Norman and Repatriation Commission [2000] AATA 149 (7 February 2000)

Last Updated: 13 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/543

VETERANS' APPEALS DIVISION )

Re ROBERT ANTHONY NORMAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor SD Hotop, Senior Member

Date 7 February 2000

Place Sydney

Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant is entitled to a disability pension under the Veterans' Entitlements Act 1986 ("the Act"): (a) at the rate of 70% of the General Rate for the period from 5 August 1997 to 7 April 1999 (both dates inclusive); (b) at the special rate under s24 of the Act with effect from 8 April 1999.

...........(sgd S D Hotop).........

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - disability pension - veteran suffering from war-caused conditions of dermatitis and post traumatic stress disorder with associated anxiety and depression - appropriate rate of pension payable to veteran - whether pension payable to veteran at rate of at least 70% of General Rate - whether pension payable to veteran at special rate - whether veteran's incapacity from war-caused conditions is of such nature as of itself alone to render veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week - whether veteran prevented from continuing to undertake remunerative work by reason of incapacity from war-caused conditions alone - whether veteran thereby suffering loss of salary or wages that veteran would not be suffering if free of that incapacity.

Veterans' Entitlements Act 1986 ss21A, 22, 23, 24

Flentjar v Repatriation Commission (1997) 26 AAR 93

Repatriation Commission v Sheehy (1995) 133 ALR 654

Repatriation Commission v Smith (1987) 15 FCR 327

Starcevich v Repatriation Commission (1987) 18 FCR 221

REASONS FOR DECISION

7 February 2000 Associate Professor SD Hotop, Senior Member

1. This is an application by Robert Anthony Norman ("the applicant") for review of a decision of the Veterans' Review Board ("VRB"), dated 2 February 1999, that a disability pension was payable to the applicant pursuant to s.13 of the Veterans' Entitlements Act 1986 ("the Act") at the rate of 50% of the General Rate with effect from 5 August 1997.

2. At the hearing the applicant was represented by Mr. N. Dawson, solicitor, and the Repatriation Commission ("the respondent') was represented by Mr. P. Godwin of the Advocacy Section (Compensation Branch), Department of Veterans' Affairs ("DVA"). The Tribunal had before it the documents ("T documents" numbered T1 - T10) lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, and various documentary exhibits tendered by the applicant (numbered A1-A6) and by the respondent (numbered R1-R6). Oral evidence was given by the applicant, and by Dr. R. Lewin and Dr. M. Burns who were called as witnesses by the respondent.

The Factual Background

3. The background facts, which are not in dispute and as found by the Tribunal on the basis of the T documents, are as follows.

4. The applicant, who was born on 19 April 1947, served in the Australian Army from 1 May 1968 to 30 April 1970. His Army service included a period of eligible war service (being operational service), within the meaning of the Act, from 25 March 1969 to 30 April 1970 in Vietnam.

5. On 5 November 1997 the applicant lodged with DVA a Claim for Disability Pension and Medical Treatment in respect of disabilities described by him as: "nerves", "depression", and "rash".

6. On 30 December 1997 a delegate of the respondent made a decision accepting the applicant's claim in respect of the condition of "dermatitis", but refusing the applicant's claim in respect of the condition "dysthymic disorder". The delegate decided that a disability pension was payable to the applicant at the rate of 10% of the General Rate with effect from 5 August 1997.

7. On 5 February 1998 the applicant lodged with DVA an application for review of the delegate's decision by the VRB.

8. On 2 February 1999 the VRB made a decision varying the delegate's decision by substituting the condition "post traumatic stress disorder with associated anxiety and depression" for the condition "dysthymic disorder", and setting aside the delegate's decision in relation to the condition "post traumatic stress disorder with associated anxiety and depression" and, in substitution therefor, deciding that:

* that condition was war-caused as defined in s.9 of the Act;

* disability pension was payable to the applicant pursuant to s.13 of the Act for any incapacity arising from that condition with effect from 5 August 1997; and

* the rate of disability pension payable to the applicant by reason of his incapacity from all war-caused conditions is 50% of the General Rate with effect from 5 August 1997.

9. On 14 April 1999 the applicant lodged with this Tribunal an application for review of the VRB's decision of 2 February 1999.

The Applicant's Evidence

10. The applicant told the Tribunal that he grew up in the village of Kangaloon near Bowral in New South Wales. He left school at the age of 15 without obtaining any qualifications and then worked in a local hardware store for 6 years until he was called up for 2 years' national service in 1968, during which he was posted to Vietnam for about 12 months. He said that before going to Vietnam he was a "normal 21 year old" who had a normal social life. He went dancing, liked watching car racing, and was a normal drinker. He said that, while in Vietnam, he commenced to drink heavily and this continued after his return to Australia and discharge from the Army.

11. The applicant told the Tribunal that following his discharge from the Army he felt unsettled and, after a couple of months, he went to New Zealand with a friend on a working holiday. Over the next several years he made a number of long visits to New Zealand and was engaged in mainly labouring or manual work in a sheet metal factory and a butter factory. He eventually married in New Zealand but, owing to his heavy drinking and his occasional physical abuse of his wife, that marriage ended in divorce.

12. The applicant said that after returning to Australia from New Zealand he worked on a chicken farm for about 10 months and later at the Dairy Farmers milk factory in Moss Vale. He then began to consult doctors regarding his feelings of depression and he decided to go on a holiday to the Philippines where he met his present wife. After returning to Australia he corresponded with her for about 14 months after which he returned to the Philippines and married her there. He and his new wife then returned to Australia and lived in an old house on his parents' farm in Kangaloon. He said that, for the sake of his marriage, he tried to cut down on his drinking. He was still working at the Dairy Farmers milk factory and continued to do so for 10 years. He then (in August 1990) commenced employment as a cook at Frensham School, Mittagong, working 40 hours per week, Tuesdays to Saturdays.

13. The applicant told the Tribunal that at Frensham he initially got on well with the Head Chef and generally coped well with the job but, after about 6 years, he started to feel pressured and stressed. He felt agitated and became forgetful, being unable on occasions to remember how to cook simple dishes he had been cooking for years. He became moody and irritable while at work, on some occasions hardly speaking to his fellow workers and on other occasions abusing them for no real reason and reducing some of them to tears. The applicant said that he was informed by the Head Chef that his fellow workers had complained about his behaviour, whereupon he became upset and broke down and cried and had to go home. He also said that he was behaving similarly to his wife and children at home and, although his wife initially put up with him, she eventually told him that if he did not get help their marriage would not survive.

14. The applicant said that he then consulted his local general practitioner, Dr. Parker, who referred him to a local psychiatrist, Dr. Wenden, whom he saw on 3 occasions in 1997. The applicant said that he told Dr. Parker that he felt his present problems went back to his Vietnam service and she put him in touch with the Vietnam Veterans' Association in November 1997. That Association in turn put him in touch with Dr. K. Koller, a psychiatrist, whom he first consulted in January 1998. He added that he continues to see Dr. Koller every 6 - 8 weeks at his consulting rooms in Goulburn and that he is soon to be admitted to St. John of God Hospital as an inpatient for 4 weeks in their PTSD program.

15. The applicant told the Tribunal that, because he was continuing to have problems coping with his employment, Dr. Parker and Dr. Koller recommended that he work part time and, with the agreement of the Headmistress of Frensham School, he reduced his working time to 3 days per week as from the beginning of 1999. After a few months, however, the Head Chef again spoke to him about his work and he then got to the point where he felt suicidal. At that point he decided, for the sake of his family and on the advice of Dr. Parker and Dr. Koller, to leave work. He resigned from his position at Frensham School with effect from 8 April 1999.

16. The applicant told the Tribunal that his father died in March 1998 and that he, his wife and their 2 children presently live in a house which was built for them in the middle of 1998 on a 5-acre block (part of the family farm) which was left to him in his father's will. He said that the farm, which had been in the family for about 100 years, now comprised about 50 acres and is owned by his mother. It was formerly a dairy farm but now there are only about 20 cattle and they are no longer milked. He said that formerly his parents worked the farm until his father took ill in late 1989 and that he (the applicant) then worked on the farm for about 12 months prior to commencing employment at Frensham School.

17. The applicant also told the Tribunal about his present lifestyle. He said that he spends his time gardening and "doing up" an old utility motor vehicle which he owns. He added that he also helps his mother by doing odd jobs (for example, fencing) on the farm where he feels safe and he is able to "walk away" from a job when he feels unable to continue with it. He said that he is unable to cope with routine farming work, or any kind of work, which requires keeping to a schedule or meeting deadlines. As regards his mobility, the applicant said that he drives his younger son (aged 16 years) to work in Bowral (about 10 minutes drive) and sometimes pick him up after work. He added, however, that he has generally lost confidence in driving and feels "on tenterhooks" whenever he drives out of their front driveway. He said that he cannot cope with driving in city traffic and, accordingly, he catches the train when he goes to Sydney. He told the Tribunal that he has not been to a restaurant (with the exception of "fast food" establishments) for some time and even when he goes to such an establishment he cannot sit with his back to the door because he feels unsafe away from his home environment. He said that he has no leisure activities, apart from watching television (but not war movies), and that he cannot read for long periods because he quickly becomes bored. He said that he sometimes goes shopping with his wife but, because of his wife's talking with others and the length of time it takes, he prefers not to do so. He added, however, that he is able to make short shopping trips himself when only a few items need to be purchased. Finally, the applicant said that he has a generally good relationship with his wife and 2 sons and maintains frequent social contact with his mother. He also said that he receives considerable social and moral support from his general practitioner, Dr. Parker, and emotional and spiritual support from an Anglican Chaplain, Mr. I. Vickery. Although he has a number of uncles, aunts and cousins living in the area, he said that the family is not a close-knit one and they rarely see each other. He added that he has no close friends.

The Medical Evidence

18. The applicant relied chiefly on the medical reports of Dr. K. Koller, Dr. A. Dinnen and Dr. M. Burns, whereas the respondent relied chiefly on the medical report and oral evidence of Dr. R. Lewin.

19. Dr. K. Koller, Psychiatrist, first saw the applicant on 13 January 1998 and, in a report dated 16 January 1998 (T7), he diagnosed the applicant's condition as "chronic post traumatic stress disorder ("PTSD") that was caused by the extraordinary stresses of Vietnam War service" and, after summarising the applicant's symptoms, he gave an "impairment rating" of 30 points. The Tribunal assumes that that rating was based on Chapter 4 of the approved Guide to the Assessment of Rates of Veterans' Pensions ("GARP") prepared by the respondent under s.29(1) of the Act. Dr. Koller's report, however, did not expressly refer to GARP.

20. On 7 July 1998, Dr. Koller completed the "Emotional and Behavioural Medical Impairment Worksheet" (T8) in Chapter 4 of GARP and made the following comments and ratings in relation to the applicant on the basis of the 8 tables (Tables 4.1 - 4.8) in Chapter 4 of GARP:

Table 4.1 - Subjective Distress

Comments: "Frequent symptoms of PTSD - ruminations, Rating

irritability, anxiety" 10

Table 4.2 - Manifest Distress Rating

Comments: "Preoccupation and irritability obvious" 10

Table 4.3 - Functional Effects Rating

Comments: "Minor interference" 1

Table 4.4 - Occupation

Comments: "Has a few days off from time to time Rating

and at times weeks (5 weeks)" 3

Table 4.5 - Domestic Situation Rating

Comments: "Frequent conflicts with family members" 3

Table 4.6 - Social Interaction Rating

Comments: "I never go out" 5

Table 4.7 - Leisure Activities Rating

Comments: "No leisure" 6

Table 4.8 - Current Therapy

Comments: "Attends psychiatrist regularly Rating

Accepts Efexor" 5.

In accordance with the directions in Chapter 4 of GARP, Dr. Koller calculated the applicant's final rating by adding the ratings from Tables 4.1 and 4.2 (10 + 10) and the 3 highest ratings from Tables 4.3, 4.4, 4.5, 4.6, 4.7 and 4.8 (5 + 6 + 5) resulting in a final rating of 36. In a covering note dated 7 July 1998 (T8) Dr. Koller confirmed the applicant's diagnosis as PTSD.

21. In a follow up report on the applicant dated 21 December 1998 (T9), Dr. Koller made the following ratings on the basis of the Chapter 4 tables in GARP:

"Subjective distress (4.1) - 10

Manifest distress (4.2) - 10

Functional effects (4.3) - -

Occupation (4.4) - 6

Domestic situation (4.5) - 1

Social interaction (4.6) - 3

Leisure activity (4.7) - 3

Current therapy (4.8) - 5".

Dr. Koller calculated the applicant's final rating as 34 (10 + 10 + 6 +3 + 5).

22. In a certificate dated 9 March 1999 (Exhibit A3), Dr. Koller certified that the applicant is "unemployable ... (as) a result of war-related stress (Vietnam War) - post traumatic stress disorder".

23. Dr. A. Dinnen, Consultant Psychiatrist, examined the applicant, at the request of his solicitors, on 21 June 1999 and prepared a comprehensive report dated 24 June 1999 (Exhibit A1). In that report Dr. Dinnen made the following comments and ratings on the basis of the Chapter 4 tables in GARP:

"Table 4.1: Mrs Norman told me that at times she would be talking to her husband and he would be 'gone'. He would not be aware of what was going on. At times he jumps and is scared. He can't handle friends of the boys if they come to the home, so their sons try not to burden him which such activity. She said he is able to distract himself by working in the garden but he worries about everything - 10.

Table 4.2: This assessment was based on the patient's behaviour at interview - 10.

Table 4.3: The patient said he is very impatient but he is able to handle every day activities. His wife said that when he goes shopping he is inclined to grab the goods and go home straight away. He is argumentative and easily irritated - 1.

Table 4.4: The patient said he has not been able to deal with the pressure of work and has given up completely. His wife commented that when he was working he would withdraw completely when he returned home each day, and he has been a little more outgoing and communicative since he stopped work. She said he worries a great deal about the family finances, but even so just couldn't cope with work. Even his coworkers were concerned about his behaviour and his irritability - 8.

Table 4.5: The patient said his previous marriage broke down because of his nervous condition and heavy drinking. This marriage is stable because his wife is tolerant and understanding and is able to talk to him whenever he is distressed and to help him to recover. Moreover, the faith that they both have sustains them. He is alright when he is just alone with his boys - 6.

Table 4.6: The patient's social outings are very much limited. His wife said he cannot even go to a restaurant with her to celebrate her birthday. If occasionally they go to a Chinese restaurant he tends to eat and run. He has no friends. He is able to relate to the minister, but generally avoids society. He hates crowds and going to Sydney and won't even go to a movie - 6.

Table 4.7: The patient has few recreational interests, but told me that he did attend a football match the previous weekend to watch his son play against St Patricks Strathfield, at the local football ground. However he could not entertain the possibility of going to watch if he should be selected to play a match at a stadium in Sydney - 3.

Table 4.8: The patient told me he attends his local doctor regularly, every month or two, and attends Dr. Koller in Goulburn once every two months. In addition he has started attending a psychologist locally and takes medication on a long term basis (Efexor 150 mg daily) - 5.

...

Assessment of Impairment according to GARP V, Chapter IV: As described earlier in this report, the ratings for tables 4.1 through to 4.8 are as follows: 10, 10, 1, 8, 6, 6, 3, 5.

This gives a total score of 40 impairment points."

Dr. Dinnen's report concluded as follows:

"Fitness for work: It is my view that the patient is unable to engage in paid work solely due to his war caused condition, that of post traumatic stress disorder with associated anxiety and depression, for as much as 8 hours per week. This disability is solely due to his psychiatric condition in my opinion. I do not believe the patient would be likely to benefit from any further retraining or rehabilitation, and indeed there would be a risk of further major deterioration in his condition in my view, if he were to attempt to return to the workforce. I expect he will benefit from ongoing psychiatric care and management both from his local doctor, and the consultant psychiatrist. I am a little concerned that the psychological treatment which may be undertaken now in Bowral could exacerbate his condition unless the psychologist is sufficiently sensitive to the risk of causing further stress by reminding the patient of unpleasant past experiences. Therefore the prognosis is somewhat guarded.

Conclusion: This patient suffers from severe chronic PTSD with features of anxiety and depression and is permanently unemployable.

I do not see any prospect of improvement regardless of treatment."

24. Dr. R. Lewin, Consultant Psychiatrist, examined the applicant, at the request of DVA, on 30 September 1999 and prepared a comprehensive report dated 5 October 1999 (Exhibit R5). In that report Dr. Lewin made the following comments and ratings on the basis of the Chapter 4 tables in GARP:

"Table 4.1 Subjective Distress: Mr. Norman described symptoms occurring most days. When he becomes upset he is able to manage this. He described soothing himself, for example by going to his shed, or by gardening. When he does this he feels much better.

Table 4.1 Subjective Distress 6

Table 4.2 Manifest Distress : He told me that his wife is very understanding and that she can certainly tell when he is upset. When his sons see that he is upset, they keep their distance. For example they go to their rooms and do their homework. Mr. Norman told me that his wife had advised him to seek professional help. It was evident that the Vietnam Veterans' Association had also provided input to this decision. Mr. Norman told me that his wife tries not to get upset when he is moody.

Table 4.2 Manifest Distress 6

Table 4.3 Functional Effects: Mr. Norman cares for himself, drives the car, does the shopping and a range of household tasks.

Functional Effects 0

Table 4.4 Occupation : He ceased work about six months ago. He described missing some days and had several periods of sick leave prior to ceasing work.

Table 4.4 Occupation 3

Table 4.5 Domestic Situation : Mr. Norman told me that he and his wife are very close and he remarked that she had offered him tremendous support. He indicated that they do not have harsh words or serious arguments.

Table 4.5 Domestic Situation 1

Table 4.6 Social Interaction : He sees his mother every day and spends a few hours chatting to her. He does not have regular social engagements outside the family. There are occasional family outings. Mr. Norman told me that he enjoys watching football with his sons or motor sport.

Table 4.6 Social Interaction 3

Table 4.7 Leisure Activities : He reports that these are generally reduced because of a lack of funds. However he enjoys gardening, watches TV and works on his car.

Table 4.7 Leisure Activities 3

Table 4.8 Current Therapy : He sees a Psychiatrist roughly every six to eight weeks and has outpatient treatment with a Psychologist. Intensive treatment has not been required. He takes prescribed antidepressant medication.

Table 4.8 Current Therapy 3

Impaired Rating for Psychiatric Condition : I calculated the impairment rating under Chapter 4 by addition Table 4.1 and 4.2 (total of 12). I then added the three highest remaining ratings (total of 9). The sum of these is 21."

Dr. Lewin's report concluded as follows:

"You asked my opinion about his current fitness for work. Given the level of symptoms and disability that I observed and considering his current level of functioning I believe that Mr. Norman would be fit to work at least on a part time basis. There would be some restrictions in that I think he would experience particular difficulty if he were asked to work with a large group of people in a noisy, pressured environment. On the other hand if he were working on a part-time basis in a fairly quiet environment he could do a wide range of labouring or semi-skilled jobs. He might well be able to work as a Farm Labourer on a dairy farm or to offer some sort of assistance with gardening. In my opinion Mr. Norman could work two to three days per week in this sort of activity."

In his oral evidence, Dr. Lewin generally adhered to the views expressed in his report of 5 October 1999, but he was prepared to increase the rating made by him on Tables 4.4 and 4.6 in Chapter 4 of GARP from 3 to 5 in each case. Having regard to those amendments, Dr. Lewin's final rating on the basis of the Chapter 4 tables in GARP was altered from 21 to 25.

25. Dr. M. Burns, Occupational Physician, examined the applicant, at the request of DVA, on 28 October 1999 and prepared a comprehensive report dated 28 October 1999 (Exhibit R6). In that report Dr. Burns made the following ratings on the basis of the relevant tables in GARP in relation to the applicant's 2 accepted war-caused disabilities:

"Disability Table (s) Impairment

1. Dermatitis 2. Post Traumatic Stress Disorder with Associated Anxiety and Depression 11.1 4.1 - 4.8 5 36".

Dr. Burns' ratings on all of the Chapter 4 tables in GARP were as follows:

"Table 4.1 10 points Table 4.5 3 points

Table 4.2 10 points Table 4.6 5 points

Table 4.3 2 points Table 4.7 3 points

Table 4.4 6 points Table 4.8 5 points"

resulting in a final rating of 36 (10 + 10 + 6 + 5 + 5). Dr. Burns also made a "combined impairment rating", having regard to the applicant's 2 accepted disabilities, in accordance with Chapter 18 and Scale 18.1 in GARP, of 39. Dr. Burns also assessed the "lifestyle effects" of the applicant's 2 accepted conditions, in accordance with Chapter 22 and Tables 22.1, 22.2, 22.3, 22.4 and 22.5, as follows:

"LIFESTYLE ASSESSMENT

Personal Relationships

As mentioned previously, his first marriage ended in divorce due to his drinking and some domestic violence. He has been married for the second time for 19 years and has two children. His wife currently works in a local nursing home. He has very few, if any, friends and very few acquaintances. He is socially avoidant. I believe a personal relationships rating of 3 is appropriate.

Mobility

He continues to drive a car locally to Bowral but does not go any further. He can use public transport and has no difficulty in walking. I believe a mobility rating of 1 is appropriate.

Recreational and Community Activities

Since retiring he goes and visits his mother on a neighbouring property every day. He did some fencing for her recently over a period of hours. He states that he is never bored because he either does work on the property or he does work in doing up his 1975 HJ Holden utility. This work has been limited by his cash reserves. I believe a recreational and community activity rating of 3 is appropriate.

Domestic and Employment Activities

He states that he has no physical problems and can do manual work around the house. He ceased work in April this year due to his anxiety problems. I believe a domestic and employment activity rating of 4 is appropriate."

Dr. Burns then assessed the applicant's degree of incapacity from his accepted conditions, in accordance with Chapter 23 and Scale 23.1 in GARP. For this purpose the applicant's "combined impairment rating" of 39 was correctly rounded up to 40, and the average of his "lifestyle effects" ratings, namely 2.75 (), was correctly rounded up to 3. Applying Scale 23.1, those ratings were converted to a degree of incapacity of 70%. Dr. Burns' report concluded as follows:

"With respect to employment, I believe that Mr. Norman does have significant problems. His anxiety levels have obviously increased over the last four or five years. He has tried to cut back on his workload to three days a week but this was unsuccessful. In the job he was doing as a cook there was significant interaction with other employees and he also had deadlines. He found this very difficult. I note that recently he has been able to do some fencing on his mother's property and was able to do this over two or three hours working at his own pace. He believed that this did not cause him any disability.

I believe that Mr. Norman would have significant problems in returning to any form of work that required him to have deadlines or interact with other people. He would be capable of doing self paced manual work but I believe this is unlikely to be available. Mr. Norman's presentation today was such that I do not believe that any employer would take him on.

In conclusion, even though I believe that Mr. Norman does have some retained work capacity, I believe it is unlikely that he will ever work again. I believe that this inability to obtain work and to keep work if he did have it is associated with his post traumatic stress disorder."

In his oral evidence, Dr. Burns clarified the last sentence in his report. He said that the words "associated with" in the penultimate line were used in the sense of "because of".

The Legislation

26. The relevant provisions of the Act are as follows:

"21A Determination of degree of incapacity

(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.

...

22 General rate of pension and extreme disablement adjustment

(1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.

(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.

...

23 Intermediate rate of pension

(1) This section applies to a veteran if:

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

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c) the veteran is, by reason of incapacity from 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 from that incapacity; and

(d) section 24 or 25 does not apply to the veteran.

...

(3) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:

(i) if 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;

(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and

...

24 Special rate of pension

(1) This section applies to a veteran if:

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

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;

...".

By virtue of subsections (5) and (9) of s.19 of the Act, the relevant "assessment period" during which the appropriate rate of the applicant's disability pension is to be assessed by the Tribunal commenced on 5 November 1997 (being the date on which his pension claim was received by DVA). In accordance with s.120(4) of the Act, the Tribunal is required to decide this matter to its "reasonable satisfaction".

The Issues

27. It is common ground that the applicant is eligible for a disability pension under s.13 of the Act by reason of his accepted war-caused conditions of dermatitis and post traumatic stress disorder ("PTSD") with associated anxiety and depression. The general matter for the Tribunal's determination in this case is the appropriate rate of pension that is payable to the applicant under Division 4 of Part II of the Act. Mr. Godwin (for the respondent) conceded in his closing submission that pension was payable to the applicant at the rate of 70% of the General Rate for the period from 5 August 1997 to 7 April 1999, and at the intermediate rate under s.23 of the Act with effect from 8 April 1999. Mr. Dawson (for the applicant) contended, however, that the special rate of pension, provided for by s.24 of the Act, was payable to the applicant in this case. The ultimate issue, therefore, is whether s.24 of the Act applies to the applicant - more specifically, whether the conditions prescribed by s.24(1) of the Act are satisfied in the applicant's case.

Findings on Material Questions of Fact and Consideration of Issues

28. The first substantive matter for the Tribunal's determination is the degree of the applicant's incapacity from his accepted war-caused conditions of dermatitis and PTSD with associated anxiety and depression, according to the provisions of GARP.

29. As regards the applicant's dermatitis condition, it is common ground between the parties on the basis of the medical evidence that the appropriate impairment rating under Table 11.1 (Skin Disorders) of GARP is 5, and the Tribunal so finds.

30. As regards the appropriate impairment rating for the applicant's condition of PTSD with associated anxiety and depression, there is some conflict in the medical evidence. The various medical assessments of the appropriate impairment rating in respect of that condition, applying Tables 4.1 - 4.8 in Chapter 4 (Emotional and Behavioural) of GARP, were as follows:

Dr. Koller (7 July 1998) - 36

Dr. Koller (21 December 1998) - 34

Dr. Dinnen - 40

Dr. Lewin - 25

Dr. Burns - 36.

The weight of the abovementioned specialist medical evidence, therefore, supports a finding of a final impairment rating, on the basis of Tables 4.1 - 4.8 in GARP, of 36 in respect of the applicant's condition of PTSD with associated anxiety and depression, and the Tribunal so finds.

31. As regards the "lifestyle effects" of the applicant's 2 abovementioned accepted war-caused conditions, it is common ground between the parties that the appropriate final lifestyle rating, on the basis of Tables 22.1 - 22.5 in Chapter 22 (Lifestyle Effects) of GARP, is 3. That rating is supported by the only medical report which deals with lifestyle effects - namely, Dr. Burns' report of 28 October 1999. Accordingly, the Tribunal finds that the appropriate final lifestyle rating, on the basis of Tables 22.1 - 22.5 in GARP, is 3.

32. Having regard to the abovementioned findings, the Tribunal finds that the appropriate "combined impairment rating" in respect of the applicant's 2 abovementioned accepted disabilities in accordance with Chapter 18 and Scale 18.1 in GARP, is 39. That rating is, in accordance with Chapter 18 of GARP, to be rounded up to 40.

33. It follows that the applicant's degree of incapacity from his 2 accepted war-caused conditions is, in accordance with Chapter 23 and Scale 23.1 in GARP, 70% and the Tribunal, pursuant to s.21A of the Act, so finds.

34. Accordingly, disability pension is payable to the applicant at the rate of 70% of the General Rate (see s.22(2) of the Act) with effect from and including 5 August 1997, that is, 3 months before the applicant's pension claim was received by DVA (see s.20(1) of the Act). Mr. Godwin's concession to that effect was, therefore, rightly made.

35. Because the applicant's degree of incapacity from his 2 accepted war-caused conditions has been determined under s.21A by the Act to be at least 70%, the question arises whether pension is payable to the applicant at the intermediate rate under s.23 of the Act or at the special rate under s.24 of the Act. The Tribunal will first consider whether s.24 of the Act is applicable in the applicant's case.

36. Section 24 of the Act applies to a veteran if the conditions prescribed by paragraphs (aa) - (d) of s.24(1) are satisfied. There is no dispute that paragraphs (aa), (aab) and (d) are satisfied in this case, and the Tribunal has found (in paragraph 33 above) that paragraph (a) is also satisfied in this case. The remaining questions for the Tribunal's determination, therefore, are whether the conditions prescribed by paragraphs (b) and (c) of s.24(1) are satisfied in this case.

37. The condition prescribed by paragraph (b) of s.24(1) of the Act is that the veteran must be "totally and permanently incapacitated" - that is, "the veteran's incapacity from war-caused injury or war-caused disease, or both" must be "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". There is also some conflict in the medical evidence in relation to that matter. Dr. Koller certified on 9 March 1999 that the applicant was "unemployable" as a result of his accepted war-caused condition of PTSD. Dr. Dinnen opined, in his report of 24 June 1999, that the applicant "is unable to engage in paid work solely due to his war-caused condition, that of post traumatic stress disorder with associated anxiety and depression, for as much as 8 hours per week". Dr. Dinnen went on to conclude that the applicant is "permanently unemployable". In his report of 28 October 1999 Dr. Burns expressed the view that no employer would "take (the applicant) on" and that, although the applicant had "some retained work capacity", it was unlikely that he would ever work again. Dr. Burns concluded that he believed that the applicant's "inability to obtain work and to keep work if he did have it is associated with his post traumatic stress disorder". In his oral evidence Dr. Burns explained that he had used the phrase "associated with" in the sense of "because of". On the other hand, Dr. Lewin, in his report of 5 October 1999 and in his oral evidence, expressed the opinion that the applicant's decision to leave work was based on a "multitude of factors including factors relating to illness, but not exclusively so", and that the applicant was fit to work, at least on a part-time basis. He acknowledged, however, that the applicant would "experience particular difficulty" in working with a large group of people in a noisy, pressured environment, but was of the view that the applicant would be able to undertake a wide range of labouring and semi-skilled jobs on a part-time basis (2-3 days per week) in a fairly quiet work environment.

38. On balance, the weight of the medical evidence before the Tribunal supports the proposition that the applicant's incapacity from his accepted war-caused condition of PTSD with associated anxiety and depression is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The applicant's oral evidence regarding his helping his mother by doing odd jobs (such as fencing) on her farm is not inconsistent with that proposition because his admitted capacity to do such odd jobs does not of itself indicate that he is capable of undertaking remunerative work for periods aggregating more than 8 hours per week. Furthermore the applicant's oral evidence (which the Tribunal accepts) that he is unable to cope with routine farming work, or any kind of work, which requires keeping to a schedule or meeting deadlines is consistent with the abovementioned proposition. Accordingly the Tribunal finds that the condition prescribed by paragraph (b) of s.24(1) of the Act is satisfied in this case.

39. The condition prescribed by paragraph (c) of s.24 (1) of the Act comprises the following elements:

* the veteran was undertaking remunerative work;

* the veteran is prevented from continuing to undertake that remunerative work;

* the veteran is so prevented by reason alone of the incapacity from war-caused injury or war-caused disease (to which s.24(1)(b) relates);

* by reason of the veteran's being so prevented , the veteran is suffering a loss of salary or wages, or of earnings on the veteran's own account, that the veteran would not be suffering if the veteran were free of the abovementioned incapacity.

(See Starcevich v Repatriation Commission (1987) 18 FCR at 224; Repatriation Commission v Sheehy (1995) 133 ALR 654 at 659-660; Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96.)

When Mr. Godwin (for the respondent) conceded that the applicant was eligible for the intermediate rate of pension under s.23 of the Act with effect from 8 April 1999 he thereby impliedly conceded that the condition prescribed by s.24(1)(c) of the Act is satisfied in this case because that condition is expressed in substantially identical terms to the corresponding condition prescribed by s.23(1)(c) of the Act. In the Tribunal's opinion that implied concession is appropriate because the abovementioned elements comprised in s.24(1)(c) of the Act are clearly satisfied on the evidence before it. First, the applicant was undertaking remunerative work, namely, his paid employment as a cook at Frensham School as from August 1990. Secondly, the applicant was prevented from continuing to undertake that remunerative work by reason alone of his accepted war-caused condition of PTSD with associated anxiety and depression. According to the applicant's evidence (which the Tribunal accepts), he decided to resign from his employment at Frensham School on the advice of his general practitioner, Dr. Parker, and his psychiatrist, Dr. Koller, because of his inability to cope with that employment to the point where he had developed suicidal tendencies by reason of his PTSD condition alone. That finding is also supported by Dr. Dinnen's medical report of 24 June 1999. The final question posed by s.24(1)(c) of the Act is whether the applicant, by reason of his being so prevented from continuing to undertake remunerative work, is suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of the abovementioned incapacity. That question is one of hypothetical fact and requires the Tribunal to consider what, if anything, the applicant would have done in the way of remunerative work if he had none of his war-caused disabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 336-337; Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96. There is nothing in the material before the Tribunal to suggest that, had the applicant not been suffering from his war-caused condition of PTSD with associated anxiety and depression, he would not still be employed as a cook at Frensham School or undertaking other suitable remunerative work. A letter dated 12 march 1999 from the Headmistress of Frensham School, which was tendered in evidence (Exhibit A2), referred to the applicant in favourable terms and, after referring to the circumstances which brought about his resignation, expressed regret at his resignation. Furthermore, the applicant's decision in late 1998, on medical advice, to reduce his working hours from full time to part time as from the beginning of 1999 when he began to experience severe problems coping with his employment strongly suggests to the Tribunal that the applicant wished to continue to work to the extent that his PTSD condition would permit. The Tribunal also notes that at the time he ceased employment the applicant was 51 years of age and, but for his PTSD condition, would have had a working life expectancy of a further 10-15 years. Having regard to those considerations the Tribunal infers that, had the applicant had none of his war-caused disabilities, he would have continued, and would still be continuing, to undertake remunerative work. Accordingly, the Tribunal finds that the applicant, by reason of his being prevented, because of his incapacity from his war-caused condition of PTSD with associated anxiety and depression, from continuing to undertake remunerative work, is suffering a loss of salary or wages that he would not be suffering if he were free of that incapacity. The abovementioned final element in s.24(1)(c) of the Act is, therefore, also satisfied in this case.

40. A supplementary matter that arises is the date from which the condition prescribed by paragraph (c) of s.24(1) of the Act is satisfied in this case. It was common ground that, if the Tribunal were to find that s.24(1)(c) is satisfied in this case, the relevant date would be 8 April 1999 - that is, the day on which his resignation from Frensham School became effective and his employment permanently ceased. The Tribunal agrees that 8 April 1999 is the appropriate date for the purposes of s.24(1)(c) of the Act and so finds.

Conclusion

41. The Tribunal concludes, therefore, that disability pension is payable to the applicant at the rate of 70% of the General Rate under s.22 of the Act for the period from 5 August 1997 to 7 April 1999, and at the special rate under s.24 of the Act with effect from 8 April 1999.

Decision

42. For the above reasons, the Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant is entitled to a disability pension under the Act:

(a) at the rate of 70% of the General Rate for the period from 5 August 1997 to 7 April 1999 (both dates inclusive);

(b) at the special rate under s.24 of the Act with effect from 8 April 1999.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor SD Hotop, Senior Member

Signed: S Railton

..........(sgd S Railton).........................

Associate

Date of Hearing 7 February 2000

Date of Decision 7 February 2000

Counsel for the Applicant Mr N Dawson

Solicitor for the Applicant R L Whyburn & Associates

Counsel for the Respondent Mr P Godwin

Advocacy Section (Compensation Branch) Department of Veterans Affairs

Solicitor for the Respondent -