Rowe and Repatriation Commission [2000] AATA 329 (28 April 2000)

Last Updated: 4 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 329

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/0537

VETERANS APPEALS DIVISION )

Re FREDERICK ROWE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Dr C. Re, Member

Mr I. Campbell, Member

Date 28 April 2000

Place Melbourne

Decision The decision under review is set aside and in substitution it is decided that at all relevant times Mr Rowe has been entitled to pension at the Special rate.

....Sgd. Mr J. Handley....

Senior Member

Veterans' Entitlements: Veteran previously in self-employment; ceased work in 1992; presently receives intermediate pension; whether entitled to special rate pension; decision set aside.

Veterans' Entitlements Act s28

Chambers v Repatriation Commission 1995 129 ALR 219

REASONS FOR DECISION

28 April 2000 Mr J. Handley, Senior Member

Dr C. Re, Member

Mr I. Campbell, Member

1. The applicant applied to review a decision of the Veterans' Review Board made on 29 April 1998, which affirmed a decision made by the respondent on 28 November 1996 and was subsequently varied under s31 review on 7 January 1998. The latter decision was to grant the applicant pension at the intermediate rate. By this review the applicant seeks pension at the special rate.

2. Mr Rowe suffers from the accepted disabilities of chronic airflow limitation, bilateral tinnitus, bilateral sensorineural hearing loss, chronic solar skin damage and post-traumatic stress disorder. His only rejected disability is tinea.

3. At the hearing the applicant was represented by Mr Moore of counsel. The respondent was represented by Mr Herman. The applicant and his wife gave evidence. Dr Cooper, a rehabilitation physician and, Dr Kenny, a consultant psychiatrist, gave evidence on behalf of the respondent.

4. At the conclusion of the hearing we requested the applicant's representatives lodge some contemporary medical evidence from the applicant's treating doctors. On 27 September 1999, a Directions Hearing was convened, in an attempt to secure this evidence. It was suggested that the transcript of the proceedings could be provided to the applicant's doctors to assist them to give an opinion on the applicant's qualification - if any - for special rate pension.

5. The applicant's solicitor subsequently provided a documented work history completed by the applicant, a letter from the Gippsland Veterans' Welfare Centre, copies of references of former employers and a letter from the Minister for Veterans' Affairs addressed to the National Secretary of the Vietnam Veterans' Association, all of which, were dated prior to the date of the hearing. A medical report was also provided by Dr Fuessel, the applicant's local medical officer. That report will be referred to later in these reasons.

6. The respondent's representative initially took objection to the Tribunal taking into account the opinions of Dr Fuessel, without the hearing being reconvened and the respondent being given the opportunity to cross-examine. That request was later withdrawn. The respondent, in a letter of 22 October 1999, indicated that it did not propose to lodge any further evidence but submitted that the Tribunal take account of medical reports lodged from Dr Kenny, Dr Ziffer, Dr Cooper and Dr Hunter. These reports will be referred to later in these reasons.

7. The applicant is presently 61 years of age having been born on 16 February 1939. He left school at the age of 13 and, thereafter, performed a number of short term manual labouring type jobs numbering 18 or 19 in total being farming and dairy farming type labouring, working in a petrol station and in a butter factory and on the railways.

8. He joined the Royal Australian Air Force in May 1956 and served until discharge in 1976. He served in Vietnam in 1970 and 1971. He was an airframe fitter and at discharge held the rank of sergeant.

9. After he returned from Vietnam the applicant was stationed at an RAAF Base in Sale in Gippsland, Victoria. Subsequent to discharge from the RAAF Mr Rowe continues to reside in Sale.

10. After discharge, Mr Rowe was employed as a fitter and a boilermaker for Eglo Engineering until about 1980, during which time the applicant completed a welding course at a local TAFE College and became certified with the Department of Labour and Industry in Victoria. After leaving Eglo, Mr Rowe obtained work from GearHart Australia as a welder/fitter until 1984, when he left to commence self-employment, trading under the name of "Bill Rowe Engineering". Mr Rowe undertook general engineering work, as a sole trader, and on occasions employed up to seven persons. He did not complete any clerical work, relying on his family or his accountant.

11. Approximately two years after Bill Rowe Engineering commenced the applicant established another business, known as Riviera Palisades, which manufactured and marketed steel fencing. In about 1988 the applicant experienced financial difficulty and Riviera Palisades was sold. Mr Rowe continued to trade in the business Bill Rowe Engineering until about 1991 or 1992, however, he was declared bankrupt by his creditors and the business was sold to meet trading debts. The applicant worked for wages with Warford Brothers, who purchased the business, until about 1992, when the applicant ceased work. Mr Rowe has not worked subsequent to leaving Warford Brothers in 1992.

12. Mr Rowe recalled that there were many occasions during his self-employment when he was ill but would rarely visit a doctor. He said he would work long hours and barely sleep. He recalled instances where he was working 18 to 20 hour days. He also recalled that, on the occasions that he did sleep, he was disturbed and troubled, and sleep was interrupted by the effects of tinnitus, and the prevalence of dreams, which he associated with his post-traumatic stress disorder.

13. Prior to ceasing work in 1992 Mr Rowe said he was only working two or three days per week because "he just couldn't work" (transcript page 14).

14. The applicant said that, when employed by the RAAF, he undertook some clerical work involving record keeping of the repairs made on aircraft and check lists of equipment, but despite him being a sergeant he did not write reports. These were the responsibility of his warrant officer. Mr Rowe said he currently owns a computer, which he uses for playing card games and typing an occasional letter. Any difficulty associated with the computer, or malfunction, is remedied by his son.

15. Mr Rowe described his tinnitus as being "there all the time. The tinnitus never goes away. Sometimes it just seems louder than others". He said if he becomes agitated his tinnitus is "worse" and becomes upsetting. He described the tinnitus as "rapping in the ears". He said it causes him difficulty in hearing, particularly in crowds, and he noticed that he was starting to lip read others. When outside, he wears hats and a sunscreen, by reason of his solar skin damage. His airflow limitation causes him difficulty, more so at night or if he is in a dusty environment. Mr Rowe said he is able to walk for between 20 and 30 minutes or for no more than 1.5 kilometres. He said he becomes breathless mowing his lawn and uses a nebuliser twice daily.

16. With respect to his post-traumatic stress disorder, Mr Rowe said he was a friendly person before Vietnam, but he now has difficulty coping with day-to-day activities. He said he is often verbally abusive towards his family and his adult children, who remain frightened of him. He said that he panics with any sudden changes in routine, has difficulty concentrating and has poor memory. His local doctor has prescribed Prozac.

17. On a day-to-day basis, Mr Rowe said that he helps his wife with household work, and is otherwise independent. He drives a car but says after about ¾ of an hour he loses concentration and starts to "nod off".

18. Mr Rowe said that he did not believe he could work more than eight hours per week. He said the only exceptions would be that if he was in a dust free environment, without exposure to the sun, with little or no noise, and if he could "stop getting upset at whatever the heck it is that I'm doing, if everything goes smooth, if there is not a problem". He did not think that he could concentrate, and believed that his hearing problems would interfere with light manual employment, if associated with bench assembly, light machinery or press operations, where he would be exposed to noise.

19. Mr Rowe told us that between mid 1995 and 1998 he performed some voluntary work at the Vietnam Veterans' Counselling Service in Sale. He said he completed a weekend training course, and whilst he remained "interested it was good". He felt, however, that his involvement was becoming repetitive and he would "switch off". He also noticed that he was becoming upset with some veterans and he "couldn't handle it any more". His voluntary work at the Counselling Service was on Thursday's between 9:30 a.m. until 4:00 p.m.

MARIA ROWE

20. Mrs Rowe is the wife of the applicant. Mrs Rowe said that she and her husband married 39 years ago, prior to his service in Vietnam. She described him then as being "happy go lucky, relaxed, loving type of man". She said he was always busy and was always involved in outside work.

21. On his return from Vietnam she noticed a "great change". She observed him to be aggressive and short-tempered. She recalled that there was tension and that the children were "fearful" of him. He would experience outbursts of temper and agitation.

22. After Mr Rowe left the Air Force she said that he spent long hours in self-employment, however, he was "hopeless" at bookwork. Mrs Rowe said that as her husband worked longer hours his business expanded, however, he did not have a business plan and, in the absence of proper accounting and bookkeeping, his costing of jobs and the income from his work, barely exceeded the cost of materials. Mrs Rowe also noticed her husband's health deteriorating. She recalled that he was frequently coughing and was short of breath. He was frequently suffering from cold or 'flu type symptoms and was often taking medication. His physical health deteriorated and after his business was sold, he reduced his working hours and, whilst his physical health improved slightly, he still remained restless, he had difficulty sleeping, and his concentration deteriorated. Mrs Rowe recalled that her husband eventually ceased work altogether, after suffering pneumonia and also on the advice of Dr Fuessel.

23. Mrs Rowe recalled that her husband completed some voluntary work with the Vietnam Veteran's Counselling Service on Thursday's, however, the work would make him "up tight" and it would be "Tuesday/Wednesday before he would be relaxed again".

24. Mr Rowe now walks for half an hour each day but does little else. Mowing the lawn exhausts him and he has little interest in television. He does some cooking at home and plays games on a computer. She described him as not being computer literate and he can do no more than turn the computer on and "bring up his games". She said he can write a letter on the computer but it "takes him two hours maybe to write a few lines but that is about it".

25. In cross-examination Mrs Rowe said that part of her husband's work when in self-employment was to give quotes for jobs, which he was capable of doing, and also advised on technical aspects and details of metal fabrication and construction. She said he was able to negotiate with suppliers for materials but they would frequently upset him and there were occasions where she recalled that he "bashed the phone on the desk and yelled".

26. Mrs Rowe said that she was worried after he ceased work about the amount of time he was spending on his own and she eventually decided to cease work so that she could "keep an eye on him". She said that "mentally he has probably improved a lot" since retirement, he doesn't have frequent outbursts or get agitated as frequently as he was when working, but he has poor concentration and memory.

BARRIE KENNY

27. Dr Kenny is a Consultant Psychiatrist who examined Mr Rowe at the request of the respondent, on one occasion only, on 18 August 1998.

28. He concluded, in a report dated 4 September 1998 "that manifestation of post-traumatic stress disorder continues today". He observed that Mr Rowe had "successfully run his own business for many years, has a good and stable relationship with his wife, certainly he ran into problems in his business, but I have to say I think it's very difficult to attribute the difficulties in his business clearly to his post-traumatic stress disorder".

29. Later in his report he concluded that Mr Rowe "is on the boundary between having a post-traumatic stress disorder and not" and again further into the report concluded "I consider we have no alternative but to accept that diagnosis "(post-traumatic stress disorder)".

30. Dr Kenny was of the opinion that treatment would not "make the slightest difference" and he was not "convinced" that his post-traumatic stress disorder would render Mr Rowe unfit for work. It was his opinion that were Mr Rowe to be "strongly motivated" and if he hadn't been advised to give up work the "mild" post-traumatic stress disorder would not have prevented him from working. He was of the opinion that Mr Rowe was capable of working more than 20 hours per week if "he were motivated to do so".

31. In evidence, Dr Kenny said - whilst reaffirming the comments contained in his report - that Mr Rowe presently enjoys a good relationship with his family and the medication currently prescribed of one Prozac tablet daily was effective.

32. He was of the opinion that post-traumatic stress disorder does not of itself affect motivation to work and it was his opinion that the post-traumatic stress disorder did not "significantly affect his ability to work". Dr Kenny understood that Mr Rowe ceased work because of his "respiratory problems" and he concluded that Mr Rowe was obviously capable of working, and in fact did work, but only ceased because of his "respiratory disease".

33. In cross-examination Dr Kenny was referred to a report, completed by Dr Maginn, a Psychiatrist previously in practice in Bairnsdale, who had been treating Mr Rowe. In his report Dr Maginn observed Mr Rowe to be "tense, anxious, mood predominantly depressed, tends to conceal depression with forced joviality". Dr Kenny said he did not observe Mr Rowe as being tense or depressed and found him to be "a very pleasant and animated man".

34. When Dr Kenny was told of the evidence of Mrs Rowe, who described her husband as being a workaholic, having very little sleep and suffering nightmares he was asked to give an opinion as to whether the post-traumatic stress disorder was exacerbated by the stress and eventual failure of his business. Dr Kenny said, it did not sound to him, "like someone who's business is getting into difficulties and/or someone who has had his own business, with a lot invested in it. ..... I don't see that that is particularly persuasive figure either way quite frankly". When he was told that Mrs Rowe had given evidence that her husband has poor concentration and short-term memory Dr Kenny said "that certainly is consistent with a post-traumatic stress disorder".

WILLIAM COOPER

35. Dr Cooper is an Occupational and Rehabilitation Physician, who examined Mr Rowe at the request of the respondent, and provided a report dated 19 December 1997.

36. Dr Cooper concluded:

"In the absence of any retraining he, however, does have the residual capacities for up to 20 hours (limited by lack of concentration) for work involving

* 20 kgs maximum material handling by lifting, pushing or pulling;

* Dust free work;

* Ambient noise level not to exceed 80 DBA

Such positions include;

* Some press operations;

* Inspection of mass produced light articles;

* Light bench assembly;

* Light bench machining;

* Clerical work (in which he has some previous experience)".

37. In evidence, Dr Cooper acknowledged the limitations on Mr Rowe returning to work having regard to his respiratory illness, however, it was his opinion Mr Rowe "would not be able to sustain work without increasing his nervous problems for more than 20 hours, wholly on a nervous basis". Acknowledging also, the applicant's poor concentration, Dr Cooper was of the opinion that he was capable of working up to 20 hours per week.

38. Dr Cooper said that the work he referred to in his report has been within the capacity of the applicant or suitable because it was repetitive and would not require the employee to make decisions. He would expect these positions to be normally undertaken indoors but would need to be subject to appropriate health restrictions including adequate ventilation, exhaustion facilities, absence of dust and lack of draught.

39. In cross-examination, Dr Cooper said he did not know how many jobs would be available in Sale or in Melbourne, within the limitations he expressed in his report. He said industry is presently "down scaling" and in his experience it is easier to obtain part-time rather than full-time work. When it was suggested to him that jobs within the limitations that he placed upon Mr Rowe, were as "scarce as hen's teeth" in Melbourne and in Sale, Dr Cooper said "I am just uninformed about it".

40. Dr Cooper agreed that Mr Rowe should not return to any occupation involving welding but said he was able to undertake clerical work, based on his experience as a welfare officer with the Vietnam Veterans' Counselling Service, and on his previous clerical experience with the Australian National Line. When he was told that he worked for a short time prior to the age of 17 as a tally clerk (with ANL), riding a bicycle to round up train drivers and engineers, Dr Cooper agreed that that was not "sophisticated clerical work". When he was questioned as to his knowledge of the applicant's work with the Vietnam Veterans' Association, Dr Cooper said that he "didn't go into that in detail". He said, however, that he would have had clerical experience, by reason of his 20 years employment with the RAAF, where he would have "had to do a fair amount of clerical work".

41. Dr Cooper said that he would have preferred to have expressed in his report that in his opinion Mr Rowe was capable of working 20 hours per week, on the basis of four hours per day, at five days per week. He said he accepted that subjectively Mr Rowe was of the belief that he was unable to work more than eight hours per week, yet he acknowledged that, whether Mr Rowe would be able to maintain a job would be "theoretical" or "hypothetical", until a work trial had been undertaken.

ROBIN HUNTER

42. Dr Hunter is a Rehabilitation Physician, who assessed Mr Rowe, at the request of his solicitors, on 13 November 1998. A report of 22 November 1998 arose out of that consultation.

43. Dr Hunter was not called to give evidence. In the report, he concluded that Mr Rowe would be limited to any work in a dust free environment (thereby preventing him from returning to work as a welder), but he would be able to cope with moderate physical exertion. He was of the opinion that Mr Rowe has "features of anxiety but does not have a post traumatic stress disorder of the severity which would impact on his ability to work less than 20 hours per week" (sic). He thought Mr Rowe would be limited to working in an environment of moderate noise and his solar skin damage would affect the ability to work outdoors.

44. Dr Hunter concluded that Mr Rowe "would be able to work in a clerical or administrative position, although he has had no formal training or previous paid work in this field". He was also of the opinion that the ability of Mr Rowe to find employment would be limited by his age and his absence from the workforce for seven years.

45. Dr Hunter concluded that, Mr Rowe "would be able to work more than eight hours but less than 20 hours per week, provided an appropriate position, as outlined above was available".

ROBERT ZIFFER

46. Dr Ziffer is a consultant physician in Sale, who examined Mr Rowe, at the request of the respondent, on 14 September 1998. He has subsequently provided two reports, being the same date as consultation and on 1 April 1999. He did not give evidence. Principally, Dr Ziffer reported on the applicant's chronic obstructed airways disease, which he reported to be "reversible" and which was "currently under good control".

47. Dr Ziffer reported that the applicant's "current airways disease prevents him from undertaking work as a welder, for more than 20 hours a week or more so prohibiting him from undertaking work as a welder, for more than eight hours a week (sic). I say this, on the basis, that I do not believe that he has the physical stamina or endurance to do this, and it is likely, given his background, that the fumes involved in this occupation may well exacerbate his bronchial disease which is under control at the present time".

48. Dr Ziffer concluded "his current airways disease will probably prevent him from undertaking any type of work for more than 20 hours a week but not for more than eight hours per week. He would be able to undertake simple tasks, involving sedentary desk work, or simple assembly or bench work".

49. In his report of 1 April 1999, Dr Ziffer concluded that a more appropriate diagnosis of the applicant's respiratory illness was "asthmatic bronchitis". He reached this opinion on the basis of lung function tests he performed of the applicant. He maintained his opinion that the applicant's condition was a "reversible airways obstruction" and the diagnostic definition of chronic airflow limitation was "not met in Mr Rowe's case, currently".

DENNIS MAGINN

50. Dr Maginn is a Consultant Psychiatrist in Bairnsdale. We learnt during the hearing that he has apparently retired. Mr Rowe was referred to him, by Dr Nicholson of Sale in October 1996 for treatment. Dr Maginn provided two reports (we assume at the request of the respondent) dated 8 November 1996 (T9 page 47) and on 24 June 1997 (Exhibit 2). Dr Maginn was not called to give evidence.

51. In his first report Dr Maginn did not express any opinion with respect to the capacity of Mr Rowe for employment.

52. In his second report, no conclusion was reached, with respect to employment, however, annexed to the report was a completed questionnaire, under the heading "Veterans' Psychiatric Impairment Assessment Form". We assume this was a form issued to Dr Maginn by the respondent. In hand written notes, forming part of the questionnaire, Dr Maginn has concluded "prior to stopping work in 1992 he was only able to work for two/three days a week. Even with this work programme, he was taking days off because of bronchitis". On the same page as these words appear, Dr Maginn has ticked a box against a criteria which reads "an employed veteran will have major difficulties at work which may be manifested by job modifications or restriction of career opportunities. The disorder may contribute to the loss of a job".

53. In another section of the questionnaire, Dr Maginn has recorded, "impairment prevents him from working for more than eight hours a week" and that impairment was recorded as being "permanent". In another section, Dr Maginn has recorded, "PTSD prevents him from working more than eight hours a week - bronchitis is an added impairment". Dr Maginn has also concluded, that Mr Rowe is "considered 85% incapacitated for employment purposes". These opinions were expressed in the questionnaire dated 24 June 1997.

NORBERT FUESSEL

54. Dr Fuessel is currently the applicant's local medical officer. He was not called to give evidence during the hearing. In a report dated 4 October 1999 (provided after the hearing was concluded) Dr Fuessel reported:

"1. Mr Rowe retired from welding because of frequent asthma and respiratory infections associated with the fumes from working as a welder. I considered that his accepted disability of chronic airflow limitation was responsible for this.

2. Mr Rowe is now 60 years old, and only reached Year 7 at school, and could not cope with the English and writing. He does not have the skills to do sedentary work. He does not have the physical capacity to do manual work. I cannot see him being employable in any other area.

3. As stated above, his age and lack of education will prevent him doing other work. His hearing loss affects his employability."

OBSERVATIONS

55. Dr Maginn, in his report of 24 June 1997, referred to the applicant (then) having counselling with a psychologist, Jeanette Gibson, in Sale. Ms Gibson was not called to give evidence, nor was any report obtained from her or, if it was, it was not filed. Dr Fuessel provided a report, six months after the hearing concluded and, only then, (apparently) because we wanted to have contemporary medical evidence. No report was apparently requested from him prior to the hearing, nor did he give evidence.

56. Although the applicant's solicitors filed a "statement" completed by Mr Rowe and dated 5 November 1999, we have not considered it for the purposes of this decision. We are of the view that to take account of any matters within that document would be inappropriate, in the absence of the respondent having the opportunity to cross-examine. We also regard the filing of the document as being inappropriate at a point in time after the hearing has concluded and, before a decision was delivered.

57. We have also been given copies of documents from the Gippsland Veterans' Welfare Centre, references from former employers and a copy of a letter by the Minister for Veterans' Affairs to the National Secretary of the Vietnam Veterans' Association. All of these documents were dated before the date of the hearing. They were not filed during the hearing and we can think of no reason why they were not filed. One of the issues that concerned us at the hearing was the voluntary work undertaken by Mr Rowe with the Vietnam Veterans' Counselling Service. The letter from Mr Printz, on the letterhead of Gippsland Veterans' Welfare Centre, was dated 20 April 1999, being eight days before the hearing. It was addressed to the applicant's solicitor. No explanation was given to us as to why that document was not filed before the hearing or why its contents were sought to be relied on after the hearing. In fact, no explanation was given why the author of the document was not called to give evidence.

58. Although the AAT frequently undertakes an inquisitorial role, we decided to ask the applicant's solicitor to obtain and provide contemporary medical evidence from practitioners treating Mr Rowe. We were uncomfortable having to reach any conclusion based largely on the opinions of consultants who had examined the applicant on one occasion only. No explanation was given to us during the hearing why the applicant's treating practitioners had not been called or had not provided reports. We are disappointed with the information which was subsequently made available to us by the applicant's solicitor, most of which did not deal with the issue of the applicant's current medical state. The material which was eventually provided was mostly dated prior to the day of the hearing.

59. Mr Rowe has waited long enough for this decision and doing the best we can on the evidence now made available to us our conclusions and decision are as follows.

CONCLUSION AND REASONS FOR DECISION

60. Both Mr Moore and Mr Herman agreed that the only issue for consideration in this review was whether Mr Rowe is entitled to pension at the special rate or whether the decision previously made to qualify Mr Rowe for intermediate rate pension should be affirmed.

61. On the one hand, Mr Herman submitted that we should be mindful of the evidence and reports of Dr Kenny, Dr Cooper, Dr Ziffer and Dr Hunter, who all were of the opinion that the applicant was capable of working more than eight hours per week. On the other hand, Mr Moore submitted that we should be mindful of the evidence of both the veteran and Mrs Rowe.

62. We have concluded - after reviewing the evidence heard and again reading the medical reports filed that on balance a pension should be paid at the special rate.

63. It was submitted to us that the provisions of s28 of the Veterans' Entitlements Act had application because this review was concerned entirely with the capacity of Mr Rowe for employment. As the full Federal Court in Chambers v Repatriation Commission 1995 129 ALR 219 said, "incapacity" for the purposes of special and intermediate rates of pension refers to incapacity for work whereas "incapacity" for the purposes of general rate pension requires an analysis of the whole of a veteran's disability for the purposes of work and lifestyle.

64. With this in mind, Chambers also is relevant to the extent that the absence of an available labour market was not a matter to be considered in assessing a veteran's capacity for employment. In Chambers, Davies J at page 222 said:

"In paras (a) and (b) attention is directed to the skills, qualifications and experience of the veteran for the purposes of determining the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake. That ambit of capacity for remunerative work is then the starting point from which the degree of reduction in work capacity by reason of the physical or mental impairment of the veteran is measured. As Moore and Sackville JJ have pointed out, (a) and (b) should be applied not technically or restrictively but sensibly and fairly with a view to ascertaining the kinds of remunerative work which the veteran might reasonably undertake absent the war-caused injury or disease. Work experience is a guide but it does not delimit that ambit.

Necessarily in the examination of the matters, which arise under para (c), matters other than skills, qualifications and experience are taken into account. Every fact which bears upon the nature and extent of the physical and mental impairment of the veteran must be taken into account. And so also must every fact which bears upon the extent to which the physical or mental impairment has reduced the veteran's capacity to undertake remunerative work of the kind which the veteran might reasonably undertake".

65. S28 of the Veterans' Entitlements Act 1986 reads as follows:

"Capacity to undertake remunerative work

In determining, for the purposes of paragraph 23(1)(b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining the purpose of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."

66. It is true that Drs Kenny, Ziffer, Cooper and Hunter all said that the applicant was capable of working more than eight hours per week. For the purposes of these reasons, however, we prefer on the balance of probabilities the evidence of Mr and Mrs Rowe and to a lesser extent the opinions expressed by Drs Fuessel and Maggin both of whom have treated Mr Rowe.

67. We thought that Dr Cooper's evidence was simplistic and superficial. On the one hand, he qualified his evidence as to the capacity of Mr Rowe to undertake light bench type assembly and machining or press type work, (admittedly within the imposed restrictions as to lifting, a dust free environment and a noise level not exceeding 80dba). Yet, when pressed on this issue, Dr Cooper said that there is little opportunity to obtain work of this type. Whilst this is not strictly a criteria which we can take into account, having regard to the principles in Chambers (refer earlier), Dr Cooper did qualify his evidence, on the basis that he intended to say in his reports that the ability of Mr Rowe to work 20 hours per week is confined to four hours per day at five days per week, (that is on a part-time basis). Dr Cooper also qualified his evidence as to the capacity of Mr Rowe to undertake this work, having regard to his experience as previously being the Medical Officer with General Motors Holden and by reason of his (Dr Cooper) ability to assess "the ability of a man to sustain work". That said, he then qualified his answer by acknowledging that "these jobs" (that is the jobs that he assessed Mr Rowe as having a capacity to undertake) were not now common. We did not understand that answer to mean that there is an absence of an available local labour market but rather little opportunity to obtain employment of this type.

68. We also thought that the reference by Dr Cooper to Mr Rowe having a capacity to undertake clerical work to be a nonsense. It was clear from the evidence that Mr Rowe undertook very little clerical work in his self-employment because he was incapable of doing so and probably did not have the temperament or the patience to do so. Most of the clerical work, other than written quotations for jobs, was undertaken by family members or by his accountant. The reliance, by Dr Cooper, on the ability of Mr Rowe to undertake clerical work because he previously performed a clerical job with the Railways ignores the fact that the work by Mr Rowe with the Railways was undertaken almost 40 years earlier, it comprised work as a tally clerk only and was superficial and simple. It also ignores Mr Rowe having left school at age 13 and then having difficulty with English. It is true that Mr Rowe was a sergeant in the RAAF and would have been expected to undertake clerical work, yet, on the evidence of Mr Rowe, almost all of his reports were completed by his Warrant Officer.

69. The opinion of Dr Kenny, as to the capacity of Mr Rowe for employment, was expressed on the basis of his psychiatric disability, over which Dr Kenny had some quarrel whether Mr Rowe did in fact suffer from post traumatic stress disorder. Dr Ziffer expressed his opinion as to capacity for work, having regard to the airways illness, which he regarded as being reversible. Dr Hunter who was of the opinion that Mr Rowe was capable of "moderate physical exertion", denied that he suffered post traumatic stress disorder "of the severity which would impact on his ability to work less than 20 hours a week". He said Mr Rowe was limited to working in an environment of "moderate noise" and solar skin damage would "affect his ability to work outdoors". Dr Hunter was also of the opinion that Mr Rowe had been "doing voluntary work with the Veterans' in Sale half day a week, and spending several hours a day using his home computer".

70. The opinions expressed by all of the above witnesses were following one consultation only and then for a limited duration.

71. The reality and ambit of the circumstances of Mr Rowe, cannot be taken in isolation and he must be assessed, having regard to his age (presently 62 years), his residence in Sale, in Gippsland Victoria and more significantly the extent of war-caused disabilities and the combined effect of these disabilities, with respect to his ability to undertake employment. His limited education and work skills must also be considered.

72. It is not in dispute that Mr Rowe is incapable of returning to welding, yet his airways disease is of such a nature as to not only limit his ability to work in dust free environments but his ability to breath without distress, following mild exertion, must significantly limit his ability to work. We heard that the applicant became breathless on mowing the lawn, an activity which took only 20 to 30 minutes and was undertaken only from time to time.

73. It was suggested by Dr Cooper for example that Mr Rowe would be capable of bench type work because jobs of this type "are repetitive and don't require decisions. They only require application and concentration but because of the repetitive nature of the work they are suited to a person. It is - falls into the category of unskilled labour". We heard from both Mr Rowe and Mrs Rowe that his ability to concentrate is severely impaired and his restlessness is such that he is capable of reading one or two pages of a book or magazine only before he puts it down and seeks something else to do. He understood - we thought - that the applicant's ability to operate a computer or sit at a computer, was evidence of his ability to maintain concentration and or have some clerical or technological skill. The reality is, as we heard on many occasions throughout the hearing, that the applicant is largely computer illiterate. He can word-process a letter but, as Mrs Rowe told us, he is a two-finger typist only and it "takes him two hours maybe to write a few lines". His computer activity is largely confined to computer games, which he is able to load but he is largely dependent on assistance from his children. As Mrs Rowe said, her computer skills were limited to "put some data in and switch it off but that is about it" and said that "I don't think that he is (proficient) any more than I would be". It appears, from what we heard from Mr Rowe, that whilst he spends a great deal of each day in front of the computer, there is very little activity. It does appear to us that it provides him with some degree of entertainment but his ability to manipulate it or to be proficient in its use, such as would permit him to have a capacity for employment involving computer usage, is virtually non-existent.

74. We heard, in considerable detail, the effects upon Mr Rowe of his tinnitus and his hearing loss and, more significantly, we were impressed by the effects upon him of his post traumatic stress disorder.

75. We note the opinions expressed by Dr Fuessel and Dr Maginn and despite them not being called to give evidence at least they have treated Mr Rowe over a period of time and have had the ability to observe and monitor his treatment.

76. We are satisfied that the voluntary "work" undertaken by Mr Rowe at the Vietnam Veterans' Counselling Service does not translate into a capacity for employment. There seems to us to be nothing about that activity which would influence us in finding that there was any particular skill which would have relevance in employment, indeed, his inability to maintain concentration and be patient with other Vietnam Veterans' for a short period of time, on one occasion per week - they being persons in a similar position to him - would hardly impress any employer upon a job interview or reassure Mr Rowe or a potential employer that he possesses a skill which could be exploited in employment.

77. Additionally, of course, the solar skin damage would limit Mr Rowe to employment indoors.

78. Unlike the applicant in Chambers, who the Tribunal found was 45 years, ran 10 kms per day and swam, Mr Rowe is presently 61 years and was 57 at the date of his application upon the respondent. Our observations of the applicant in evidence permit us to be assured that his evidence was given honestly and without exaggeration. His work skills are confined to the metal construction and fabrication industry, which we are satisfied is now beyond him. We are additionally satisfied that it would be unreasonable to expect the applicant to undertake retraining or undergo instruction to equip him to work elsewhere. This might be expected of 45 year old persons who can run 10 km daily. The beneficial nature of veterans' legislation holds no such expectation of persons in the circumstances of Mr Rowe.

79. For all of the above reasons we are satisfied that the decision under review should be set aside and, in substitution we have decided that a pension should be paid to the applicant at the special rate.

I certify that the seventy nine (79) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Dr C. Re, Member

Mr I Campbell, Member

Signed: Linda Nemeth ............................................

Secretary

Date of Hearing 27 September 1999

Date of Decision 28 April 2000

Counsel for the Applicant Mr G Moore

Solicitor for the Applicant

Counsel for the Respondent Mr K Herman

Solicitor for the Respondent