1999
Date of Decision 27 May 1999
Counsel for the Applicant Mr M. Vincent
Solicitor for Applicant RL Whyburn & Associates
Solicitor for the Respondent Mr J. Prince and Mr A. Myjanovic, departmental advocates
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/1999/369.html