Bell and Repatriation Commission [1999] AATA 859 (16 November 1999)

Last Updated: 22 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 859

ADMINISTRATIVE APPEALS TRIBUNAL )

) N 98/1753

VETERANS' APPEALS DIVISION )

Re JOHN ROBERT OLIVER BELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member Dr J Campbell, Member

Date 16 November 1999

Place Sydney

Decision The decision of the Administrative Appeals Tribunal is to vary the decision of the Veterans' Review Board of 20 October 1998 which set aside the decision of the Repatriation Commission of 19 September 1997. The decision of the Administrative Appeals Tribunal of 16 November 1999 thus provides as follows for Mr John Robert Oliver Bell: (a) 70 percent of the General Rate to operate from and including 3 December 1996; (b) 80 percent of the General Rate to operate from and including 20 March 1997; (c) 90 percent of the General Rate to operate from and including 25 February 1998 until 31 May 1999; and (d) the applicant's pension shall be paid at the Special Rate on and from 1 June 1999 as provided by section 24 of the Veterans' Entitlements Act 1986.

.................................

Ms G Ettinger

Senior Member

CATCHWORDS

Veterans - whether special rate of pension payable - whether war-caused disabilities alone prevented applicant from working more than eight hours per week - date of effect 3 December 1996 - veteran eligible for pension at special rate of pension from 1 June 1999.

Veterans' Entitlements Act 1986 ss 24, 120(4)

Guide to the Assessment of Rates of Veterans' Pensions, 4^th Edition, Department of Veterans' Affairs, Australian Government Publishing Service, Canberra, 1994 ["GARP (4^th Edition)"].

Guide to the Assessment of Rates of Veterans' Pensions,, 5^th Edition, Department of Veterans' Affairs, Department of Veterans' Affairs, Canberra, 1998 ["GARP (5^th Edition)"].

Re Bowman and Repatriation Commission (1990) 12 AAR 145

Cavell v Repatriation Commission (1988) 9 AAR 534

Starcevich v Repatriation Commission (1987) 18 FCR 221

Banovich v Repatriation Commission (1986) 69 ALR 395

Birtles v Repatriation Commission (1991) 33 FCR 290

REASONS FOR DECISION

16 November 1999 Ms G Ettinger, Senior Member Dr J Campbell, Member

1. The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission, the respondent in these proceedings (19 September 1997, T9), which accepted as war-caused, the applicant Mr John Bell's claim for chronic anxiety state with alcohol dependence and bilateral sensorial hearing loss with tinnitus. The respondent decided that a disability pension would be granted at 70 percent of the General Rate with effect from 3 December 1996.

2. Mr Bell appealed this decision to the Veterans' Review Board which set aside the decision of the Repatriation Commission and substituted its decision that the pension be assessed as follows (20 October 1998, T2):

"(a) 70 percent of the General Rate to operate from and including 3 December 1996;

(b) 80 percent of the General Rate to operate from and including 20 March 1997; and

(c) 90 percent of the General Rate to operate from and including 25 February 1998."

3. The applicant was represented at the Tribunal by Mr M Vincent of counsel and the respondent Repatriation Commission by its advocate, Ms S Breuer.

ISSUE BEFORE THE TRIBUNAL

4. The issue before the Tribunal was:

(a) whether the applicant's war-caused disabilities alone rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week; and

(b) whether the applicant was eligible for a pension at the special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 ("the Veterans' Act"); and

(c) if so, from what date.

LEGISLATION

5. The relevant legislation in this matter is section 24 of the Veterans' Act. As relevant the section follows:

"24 Special rate of pension

(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of a pension that he or she is receiving; and

(aab) the veteran has 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 or 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

......

(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 of his or her own account, by reason of 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

......"

6. The Tribunal notes that the assessment of pensions involves applying section 120(4) of the Veterans' Act so that the Tribunal must decide all relevant matters to its reasonable satisfaction.

"120 (1) ... (3)

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

(5) ... (7)"

7. The earliest date of effect in this matter is 3 December 1996.

EVIDENCE BEFORE THE TRIBUNAL

8. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the T-documents (Exhibit R1), and the following other exhibits:

ITEM DATE NAME

Statement of Mr J Bell 30 June 1999 Exhibit A1

Medical report of Dr M Baz 11 March 1999 Exhibit A2

Report of Dr B Keshava 23 August 1999 Exhibit A3

Letter from Mr N Pate, Secretary/Manager, Umina Beach Bowling Club Ltd. 19 August 1999 Exhibit A4

Correspondence from the Department of Social Security, regarding payment of benefits. various Exhibit A5

Report of Dr P Henke 15 May 1999 Exhibit R2

9. Oral evidence in person was given by the applicant. Dr B Keshava, consultant psychiatrist, and Mr N Pate, Secretary/Manager of the Umina Beach Bowling Club Ltd ("the Umina Club") gave evidence by telephone.

EVIDENCE OF THE APPLICANT

10. Mr John Robert Oliver Bell, whose date of birth was 2 November 1933, gave oral evidence before the Tribunal. The Tribunal noted that he was 63 years of age on the application day. His statement was before the Tribunal as Exhibit A1.

11. In his statement, the applicant said that he was last employed on a full-time basis in approximately July 1990 when he was working as a flight engineer with Qantas Airways Limited ("Qantas"). Although Qantas had a policy of compulsory retirement at 55 years of age, the applicant applied for and was successful in gaining a twelve month extension to the compulsory retirement age.

12. Mr Bell stated that his disabilities affected his work. He said that while he was working for Qantas his severe tinnitus impeded his concentration, and that he had to ask others to help him pass his examinations. He said that he also took time off work for complaints such as diarrhoea and fatigue. He described how Qantas eventually found a problem with his work in relation to his eyesight. He said there was an inquiry "which I survived". He also stated that his employer was not aware of his drinking habits.

13. Mr Bell received a lump sum payment of $508,000. (including superannuation) on his retirement from Qantas. He said that he used this money to pay off and update his house, and also for his day-to-day living expenses. He also considered that he had received "bad investment advice".

14. Following his compulsory retirement, the applicant described how he had unsuccessfully sought employment with a number of airlines including Air Lingus, Rishworth Aviation (New Zealand) and Pacific Aircraft Crewing. He also sought employment with a number of potential employers listed at Exhibit A5.

15. In cross-examination, Mr Bell stated that approximately 30 people lost their jobs at Qantas at the same time as he did, and that many of those people were subsequently employed by Singapore Airlines. He said that he did not apply because he "was not able to pass their exams."

16. On 10 June 1993 he began to receive Job Search Allowance from the then Department of Social Security ("the Department"). On 16 June 1994, the Department transferred him to Mature Age Allowance. He said that even while he was receiving Mature Age Allowance he "still kept an ear out" for work but could not find anything. On 18 September 1997, his Mature Age Allowance was stopped because the Department assessed the assets of Mr Bell and his wife and found them to be too high for him to qualify for the Mature Age Allowance (Exhibit A5).

17. Mr Bell stated that in 1995 he started performing voluntary work at the Umina Club. In the beginning he would work only on weekends and assist with counting the money from the poker machines and in doing "little jobs rather than (the Club) getting tradesmen" every couple of weeks. He stated that he would start at 6 am and it would take him approximately two hours to count the money.

18. Mr Bell was also elected to the Board of the Umina Club and took an active role in the Housing and Building Committee. He described how in 1995 he was spending an additional 20 to 25 hours per week on Committee work, however by August 1997 this had reduced to only 15 to 18 hours per week.

19. Mr Bell said that following the death of the Chairman/Director of the Umina Club in approximately June or July 1997, he was appointed as Treasurer of the Umina Club. At this time Mr Noel Pate, was also appointed as the Secretary/ Manager of the Umina Club.

20. Mr Bell said that in approximately August 1997, Mr Pate taught him how to do the poker machine float. He would arrive at the Umina Club at 5 am and his tasks were to "ring off tills, count money, re-fill the ATM and balance the money". He said that he would perform these tasks on Saturday, Sunday, Monday and occasionally on Tuesday. On Saturday he would work approximately three to five hours, on Sunday approximately three hours and on Monday approximately three hours. His hours on Tuesdays were variable. He also said that on Mondays he would return unsold papers to the newsagent, and do the banking for the Umina Club.

21. In late 1998 Mr Bell began to notice that the Umina Club was reducing his hours. He described his gradual reduction in hours and involvement with voluntary work at the Club. In approximately December 1998 he stopped working on Tuesdays. He said that he began to reduce his hours because he was starting to make "minor mistakes" and the Umina Club "put a girl on". In early 1999, he stopped working Mondays and by June 1999 he had stopped working Sundays. He said he was still making mistakes; however he persisted with working Saturdays. On Saturdays he would now arrive between 5.15 am and 6 am, and two other Directors of the Umina Club would arrive at 7 am.

22. Of his colleagues at the Umina Club, Mr Bell said "they suffer me". He said that he continued making mistakes, adding: "I feel uncomfortable and can't concentrate." "The ringing in my ears nearly drives me mad", he said. He cited examples of mistakes that he had made such as leaving the Umina Club's safe open, adding up numbers incorrectly and forgetting to complete tasks. He said that on a number of occasions he could not balance the accounts and had to seek assistance, and that while driving to the Umina Club, he would forget to turn off the car's indicator when he turned corners.

23. In relation to his health, Mr Bell said that his tinnitus was so severe that he could not sleep without the radio on to mask the noise. He suffered from irritable bowel syndrome that required him to wear pads. He described how he did not use public transport because of the crowds. The Tribunal noted that Mr Bell had arrived by public transport for the hearing, and did not consider that an isolated trip such as that served to contradict what Mr Bell said about his discomfort with crowds.

24. Mr Bell said that his wrist was "still broken" from 1951 when he was in the RAAF. He had pain in his knees, reflux and he took tablets for gout. Mr Bell reported that he saw Dr Keshava every two months.

25. In cross-examination, Mr Bell stated that he suffered from nightmares one to three times per week, which his wife had heard. His nightmares he said, were about Vietnam and "picking up dead bodies", aircraft crashes and general devastation. Watching similar events on television made it worse. He recounted that he did not watch the recent events regarding East Timor on television.

26. Mr Bell described how he still did work around the house but "not like I used to". Sometimes he did the "washing and wiping up" and he mowed the lawn, but he said it might take him a couple of days. He said that his wife "tolerates him" and that he "has lost interest in the children and keeps to himself a lot". He said that he socialised only with people he knew and drank either alone in the Club's office or with ex-service officers at the Umina Club. He described how his hobbies and interests had declined. He said by way of example, that he had lost interest in bowling, could not concentrate on cross-words and found gardening difficult because he could not squat or kneel.

EVIDENCE OF DR B S KESHAVA

27. Dr B S Keshava, Mr Bell's treating psychiatrist whom Mr Bell first saw in April 1997, gave evidence by telephone. His reports were before the Tribunal as T7 of 22 April 1997, T11 of 19 January 1998 and Exhibit A3 of 23 August 1999. In his report at T7, Dr Keshava rated Mr Bell as 40 according to the GARP (4^th Edition). At T11, Dr Keshava wrote: "Mr Bell came for a review in a distressed state on 15.1.98... His psychiatric impairment rating is 45 according to the 4^th edition of GARP..." At Exhibit A3, a report of 23 August 1999, Dr Keshava wrote:

"He presented for his review in a very distressed state recently on 1.7.99. He has deteriorated rapidly both in his physical as well as mental status in the last six months. In my opinion Mr Bell is totally and permanently incapacitated and he is not fit to undertake any gainful and remunerative work. He needs ongoing medical and psychiatric support."

28. Unfortunately Dr Keshava had not taken a thorough history, and told the Tribunal in his oral evidence that Mr Bell had not worked since his retirement as a flight engineer at Qantas in 1990. That was incorrect of course, because relying on Mr Bell's evidence, the Tribunal was aware that the applicant had worked in a voluntary but decreasing capacity from 1995 to the present, and also received payment of approximately $2,000. as a director of the Umina Club.

29. Dr Keshava also told the Tribunal that in his opinion Mr Bell had been unfit for work of more than eight hours per week since the time he first saw him in 1997. Mr Bell's evidence regarding that time was that he had worked some 20 to 30 hours per week at the Umina Club and had been doing maintenance and counting money from 1995 until approximately August 1997.

30. In Dr Keshava's opinion, the change that had been occurring in Mr Bell related directly to his heavy drinking which was gradually causing brain damage, and to his tinnitus which had worsened to the extent that he could not sit and relax. Dr Keshava also opined that it was possible for Mr Bell's hypertension to cause memory impairment.

31. Dr Keshava described Mr Bell as "virtually housebound". In cross-examination, Ms Breuer suggested to Mr Bell that he could not be described as "virtually housebound" if he was able to travel to the Umina Club and come to the Tribunal for the hearing. The Tribunal noted from the evidence that Mr Bell had problems, but not that he could be described as "virtually housebound."

32. Although the above noted factual errors Dr Keshava made in relation to Mr Bell may have given the impression that his evidence should be discounted, the Tribunal found that his diagnosis of Mr Bell's illnesses and his views about the progress of these were quite helpful. Additionally, Dr Keshava is the treating psychiatrist and one would not lightly ignore his views about the patient.

EVIDENCE OF Mr N PATE

33. Mr Noel Pate, Secretary/Manager of the Umina Club since 3 June 1997, whose statement was before the Tribunal as Exhibit A4, gave evidence before the Tribunal by telephone. He said he had known Mr Bell since he attended for an interview before accepting the position of Secretary/Manager at the Umina Club.

34. Mr Pate described how when he first came to work for the Umina Club in mid 1997 Mr Bell was working approximately 20 hours per week. However, he said he progressively reduced this and that by May 1999, Mr Bell was working only four to seven hours a week. He said that he had noticed over a period of time from 1997, that it began to take Mr Bell a long time to complete tasks, and that he was making a lot of errors.

35. Mr Pate told the Tribunal that when he went to a conference for two weeks in October 1998, Mr Bell took over the full reconciliation of the accounts and performed his job at the Umina Club. The tasks which Mr Bell performed included: entering the safe and retrieving bar trading, checking cash money, reconciling ATM moneys, assisting with poker machine clearance, writing Armagard documents, arriving at a balance and issuing the bar with a float. Mr Pate said that Mr Bell was selected to relieve while Mr Pate was away because Mr Bell was the only office holder at the Club who had the necessary skills at the time.

36. Mr Pate recalled that after he returned from holidays he noticed further that it took Mr Bell an increasing amount of time to perform tasks, and that it often required someone else to rectify the work after he had completed it. He described how he had to reduce Mr Bell's involvement from late 1998, and that from May/June 1999 onwards he was limited to working one morning per week, and occasionally on a Sunday morning.

37. Mr Pate said that in his opinion Mr Bell did not have the confidence to do more work and that other people had to subsequently correct the work that Mr Bell had performed.

38. In cross-examination, Mr Pate stated that the reason for employing staff to do work that was previously done by volunteers such as Mr Bell was that it gave him (as Secretary/Manager) more control over the operations of the Umina Club. Further, he said that the Umina Club was increasing in size. In retrospect, he stated, he should have reduced Mr Bell's hours "12 to 18 months ago" but that he did not view the situation objectively as he had originally considered Mr Bell a "god-send". Mr Pate said that there were sensitivities involved in regard to members of the Board of the Umina Club when it came to hiring staff to carry out work previously done by Mr Bell.

39. Mr Pate described Mr Bell as having changed from an extroverted person to a "shadowy figure" during the time in which he observed him at the Umina Club. However, he stated that Mr Bell had "good rapport" with people at the Umina Club and that he was a "down to earth sort of guy".

EVIDENCE OF Dr M BAZ

40. Dr Martha Baz, occupational physician, examined the applicant on 4 March 1999. Her report of 11 March 1999 was before the Tribunal as Exhibit A2 and provided an assessment of the applicant's work capacity and impairment, and gave lifestyle ratings. Dr Baz reported that she had used GARP 5^th Edition. For Mr Bell's sensori-neural hearing loss, Dr Baz gave an impairment rating of 28 and for his tinnitus, 10. For the anxiety disorder and resulting lifestyle problems, Dr Baz awarded 31 and for a combined impairment rating, 55, which with a lifestyle rating of 4, made for a 90% degree of incapacity.

41. Dr Baz reported that she had been told by the applicant that he was tense, irritable, argued easily even with casual acquaintances at the Umina Club, and was experiencing friction with his wife and children. She said he had described how he was distressed by enclosed spaces and consumed "'at least' 10 to 12 schooners of beer a day. He has consumed this level of alcohol for 'years', possibly more since retirement." She said he described the difficulties he had sleeping, particularly involving nightmares and intrusive thoughts of service. Dr Baz stated that Mr Bell told her he required medication to help him sleep and that his wife slept separately because he was restless during the night.

42. Dr Baz also reported that she had been told by the applicant that he had difficulty understanding conversation particularly in the presence of background noise and quiet voices, and that he had constant loud tinnitus and irritable bowel syndrome. He also reported that he was forgetful, lost things and had to write notes as reminders.

43. The applicant reported to Dr Baz that he was taking Aurorix, Normison, Zyloprim, Arthrexin, Rani 2 and Pravichol.

44. Dr Baz described the applicant as being "somewhat tense" throughout his consultation with her "although he related well and was pleasant and co-operative".

45. Dr Baz noted that while the applicant did not describe any significant effect on his work capacity caused by alcohol, anxiety or depression, in her opinion, these conditions would currently significantly impinge on Mr Bell's capacity to work. She also stated that: "the level of alcohol consumption that he describes would place him at an increased risk of error resulting in safety implications with the job he previously undertook".

46. In relation to hearing loss with tinnitus, the Tribunal also had before it reports of Mr John Ward, Registered Audiometrist at T6/27 and Dr Raymond Sacks T13/44. Dr Sacks remarked that the audiogram showed a severe symmetrical bilateral sensorineural hearing loss. Dr Baz opined that the applicant was experiencing significant disability as a result of the anxiety disorder and hearing loss with tinnitus. Dr Baz also found that Mr Bell had clinical signs consistent with degenerative joint disease affecting his knees.

47. Dr Baz opined that the applicant's accepted disabilities caused him to be unfit for his work as an aircraft engineer for a duration of eight or more hours weekly. Further, she stated that his non-accepted disabilities limited his ability to undertake work. However, other factors also affected his inability to work such as the availability of his usual work and his age.

48. The Tribunal noted that Dr Baz's opinions related more specifically to Mr Bell's work as an aircraft engineer rather than any subsequent work he sought or did, and took into account also non-accepted disabilities and the labour market. However the Tribunal did not discount Dr Baz's report as she gave GARP assessments and appeared to the Tribunal to be quite accurate with regard to the effects caused by the applicant's war-caused disabilities.

EVIDENCE OF DR P HENKE

49. Dr Peter Henke, consultant in rehabilitation medicine, examined the applicant on 6 May 1999. His report of 15 May 1999 was before the Tribunal as Exhibit R2. Dr Henke's report outlined the applicant's history as detailed to him by the applicant.

50. In particular Dr Henke reported that he was told by the applicant that he drank regularly, up to ten schooners per day and sometimes more on occasions such as Anzac Day. Dr Henke recorded that Mr Bell had been drinking at this level for a number of years. Dr Henke reported that the applicant reported binge drinking very occasionally.

51. Dr Henke opined that despite the applicant's accepted disabilities he presented "as a reasonably healthy man who remains capable of carrying out most tasks at home and who leads an apparently reasonably normal style of life." However he also noted that the applicant was developing a number of other conditions such as bilateral osteoarthritis of the knees, gout, hypertension and reflux oesophagitis. He opined that overall it appeared that the applicant would not be able to re-enter employment in the aviation industry.

52. Dr Henke opined that if consideration was given to the applicant's accepted disabilities alone he would have been potentially capable of working more than twenty hours per week in the work for which he was trained, up to the present time. He also stated:

"I am of the opinion that he remains potentially capable of carrying out voluntary work. This is somewhat restricted by both his accepted and non-accepted conditions which I would consider contribute approximately equally to the limitations upon this capacity".

SUBMISSIONS AND CONCLUSIONS

53. The Tribunal must take into account all the evidence both written and oral, and the case law, legislation and submissions to make the correct and preferable decision regarding whether Mr Bell should receive pension at the Special Rate, and if so from what date. This means assessing whether Mr Bell's war-caused disabilities alone prevent him working in remunerative work more than eight hours a week. If so, the Tribunal has to decide whether by reason of that incapacity Mr Bell was suffering a loss of salary, wages or earnings that he would not be suffering but for the war-caused incapacity (section 24 of the Veterans' Act). The Tribunal noted that the earliest date of effect was 3 December 1996.

54. The Tribunal noted that Ms Breuer accepted that Mr Bell came within the parameters of sub-sections 24(1)(a), 24(1)(aab) and 24(1)(d) of the Veterans' Act. This meant she acknowledged that pursuant to section 24(1)(a)(i) of the Veterans' Act, Mr Bell's degree of incapacity from war-caused injury or war-caused disease, had been determined to be at least 70 percent. Ms Breuer also acknowledged pursuant to section 24(1)(aab) that Mr Bell had not yet reached the age of 65 when the claim was made, and pursuant to section 24(1)(d) of the Veterans' Act that section 25 does not apply to Mr Bell. The Tribunal accepted that Mr Bell satisfied the tests for the above named sections of the Veterans' Act.

55. The Tribunal was mindful that Mr Bell's war-caused disabilities were chronic anxiety state with alcohol dependence and bilateral sensorineural hearing loss with tinnitus, and that irritable bowel syndrome had also been accepted by the Veterans' Review Board (effective 25 February 1998, T2/6). He also suffers bilateral osteoarthritis of the knees, gout, hypertension and reflux oesophagitis which are not accepted war-caused disabilities.

56. Mr Vincent submitted that Mr Bell had been forced to resign from Qantas at an early age in 1990. The Tribunal accepted Mr Vincent's submission that it was not Mr Bell's war-caused disabilities that caused him to separate from Qantas, noting it was at the relevant time, company policy for employees to retire at 55 years of age. In fact the evidence was that Mr Bell had been extended for a year after that. Mr Bell's evidence was that following his separation from Qantas, he was seeking work and finding a paucity of suitable work. A list of potential employers that Mr Bell said were among those he approached is at Exhibit A5. The Tribunal noted from the evidence Mr Bell gave that during the time he was employed at Qantas, and afterwards, he could not pass examinations. Mr Bell said he was suffering tinnitus, which he said affected his concentration, and he had bowel problems and alcohol dependency during his time with Qantas. Evidence before the Tribunal demonstrated a worsening of the conditions from 1997 to the present.

57. The Tribunal noted that some time after leaving Qantas in 1990, Mr Bell who had been job seeking without success, and had received Job Search Allowance in 1993 before receiving Mature Age Allowance and becoming involved with the Umina Club. He became active there from 1995, doing some part-time handyman work and assisting with other activities such as counting money, replenishing ATMs and balancing moneys. The Tribunal accepted the evidence recounted above by both Mr Bell and Mr Pate, as well as Dr Keshava, which indicated that Mr Bell's health and as a result, his capabilities with regard to his work with the Umina Club declined somewhat between 1995 and 1997. The Tribunal accepts the evidence which indicates that in the time after 1997, Mr Bell's mental and physical health deteriorated to the point where by the end of 1998 and certainly by May of 1999, he was unable to do the jobs he had previously done.

58. Mr Vincent drew the Tribunal's attention to the deterioration in Mr Bell's performance at the Umina Club, particularly noted by Mr Pate after he became Secretary/Manager. The Tribunal was satisfied from Mr Pate's evidence that he would have employed staff sooner at the Umina Club to carry out the work Mr Bell had previously been able to do, but that he had limited resources and also was sensitive to Mr Bell's and the Board's feelings.

59. Mr Vincent submitted that Dr Keshava opined in April 1997 that Mr Bell had little capacity to work. The Tribunal was mindful that in his telephone evidence at the hearing, Dr Keshava described Mr Bell as "housebound" and said that he had not worked since his retirement in 1990. Dr Keshava also described brain deterioration due to alcohol and resulting dementia, with hypertension leading to a series of brain haemorrhages. Dr Keshava also told the Tribunal that Mr Bell had informed him of an increase in his drinking when he saw him in April 1999 to approximately twelve beers a day.

60. Ms Breuer submitted that Dr Keshava's diagnosis of Mr Bell's decline in health was a combination of brain damage, dementia and hypertension. She submitted that these conditions were not part of Mr Bell's accepted disabilities, and that no evidence had been provided of the link between brain damage, dementia and hypertension and the applicant's accepted disabilities. Ms Breuer submitted that Dr Keshava, as a psychiatrist was not qualified to assess the above named conditions.

61. Mr Vincent emphasised to the Tribunal that brain damage had not been claimed as a discrete condition, rather in conjunction with alcohol dependence and anxiety. Therefore the applicant was claiming that it was his accepted disabilities alone which resulted in his inability to carry out remunerative work for eight hours a week or more. The Tribunal accepted Mr Vincent's submission regarding effects of alcoholism, noting also Dr Baz' statement in her report at Exhibit A2: "He also described some difficulty with memory which may be related to his high alcohol consumption."

62. The Tribunal was not satisfied that Dr Keshava had taken a good history relating to Mr Bell, but accepted his record of the deterioration of Mr Bell's health as demonstrated in his three reports before the Tribunal.

63. Ms Breuer submitted that no claims had been made by Mr Bell for hypertension or for his knees. The Tribunal noted that these conditions had not been accepted as war-caused. The Tribunal noted further Dr Henke opined that the accepted and non-accepted disabilities contributed approximately equally to the limitations on Mr Bell's capacity to do voluntary work. He also opined that considering Mr Bell's accepted disabilities alone, he would have been potentially capable of working more than twenty hours a week in the work for which he was trained to the present time (Exhibit R2, 15 May 1999). Dr Keshava commented primarily on Mr Bell's accepted disabilities, opining that Mr Bell was not fit to undertake any gainful and remunerative work.

64. Mr Vincent submitted that Mr Bell should be eligible for the Intermediate Rate of pension pursuant to section 23 of the Veterans' Act from April 1997. He relied on Dr Keshava's oral evidence which was that Mr Bell had not been fit for more than eight hours work a week since he first saw Mr Bell in April 1997. He submitted that in the alternative, if the Tribunal did not accept Mr Bell for Intermediate Rate from 1997, then Special Rate pursuant to section 24 of the Veterans' Act should apply from March 1998. Mr Vincent submitted that the two weeks of full-time work Mr Bell did at the Umina Club in October 1998 when Mr Pate was on holidays, were de minimis and of no significance.

65. He submitted that after May 1999, Mr Bell had not been coping at all with work. Therefore from June 1999, Mr Pate had taken clear and decisive action to remove Mr Bell from his work at the Umina Club. Mr Vincent submitted that the inability of Mr Bell to work was clearly due to his anxiety on the one hand and his physical war-caused disabilities on the other. Further he said that Mr Bell's non war-caused disabilities played only a small part in his inability to work.

66. The Tribunal was mindful of course that to be eligible for Special Rate of pension, it must be satisfied that Mr Bell's incapacity from war-caused disabilities is of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight house per week. The Tribunal was also mindful that in Re Bowman and Repatriation Commission (1990) 12 AAR 145, the Tribunal held that the applicant met the requirements of section 24(2)(b) of the Veterans' Act since his coronary disease was the substantial or predominant cause of his inability to find remunerative employment.

67. The Tribunal was also mindful that in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J said with regard to the "alone" test:

"The tendency of that is to distract the tribunal from its true task - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."

68. In reaching its decision the Tribunal relied on Starcevich v Repatriation Commission (1987) 18 FCR 221, Banovich v Repatriation Commission (1986) 69 ALR 395 and Birtles v Repatriation Commission (1991) 33 FCR 290.

69. The Tribunal was mindful that in Birtles (supra) their Honours' at 299 said:

"What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from 'continuing' a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? The word 'continuing' in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. If the answer to the question be yes and other subparagraphs apply, then s 24 is applicable to that veteran."

70. In this regard, Ms Breuer correctly submitted that the remunerative work visualised in section 28 of the Veterans' Act was far wider than simply the contemplation of a person's previous occupation.

71. Ms Breuer submitted that the evidence of Dr Henke and Dr Baz was that Mr Bell's disabilities did not prevent him from working eight hours or more. The Tribunal noted that both Dr Baz and Dr Henke opined in their reports that Mr Bell's accepted disabilities caused him to be unfit for his work as an aircraft engineer, Dr Baz specifying, for eight or more hours weekly. The Tribunal was mindful that Mr Bell's retirement from Qantas was not specifically due to Mr Bell's war-caused disabilities, although his evidence was that he found it hard to do examinations while still with Qantas, and that he suffered alcoholism and irritable bowel syndrome at that time.

72. Dr Baz opined that Mr Bell's non war-caused disabilities also played a part. The Tribunal was mindful that Dr Henke opined that Mr Bell could work for 20 hours per week in work for which he was trained and that he could do voluntary work.

73. Ms Breuer submitted that if Mr Bell was prevented from working more than eight hours per week it was due to his non war-caused disabilities rather than his war-caused disabilities alone, as required by the legislation for consideration of the pension at the Special Rate.

74. The Tribunal accepted Mr Bell as a witness of truth and accepted that he sought work with little success after he left Qantas, and that he then worked in a voluntary capacity at the Umina Club for some 20 - 30 hours per week for as long as he could. There was evidence he received an honorarium as a director of the Club. In particular, the Tribunal noted Mr Bell's evidence of a deterioration in performance from 1997, with more errors occurring in his work. His hours at the Umina Club were progressively reduced so that by May 1999 he was unable to continue at the Umina Club in his former capacity, and worked only some four to seven hours per week. This was corroborated by the evidence of Mr Pate. Dr Keshava also opined that Mr Bell was not fit for any gainful and remunerative work as early as 1997.

75. In summary the Tribunal found that notwithstanding the treating psychiatrist's statement that Mr Bell had no capacity to work from April 1997, Mr Bell's evidence was that he did work at the Umina Club after that time. The Tribunal finds however from the evidence before it that by March 1998, Mr Bell's condition had deteriorated, and notes that Mr Bell's ill-health resulted also from several non-accepted disabilities. The Tribunal was also mindful that Dr Baz mentioned age related issues and the labour market in her report, but is acutely aware that these are not indicia to be taken into account when considering Mr Bell's situation in regard to Special Rate pension. The Tribunal was mindful also of their Honours' consideration of the "alone' test in Banovich (supra) where the applicant's work capacity had been found not to have been affected by his war-caused disabilities alone.

76. The Tribunal finds on the evidence before it that Mr Bell's incapacity for work was solely the result of his war-caused disabilities, and their flow-on effects such as memory loss, loss of concentration, loss of confidence and others. The accepted disabilities were of course tinnitus, irritable bowel syndrome and chronic anxiety state with alcohol dependency. The Tribunal gives little weight to the fact Mr Bell worked full-time for two weeks in Mr Pate's absence in October 1998, and finds that this did not demonstrate his ability to work more than eight hours per week over any length of time. The Tribunal accepts the evidence before it that as the only Board Member of the Umina Club who was able to take Mr Pate's place, Mr Bell did so for a limited period, and was considered to have done so reasonably well, albeit taking longer than a well person might have to complete the tasks. The Tribunal noted also Mr Pate's evidence that he considered he should have appointed staff to do the work some twelve to eighteen months before he did.

77. The Tribunal finds that by May 1999, it was clear that Mr Bell was incapable of undertaking remunerative work for periods aggregating more than eight hours per week due to his war-caused disabilities alone. The Tribunal is not troubled in this case with equating Mr Bell's voluntary work as a director of the Umina Club with his capacity to do remunerative work. The Tribunal therefore finds that he satisfies the test for section 24(1)(b) of the Veterans' Act.

78. The Tribunal then addressed section 24(1)(c) of the Veterans' Act in relation to Mr Bell. It found that due to his war-caused disabilities alone he was prevented after May 1999 from continuing to undertake remunerative work for periods aggregating more than eight hours per week. He not continue the work at the Umina Club, including the handyman work which he had been undertaking since 1995. The evidence did not reveal that Mr Bell's director's fees were discontinued, neither were they actually a fee for service. However the Tribunal is satisfied to compare Mr Bell's capacity to do his voluntary work with similar paid employment, and finds that as a result of not being able to do remunerative work, he was suffering a loss of earnings which he would not have been suffering but for his war-caused disabilities. He thus satisfies the test in section 24(1)(c) of the Veterans' Act.

79. In coming to this decision, the Tribunal is mindful of and guided by the decision in Starcevich (supra) where Fox J at 225 made the following comments in regard to the application of section 24 of the Veterans' Act and in particular, in contemplation of a person's previous occupation:

"It seems to me that the intention of s 24(1)(c) is that the applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in s24(1)(a) and (b). The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether."

80. The Tribunal therefore finds that as Mr Bell has satisfied all the relevant tests in section 24 of the Veterans Act, he should be paid Special Rate of pension on and from 1 June 1999.

DECISION

81. The decision of the Administrative Appeals Tribunal is to vary the decision of the Veterans' Review Board of 20 October 1998 which set aside the decision of the Repatriation Commission of 19 September 1997. The decision of the Administrative Appeals Tribunal of 16 November 1999 thus provides as follows for Mr John Robert Oliver Bell:

(a) 70 percent of the General Rate to operate from and including 3 December 1996;

(b) 80 percent to of the General Rate to operate from and including 20 March 1997;

(c) 90 percent of the General Rate to operate from and including 25 February 1998 until 31 May 1999; and

(d) the applicant's pension shall be paid at the Special Rate on and from 1 June 1999 as provided by section 24 of the Veterans' Entitlements Act 1986.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr J Campbell, Member.

Signed: .....................................................................................

Associate

Date/s of Hearing 6 September 1999

Date of Decision 16 November 1999

Counsel for the Applicant Mr M Vincent

Solicitor for Applicant R L Whyburn & Associates

Counsel for the Respondent N/A

Solicitor for the Respondent Mr S Breuer