Jorm and Repatriation Commission [2000] AATA 679 (9 August 2000)

Last Updated: 28 August 2000

DECISION AND REASONS FOR DECISION [2000] AATA 679

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/1870

VETERANS' APPEALS DIVISION )

Re PETER ERNST JORM

Applicant

And REPATRIATION COMMISSION

- Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 9 August 2000

Place Sydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that the applicant is entitled to the intermediate rate with effect from 5 July 1997.

(Signed)

J.A. KIOSOGLOUS MBE

(Senior Member)

CATCHWORDS

VETERANS' APPEALS - veterans' entitlements -- intermediate rate - "alone" test - "alone" considered - reasons for retirement - anxiety condition considered - credibility and relevance of prior court appearances -- ability to undertake work that was undertaking - appreciation of "reality" of capacity to undertake work that was undertaking

Veterans' Entitlements Act 1986 s.23

Civil Aviation Authority v Jorm (1994) 56 IR 89

Re Easton and Repatriation Commission (1987) 6 AAR 558

Re Davis and Repatriation Commission (1987) 12 ALD 483

Re Ambrose and Repatriation Commission (1993) 29 ALD 875

Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

9 August 2000 Senior Member J.A. Kiosoglous MBE

1. This is an application by Mr Peter Ernst Jorm (the applicant) for review of a decision of the Veterans' Review Board dated 10 November 1998 (T21) which affirmed two decisions of the respondent dated 4 March 1998 (T2) and 23 March 1998 (T2a) which respectively set the applicant's Disability Pension at 90% of the general rate and backdated such pension to have effect from and including 22 February 1997.

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), together with 27 exhibits, 6 lodged by the applicant (Exhibits A1-A6) and 21 lodged by the respondent (Exhibits R1-R21). In addition, the Tribunal heard evidence from the applicant, who also called Dr A. Dinnen, Consultant Psychiatrist, Dr M. Burns, Occupational Physician, and Mrs C. Jorm, the applicant's wife. The respondent called as witnesses Dr R. Lewin, Psychiatrist, Dr M. Baz, Occupational Physician, and Mr K. Bell, former Director of Personnel. The applicant was initially represented by Ms A. Toliopoulos, then by Mr C. Colborne for the last two days of the hearing and the respondent was represented by Mr B. Lilley, all of counsel.

3. Initially the issues before the Tribunal were firstly, whether the applicant was entitled to 90% or 100% of the general rate as from 22 February 1997; and secondly, whether or not the applicant should receive the intermediate rate with effect from 5 July 1997. During the hearing, but prior to its completion, Mr Lilley, on behalf of the respondent, conceded the first issue. In issue, therefore, for the Tribunal's consideration is whether the applicant should receive the intermediate rate with effect from 5 July 1997.

history of the application

4. The applicant joined the Australian Army in 1965 and rendered operational service in Vietnam from 18 March 1969 to 25 March 1970 and eligible defence service from 7 September 1972 to 3 May 1990.

5. He was most recently employed by the Department of Veterans' Affairs (DVA) as a legal officer and volunteered for redundancy with effect from 30 May 1997 and was subsequently retired from his employment on 4 July 1997. The applicant submitted a claim dated 17 April 1997 which was rejected by the Repatriation Commission. The applicant submitted a further claim dated 26 November 1997 (T8) which was accepted by the Commission in a decision dated 4 March 1998 (T14), granting the applicant disability pension at 90% of the general rate with effect from 1 September 1997. This was subsequently back dated to 22 February 1997 (T16).

6. The applicant applied to the Veterans' Review Board for review of the decision which affirmed the decision on 10 November 1998 (T21) to pay the applicant pension at 90% of the general rate.

applicant's evidence

7. The applicant told the Tribunal that he was born on 3 May 1938 and served in the Australian Army between 1965 and 1990. Subsequent to his service he obtained a law degree and performed advocacy work for the DVA, advice and advocacy for the Civil Aviation Authority (CAA), and again with the DVA briefing the Australian Government Solicitor and barristers in Federal Court appeals. He stated that he was in this last position for four and a half years prior to leaving the Department.

8. He stated that he began to have problems with his memory around 1994 and was also suffering daily pain from irritable bowel syndrome around this time. He further stated that he had headaches at this time, which all made it difficult to work. He took 12 months off between October 1994 and September 1995 but the time off did not affect his decision to take early retirement.

9. Towards the end of 1996, the applicant stated that he saw a financial planner as his wife was ceasing work and this was gong to have an impact upon their finances.

10. He told the Tribunal that he saw a cardiologist in 1997 as a result of irregular heartbeats and was left with the very clear impression that he needed to change his lifestyle. Subsequent to that he had some "thinking to do" in terms of his future, taking into account his headaches and irritable bowel problems as well. He stated that Dr J.S. Howe, his treating General Practitioner, advised him to cease work following long discussions, noting the stress and anxiety problems in particular. The deciding factor in his decision to apply for voluntary redundancy was the onset of heart irregularities. He stated that whilst the date given in his expression of interest was important for financial planning reasons, financial reasons were not at the forefront of his mind when he decided to apply for voluntary redundancy.

11. He agreed, in cross-examination, that he had not investigated the possibilities of changing or modifying his work duties in July 1997. He stated that he has done about sixteen hours work since retirement at his own pace and is looking for work at the moment, but does not have the necessary qualifications to obtain a practicing certificate.

12. He stated that whilst he did not take all available sick leave, he was only able to cope with the day-to-day work at a cost to his health. He further stated that he considered that he had correctly detailed the statement dated 4 July 1997 (Exhibit R15) drawing a distinction between problems arising prior to 4 June 1997 and those arising after that time, and between workers' compensation issues and repatriation related problems.

13. When asked during cross-examination about the decision of Gallop J in Civil Aviation Authority v Jorm (1994) 56 IR 89 he stated that he considered that Gallop J had made findings in the way he did in order to avoid having to consider the legal issues raised in that case.

14. He stated that since retirement he has been financially secure.

mrs c. jorm

15. Mrs C. Jorm, wife of the applicant, told the Tribunal that she has known the applicant since the 1970s, commenced a relationship in 1986 and married him in 1989. He began to get irritable bowel syndrome when he commenced advocacy work at the DVA.

16. She stated that she sometimes drove the applicant to work because he was uncomfortable as a result of his irritable bowel. She further stated that following their return from overseas, the applicant began to have headaches two to three times per week and again suffered from his irritable bowel, but he continued to work at this time through great perseverance.

17. She told the Tribunal that they decided his health was important and that accordingly, he should stop working. If not for his health, she was of the opinion that the applicant would still be working. She considered the headaches to be work related as there was no stress at home and the doctors had told them that there was a work connection.

18. She could only remember seeing a financial planner once, following steps she took towards getting her redundancy package.

mr k. bell

19. Mr K. Bell is a director of personnel at DVA (currently acting in another position). He told the Tribunal that in order to approve a voluntary redundancy at the time the applicant took one, he was required to be satisfied that the applicant was fit for work at the time of termination. He stated that his clerk told him that the applicant was reluctant to sign the form, but did so after a short conversation at the counter with Mr Bell.

medical evidence

dr a. dinnen

20. Dr A. Dinnen, Consultant Psychiatrist, saw the applicant in August 1997 and January 1999 and prepared two reports in relation to these proceedings. In the first report dated 5 September 1997 (T20) he stated (inter alia):

"...

His view about taking redundancy was that the developing of the ectopic heartbeats was a further indication that he was under stress and would have to re-evaluate his lifestyle and priorities. This makes a lot of sense to me, and I think that he is well advised to reduce the sources of tension in his life and take things more easily from now on. ...

..."

21. In the second report dated 31 January 2000 (Exhibit A5) he stated (inter alia):

"...

... With regard to his employability the patient may perhaps underestimate his resilience and ability to return to work, and although he indicated that he was sufficiently motivated to do so, I was not impressed that this was a reflection of his real level of enthusiasm. The likelihood I believe of him doing anything more than a few hours of work per week is not very great, in reality, because of a range of factors all of which may be considered to be related to his level of anxiety. Similarly, with regard to his domestic situation, it appears that the tensions are greater than has been documented elsewhere in the documents made available to me.

... I believe that he is currently capable of working up to but no more than 20 hours per week. ... The intermediate rate of disability benefit, so far as I understand it applies to work capacity, would appear to be appropriate from the time of his retirement from work and probably for at least two or three years ahead, all other things being equal.

..."

22. In oral evidence in support of his reports, he told the Tribunal that the applicant would only be capable of limited types of work in non-pressure environments. He stated that as at 1997 the applicant might have been capable of more than 20 hours per week of work but that the reason the applicant may have been more relaxed at his 1997 appointment could have been that he was not working.

23. He stated that in assessing capacity to work and return to work programs, it is essential to consider the worker's emotional attitude and motivation in relation to their capacity to work and possible aggravating effects work may have on their conditions.

dr m. burns

24. Dr M. Burns, Occupational Physician, saw the applicant on 14 February 2000 and prepared a report dated 15 February 2000 (Exhibit A6) in which he stated (inter alia):

"...

With respect to employment, it is obvious that Mr Jorm has a large number of accepted disabilities, each of which is only mild to moderate in severity. I do not believe that any single one of these disabilities would be severe enough to have forced him to give up work. I believe, though, that the cumulative effect of all of his disabilities combined has been such that his anxiety problems have increased. ...

... I believe that he would be able to return to an administrative position involving education and training where he initially would be able to work up to 20 hours per week. I do not believe that this would significantly increase his anxiety problems.

...

... he would be able to work up to 20 hours per week but is probably well advised not to work beyond this as it may increase his level of disability."

25. In oral evidence in support of his report, Dr Burns stated that had he seen the applicant in May or June 1997 he would have encouraged him to look at alternative workplace solutions apart from retiring altogether, but that his assessment of the applicant was that when he got something into his head it would be hard to change and that the applicant apparently believed he had serious problems at the time. He told the Tribunal that he believed the reasons for the applicant's retirement would have been multi-factorial and would have included the "wearing down" caused by his medical conditions, with his perception of his heart problems being the final straw.

26. He stated that he was not surprised that the applicant did not take time off work as this was consistent with his personality type to keep on going despite significant problems.

dr j.s. howe

27. Dr J.S. Howe, General Practitioner, has been the applicant's treating doctor since April 1993. In addition to the medical impairment assessment he prepared for the applicant dated 28 January 1998 (T12), he prepared a report dated 29 March 2000 (Exhibit A4) in which he stated (inter alia):

"...

4. At review on 3 June 1997 it was agreed that he should take time off. A period of absence from work was granted from 4 June 1997 until 1 July 1997.

5. As I remember, in the course of conversation, the prospect of leaving work was discussed. ... I agreed that his condition would markedly improve if he were to leave his present work situation.

..."

dr p. sambrook

28. Dr P. Sambrook, Rheumatologist, saw the applicant on 19 April 1999 and prepared a report dated 28 April 1999 (Exhibit R3). In a subsequent report dated 8 December 1999 (Exhibit R5) he stated (inter alia):

"...

Mr Jorm's incapacity from his accepted orthopaedic conditions is not of a sufficient nature as to render him incapable of undertaking remunerative work for 50% or more of the time ordinarily worked by persons engaged in his type of work or more than twenty hours per week.

..."

dr m. baz

29. Dr M. Baz, Occupational Physician, saw the applicant on 24 June 1999 and prepared two reports, dated 28 June 1999 (Exhibit R6) and 3 December 1999 (Exhibit R7) in relation to the applicant. In the first report she stated (inter alia):

"...

The history Mr Jorm gives is that the combination of anxiety disorder and cardiac disease caused him to leave work.

However, each of these conditions causes mild impairment. Mr Jorm is able to function well socially and was able to maintain adequate performance in his usual work in the period leading up to his retirement.

In my opinion neither of these conditions on their own could be considered to cause him to be unfit for work as a lawyer.

...

Mr Jorm would also be fit to undertake alternative clerical and administrative tasks which would be within his range of experience. He would also be qualified to undertake alternative legal work which did not focus on litigation.

In my opinion Mr Jorm was unfit for the work he was undertaking at the time of his resignation of 20 or more hours duration weekly but was not restricted to work of less than 8 hours weekly. I consider that with institution of appropriate therapy he would have regained the capacity to work in areas for which he is skilled and experienced of more than 20 hours weekly. I consider that at this time he is fit for a variety of positions utilising his previous skills and experience for more than 20 hours weekly.

..."

30. In her report dated 3 December 1999 (Exhibit R7) she stated (inter alia):

"...

In my opinion while he was unfit for the work he was undertaking at the time of his resignation from work, he was not prevented from performing other work for periods of 20 hours or more by the accepted disabilities.

..."

31. In oral evidence, in support of her reports, Dr Baz told the Tribunal that she did not consider that the applicant's anxiety or heart condition on their own would have made him unfit for work. She stated that she considered that with therapy and some change in duties the applicant would be able to work more than 20 hours per week.

32. She considered that the applicant could take on a varying level of responsibility in a mixed office type environment.

dr r. lewin

33. Dr R. Lewin, Psychiatrist, saw the applicant on 10 June 1999. In a report dated 11 June 1999 (Exhibit R8) he stated (inter alia):

"...

... I think that during the first three to six months following the onset of these symptoms and before a clear diagnosis was made, Mr Jorm was highly distressed and alarmed by these symptoms. It is likely that this, combined with his Generalised Anxiety Disorder and his underlying personality disposition had a major influence upon his decision to take retirement at the time he did.

I now considered his current fitness for work considering the last eighteen months or more. During this period his anxiety symptoms have been relatively minor. Mr Jorm has accepted medical advice that his cardiac symptoms are benign and he no longer feels fearful or excessively concerned about the meaning of these symptoms. It is my opinion that he would be fit to work on a part time basis, perhaps ten to twenty hours per week in restricted duties. ..."

34. In a subsequent report dated 3 December 1999 (Exhibit R9) he stated (inter alia):

"...

Finally you ask whether his Generalised Anxiety Disorder could be considered "the substantial cause of his inability to obtain work". I expressed the opinion that this was one of the factors that led him to take the decision to retire at the time that he did. His own letter of the 14^th March 1997 (page 125) referred to the importance of certain financial considerations and I note that the Anxiety Disorder was a long established condition. There is significant doubt that this was "the substantial cause" of his decision to take a redundancy at that time.

..."

35. In oral evidence, in support of his reports, Dr Lewin stated that he considered the applicant's decision to leave employment to be as a result of a combination of factors, including the heart scare, age, and redundancy offer. He considered it unlikely that the war-caused anxiety was the sole factor.

36. He opined that the applicant was fit for one half of normal duties taking into account all the factors and problems the applicant has, were the applicant to be offered work place assistance, and some 10 to 20 hours per week in restricted duties. He noted that many of the applicant's conditions had been present and accepted since 1988 and that the applicant had not been prevented from working as a result of such. He considered that the irritable bowel syndrome and tension headaches were manifestations of the generalised anxiety.

dr d. richards

37. Dr D. Richards, Consultant Cardiologist, saw the applicant on 15 June 1999 and prepared two reports dated 16 June 1999 (Exhibit R10) and 23 November 1999 (Exhibit R12), stating in the latter (inter alia):

"...

1. It is my opinion that the ventricular extopic beats and possible sinus tachycardia experienced by Mr Jorm were not of such a nature as to render him incapable of undertaking remunerative work for:

a. 50% or more of the time ordinarily worked by Mr Jorm; and

b. more than 20 hours per week.

..."

applicant's submissions

38. Mr Colborne made submissions, on behalf of the applicant, that sub-paragraph 23(1)(b) of the Veterans' Entitlements Act 1986 (the Act) requires consideration of real capacity to perform in a real job in a real job place, not involving a particularly benevolent employer or a sheltered workplace environment. He submitted that Drs Howe, Dinnen, Burns and Lewin all supported the contention that the applicant does not satisfy the 20-hour per week test. He sought to distinguish Dr Baz on the basis that her evidence contradicted her reports and failed to take account of the applicant's medical history.

39. He submitted that the "alone" test was satisfied in that, but for the applicant's health problems, the applicant would not have ceased working, and that Dr Howe had supported this position. He further submitted that the financial incentive to take the redundancy was simply not there.

40. He submitted that the redundancy document signed by the applicant (Exhibit R15) is clear and unambiguous, and that the applicant's conduct in hesitating to sign any documents without being clear as to their contents bolstered his credit.

respondent's submissions

41. Mr Lilley submitted, on behalf of the respondent, that the applicant's credit was in serious dispute given he was pursuing special rate simultaneously with the redundancy claim, the latter of which requires a person to be fit for work. He referred the Tribunal to Gallop J's findings as to the applicant's credit in CAA v Jorm.

42. He submitted that the "alone" test was not satisfied in that there were extraneous reasons why the applicant ceased employment, and continues not to work. He further submitted that the preponderance of the medical evidence supported the conclusion that the applicant could work more than 20 hours per week.

discussion and findings

43. The Tribunal has only briefly set out the evidence and submissions, but takes all before it into account in coming to its decision. In particular, there were a large number of authorities referred to the Tribunal, to which it has given careful attention, but to which, in respect of this present application, it considers unnecessary to canvas at length. The parties were not largely disputing the law, but asking the Tribunal to consider the applicant in relation to the relevant legal tests.

44. Section 23 of the Act requires satisfaction of the entirety of sub-section (1) therein. That sub-section is to be read in conjunction with the requirements of sub-section 23(2) and sub-paragraph 23(2)(b) is of particular relevance in this case.

45. Sub-paragraph 23(1)(a) was not in issue before the Tribunal, and it so finds that sub-section satisfied.

46. Sub-paragraphs 23(1)(b) and (c) are to be read in conjunction, but with each containing a distinct test. As demonstrated by the wealth of material and number of authorities before the Tribunal, it is this aspect of the section which gives rise to a large amount of litigation.

47. In respect of sub-paragraph 23(1)(b), it must be the incapacity from war-caused injury alone that is responsible for the veteran being unable to work. The incapacity for work must prevent the applicant from being able to work more than 20 hours per week. Sub-paragraph 23(1)(c) refers more specifically to loss of income or earnings in respect of work the veteran was undertaking, and again, makes reference to the "alone" test.

48. It is well established that "alone" is to be accorded its normal meaning, and be a question of common sense. It is not appropriate to substitute phrases such as "sole" or "unique" (Re Easton and Repatriation Commission (1987) 6 AAR 558 and Cavell v Repatriation Commission (1988) 9 AAR 534).

49. Capacity to undertake remunerative work is to be read in conjunction with section 28 of the Act, which prescribes the exclusive factors to be taken into consideration (sub-paragraph (b) therein). Senior Member The Hon Sir William Prentice considered this aspect of the tests in Re Davis and Repatriation Commission (1987) 12 ALD 483 at p484 wherein he stated (inter alia):

"...

(iii) In considering what work an applicant "might reasonably undertake" under s 28, having regard to the applicant's vocational, trade, and professional skills, qualifications and experiences, his position in life prior to his incapacity must be an element. Thus, a veteran doctor rendered voiceless could not reasonably be thought capable of undertaking a job as a window cleaner, or a veteran barrister, rendered voiceless, that of a gatekeeper. Evidence of the possible harmful effects on health and psychological makeup of alternative employment which was not commensurate with the veteran's skills and qualifications was also relevant. Thus, the alternative remunerative work suggested as available to the applicant in this case were not occupations which he might reasonably undertake, nor were other possible alternatives suggested.

..."

50. There is an obvious qualitative difference between the requirements of sub-paragraphs 23(1)(b) and (c) in that (c) makes reference to work the veteran was undertaking, whereas (b) only refers to capacity to undertake remunerative work.

51. Against this brief statement of general principle, the Tribunal turns to consider the facts of this case. Central to this case are the two questions:

(a) what reasons led to the applicant's retirement; and

(b) to what extent is the applicant incapacitated by his war-caused problems alone?

52. In respect of the retirement issue, Dr Lewin was doubtful that the applicant's anxiety was the substantial cause of his decision to accept a redundancy package. Dr Burns suggested that on his impression of the applicant, once the applicant got an idea in his head, it would be hard to change it, such that it the applicant thought his health to be such a problem, despite any actual necessary basis for this, and fixated on retirement as a solution, then it would be hard to dissuade the applicant from this course, given his personality and psychological profile. Dr Howe notes that he discussed the issue with the applicant, and agreed that his condition would improve if he left that particular type of employment.

53. The applicant's own evidence was that subsequent to the heart scare, and cognisant of his other health problems, he considered his future and decided that retirement was the step to take. This evidence was corroborated by his wife, who stated that, but for his health problems, she considers that the applicant would have continued working. As she told the Tribunal, it was only after the heart scare that the issue of retirement came up.

54. Of course, as Dr Richards notes, the heart condition is not incapacitating of itself, and the doctor considers it to be of no great concern. The Tribunal is mindful of the psychiatric evidence in this case however, which was to the effect that whilst a problem of such a nature may be considered niggling by a doctor, the symptoms produced can be of great concern to a patient, particularly with the applicant's sort of generalised anxiety problem. As Dr Lewin stated (page 8 of transcript for 20 June 2000):

"... Dr O'Neill described this as a benign condition and noted that it was not associated with any cardiac ischaemia but then went on to say that the ventricular ectopic beats were of nuisance value only. I would have thought they would have been a nuisance to the doctor but probably quite a worry to the patient. Doctors tend to underestimate how much people worry about their health and not to be, you know, fully aware of the degree to which things we say impact upon their patients. ..."

55. Mr Lilley spoke at length on the issue of the applicant's credit (or lack thereof), suggesting that the applicant was pursuing a deliberate course of seeking a redundancy package by claiming himself fit, whilst simultaneously seeking special rate. It was suggested that the visit(s) to a financial planner were evidence of a plan to retire for reasons other than health, and that the applicant, given prior court appearances, was not a person to be believed.

56. As the Tribunal told Mr Lilley during the course of his cross-examination of the applicant, he would be struggling to convince the Tribunal to find the applicant incredible on the basis of Gallop J's findings in CAA v Jorm. Whilst the Tribunal has the greatest of respect for Gallop J, his findings are predicated upon the evidence before him in that case, as this Tribunal must consider the evidence before it herein. It would no more take account of findings in CAA v Jorm as to the credit of the applicant as it would expect Gallop J to take into account this Tribunal's findings on credit were the cart before the horse, so to speak, and this case had preceded CAA v Jorm. Were these criminal proceedings, the evidence would fall into the category of prior bad acts, and at the very least the Tribunal is mindful that to place reliance on such evidence is the worst form of documentary hearsay. It requires no corroboration from the applicant therefore in respect of comments he made at hearing about CAA v Jorm and related matters, as this Tribunal takes no account of any of that evidence.

57. It assesses credit on the basis of the evidence before it. Mr Lilley rightly pushed the applicant as to the reasons why he signed a declaration that the applicant was fit for work as that document was central to the redundancy process. He submitted that the applicant's actions were inconsistent with a person with legal qualifications and lengthy experience in legal and administrative circles. The Tribunal however, accepts Mr Colborne's characterisation of this evidence. Mr Colborne submitted that the applicant had set his mind upon retirement, and instigated the relevant procedures accordingly. The applicant gave evidence that he was loath to sign a document stating that he was fit for work, and this is corroborated by Mr Bell, who noted that his clerk had told him of the applicant's initial hesitancy. The final document that the applicant in fact prepared and signed (Exhibit R15), bears all the hallmarks of someone experienced in administrative and legal affairs (and perhaps veterans' and Commonwealth matters in particular). It is a document with very deliberate and careful wording, in that he says that he has not had any injury or medical condition occurring since 4 June 1997 and further that he is fit for duty until COB 4 July 1997. Given he signed that document on 4 July 1997, that part of the document effectively only says that he is at work that day, and can work until the end of that one day. Perhaps the personnel officers should have given closer scrutiny to what they were actually receiving from the applicant, skilled as he was in the semantics of such matters, but for its part, the Tribunal does not consider it to be evidence of a lack of truthfulness on behalf of the applicant. It is not evidence of the fact that he knew or thought himself fit for duty in the broader sense of the phrase, for it does only refer to that one day (4 July 1997).

58. Mr Lilley sought to downplay the actual quantum of the redundancy package, but the Tribunal agrees with Mr Colborne that the quantum is an important factor when considering the reasons for the applicant retiring. He received a small sum of some $13,644 severance payment (T19/121) as compared to his annual gross income of $61,350. One would question why a person would accept such a small amount at age 59 if not for some other compelling reason to retire. In this case, the Tribunal cannot find any other compelling reasons aside from the applicant's medical problems. He and his wife both gave evidence that he thrived on intellectual challenge and is not "comfortably" retired. Whilst they were financially secure, this is not in and of itself a reason to retire young.

59. Taking into account all of the evidence and its assessment of the applicant, the Tribunal finds him to be a credible witness. It accepts his evidence that he contemplated retirement following his heart scare, which itself was most likely related to his anxiety condition. Whilst the heart problem was not really problematic, the Tribunal is mindful of the applicant's appreciation of such, given his generalised anxiety disorder. It accepts that the applicant considered his health problems in relation to his future and, having consulted Dr Howe, who advised him that "his condition would markedly improve if he were to leave his present work situation", his decision to retire arose as a result of his health problems alone. The Tribunal is further satisfied that the "health problems" in that regard, are all materially connected to, and resultant of his war-caused disabilities, taking into account the greater preponderance of the medical evidence.

60. In coming to this conclusion, the Tribunal considers that Dr Dinnen has correctly appraised the situation, in that given the applicant's personality and anxiety problems, once he had set his mind to this course of action, he was not to be swayed. In retrospect, all the doctors seem to be in agreement that the applicant should have embarked upon some graduated work program and that a reduction in hours may well have prevented the fact of retirement, and the Tribunal would concur with such opinion. Whilst it is easy to say this in retrospect, the fact remains that the applicant did not conceive of such a plan and, to the Tribunal's reasonable satisfaction, embarked upon the course to retirement as a result of his war-caused conditions alone.

61. The Tribunal is also mindful of the Tribunal's approach in Re Ambrose and Repatriation Commission (1993) 29 ALD 875. Whilst there are clear factual distinctions between the cases, in that Mr Ambrose faced the threat of dismissal if he did not accept a redundancy offer, there are parallels to be drawn in respect of the approach to be taken in cases where an applicant adopts a particular course of action due to health problems, but moreover, due to their perception thereof. The Tribunal notes the following from the full text of that case (AAT 8581, 11 March 1993 at paragraphs 29 and 30):

"29. Although Mr Ambrose's evidence is not corroborated as to his experience at the time of his ceasing to work at Caltex, we find him to be a credible and reliable witness. Consequently, we also accept his evidence and find that his less than satisfactory performance led to his being transferred within the company and to there being discussions as to the termination of his employment. We accept that Mr Ambrose retired and was not made redundant as he wrote to the Department on one occasion and as he told family and friends at the time. In doing that, we also accept that it was easier for him to use redundancy as an explanation for his not working than the real reason. We also find that Mr Ambrose retired on conditions which were slightly better than he could have otherwise expected but less generous than he could have expected had he retired at 65 years of age. In our view, the conditions offered by Caltex for his retirement did not attract him to do so for we are also satisfied that he did not wish to retire at this time but wished to continue to work. This is supported by his attempting to work, and to look for work until 1989 even though he was unable to work at the manual positions he obtained or to find other employment. We are also satisfied that Mr Ambrose retired because he felt that the only other option available to him was his dismissal by the company and dismissal would have left him in a less satisfactory financial position. Therefore, while Mr Ambrose did retire from Caltex, he did not retire because he wanted to but because it was his only real option.

30. The whole issue of his retirement arose only because of the incapacity caused by his accepted disabilities of bronchitis, headaches caused by his anxiety state and gastric pain due to his functional dyspepsia and oesophageal reflux. On the evidence, although we also find that Mr Ambrose found Noosa a pleasant place to live, close to his son and a place where he hoped to find work, these were not factors in his deciding to retire. They all presented themselves as reasons to live in Noosa after he had left work and there is no evidence to support a finding that thoughts of Noosa were in any way in his mind at the date of his retirement let alone a reason for his retirement."

62. Similarly in this case, the applicant's evidence of his attempts to seek work and the limited consultancy work he has found since retirement point to this applicant wanting to continue working. This is consistent with his reason for retirement being on medical grounds related to his accepted disabilities. This is one of those unfortunate cases where there are a lot of things that should have been done but were not. As in a lot of cases involving work and medical problems, there should have been involvement of psychologists or psychiatrists, and occupational medical people to attempt modification of the applicant's duties without needing to take the drastic step of retirement. As the Tribunal has stated however, whilst it is easy to speculate in retrospect, for various reasons, largely relating to the type of person this applicant is, such things were not in fact done. As a matter of fact, events took a less than desirable course, and history cannot now be rewritten. It has never been a case where the applicant was totally incapable of doing the job he was doing, or similar, and perhaps less stressful administrative/legal jobs, but that the job as it was, was simply beyond him from a medical standpoint.

63. In addition, it being clear that the applicant, despite continuing financial security, has and is suffering a loss of salary or wages that he would not be suffering if not for his war-related incapacities, the Tribunal so finds that sub-paragraph 23(1)(c) of the Act is satisfied.

64. The Tribunal must next consider the extent of the applicant's incapacity for the kinds of remunerative work he was undertaking, or might reasonably undertake. Dr Dinnen considers that the applicant probably underestimated his own capacity, but that it was not likely that he could undertake more than "a few hours per week", which he qualified to mean up to but not more than 20, and being limited types of work in non-pressure environments. Dr Burns considered that he could initially work up to 20 hours per week but not beyond for the time being. Dr Baz considered that he could work more than 20 hours with therapy and change in duties, and that he was fit for a variety of positions. Dr Lewin considered that he could perform some 10-20 hours of restricted duties, but fifty percent or more with assistance.

65. The Tribunal is mindful of the types of work it must have regard to, bearing in mind the sub-paragraph 28(b) factors, and Senior Member Prentice's comments in Re Davis. It notes that all doctors in this case have considered that the applicant's capacity to work will improve over the next few years, if he avails himself of the appropriate therapy and management. All doctors have added the caveat to his capacity, that he can work in "limited duties" or "with assistance" or words to that effect. This is quite proper from a clinical management point of view, because in any such case, a doctor will have an eye to ensuring that duties and treatment are appropriate to get a person back on track.

66. The question for the Tribunal is complicated by the fact that events have overtaken the attractions of restricted or limited duties. It is clear to the Tribunal from the majority of the medical evidence that the applicant is unfit to work 20 hours or more in the position he was actually undertaking and the Tribunal so finds. All doctors have suggested that there would need to be a reduction in the hours of that position and a modification of the duties of that type.

67. As to capacity to undertake remunerative work of the type he could reasonably be expected to undertake, the Tribunal notes that the effect that any such type of work may have on the applicant is a relevant consideration. When one considers the range of administrative and legal positions that would be reasonably within the scope of the applicant's skills, qualifications and experience, one must approach the situation with "an eye to reality" as Burchett J remarks in Cavell v Repatriation Commission (1988) 9 AAR 534 at p539, albeit in the context there of the "alone" test. The reality of such administrative and legal positions, is that there will necessarily be pressure and time demands. Such positions, are unlikely to allow the applicant much leeway to perform at his own pace or without time and other pressure demands, nor is it likely that the type of work he could reasonably be expected to do would be of a type where workplace assistance of the type envisaged by Dr Baz would be readily available. The reality of the jobs available in the administrative and legal arenas at the present day do not, in the Tribunal's opinion cater well for someone with the applicant's incapacities. Whilst it is cognisant of the anticipated improvements he can make with therapy, it must consider the types of work that exist in reality for someone with his skills, qualifications and experience that he might reasonably be expected to undertake. Even lower grade administrative positions are more than likely to have pressures of a type that would have detrimental effects on the applicant.

68. The Tribunal considers that it must evaluate the medical evidence before it in light of the reality of the type of remunerative work the applicant might reasonably undertake, and this means that the caveats expressed by the doctors as to necessary restrictions on the types of duties and the necessity of work place assistance mean that in respect of the actual types of work reasonably available, the applicant's capacity is somewhat diminished from the capacity afforded him by the medical opinion in this case.

69. On this basis, the Tribunal so finds that in its assessment and to its reasonable satisfaction, the medical evidence supports the position that in respect of the types of work the applicant might reasonably undertake, he is not capable of working 20 or more hours per week. In this regard, the Tribunal has not found it necessary to prefer one opinion over another given the reasons in paragraphs 68 and 69 herein. The Tribunal is required, in effect to speculate as to incapacity, and with regard to the reality of the job situation, it does not consider that any of the medical evidence would support the proposition that as at the time of retirement up until the present day, capacity for such would be 20 hours or more.

70. The Tribunal is satisfied, and so finds, that this was the position as at the time of his retirement and has continued to be the position to the present time.

71. Mindful as it is of the medical opinion that the applicant's capacity to work will improve over the next few years, the Tribunal considers that review of capacity would be appropriate in about 18 months time, bearing in mind section 24A of the Act and the age of the applicant.

72. For present purposes however, the Tribunal is satisfied, and so finds, that sub-paragraph 23(1)(b) of the Act is satisfied, and in full satisfaction of sub-section 23(1), the applicant is entitled to intermediate rate with effect from 5 July 1997.

decision

73. For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that the applicant is entitled to the intermediate rate with effect from 5 July 1997.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

Signed: .........................(signed)...........................................

Personal Assistant

Date/s of Hearing 4 April 2000

20, 21 & 23 June 2000

Date of Decision 9 August 2000

Counsel for the Applicant Ms A. Toliopoulos & Mr C. Colborne

Solicitor for the Applicant Legal Aid Commission

Counsel for the Respondent Mr B. Lilley

Solicitor for the Respondent Barker Gosling Lawyers