Earle and Repatriation Commission [2000] AATA 37 (28 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 37

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/765

VETERANS' APPEALS DIVISION )

Re BARRY GEORGE EARLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs H. E. Hallowes, Senior Member Mr J. T. C. Brassil, AM, Member Dr C. Re, Member

Date 28 January 2000

Place Melbourne

Decision The decision under review is affirmed.

.......(Sgd) H. E. Hallowes...........

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - rate - whether entitled to pension at the special or intermediate rate - not yet turned 65 - whether ceased to engage in remunerative work for reasons other than incapacity from war-caused disease

Veterans' Entitlements Act 1986 ss. 5Q(1), 9, 19, 23, 24, 28

Administrative Appeals Tribunal Act 1975 s. 33

Sheehy v Repatriation Commission (1996) 66 FCR 569

Fry v Repatriation Commission (1997) 47 ALD 776

Re Hornery and Repatriation Commission (AAT 13166, 11 August 1998)

REASONS FOR DECISION

28 January 2000 Mrs H. E. Hallowes, Senior Member Mr J. T. C. Brassil, AM, Member Dr C. Re, Member

1. The only issue in this application for review is whether Mr Earle is entitled to be paid pension at the intermediate or special rate under sections 23 or 24 of the Veterans' Entitlements Act 1986 ("the Act"). Section 24 provides, so far as relevant, Mr Earle not having turned 65:

"24. (1) This section applies to a veteran if:

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

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

(a) either:

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

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

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

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

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

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

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

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

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

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."

Section 28 of the Act is also relevant and provides:

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

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

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

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

Alternatively, the Tribunal could determine Mr Earle is entitled to be paid pension at the intermediate rate under section 23 if he is only capable of undertaking work on a part-time basis or intermittently.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") ("the documents"), together with further material lodged by both parties at the hearing.

3. The documents disclose that Mr Earle was born on 22 August 1947. He enlisted for service on 4 October 1967. He was discharged on 3 October 1969 after seeing service in Vietnam for 282 days during that period (T3). On 19 June 1999 he lodged a claim for disability pension with respect to post traumatic stress disorder. On 3 October 1995 it was determined that Mr Earle was entitled to be paid pension at 90% of the general rate under section 19 of the Act, and on 29 March 1996 it was determined that Mr Earle was entitled to be paid pension at 100% of the general rate. He therefore satisfies paragraphs 24(1)(aa), (aab) and (a) of the Act. Mr Earle's injury to the head, bilateral sensorineural hearing loss, tinnitus, post traumatic stress disorder and neurodermatitis have been accepted as war-caused under section 9 of the Act.

4. The documents include so far as relevant to the issue before the Tribunal:

(a) a PMAL Superannuation Fund Termination Statement which advises that Mr Earle was retrenched, the date his employment was terminated being 13 May 1994 (T4);

(b) a letter dated 3 March 1995 from his solicitors confirming his instructions that he accepted the offer made by his employer, Philip Morris, with respect to a worker's compensation claim Mr Earle had made due to a neck injury he suffered in a motor vehicle accident (T5);

(c) claim forms for invalidity service pension signed by Mr Earle on 11 March 1995 in which Mr Earle advised that he was in receipt of disability support pension under the Social Security Act 1991 which was granted to him in 1994. The injury for which he claimed invalidity service pension was "neck disability" which started on 22 August 1991. He advised that his neck pain, loss of range of movements and continuous headaches had caused depression and anxiety and that he had been prescribed naprosyn for inflammation, panadeine forte for pain, and prozac 20 for depression. Mr Earle last worked on 8 April 1994. He provided details of his work history. He further advised that his doctor was Dr Y. Yeap (T6, T7);

(d) a claim form for disability pension dated 14 March 1995 with respect to lacerated skull, neck rash, hearing loss and tinnitus (T10);

(e) an undated medical report in which Dr Yeap advised that Mr Earle had suffered neck and back pain while working as a cleaner with Philip Morris three years before. Mr Earle's pain had not improved. Dr Yeap advised that his major diagnoses were neck pain, back pain, shoulder pain, tinnitus, stress and minor diagnosis of nervous rash. He expressed the opinion that Mr Earle was finding it difficult to settle down in a job due to his mood swings, depression, neck and shoulder pain, and that due to his neck and back problems full-time work as a cleaner was not possible for Mr Earle (T14);

(f) a file note made on 31 May 1995 which records that Mr Earle stated that he had a neck injury sustained in a motor vehicle accident (T17);

(g) a comment by Dr Yeap dated 9 June 1995 that Mr Earle had suffered stress, anxiety and depression since the war (T19);

(h) a medical report by Dr A. Perenyi, psychiatrist, dated 26 August 1995 in which he noted a history that Mr Earle had retired 12 years [sic] previously following a motor vehicle accident (T27);

(i) a letter from the Repatriation Commission to Mr Earle dated 3 October 1995 advising him that his post traumatic stress disorder had been accepted as war-caused (T30);

(j) a medical report by Dr Yeap dated 17 June 1996 in which Dr Yeap expressed the opinion that, due to his many disabilities from war service, Mr Earle could not hold down a full-time job comparable with his skill and qualification. He went on to say:

"...He does has [sic] a neck injury suffer [sic] from work however I do not think that the neck injury will prevent him from working full time. The war service disabilities are the disabilities that prevent him from full time work." (T40);

(k) a medical report by Dr J. McCaffery, psychologist, dated 26 June 1996 in which Dr McCaffery advised:

"In view of Mr. Earle's confirmed health impairments, persistent Post Trauma Stress symptoms, his inability to concentrate for other than relatively short periods and his general lack of physical stamina, I consider Mr. Earle would reasonably be regarded as unemployable especially in view of the poor state of the employment market and its demands for fully capable applicants. ... I further consider that Mr. Earle's war service is a significant contributor to his incapacity for employment." (T41);

(l) an advice dated 8 July 1996 from Mr J. Murray, painter, that:

"Mr Barry Earle applied for a position with me with the view of full time employment. Unfortunately he did have some disadvantage, he became very anxious and aggitated [sic] at times and as a result I suggested this was not going to work out." (T42);

(m) a statement dated 10 July 1996 from Mr Earle in which he advised, amongst other things:

"My last employment full-time was with Philip Moriss [sic]. I was part of the amenities cleaning group our Department became redundant when the work was contracted out. After this I registered with Social Security Job Search. I was out looking for new employment opportunities. I had several interviews some were promising but as time went on I received little encouraging response. I think at least three to four times I receive [sic] one or two days work and then I was informed I was not suited for the job due to my attertude [sic] ... but with my medication levels my sleepless nights my anxious moments and the rash which flares up to a red and agravating [sic] itch causes imbarassment [sic] among other people. Also my hearing gives me many problems. Cannot handle noise, any banging and I hear noises that others don't. My safe haven is in the home or at the Park where it is quite [sic] atmosphere." (T43);

(n) a report from Dr J. Rogers, psychiatrist, dated 3 June 1997 in which he advised that he obtained a history that Mr Earle was retrenched from Philip Morris in 1994. He expressed the opinion that Mr Earle's post traumatic stress disorder was the sole reason for his incapacity to engage in remunerative work (T44);

(o) a report dated 4 June 1997 from Dr J. Rowe, occupational physician in which he stated that he obtained a history that Mr Earle was involved in a motor vehicle accident on 22 August 1991:

"...He was the driver of a Ford motor car which was struck in the rear on his way to work. He did not lose consciousness and the car was drivable after the accident. The reported damage was $2500 and the car was repaired. Mr Earle drove to work after the accident and in fact worked subsequently for several days. He attended a medical centre at his workplace following the accident and initially had a few days off work.

Since that accident and up to the time of his retrenchment on 8 April 1994, this man has had a few days off work. However it is important to note that he returned to work and performed almost his normal full time work as a cleaner for about 8 months, ie between September 1991 and July 1992. Although he experienced some pain during that time, he did not seek medical attention and it was after July 1992 that he sought further medical attention.

He related those pains to the work he was performing at Philip Morris, that is, the use of heavy industrial equipment for cleaning, and this was on a background of the possible injuries he received in the motor vehicle accident.

...

Mr Earle said that when his pain recurred in July 1992 he performed a modified duties programme until at the time of his retrenchment in April 1994 he said he was close to performing his normal unrestricted duties. His neck condition thus did not prevent him from working. Had his retrenchment occurred a week later he said he would have been working full time and performing unrestricted work.

..."

Dr Rowe expressed the opinion that Mr Earle is totally incapacitated for employment which is related to his war service because of his post traumatic stress disorder, his neurodermatitis, his hearing loss and tinnitus (T46).

5. As well as the documents, the Tribunal had before it a further statement by Mr Earle made on 21 December 1998 (Exhibit C). Mr Earle stated that after leaving school he worked as a garage attendant before being called up for national service. After service he returned to his position as a garage attendant, working there for approximately six years and then as the franchisee for a further four years until the service station was closed. He was a contract gardener for the Housing Commission of Victoria for four to five years before commencing employment with Philip Morris as a cleaner. He advised that after service he found it hard to settle back into civilian life, being restless and argumentative both at work and in his private life. He stated that he left Philip Morris in 1994 "after continuing arguments with management". A voluntary departure package became available and he chose to take it up to avoid continuing problems. Prior to leaving Philip Morris he had begun seeing a psychologist. His medication for his post traumatic stress disorder has made him "dopey". Mr Earle stated that he registered with the Commonwealth Employment Service ("the CES") trying a number of positions but he was unable to cope and his attendance was erratic. He worked as a house painter for four days (see paragraph 4(l) above). He reads newspapers looking for suitable positions, but his medication and lack of self confidence makes him think he is incapable of work.

6. Further reports were provided by Dr Rowe dated 8 June 1999 and Dr Yeap dated 7 July 1999. Dr Rowe had re-examined Mr Earle on the day he completed his report. He again expressed the opinion that Mr Earle was not capable of working because of his accepted war-caused disabilities. Dr Rowe did not think Mr Earle was capable of working for eight hours per week and this had nothing to do with his neck injury. Mentally he would be incapable of working. Dr Yeap advised that Mr Earle had been a patient of his for a number of years. He advised that, despite his injuries arising out of the motor vehicle accident in 1991, Mr Earle had been able to return to work as a cleaner. He was taking anti-depressants and analgesics. Unfortunately he was retrenched. Dr Yeap expressed the opinion that:

"I believed Mr Barry Earle is able to hold down a full time work if he was suffering from neck, shoulder and upper back injuries alone. He was able to do his work at Phillip [sic] Morris despite his neck, shoulder and upper back injuries. However the subsequent development of post traumatic stress disorder and other war caused injuries have rendered him incapable of working again."

7. Mr M. Shannon, orthopaedic surgeon, examined Mr Earle for the respondent on 15 March 1999. His report dated 17 March 1999 was before the Tribunal (Exhibit 2). He noted that he had examined Mr Earle for Workcover insurance in 1994 for a work related neck injury and he provided a copy of the report dated 29 March 1994 he had written at that time. In that report he noted that Mr Earle had two weeks off work and that he had been prescribed medication by his local doctor. He resumed work with stiffness and soreness in his neck, manipulation aggravating the condition. Mr Earle had lost a total of six months from work, but by 29 March 1994 Mr Shannon recorded that he was working on full-time normal duties which the Tribunal is satisfied is not correct. Mr Earle provided a history to Mr Shannon that:

"He states that his neck is sore every day he has difficulty sleeping, he has pain extending to the back of the left shoulder and left upper arm. He takes a few analgesics but is [not] undergoing any other treatment. He gets occipital headaches."

On examination cervical flexion and extension were limited. Mr Shannon provided an opinion that Mr Earle had aggravated an underlying congenital condition in his cervical spine, sustaining soft tissue injuries as a result of his motor vehicle accident. Signs were consistent with a mild nerve root irritation. Mr Shannon stated "He has a continuing significant disability in the neck". When seen on 15 March 1999, Mr Shannon noted that there had been some improvement in Mr Earle's neck since he was last examined in 1994. He did not think that the neck condition would prevent Mr Earle from performing light to moderate physical work.

8. In a report dated 19 May 1999, Mr N. Vallance, ear, nose and throat surgeon, expressed the opinion that there would be many occupations where Mr Earle's level of hearing loss would not be a significant impairment and that he could see no reason why Mr Earle would not be able to work at least eight hours per week (Exhibit 3).

9. Mr Perenyi provided another report dated 17 April 1999 (Exhibit 4). He also expressed the opinion that Mr Earle could work for more than eight hours per week, noting that Mr Earle had worked for about 15 years after returning from Vietnam when he was already suffering from post traumatic stress disorder. The Tribunal is satisfied that Mr Earle did not suffer from a war-caused post traumatic stress disorder immediately following his return from Vietnam. He did not claim his post traumatic stress disorder was war-caused on 14 March 1995 when he lodged a claim with respect to other conditions (T10) although he did lodge a claim that his post traumatic stress disorder was war-caused in June of that year. Dr Yeap's evidence as to when the condition was first diagnosed is equivocal (see T19 and later reports). The Tribunal is satisfied that the condition was diagnosed about the time Mr Earle ceased work when he was also depressed about his neck condition and changes in his employment situation. Mr Shannon recorded no history of post traumatic stress disorder in March 1994 (paragraph 7 above) although Dr C. Baker, a specialist in occupational medicine, thought Mr Earle was mildly depressed when he examined him in June 1994 apparently due to Mr Earle's neck condition (see paragraph 11 below). Mr B. Dooley, orthopaedic surgeon, found that Mr Earle was anxious in 1994, having been laid off work (see paragraph 13 below). By 1999 Mr Earle was "tearful, agitated and depressed" (see paragraph 21 below).

10. The Tribunal had before it a considerable amount of material arising out of Mr Earle's Workcover and Transport Accident Commission ("the TAC") claims following his motor vehicle accident (Exhibit 1). The material discloses that following the contracting out of cleaning services at Philip Morris, Mr Earle had been offered employment by Ogemi Services which had been awarded the cleaning contract. A letter from the Chief Executive Director of Ogemi Services dated 31 March 1994 to Philip Morris advises that Mr Earle had:

"...firmly and totally declined our offer on the grounds that he is still on Workcover because of a neck injury which occurred in a car accident on his way to work in August 1992. He also said that he will be going to the Philippines on 31 March 1994".

A report from Securitec Investigations dated 13 October 1994 advises, amongst other things, that Mr Earle had attended a market on Sunday mornings where he was a stall holder during the time he was employed with Philip Morris. A further report dated 4 January 1995 suggests that Mr Earle was in the Philippines late in 1994. A letter from the TAC to Mr Earle's solicitors dated 29 September 1994 advised that Mr Earle's neck injury "was assessed at 11%". It was considered that Mr Earle was fit for sedentary work, not including heavy and repetitive work using his arms. A functional capacity assessment report dated 9 August 1993 advised that Mr Earle had difficulty with tasks involving static or long periods of work above shoulder height. It was noted that he had ceased playing golf since his motor vehicle accident injury.

11. The records of a rehabilitation meeting held on 5 October 1993 record that Mr Earle was then working six hours per day carrying out his normal cleaning duties at Philip Morris. He said that he was "Okay". He agreed to return to his normal afternoon shift position. A further rehabilitation report of a meeting on 17 November 1993 records that Mr Earle was performing his normal duties on an afternoon shift and that he was coping alright, although he still had pain for which he was taking medication. Mr Earle advised Dr Baker on 2 June 1994 that he consistently had neck pain, severe at times with stiffness in the neck and difficulty in turning his neck. He had difficulty undertaking his normal duties. Mr Earle advised Dr Baker that his condition got so bad that his general practitioner stopped him working in 1992. At that time Mr Earle said he got depressed and angry about his condition and lack of improvement, although he did not have any difficulty sleeping. He did not report any other serious illnesses. Dr Baker expressed the opinion that Mr Earle was not anxious, but he appeared mildly depressed. Dr Baker was pessimistic about Mr Earle finding future work as a cleaner. In his opinion it was likely that prolonged work would increase Mr Earle's level of pain, and the congenital fusion in his neck would mean that the damage suffered in the motor vehicle accident to his spine had been more extensive compared with somebody without a congenital fusion. He considered that Mr Earle's condition had stabilised at that time.

12. Mr S. Doig, orthopaedic surgeon, who examined Mr Earle on 5 July 1993 disagreed with Dr Baker's opinion with respect to the effect of Mr Earle's congenital condition. At that time Mr Doig considered that Mr Earle should be able to return to his pre-injury duties within six to eight weeks.

13. A report by Mr B. Dooley, orthopaedic surgeon, dated 22 August 1994 provides a history that Mr Earle was "...markedly anxious, having been laid off work in April of 1994". He complained of pain in his neck radiating to his shoulder and paraesthesia in the index and middle finger of the left hand. He felt he could return to sedentary work. He was depressed about his financial state and lack of work. Mr Dooley expressed the opinion that Mr Earle was fit for all sorts of sedentary work. The progress notes from the Central Park Medical Centre amongst the TAC file are virtually impossible to read without the assistance of the doctor who made the entries.

14. File notes made at Philip Morris with respect to Mr Earle's rehabilitation suggest that there was a difference of opinion between Dr Yeap and Mr Doig as to Mr Earle's ability to return to full-time cleaning duties, Dr Yeap apparently expressing his concern that in carrying out his duties as a cleaner Mr Earle was "injuring himself " whereas Mr Doig expressed the opinion that Mr Earle should be gradually eased back into his cleaning duties. There is a note from the rehabilitation meeting held on 19 October 1993 that Mr Earle had been carrying out normal duties since 11 October 1993 and that he was not experiencing any problems and that he was able to perform all facets of his job.

15. Two of the last Philip Morris file notes with respect to Mr Earle state:

"17/3/95 Rec'vd phone call from Barry Earle wanting to know when he will get his money from S.98. Told him his solicitors should have it next wk. Barry sounded very happy. He told me he was married and his wife is expecting a baby in sept. His wife is from the Philipines [sic]. Barry told me he is applying for a defence pension and if he gets that he won't be wanting Workcover. Dept of Defence have him attending a place called 'Leading Pathways' which deals in pain and stress management. Barry states neck is really bad now and his Dr doesn't want him working at all.

27/4/95 Contacted Barry who stated didn't go to medical because he is not continuing with Workcover. He stated he is receiving sickness benefit from Gov. and should know in a matter of weeks whether he will get Defence Pension. He will contact me if he changes his mind on Workcover."

A comment on an undated claim review sheet states "File closed April '95 as Barry accepted Defence pension".

16. When Mr Earle applied for employment with Philip Morris in June 1989 he stated that he considered himself to be of good health. In a Workcover rehabilitation plan dated 9 August 1993 it was proposed that Mr Earle work "eight hours" within 10 weeks. It does not say whether it is eight hours per week or per day. Interestingly enough there is a file note amongst the Philip Morris documents dated 30 August 1991 that a phone call was received from Mr Earle saying that he was able to return to full duties and that he was free of neck pain although he had a little pain in his mid-back area. There was a recurrence of his neck pain in 1992. In June 1993 it was noted that Mr Earle was working on modified duties for six hours a week, although an entry in July 1993 records duties on eight hours per day. In August 1993 there is a record that he was cleaning two hours per day on light duties. There is a later report that he was working four hours and finding it difficult and experiencing a lot of left side neck pain. He was off work again because of his neck pain in March 1994. Dr Yeap certified him as unfit for all work between 23 and 27 March 1994. Dr Yeap then certified him fit for modified duties on 1 April 1994.

17. When giving oral evidence to the Tribunal Mr Earle said that he had a good job at Philip Morris. He cleaned a designated area on his own and he was given minimal direction. He said that he felt no pressure although he also gave evidence that he clashed with management. He referred to the motor vehicle accident in which he said he injured his neck, receiving medical treatment and periodically taking time off work. He described his neck pain as "...improving immensely over a period of time ... quite clear of all that - it is all behind me". When Philip Morris decided to contract out the cleaning services he was almost back to full-time hours, although it is clear from Exhibit 1 that Mr Earle was still reporting problems with his neck at the time he took his redundancy and the Tribunal so finds. Mr Earle said that jobs were available with the new contractor. He was interviewed but he said "I didn't qualify". He registered with the CES and he was apparently paid sickness benefit rather than job search allowance. Under cross-examination Mr Earle agreed that he was not "...back to full strength" when retrenched. He also agreed that he had been offered employment by Ogemi Services when made redundant by Philip Morris but he did not accept the offer. This evidence being supported by the documents before the Tribunal, the Tribunal finds that Mr Earle was offered employment by Ogemi Services which he did not accept. Mr Earle said that the offer of employment with Ogemi Services was not full-time. He went for a trip to the Philippines at that time having no further correspondence with Ogemi Services. He confirmed that he claimed sickness benefits which he received between March and November 1994 when he returned from the Philippines as he still did not "have a clearance" following his motor vehicle accident.

18. When giving oral evidence about his attempts to engage in further remunerative work, Mr Earle said that he had worked for Mr Murray for four days. He was told he was not applying himself and he "...got aggro with that sort of attitude". Mr Earle told the Tribunal that he likes to be left alone. He does not think he could cope with work because he is "too aggro". He sees Dr Yeap fortnightly who prescribes zoloft and panadeine forte for him. He does not care for life. He walks alone, smokes and drinks.

19. Mr Earle said that he had not mentioned his post traumatic stress disorder to Drs Doig, Shannon and Chamberlain when they examined him in 1993 and 1994 because they examined him with respect to his neck following his motor vehicle accident. Mr B. Lilley of counsel, who appeared for the Repatriation Commission at the hearing, put to Mr Earle that he would be able to work delivering pamphlets or catalogues when he was out walking, to which Mr Earle responded "It's not hard I suppose, but how do you get a job like that? But when I am stressed out I would not care and would not feel like doing it." Although Mr Earle agreed that he had assisted a friend at a market from time to time he said he did not think he could work for a total of eight hours per week.

20. Dr Yeap, who gave his evidence by telephone, said that Mr Earle first consulted him in 1990. He had examined Mr Earle following the motor vehicle accident in 1991. Mr Earle's neck injury had become worse, it did not respond to analgesic or anti-inflammatory medication. His pain flared up from time to time and stopped him from working. Dr Yeap said that Mr Earle's condition had not changed over the last couple of years. It has remained much the same. He coped with light duties at Philip Morris but in his opinion Mr Earle was unable to work at full normal duties. Since commencing work for Philip Morris he has developed post traumatic stress syndrome, skin rash, nervousness and anxiety and that has stopped him working on the light duties. In Dr Yeap's opinion, Mr Earle is now unable to do any active work at all. Under cross-examination Dr Yeap agreed that Mr Earle was still suffering from his neck condition and he prescribes panadeine forte for that condition. When Mr Lilley put to Dr Yeap that Mr Earle had worked at a market and that he did quite a bit of walking, Dr Yeap said that Mr Earle should have no problems delivering pamphlets as a job for at least eight hours per week, although he may have difficulty with his concentration.

21. Dr Rowe gave oral evidence that he examined Mr Earle on two occasions in 1997 and 1999. In 1997 he carried out a physical examination and he formed the opinion that Mr Earle had no impairment of his neck or back as he had a normal range of movement. Although he is not a psychiatrist he was satisfied that Mr Earle had fairly severe nervous symptoms. In 1999 Mr Earle presented at consultation as "...tearful, agitated and depressed". In Dr Rowe's opinion, even if work became available for Mr Earle, he would not be able to cope with it because of his drinking and the medication he takes for his headaches. He did not test Mr Earle's concentration but he made various assumptions. Under cross-examination he agreed that Mr Earle could deliver pamphlets but, in his opinion, he would not last very long doing so.

22. Dr Perenyi, who also gave oral evidence, had examined Mr Earle on two occasions. He was of the opinion that Mr Earle could work for more than eight hours each week. He noted that Mr Earle had worked for sixteen years with post traumatic stress disorder. Under cross-examination he agreed that there may be fluctuations in Mr Earle's condition and he conceded that his expertise was not in occupational health. He did not think the medication Mr Earle was taking for his psychiatric condition would affect his ability to work. Mr Earle's hearing problem was not evident during the consultation. He did concede that Mr Earle would probably not be able to work full-time.

23. On 19 June 1995 Mr Earle lodged a claim with respect to his post traumatic stress disorder. He has not yet turned 65. He is incapacitated from war-caused injury and disease. The Tribunal will turn first to consider paragraph 24(1)(c) of the Act applying subsection 24(2) to Mr Earle's circumstances. At the same time the Tribunal will consider the relevant provisions of section 23. The Tribunal finds that Mr Earle has ceased to engage in remunerative work for reasons other than his incapacity from war-caused disease being the effects on him of the motor vehicle accident which occurred in 1991 when employed as a cleaner by Philip Morris. Although the neck and back injuries he suffered in the motor vehicle accident did not have a major impact on his capacity for work immediately after the accident, his physical symptoms continued to bedevil him over the next few years such that, when the Philip Morris' cleaning services were contracted out, Mr Earle had not returned to full-time normal duties. He became depressed. Despite his evidence to the contrary, the rest of the evidence before the Tribunal satisfies it that Mr Earle was not about to return to normal full-time duties when he was retrenched, which is what he told Dr Rowe as recorded in Dr Rowe's report of 4 June 1997: "Had his retrenchment occurred a week later he said he would have been working full time and performing unrestricted work." The evidence contained in Exhibit 1 does not support this conclusion. Mr Earle was paid worker's compensation in respect of his neck injury. When claiming disability service pension on 10 March 1995 he stated that his neck pain caused him depression and anxiety. He advised that he had ceased work on 8 April 1994. Mr Earle continues to be prescribed panadeine forte for his neck condition. The Tribunal notes the record made on 17 March 1995 (Exhibit 1) that Mr Earle said his "...neck is really bad now and his doctor doesn't want him working at all." This record was not specifically put to Mr Earle at the hearing and the Tribunal has not put much weight on the record but the record does support the other evidence before the Tribunal as to why Mr Earle has ceased to engage in remunerative work. The Tribunal finds that Mr Earle was offered employment by Ogemi Services, even if that offer of employment may not have been for work on a full-time basis. He chose to reject that offer of employment and to travel to the Philippines. On his return his symptoms were such that he remained on sickness benefits paid under the Social Security Act. The Tribunal finds that Mr Earle's neck "disability" and his loss of range of movement referred to by him on his claim form for service pension on 11 March 1995 is the reason he has ceased work.

24. The Tribunal accepts what was put to it by Mr Lilley in his closing address that, in considering paragraph 24(1)(c) of the Act, the remunerative work the Tribunal should consider is the work which Mr Earle had successfully undertaken in the past, rather than any painting work he attempted for only a four day period. The letter from Mr Murray is dated 8 July 1996 (T42). Mr Murray does not state when Mr Earle applied for a position as a painter but it appears probable that it was after Mr Earle was advised of the decision of the Repatriation Commission denying payment of pension to him under either section 23 or section 24 of the Act. The Tribunal applies what was said by the Full Federal Court in Sheehy v Repatriation Commission (1996) 66 FCR 569. The Tribunal is satisfied that any work Mr Earle undertook for Mr Murray could not be said to have been "successfully undertaken" or "effectively undertaken".

25. Applying subparagraph 24(2)(a)(i) of the Act to Mr Earle's circumstances, it is Mr Earle's skills as a cleaner which the Tribunal has considered. The Tribunal notes in particular Dr Yeap's first report (T14) in which he records that Mr Earle suffered neck and back pain while working as a cleaner with Philip Morris three years earlier, that his pain had not improved and that Mr Earle was unable to work. Stress, anxiety and depression were noted under "Nervous system"; neck back and shoulder pain being recorded under "Locomotor system..." arthritis of the shoulder being recorded. Dr Yeap then stated that Mr Earle's headaches were probably due to his "neck (arthritis) and stress"; the "Major diagnosis" being neck pain, back pain, shoulder pain, tinnitus and stress of four years duration, there being a "Minor diagnosis" of nervous rash with a duration of 20 years. He then stated that Mr Earle would be unable to return to work as a cleaner.

26. The Tribunal has considered what was said by Spender J in Fry v Repatriation Commission (1997) 47 ALD 776 with respect to subparagraph 24(2)(a)(i) of the Act (not reported on this point):

"As to the final ground of appeal, the AAT in my view did not err in its application of s 24(2B) [sic] of the Act. In paragraph 51 of the reasons for decision set out above, the AAT indicated that even if the ameliorating provision of s 24(2)(b) is applied to s 24(1)(c), the applicant was not entitled to the Special Rate of pension because of the effect of s 24(2)(a)(i), which provides that a veteran shall not be taken to be suffering the loss of salary or wages if the veteran ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease, or both. ..."

The Tribunal finds that Mr Earle should not be taken to be suffering a loss of salary or wages by reason of his war-caused diseases because he has ceased to engage in remunerative work for other reasons than his war-caused diseases. They are that he ceased work as a result of the contracting out of cleaning services at Philip Morris to Ogemi Services and his continuing neck and back conditions, documented in Exhibit 1 and Dr Yeap's undated report (T14).

27. In Re Hornery and Repatriation Commission (AAT 13166, 11 August 1998) the Tribunal found that eligibility for pension under sections 23 or 24 of the Act may be re-established during the assessment period. The evidence before the Tribunal points to Mr Earle's post traumatic stress disorder as now having a greater impact on his capacity for work than it had when he was negotiating the settlement of his worker's compensation claim although a lot of that evidence is dependent on the accuracy of the history provided to medical practitioners by Mr Earle and the Tribunal is satisfied that, in many instances, that history was incomplete or selective. The Tribunal has not placed a great deal of weight on the report of Dr Rogers (T44) as he was not available to give evidence before the Tribunal although the respondent had asked that he attend for cross-examination. There was a considerable amount of evidence before the Tribunal and it is mindful of paragraph 33(1)(b) of the AAT Act. Both Dr Rowe and Dr Yeap have now expressed opinions which support a finding that Mr Earle is not capable of working because of his accepted war-caused disabilities. Mr Shannon was satisfied in March 1999 that there has been some improvement in Mr Earle's neck since last examined in 1994. The difficulty for the Tribunal is that much of the evidence relied on by the respondent was with respect to the period in the early 1990s until the completion of Mr Earle's worker's compensation claim whereas much of Mr Earle's evidence is of more recent origin when he is seeking to be paid pension at the special rate rather than focusing on his worker's compensation claim.

28. By the middle of 1999, when Mr Rowe and Dr Yeap re-examined Mr Earle, the substantial cause of Mr Earle's inability to obtain remunerative work could be due to his war-caused diseases. The Tribunal has concerns with respect to the evidence Mr Earle provided to it as to the genuineness of his seeking to engage in remunerative work. Mr Earle has made some attempt to undertake remunerative work in that he undertook some painting for Mr Murray, albeit only for four days. If Mr Earle can overcome the exclusion provided under paragraph 24(2)(a) of the Act and satisfy the Repatriation Commission as to the genuineness of his attempts to engage in remunerative work he may at some later date qualify for pension at the intermediate or special rate. However, the Tribunal feels bound to apply what was said by the Federal Court in Fry's case. During the assessment period he does not qualify for pension under either sections 23 or 24 of the Act.

29. It is for these reasons that the Tribunal will affirm the decision under review.

I certify that the twenty-nine (29) preceding paragraphs are a true copy of the reasons for the decision herein of

Mrs H. E. Hallowes, Senior Member

Mr J. T. C. Brassil, AM, Member

Dr C. Re, Member

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

Personal Assistant

Date/s of Hearing 21 October and 22 December 1999

Date of Decision 28 January 2000

Counsel for the Applicant Mr G. Moore

Solicitor for the Applicant Peter J. Liefman

Counsel for the Respondent Mr B. Lilley

Solicitor for the Respondent Barker Gosling