Hatherall and Repatriation Commission [2002] AATA 77 (11 February 2002)

Last Updated: 18 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/477

VETERANS' APPEALS DIVISION )

Re KATHLEEN JEAN HATHERALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 11 February 2002

Place Newcastle and Sydney

Decision The decisions under review are set aside and the Tribunal substitutes in lieu thereof its decision namely THAT the Applicant, Kathleen Jean Hatherall, is entitled to payment of pension for the defence-caused diseases of osteoarthritis right knee, adjustment disorder with depressed mood and lumbar spondylosis as and from 19 July 1998 AND THAT the assessment of the rate of pension to be paid is adjourned to the 1st day of July 2002 with payment to the Applicant as and from the 19^th day of July 1998 to the 30^th day of June 2002 at the Temporarily Totally and Permanently Incapacitated rate as set forth in section 25 of the Veterans' Entitlements Act 1986 (as amended).

........(Sgd)...M D ALLEN.................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS: Defence-caused injury to left knee. Whether altered gait led to aggravation of osteoarthritis right knee and to lumbar spondylosis. What constitutes clinical worsening. Pension at special rate. Inability to obtain employment in the workforce.

Veterans' Entitlements Act 1986 - s25; subss120(4); s120B

Repatriation Commission v Budworth [2001] FCA 1421

REASONS FOR DECISION

13 & 20 November 2001 Senior Member M D Allen

1. By application lodged with the Tribunal on 27 March 2000 the Applicant sought review of the following decisions namely:-

(a) the Repatriation Commission decision dated 22 June 1999 which refused a claim for aggravation of chondomalacia patella right knee, lumbar spondylosis, gastro-oesophageal reflux disease, and personality disorder and which increased pension to 30% of the general rate from 19 October 1998.

(b) the Veterans' Review Board decision dated 7 January 2000, which affirmed the Repatriation Commission decision in respect of aggravation of chondomalacia patella right knee, lumbar spondylosis, gastro-oesophageal reflux disease, and personality disorder and which amended the diagnosis of personality disorder to "personality disorder and depressive disorder" and increased pension to 60% of the general rate as and from 24 June 1999.

1. The said application for review came on for hearing before me at Newcastle on 13 November 2001 and resumed in Sydney on 20 November 2001. At that hearing the following documents were taken in as exhibits namely:

T1 to T47 - the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;

A1 - Applicant's Statements of Facts and Contentions;

A2 - Applicants letter to the Respondent dated 21 August 2000;

A3 - Letter from Applicant to the Administrative Appeals Tribunal dated 22 May 2000;

A4 - Statement by the Applicant - undated;

A5 - Copy of the Applicant's service medical documents;

A6 - Report of Professor Ghabrial, Surgeon dated 27 February 2001;

A7 - Report of Dr Pacey, Consultant in Rehabilitation Medicine dated 5 September 2001.

A8 - Applicant's Supplementary Statement of Facts and Contentions;

R1 - Respondent's Statement of Facts and Contentions;

R2 - Report of Professor Sambrook, Rheumatologist dated 5 July 2000;

R3 - Report of Professor Sambrook dated 6 September 2000;

R4 - Report of Professor Sambrook dated 20 September 2000;

R5 - Report of Professor Sambrook dated 26 October 2000;

R6 - Report of Dr Dinnen, Psychiatrist dated 27 July 2000;

R7 - Report of Dr Mark Burns, Occupational Physician dated 21 July 2000;

R8 - Report of Dr Mark Burns dated 28 August 2000;

R9 - Report of Dr Mark Burns dated 13 August 2001;

R10 - Clinical notes of Dr Wark, General Practitioner;

2. Oral evidence was received from the Applicant and Doctors Ghabrial, Pacey, Burns and Professor Sambrook.

3. At the time of initial injury namely 14 November 1982, the Applicant was a serving member of the Royal Australian Airforce. As such she had defence service as that term is defined by subsection 68(1) of the Veterans Entitlements' Act 1986 (the "VEA"). Subsection 120(4) of the VEA provides that in the case of defence service the Tribunal must be reasonably satisfied that the injury or disease was caused or contributed to by defence service before the claim for entitlement and treatment can be granted. In Repatriation Commission v Smith 15 FCR 327 the Full Court of the Federal Court equated the term "reasonably satisfied" to the civil standard of proof, namely that of the proof on the balance of probabilities.

4. Section 120B of the VEA provides that the Tribunal can only be reasonably satisfied that an injury or disease was defence caused if the material before it raises a connection between the said injury or disease and the particular service rendered by the person and that there is in force a so called statement of principles (SoPs) that upholds the contention that the injury or disease is on the balance of probabilities connected with that service.

5. A claim by the Applicant to have an injury to her left knee which occurred on 14 November 1982 accepted as caused by her defence service was accepted by the Repatriation Commission on 12 July 1988. In his written submissions, Mr Godwin, the advocate for the Respondent conceded that the said injury was defence-caused and given cases such as Kennedy v Telstra (unreported Federal Court No. NG921 of 1994 - 6 November 1995) and Comcare v Mather and Mitchell 37 ALD 463; 21 AAR 297, that concession is properly made on the facts in this case.

6. Further it was conceded by the Respondent, again properly so given the evidence in this matter, that the proper diagnosis of the Applicant's current disabilities are osteoarthritis of the right knee and adjustment disorder with depressed mood.

7. Having received the report of Professor Dinnen, Psychiatrist, the Respondent also conceded that the Applicant's adjustment disorder with depressed mood was contributed to by her orthopaedic disabilities which included her accepted condition of osteoarthritis left knee and that the decision rejecting the claim for this condition should be set aside.

8. The Applicant's representative in his submissions accepted that the Applicant cannot meet the applicable SoP for gastro-oesophageal reflux disease.

9. The matters to be considered by the Tribunal are therefore the Applicant's disabilities of osteoarthritis right knee, lumbar spondylosis and the rate of pension to be paid for all defence-caused injuries and diseases.

10. The Applicant originally broke her right knee when aged 16 years which was four years before she joined the RAAF. She was treated for this injury by Professor Ghabrial, Orthorpaedic Surgeon at Newcastle. The Applicant's evidence was that she made a full recovery from this injury and this is confirmed by her medical examination on entry to the RAAF.

11. On 27 January 1999 Professor Ghabrial in a report to the Applicant's general practitioner Dr Wark (T10) stated:

"...going back through the deterioration of her right knee, which I believe could be of 2 factors. The first is a fact that she had an injury to the right knee, although she managed quite well following that injury, but then as she had an injury to the left knee and had to put more weight on her right knee, that probably has made the right knee more symptomatic after the second 2^nd injury of 1982."

12. In answer to a question asked of him by the Tribunal, Professor Ghabrial confirmed that in his opinion the Applicant, by the way she walked following the injury to her left knee probably put more weight on her right knee and made symptomatic symptoms (pain) that were quiescent and asymptomatic.

13. When cross-examined, Professor Ghabrial stated that although there were no changes to the underlying pathology in the Applicant's right knee, by putting extra weight on the knee the osteoarthritis had been made more symptomatic. A similar process applied to the Applicant's lumbar spondylosis.

14. In his report of 5 July 2000 to the Respondent, Professor Sambrook, Rheumatologist, took a history that:

"...Ms Hatherall described how prior to the left knee injury, her right knee gave her no problems. Since that time she has been troubled by problems with the right knee and currently complains of pain in the knee worse on weight bearing with occasional locking and giving way."

and opined

"The most likely primary cause of the degenerative changes in the right knee is the osteochondril fracture she sustained in 1978 with the subsequent resection of that lesion. This would predispose her to developing osteoarthritis. However, one cannot exclude some contribution from the problems in her left knee (where she has an accepted disability) as causing her to alter her gait and contribute to accelerate osteoarthrosis in the right knee."

15. In a later report (Exhibit R3) Professor Sambrook stated:

"...and if the left knee was particularly symptomatic, it would be likely to alter the gait and alignment of the right knee."

16. Asked by the Respondent's advocate to comment on the fact that he did not find any malalignment of the left knee when he examined the Applicant, Professor Sambrook commented:

"...what I mean by that is when the left knee is more painful it is more likely that the gait will be disturbed and when the knee became less painful the gait may well return to normal and it is likely that the knee on the left will have a fluctuating cause at times when it is worse than in times when it is not so bad so the fact that when I saw her I couldn't see a malalignment again, didn't mean that one could exclude that. I think I indicated that it was more than just a possibility, it was a probability..."

17. These comments must be considered in the light of Professor Sambrook's prior evidence that you could not exclude a contribution by the left knee condition to the right knee condition. He also stated in-chief:

"...if there was frequent episodes of malalignment, that could lead to a worsening of the degree of osteoarthritis..."

18. Professor Sambrook was asked regarding notes by Dr Wark that referred to the Applicant cycling, walking and dancing in 1995 but stated that even with this information he did not think that the left knee incapacity was excluded as a material contributor to the Applicant's right knee osteoarthritis.

19. Professor Sambrook did state that the Applicant's obesity would also have been relevant to her osteoarthritis of the right knee and lumbar spondylosis.

20. Accompanying his written submissions the advocate for the Respondent included a document by the Repatriation Medical Authority headed "Statement about the causes of being Obese". This "Statement" is not a statement of principle but purports to define the term and pontificate about its causes. The Tribunal does not know under what authority the Repatriation Medical Authority purports to issue such statements, certainly section 196(B) of the VEA does not apply and such gratuitous material untested by cross-examination is of little weight.

21. What does seem clear on the evidence of both Professor Ghabrial and Professor Sambrook is that the Applicant's osteoarthritis of the right knee has been contributed to by the injury to her left knee. The operative cause of the current right knee incapacity is the fracture of the knee-cap prior to service but there has been a real contribution to the symptoms by the malalignment of gait caused by the left knee injury.

22. In Repatriation Commission v Budworth [2001] FCA 1421 the Court said at paragraph 19:

"...the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the Veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s120(1) as qualified by s120(3)..."

23. Of course Budworth (Supra) was a case where operational service determined the standard of proof but the comments of the Court regarding symptoms is equally applicable to claims relating to non-operational service. What the Court did emphasise is that it is the symptoms of a disease that cause incapacity and it is not necessary to attach a specific label to that collection of symptoms.

24. Similar concepts have been long accepted in Worker's Compensation Law or the Law of Civil Damages. In Gray and Commonwealth Banking Corporation (unreported Tribunal decision number 5168) the Tribunal said:

"The failure to observe pathology or the perception of different pathology is also irrelevant in determining incapacity. In Commonwealth Banking Corporation v Percival 82 ALR 54 at 57 a full bench of the Federal Court (presided over by Davies J) referred to a submission that the Commonwealth of Australia v Beattie (1981) 53 FLR 191 had been wrongly decided, and that the disease of which the old Act spoke was constituted by its underlying pathological condition and not by the symptoms thereof. The Court referred to this as 'a brave submission'. It went on to say -

"no doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of the disease and mere symptoms of the disease. For some legal purposes, eg s104(2) of the Act, the distinction is also pertinent. See Johnston v Commonwealth (1982) 150 CLR 331 at pages 341-3. But that is not to say that the symptoms of the disease are not part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is part of the condition in respect of which compensation for incapacity is granted. The pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity."

25. Similar concepts were applied by the Supreme Court of South Australia - Bollen J in Glavinas v Holden Motor Co Ltd (unreported 61/90 25 November 1991) where his Honour held "the mind, temperament and character of a man or woman does not move and have its being only in areas capable of strict characterisation as physical or psychiatric. If there be something about the victim of Court which makes him or her feel pain and thereby be incapacitated he or she is entitled to adequate damages for the effect of that Court even though the symptoms cannot be defined by any conventional label."

26. Thus even if Professor Ghabrial's evidence that there has been no significant change to the underlying pathology to the Applicant's right knee is accepted if an asymptomatic condition has been made symptomatic, as is Professor Ghabrial's opinion, then that constitutes an aggravation.

27. Both instruments numbers 82 of 2001 and 42 of 1998 which apply to the Applicant's osteoarthritis require that there be "clinical worsening" of the disease. The term "clinical worsening" is not defined in the SoPs but the Shorter Oxford English Dictionary, 3^rd edition, defines "Clinical" as "pertaining to the sick bed", cf Gould's Medical Dictionary 4^th edition meaning "pertaining to the symptoms and cause of the disease as observed by the physician, in opposition to anatomic changes found by the pathology". This definition, in the Tribunal's opinion covers the making symptomatic of previously asymptomatic symptoms or the worsening of existing symptoms.

28. Professor Sambrook on the other hand opined that there had been a contribution to the substantive disability, namely osteoarthritis by the malalignment (see Exhibit R2).

29. Instrument number 42 of 1998 which was in force at the time the Respondent made its initial determination in this matter provides as Factor 5(q) of the factors connecting a person's service with osteoarthritis as "having a malalignment of a joint before the clinical worsening of osteoarthritis in that joint".

30. In the Applicant's case, the report of Professor Sambrook 6 September 2000 and his evidence to the Tribunal make it clear that if the left knee was symptomatic it would alter the gait and alignment to the right knee and thus the requirements of the above mentioned SoP have been met. Even if the Tribunal is wrong in this regard, if an asymptomatic condition in the right knee has been made symptomatic or the severity of symptoms increased, then on the authority of Budworth (supra) the exacerbation of symptoms is itself a disease as defined in section 5(D) of the VEA and moreover is a disease respecting which no SoP has been issued. The Tribunal is satisfied that on the balance of probabilities, the Applicant's symptoms have indeed been made worse then they otherwise would have been by the injury to her left knee.

31. Similar arguments apply to the Applicant's lumbar spondylosis. In Exhibit R2 Professor Sambrook stated:

"In regard to the lumbar spine, this is usually a degenerative condition due to ageing (which is not operative here) and obesity (which is operative here) with the possibility of a lesser contribution from Ms Hatherall's gait. Again one cannot exclude some contribution from altered gait to that diagnosis, but I would think this is generally an unlikely scenario in comparison to the right knee where I think there is a more likely direct causal chain or link."

32. In Exhibit R2, Professor Sambrook referred to the report of Professor Ghabrial of 27 January 1999 (T10). In that report Professor Ghabrial stated:

"The x-rays of the lumbar spine performed on the 4 December 1998 showed mild disc generation at the L5/S1 segment..."

and added

"Regarding the back, I believe that her altered posture as a result of her knees is causing strain on her lower back but I could not find any clinical evidence of any disc protrusion at that stage."

33. The report of Professor Ghabrial quoted above was written to the Applicant's General Practitioner for treatment purposes and not for medico-legal reasons, and therefore has the objectivity of such a report.

34. In evidence, Professor Ghabrial stated he could find no evidence of back pathology. This evidence is difficult to rationalise with his earlier report that referred to disc degeneration at the L5/S1 segment. Professor Sambrook accepts that the Applicant does have lumbar spondylosis, the clinical onset of that disease being in 1990/1991 or 1992.

35. Factor 5(d) of Instrument number 28 of 1999 entitled "Lumbar Spondylosis" refers to "having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis".

36. The Applicant was discharged from the RAAF on 23 August 1988 due to the injury to her left knee. The date of injury is 14 November 1982 and the Applicant's evidence is that she had problems with her left knee since that date. It would seem to follow therefore that the Applicant from that date favoured her right knee and as a result there was a malalignment of lumbar spine. She stated in evidence that she began to have problems with her right knee and as a result there was a malalignment of the lumbar spine. She stated in evidence that she began to have problems with her right knee since 1983 and reported this to service medical authorities. It can be said therefore that she has had malalignment of both knees since certainly 1983.

37. In this case the finding that there was a malalignment both of the knees and the lumbar spine is supported by the medical evidence. For example, Professor Sambrook states: "one cannot exclude some contribution" (Exhibits R2 and R3), cf Professor Ghabrial regarding the spine "...I believe that her altered posture as a result of her knees is causing strain on her lower back ..." (T10).

38. In making the above finding, namely that there was malalignment in both of the knees and spine is supported by the comments of Rich ACJ in Adelaide Stevedoring Co Ltd v Forst 64 CLR 538 at 563 where his Honour referred to the presumptive inference which the sequence of events would naturally inspire in the mind of any common sense person uninstructed in pathology. In other words, if a person injures their left knee and thereby places more weight on their right knee, this will result in a malalignment of that knee and as Professor Sambrook pointed out in evidence-in-chief, it is certainly true that if you have got an abnormal gait you can put additional stresses upon other joints. In Exhibit R2 Professor Sambrook said:

"In regard to osteoarthrosis, one needs to give consideration to Factor 5(q) in regard to malalignment for the clinical worsening of osteoarthrosis. Again one might consider that the abnormal gait has lead to a form of malalignment of the knee before the clinical worsening of osteoarthrosis. Malalignment includes displacement out of line due to deformity of other joints and this would include the left knee."

39. The Tribunal finds that Factor 5(d) of instrument number 28 of 1999 has been met and that the Applicant's lumbar spondylosis is a defence caused disease.

40. Currently the Applicant is in receipt of a disability pension at 60% of the General Rate. The acceptance of the right knee and back disease would of themselves raise the level of her pension to above 70% of the General Rate, therefore I must consider the Applicant's entitlement to pension at either special or intermediate rates of pension.

41. As a result of these proceedings the Applicant now has the following disabilities accepted as being due to her defence service namely:

Osteoarthritis Left knee

Osteoarthritis Right knee

Haemorrhoids

Lumbar Spondylosis

Adjustment disorder with depressed mood.

42. The disease of gastro-oesophageal reflux is a non-accepted disability but it has not been suggested that this disease of its self would prevent her from engaging in employment. She has also fractured her left ankle and is obese but nothing in the evidence before the Tribunal suggests that these particular injuries and diseases either by themselves or in combination would prevent the Applicant from engaging in employment.

43. The criteria for the grant of pension at the Special Rate in the case of this Applicant who is aged under 65 years are set out in subsection 24(1) and (2) Veterans' Entitlement Act namely:

(1) (aa).....

(aab)....

(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 eight 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 there is, suffering a loss of salary or wages, or of earnings on his or her own account, but the Veteran would not be suffering if the Veteran were free of that incapacity; and

(d) i. Section 25 does not apply to the Veteran.

ii. 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 Veterans 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 to seek to engage in remunerative work and 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.

44. So far as the requirement that it must be incapacity from the defence caused injuries or disease alone that prevents the Applicant from engaging in remunerative work. See Burchett J in Cavell v Repatriation Commission 9AAR 534 at 539 where His Honour said of the "alone test" that the task of the Tribunal was to "make a practical decision whether the Veteran's loss of remunerative work is attributable to his service-related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide. These remarks were endorsed by R D Nicholson J in Forbes v Repatriation Commission 58 ALD 394.

45. Immediately after being discharged from the RAAF as medically unfit because of her left knee injury, the Applicant worked for a firm that installed shower screens and wardrobes. Her duties included cleaning the shower screens in the showroom and she found this difficult because it required her to squat. She also did basic clerical tasks but no typing. That position lasted five months only due to her inability to clean.

46. Since that time, the Applicant has undertaken several courses in an attempt to gain entry into the workforce. These courses include a basic computer course, a mediators training course, a TAFE Diploma in Welfare, and an associated diploma in librarianship. She has also spent $1,000.00 on completing a nail technicians course.

47. Although the Applicant has attempted various jobs, her disabilities have frustrated her. As stated, she could not continue with the shower installing company because she found it difficult to squat and clean showers in the showroom. Her attempts at Welfare work foundered as she found difficulty in climbing stairs and as to her nail technician's course, after spending $1,000.00, she found she could not "sit and do the nails". As pointed out by Dr Pacey, a TAFE Associate in Librarianship means the person does physical work, for example, putting books away. A submission in the course of argument which the Tribunal accepts and indeed know from its own observation, is that low level clerical positions in the public service often require physical activity.

48. The Applicant's ability to engage in employment was considered by Dr Mark Burns, Occupational Physician, Dr Pacey, a consultant in rehabilitation medicine and Dr Rosenthal, Occupational Health Consultant.

49. In his report of 9 December 1998 to the Applicant's General Practitioner which is found at page 541 of Exhibit R10, Dr Rosenthal stated under the heading Fitness for Work:

"Regarding her fitness for work and possible future vocations, she certainly has attempted many positions but unfortunately most of these have been unsuitable. The difficulties arise because she wants to do things that she is not physically capable of doing or where the jobs are inappropriate in regard to her medical condition. She is not suited to any work that involves prolonged walking, driving or outdoor work, where she is likely to walk over uneven ground.

She is best suited to office based clerical work or work that involves sitting in an office perhaps such as counselling, or other office based work where she can sit and stand as required and there are no significant steps that may cause her difficulties.

Within the confines of these restrictions she should look for employment which is office based and with that regard she should seek assistance from a local rehabilitation provider such as the Commonwealth Rehabilitation Service to assess any potential job in view of her medical restrictions, to determine any individual job is appropriate for her. This would have to be determined both in regard to her physical capabilities as well as her mental capabilities of performing any particular job..."

50. In her report of 5 September 2001, Dr Pacey stated:

"It is clear that Mrs Hatherall cannot return to work that requires any physical activity such as lifting, bending, reaching, or sitting for prolonged periods.

It is apparent from her level of disability that she would not tolerate full-time work and would certainly need to undertake part-time work...

If Mrs Hatherall was able to obtain employment close to home, so that this did not necessitate driving that was of a part time nature and not every day of the week, then it is likely that she would be able to tolerate at least eight hours a week of work. The work would need to allow her to change her posture and not to be involved in any bending or lifting and not to require prolonged sitting. In this instance, clerical work that requires sitting at a keyboard for long periods of time is not suitable. The likelihood of finding this kind of work, is quite remote."

51. In evidence, Dr Pacey said of the Applicant:

"...well, those disabilities cause physical limitations. Her knee pain prevents her walking any distance, sitting for any period of time, negotiating stairs or squatting and the haemorrhoids is a painful condition that is aggravated with sitting for any period. So that makes employment every difficult in that she needs to change her posture constantly. She can't maintain any posture. She is very limited physically in what she is able to do and also because of her pain she is limited in the length of time that she can work the work hours that she could tolerate..."

52. More importantly, the following exchange took place at the end of Dr Pacey's evidence-in-chief:

Q. If a potential employer was to look at Ms Hatherall, is he likely to see a risk of further injury and is that likely to effect her prospects of finding work and staying in work?

A. Very much so. She has a number of injuries, she has obvious disability with her walking and I think that would be obvious to any employer and is some concern.

Q. In your experience, how do employers react to someone who presents as Ms Hatherall?

A. In my experience they don't call them back.

53. Dr Pacey was then asked by the Tribunal:

Q. I suppose to put it more crudely she is a worker's compensation risk, isn't she?

A. Very much so, yes.

54. In further discussion of the Applicant's training and abilities, Dr Pacey stated that the Applicant would need some form of vocational assessment to see what her aptitudes are. For example, although the Applicant has done a librarian's course, she does not have the physical tolerance to work in a library and welfare work would require travelling.

55. Dr Mark Burns, in his report of 21 July 2000 (Exhibit R7) stated as to the Applicant's ability to find employment:

"...I believe that Ms Hatherall would be unable to return to physical work. She would not be suitable for any work which required prolonged standing or walking. Additionally, she would have difficulty in lifting, pushing and pulling. I believe, though, that she would be capable of returning to clerical work that did not require a great deal of manual effort. I note that she has completed a computer course in the past and this would certainly be the type of work she would be capable of performing."

56. In a later report (Exhibit R8), Dr Burn stated:

"With respect to employment I believe that she has a very restricted choice of work. Her musculoskeletal problems would restrict her to sedentary work where she would also need to be able to move around to relieve symptoms. Clerical work of a general nature would be the most appropriate with a mixture of telephone answering, filing and some keyboard work. Considering her multiple medical problems, her low level of training and her geographical location it is unlikely that she will be able to find either suitable work or a willing employer."

57. Dr Burns expanded on the above in his evidence. At the time Dr Burns gave oral evidence, more information as to the Applicant's medical condition was available and Dr Burns agreed that the Applicant did not have a broad ability to work but would have an ability in a narrow area. At page 11 of the transcript, the following exchange took place:

"...Dr Burns - even if she has the capacity to do the job, in other words there was a job within her narrow capacity then an employer in an open workforce had a choice between Ms Hatherall and someone else who appeared to be fit and healthy is unlikely to pick her as the candidate..."

Q. So the only follow-up question is do you see any benefit if you went to an organisation like the Commonwealth Rehabilitation Service?

A. If she went there to have a look at Rehabilitation and Retraining I think the difficulty that would come about is that firstly they would look at what her potential for work is and they would also look at her geographical area and they would probably point out that even though they could look at rehabilitating her into some other form of employment, the chances of getting employment would not be great where she is currently living and that is one of the criteria they now utilise. So it is unlikely that they will take her on as a candidate..."

58. Later, at page 15 of the transcript - Dr Burns was asked:

Q. From what you were saying it seems to me that her prospects of work required her to live in Sydney, to find a particular employer. What we mean there is a generous employment is that a fair comment do you think?

A. I think that is a very fair comment.

Q. And she would be engaged in a narrow range of activity?

A. Look from the way you are putting it I would agree that she does have a narrow area that she is likely to be able to work in. As I mentioned to Senior Member Allen, I believe that it would be difficult for her to obtain work within that area. So that even though she has work capacity in the real work and in an open workforce she would have difficulty finding the right type of work.

59. What the Tribunal adduced from the above exchange is that the Applicant can bring herself within the ameliorating provisions of subsection 24(2)(b) of the VEA.

60. Given the courses the Applicant has undertaken and her attempts at work the Tribunal find as a fact that she has been genuinely seeking to engage in remunerative work and that incapacity from defence-caused injury and disease is the substantial cause of her inability to obtain remunerative work in which to engage.

61. Having regard to the criteria for the grant of pension at the special rate, the Tribunal is reasonably satisfied that the Applicant meets those criteria and so is entitled to pension pursuant to section 24 of the VEA. However, the Tribunal find that the Applicant has demonstrated the motivation to attempt to re-enter the workforce. Notwithstanding the pessimism of Dr Burns, the Tribunal believes that it is in the Applicant's interests and in the interests of the taxpayer that she be given this opportunity. The RAAF were totally unconscionable in discharging a young woman as medically unfit but made no provision for her rehabilitation. That task must now be undertaken by another Government body.

62. The Tribunal notes that a copy of the report of Dr Rosenthal referred to above was forwarded to the Department of Veterans' Affairs. No action appears to have been taken on it although part via, VEA refers to a Veterans' Vocational Rehabilitation Scheme. The Tribunal's intention is that following it's finding that the Applicant is entitled to pension at the Special Rate that this matter be adjourned until the 1^st of July 2002. In the interim the Applicant is granted a pension pursuant to section 25 of the VEA, that is to say at the temporarily totally incapacitated rate. If in that time steps can be taken by the Respondent to undertake rehabilitation for the Applicant and place her in one of the clerical positions which it argued she could fulfil, then the matter can be reassessed. If the Applicant is on 1^st July 2002 still unable to engage in remunerative work, she will be entitled to pension at the Special Rate unless some other matters intervene.

63. The decision of the Tribunal is therefore that the decisions under review are set aside and the Tribunal substitutes in lieu thereof its decision namely: THAT the Applicant, Kathleen Jean Hatherall, is entitled to payment of pension for the defence- caused diseases of osteoarthritis right knee, adjustment disorder with depressed mood and lumbar spondylosis as and from 19 July 1998 AND THAT the assessment of the rate of pension to be paid is adjourned to the first day of July 2002 with payment to the Applicant as and from the 19^th day of July 1998 to the 30^th day of June 2002 at the temporarily totally and permanently incapacitated rate as set forth in section 25 of the VEA (as amended).

I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed: (Kwai-Ling Wong) .....................................................................................

Associate

Date/s of Hearing 13 and 20 November 2001

Date of Decision 11 February 2002

Advocate for the Applicant Mr R Sherlock, Legal Aid Commission

Advocate for the Respondent Mr P Godwin, Department of Veterans' Affairs