Claxton and Repatriation Commission [2002] AATA 959 (21 October 2002)

Last Updated: 24 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 959

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/9

VETERANS' APPEALS DIVISION )

Re WILLIAM ALFRED CLAXTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member J. A. Kiosoglous MBE

Date 21 October 2002

Place Adelaide

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review.

(Signed)

J. A. KIOSOGLOUS

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - special rate - sub-paragraphs 24(1)(c), 24(2)(a) and 24(2)(b) of the Veterans' Entitlements Act 1986 considered - "alone test" - whether applicant ceased work in part because of non-war-caused injuries.

Veterans' Entitlements Act 1986 s.24

Moorcroft v Repatriation Commission [1999] FCA 862

Forbes v Repatriation Commission [2000] FCA 328

REASONS FOR DECISION

21 October 2002 Senior Member J. A. Kiosoglous MBE

1. This is an application by Mr William Alfred Claxton (the applicant) for review of a decision of the Veterans' Appeals Board (VRB) dated 30 November 2000 (T2) which affirmed a decision of a delegate of the respondent dated 24 August 1999 (T15) to continue the applicant's pension at 80% of the general rate.

2. The Tribunal received into evidence the documents lodged pursuant to section 37 to the Administrative Appeals Tribunal Act 1975 (T1 to T22), together with ten exhibits, seven lodged by the applicant (Exhibits A1 to A7) and three lodged by the respondent (Exhibits R1 to R3). In addition, the Tribunal heard evidence from the applicant, who also called Dr A. K. Gogia, General Practitioner. The applciant was represented by Mr T. White, of counsel, and the representative was represented by Mr G. Doube, a departmental advocate.

3. The issue before the Tribunal is whether or not the applicant's entitlement is appropriately assessed at 80% of the General Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 ("The Act"). The respondent concedes sub-sections 24(1)(a) and 24(1)(b) of the Act, leaving the issue for the Tribunal as to whether the applicant satisfies sub-section 24(1)(c) of the Act. It was agreed between the parties that in the event of the application being successful, then the earliest date of commencement of any benefit that may flow as a result is 12 August 1998, that being the date three months prior to the date of lodgement of the original claim.

History of the Application

4. The applicant was born on 1 October 1941 and is aged 60 years. He served in the Royal Australian Navy from 1960 to 1969, including operational service in Vietnam from 2 September 1967 to April 1968. On 12 November 1998 the applicant lodged a claim (T4) for the acceptance of, among other things, emotional and behavioural disorder and hypertension. As a result Post Traumatic Stress Disorder (PTSD) with dysthymia and hypertension were diagnosed and on 24 August 1999 a delegate of the respondent accepted a claim for these conditions (T15) with effect from 12 August 1998. Also on 24 August 1999, the delegate assessed the rate of pension payable to PTSD with dysthymia and hypertension together with bilateral sensorineural hearing loss which had previously been accepted as war caused under the Act at 80% of the General Rate.

5. On 2 September 1999 the applicant lodged an application to the VRB seeking a review of the delegate's decision (T16). The VRB on 30 November 2000 (T2) affirmed the decision of the delegate of the respondent (T15) to continue the applicant at 80% of the general rate. The applicant, before this Tribunal, sought entitlement to the special rate of pension provided pursuant to section 24 of the Act.

6. The applicable legislation is section 24 of the Act which provides as follows:

"Special rate of pension

(1) This section applies to a veteran if:

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

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

(a) either:

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

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

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

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

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

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

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

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

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

...."

7. The applicant told the Tribunal that he had operational service in the Navy between September 1967 to April 1968 although his total service was from 1960 to 1969. He stated that he served on a number of ships whilst in the Navy including on the HMAS Perth from 1965 to 1968. He further stated that whilst on the HMAS Perth he left Australia in September 1967 for Vietnam returning in April 1968. He had only been in Vietnamese waters about a week when the ship was bombarded and hit by an enemy shell fired off the coast of North Vietnam. At the time he stated he was standing some twenty-five feet away from the CB Office (Confidential Books) section which was next to the turret. It was the turret which was hit. He also explained that at the time his role was being in charge of the ammunition drums ensuring that the correct ammunition was placed in the drums.

8. The applicant stated that whilst the ship had been hit only on one occasion it had been under fire on other occasions at different times and days whilst patrolling the whole of the North Vietnamese coastline. In fact he stated that the location where the ship had been hit was visited on two to three occasions. He stated that the steel walls upon being hit came down on him, the CB Office was damaged, the barber's shop slightly damaged and the stores office demolished. He also stated that there was water everywhere. The applicant stated that the date upon which the ship was hit was about 20 October 1967. He stated that he had just come off early morning watch and went down to the mess deciding to skip breakfast and he then went up to the turret area where "all hell broke loose". He finished off on the HMAS Perth in April 1968, disembarking in Sydney and going to the land base, Creswell, at Jervis Bay, New South Wales.

9. On leaving the Navy he stated he came to Adelaide where he stayed for a couple of weeks when he obtained work through a friend of his with the railways at Peterborough. He worked there for approximately six weeks when he then obtained a job as a night watchman with Australian Watching Company at Pelican Point for some eight to nine months. He stated that he left this job because he had been denied time off for Christmas. He then obtained employment with Rheem, where he stayed for twelve months, but left on obtaining employment with the SA Gas Company, where he remained for twenty-six years, nine of which were in the city building in Waymouth Street.

10. The applicant stated that when he first started with the gas company he was located at Osborne as a labourer. He stated that over the next few years he worked in different locations until placed at the City headquarters in Waymouth Street, Adelaide, where for nine years he served as caretaker. During this time Boral Energy took over the SA Gas Company. The building in Waymouth Street comprised five levels plus the basement. He stated that he was located in the basement but was able to access all levels by way of the lifts, of which two were at the front end and one at the rear of the building. He also stated that only the rear lift went to the basement and he used either this lift or the stairwell to go from one floor to the other.

11. The applicant stated that his tasks as a caretaker included the changing of the fluoro lights and globes, repairing desks, ensuring the roof and gutters were clear, and that the fire extinguishers were operative. He stated that any heavy work was contracted out and that there was a full-time contractor for the technical work and the undertaking of certain jobs. He also undertook occasional small painting jobs but painters were brought in for large painting jobs. He further stated that an electrician was also brought in, mainly for work on the air-conditioning, but also for undertaking any small electric work that may have been required. He stated that when he changed the light bulbs he would use a step ladder. In the event of an extension ladder being required then he got the contractor in to do the change. He stated that he was unable to climb an extension ladder as it made him giddy.

12. The applicant stated that in his capacity as caretaker he was able to determine the jobs to be done as well as the pace at which the work would be done. He further stated that he had the discretion to delegate tasks and determine what work the contractor would do. He stated that he would classify the work he did as "medium" and that this involved desk work such as paperwork of the jobs needing to be done. He also stated that he would undertake those jobs that he was able to do, and that those he was unable to do he would get the contractor to do.

13. The applicant stated that he experienced difficulties at work due to tiredness and the work generally getting him down. He further stated that he "tired a lot, was drinking quite a bit and found work generally getting him down." He also stated that he did not have his heart set on the work and in the end he did not like going to work. He felt that this attitude was due to his frustration at being unable to sleep for what he thought was sleep apnoea. In addition he stated that he had become involved in conflicts with other colleagues in the workplace and argued with anybody who either got in his way or with whom he did not agree. He also stated that he was also "edgy" at times. One of the persons with whom he felt this way with was his boss whom he described as being egotistical. On one occasion he stated he was doing work that was giving him higher pay and on going on leave he returned to work to find that the contractor had been given this higher duty work. He stated that he had an argument with his boss over this, telling him what he thought of this arrangement.

14. When asked to describe his feelings the applicant stated that he agreed with what was set out at questions 2 and 3 respectively of the Income Support Pension Claim (T5/27). He elaborated in his evidence that he is unable to concentrate and his mind tends to "wander off". He stated that he experienced lethargy which left him with feelings of tiredness. He also stated that he was unable to hear properly nor concentrate properly when on the phone which frustrated him. He further stated that at a later date he had found out that he had deafness of some 20 per cent in both ears which has since gotten worse. He wears a hearing aid in his right ear. In completing his claim application he did not state "hearing loss" but instead wrote "tinnitus" as he thought these to mean the same thing.

15. The applicant stated that he had been hearing rumours of the Waymouth Street site closing down and moving to another location. This left him and other employees disgruntled but also had him worried as to where he was "going" in his job. He stated that in addition he was worried as to why he could not sleep at night as well as why he was getting flashbacks and drinking.

16. The applicant stated that he had not seen any psychiatrist prior to 1 September 1997. He stated that he first started consulting Dr A. K. Gogia, general practitioner, about twenty "odd" years ago. He was unable to recall whether or not he had told Dr Gogia about his emotional difficulties at work prior to leaving the gas company as at the time he himself was unaware of the problems. He stated that he did not talk about his difficulties at work with anyone else nor tell anyone at work. This also included his being unaware of PTSD. He first saw Dr Marty Ewer, psychiatrist, on or about 12 March 1999 and to whom he described a number of difficulties he had been having. He stated that it was Dr Gogia who suggested he see Dr Ewer.

17. The applicant stated that he was sent to Dr Ewer by the Department of Veterans' Affairs (DVA) but at his request and to which request the DVA had agreed (T4/18). He stated that it was through Dr Ewer's report (T9/38) to the DVA that he became aware of PTSD. He did not understand what this was until it was explained to him by Ms Debra Richards, clinical psychologist, whom he had seen upon referral from Dr Ewer. He stated that since March 1999 he has been seeing Dr Ewer approximately every three months. Initially he also saw Ms Richards every month but now sees her every two months. He first saw her on 10 June 1999.

18. The applicant stated that it was Dr Ewer who placed him on medication and provided the appropriate scrips. He also stated that he had been taking sleeping tablets but was not doing so now and that it may have been Dr Gogia who prescribed on one occasion the sleeping tablets but he was not sure of this. He further stated that due to his sleeping difficulties he had had tests conducted at the Queen Elizabeth Hospital in 1997. He was put on a C-Pap machine and found that he was able to sleep better. As a result he purchased such a machine which has been of assistance with the sleep apnoea allowing him three to four hours sleep.

19. The applicant stated that he was seen by a DVA medical officer, Dr Seith, who prepared a report dated 26 May 1999 (T10). He stated that Dr Seith only saw him for about twenty minutes on one occasion and that he did not see what was recorded. He further stated that he could not remember if Dr Seith had shown it to him to read. In answer to the question as to the reason for his ceasing work (T10/52) the applicant agreed that he had indicated his condition which caused him to fall asleep at his desk but he was unable to say what was the cause for it. He could not recall if he had told Dr Seith anything else. As to PTSD, he agreed that he was not aware that he suffered with this whilst at work in 1997, although he had been told that he had PTSD by Dr Seith. He stated during cross-examination that he did not know what PTSD was at that time and agreed that when told of this by Dr Seith he did not ask what it was. When pressed on this the applicant then stated that he probably did ask Dr Seith and was told but he "didn't let it sink in or take it on board".

20. The applicant during cross-examination agreed that everything Dr Seith had written in his report (T10) was correct and in that the disabilities listed therein affected his ability to work due to "tiredness and pains in hands and knees". He stated that it was his opinion at the time that the reason for his retiring in 1997 was due, inter alia, to sleep apnoea. He aslo agreed that some thirteen months after retiring he put in a claim for an emotional and behavioural disorder. He stated that he thought he was ill through sleep apnoea but since then he had learnt that it was not so and that it could have been other things such as PTSD, his "flashbacks and sleepless nights."

21. As to his diabetes, the applicant stated that this had been diagnosed prior to his retirement from work. He could recall Dr Gogia saying that it was caused by drinking but he was not sure if he was told whether or not high blood pressure had something to do with it. He stated that whilst he was also not sure if anything had been said to him about his weight it was possible that something may have been said to him. He further stated that Dr Gogia put him on a diet treatment programme in an attempt to reduce his weight.

22. The applicant stated that the Employer Questionnaire (T11) was completed by his former supervisor with whom he had had disagreement in relation to overtime rates. He was unaware of its content and had not seen it prior to its being sent to the DVA. He stated that prior to tendering his resignation he had at no time been approached and told he would not be re-employed when the company moved to another location. He also stated that the only way he knew anything of any relocation was by rumour and that he had heard rumours of others losing their jobs but nothing had been said to him. He further stated that he had not been approached about a redundancy package. On hearing the various rumours he stated that he saw his union representative to ascertain if he could be transferred to the Brompton depot but was not successful in this. He explained that his letter of resignation dated 24 September 1997 (Exhibit A6) stated that he took early retirement because of continuing ill health due, inter alia, to tiredness, lack of enthusiasm, worry, hearing problems and lethargy.

23. His letter of resignation was written after he was told that there was no work available for him at the Brompton depot. He stated that when he asked to go to Brompton he had no knowledge that his "caretaker job" was likely to cease. He also stated that apart from rumour he had no awareness of any move to relocate the Waymouth Street office. He stated in cross-examination that if he had known of the chance to be made redundant there was "no way in the world" that he would have left his job.

24. He stated during cross-examination that when he tendered his resignation he thought that his illness was due to sleep apnoea but has learnt since that it was due to such things as nightmares, flashbacks and PTSD. The flashbacks prevented him from sleeping, hence his tiredness at work and his falling asleep at his desk. He reiterated that he was aware of PTSD but did not know what it meant at the time. He agreed that all comments in the medical report (T10) were correct. Under cross-examination he stated that whilst he attributed his falling asleep at his desk to PTSD he in fact did not know at the time that this was not the case. He further stated that it was also not his sleep apnoea that was the cause because at the time this was under control with the C-Pap machine. He attributed his falling asleep at his desk prior to being on the C-Pap machine to what he thought was PTSD because of his being unable to sleep at night causing him to be tired during the day.

25. In reference to the use of extension ladders the applicant stated that such were used in some instances of painting as well as for the clearing of gutters. He stated that it was Dr Gogia who advised him to refrain from using an extension ladder due to his becoming giddy. As he had the power to delegate jobs to others he did not say anything and of his own volition excused himself from climbing such due to giddiness. The non-use of extension ladders by him occurred up to about two years prior to resignation. He agreed during cross-examination that at no time in the intervening period had Dr Gogia set this out in a letter to have him excused from using an extension ladder, nor had the doctor detailed the problems caused by so climbing such a ladder. When asked why, the applicant stated that he didn't believe that the doctor had written a letter to say that he couldn't climb. He also stated that he had no proof that he could not climb extension ladders.

26. During cross-examination, when asked if was aware prior to resigning that his employer was going to move from Waymouth street to another building, the applicant stated that he was not aware of any such intended move. He stated that had he been aware of this he would not have resigned so as to get a redundancy package. When reminded that his resignation indicated because of ill health he stated that he would not have left work through illness but stayed on and hoped to obtain a redundancy package. He stated that his resigning cost him thousands of dollars. When asked if he had in fact stayed on, would it not have affected his illness, he replied that his illness had nothing to do with it and there was no way in the world that he would have left the job if he was going to be made redundant.

27. Mr Doube during cross-examination asked the applicant about responses made to information sought in the Income Support Pension Claim (T5), in particular in reference to question 11 (T5/28) about his wife's illness. To that question, namely "any other circumstances that prevent you from working, that you think should be taken into account", the applicant stated "family problems ie wife's illness". In cross-examination he stated that his wife had osteoporosis which is now under control. He also stated that this would not have stopped him from working, nor would the depression of his step-daughter, who was not even living at home with him. He stated that none of these would prevent him from working and that depression was the cause.

28. The applicant agreed that the conditions he set out, including hypertension, diabetes, sleep apnoea, arthritis in the hands and tinnitus, caused his permanent incapacity to work (T5/30). He stated that when completing the application he thought that these were responsible for his condition and it was only after that that PTSD was raised and he felt that this was a contributing factor. He further stated that it was his opinion that at the time of talking with Dr Seith in May 1999 his symptoms were due to sleep apnoea.

Dr A. K. Gogia, General Practitioner

29. Dr Gogia in his evidence stated that he first saw the applicant some twenty-two years ago in 1980. Since that time he has seen the applicant on many occasions and he was unable to recall when he first discussed PTSD with the applicant nor the number of times this was discussed. In fact he stated that he may have had a talk about PTSD with the applicant but nothing was documented. He stated that he referred the applicant to Dr M. Ewer on 12 April 1999. He also stated that he did not discuss PTSD further with the applicant because it was not within his field and left that to Dr Ewer, who was treating him for this.

30. Dr Gogia stated that it was he who referred the applicant to the Queen Elizabeth Hospital for sleep studies relevant to the problem of sleep apnoea. As a result of using a C-Pap machine he stated that the applicant has "improved remarkably" and is "definitely much more alert and fitter for it." He reiterated his comment in his report dated 18 January 2002 (Exhibit A3) that he did not think that the sleep apnoea was a contributing factor to him ceasing work in 1997, as it was very well controlled with the C-Pap machine. As to the symptoms of arthritis and diabetes, Dr Gogia was satisfied that each of these were under control and not significant enough for him to give up work.

31. Dr Gogia stated during cross-examination that at about April 1997 the applicant's symptoms of sleep apnoea were a disturbance in his sleeping patterns and snoring very loudly. He also stated that the applicant had made mention of having some nightmares, was not feeling very comfortable and hallucinated. He was unable to say as to what was the severity of the nightmares the applicant had told him about. He also stated that whilst the applicant was undergoing the sleep study there had been no discussion of the cessation of work but that he always knew the applicant to be a really hard working sort of individual who enjoyed his work.

32. He stated that in addition to the applicant's accepted and rejected disabilities the applicant also had sleep apnoea, arthritis and carpal tunnel in his hand. He also stated that he was not sure of the circumstances that made the applicant leave work. He further stated that he did not discuss with the applicant when he was leaving work nor the circumstance that he was going to leave work. He agreed that the applicant ceased work or 31 October 1997 and at that stage the applicant's blood pressure was reasonably well controlled with medication which needed to be taken at all times. He did not feel that this was the reason for the applicant leaving work of itself.

33. Dr Gogia in reference to the applicant's hearing loss stated that the applicant certainly had this problem some six months before leaving work. He also stated that the applicant was using hearing aids. He also did not believe that the hearing problem was a factor in the applicant's leaving work. He agreed that at the time of leaving work the applicant had not been diagnosed with PTSD and that it was not until March 1999 when the applicant saw Dr Ewer for the first time. He further stated that there was no particular one reason why the applicant would have decided to resign and that maybe all the medical problems the applicant was experiencing made him (the applicant) not want to continue working. He stated that his own notes contain no mention of PTSD or symptoms thereto related.

34. As to obesity, Dr Gogia stated that such will give symptoms of diabetes and will not help blood pressure nor sleep patterns. He agreed that it would exacerbate sleep apnoea. He also agreed that the disabilities on which the applicant's permanent incapacity was based were those as previously stated, namely hypertension, sleep apnoea, arthritis, diabetes and tinnitus, and that the applicant was unable to do heavy lifting nor climb ladders due to arthritis. He stated that the applicant should not be doing things which might compromise his health or place him in an accident prone situation.

35. Dr Gogia in his evidence and particularly during cross-examination emphasised that he was not an expert on PTSD and preferred to answer questions as to the psychological state of mind of the applicant. He agreed that the applicant had many physical problems from which he still continues to suffer. He stated that any of the conditions or a combination would have been enough for the applicant to cease work.

Dr M. Ewer, Psychiatrist

36. Dr Ewer prepared two reports dated 15 March 1999 (T9/38) and 23 March (Exhibit A4) respectively. In his earlier report (T9) he stated that on 12 March 1999 he saw the applicant, who told him that in relation to the incident whilst on the HMAS Perth off the shore of Vietnam, the applicant was involved in one particular traumatic experience which could have been life threatening. He stated that the applicant told him that he was often frightened after the shell hit the ship and that he was lucky not to have been killed or badly injured. Dr Ewer in his diagnosis stated that this experience was highly traumatic, which evoked intense feelings of fear, helplessness and of horror. He further stated that the applicant has continued to re-experience the traumatic event in the form of nightmares, intrusive recollections and flashbacks. He also stated that the applicant has persistent symptoms of increased arousal indicated by insomnia, poor concentration, hypervigilance, irritability and an exaggerated startle reaction. He believes that the applicant fulfils the DSM-IV criteria for PTSD with dysthymia, which he stated was clearly and directly related to that traumatic experience during the tour of Vietnam.

37. Dr Ewer concluded this report by stating that he believed the applicant could effectively work between eight and twenty hours a week, taking into account only the applicant's psychiatric symptoms and that he suspected that when the physical problems are considered the applicant is unable to work at all. As the report was prepared early in the diagnosis of PTSD Dr Ewer also stated that at that time the applicant had yet to have the benefit of psychiatric treatment, hence a conservative approach was taken and he rated the applicant's current mental state as temporary. He stated further, however, that should there be no change in the next eight to ten months he would then consider the psychiatric state to be "permanent."

38. In his other report dated 23 March 2001 (Exhibit A4) Dr Ewer stated that he had seen the applicant on a number of occasions. He stated, inter alia, that the applicant continues to suffer from a chronic PTSD and Dysthymic Disorder as well as from alcohol abuse, all of which he states are directly related to war service. The Tribunal notes that whilst the PTSD with Dysthymia have been accepted as war caused disabilities there has been no such acceptance of alcohol abuse and that such was not pursued in this hearing.

39. Dr Ewer concluded this report by stating his opinion that the PTSD has been persistent and unremitting and hence the applicant's impairment can be considered "permanent" from a medico-legal point of view. He further stated that the PTSD incapacitates the applicant from undertaking remunerative work for periods of more than eight hours per week. Dr Ewer is of the view that this is solely due to the accepted disabilities of PTSD with Dysthymia which are the sole factors preventing the applicant from continuing remunerative work with the Gas Company.

Applicant's Submissions

40. Mr White in his submissions stated that this matter primarily concerns section 24(1)(c) of the Act, this being referred to as the "alone test". He stated that this has two essential parts, both of which need to be satisfied. He submitted that the first is that the applicant by reason of his accepted disabilities alone was prevented from continuing to undertake remunerative work which was essentially in a caretaker position for an extensive period of time with the Gas Company.

41. Mr White submitted that the second part of the "alone test" then also needs to be satisfied and related to a veteran suffering a loss of wages that the veteran would not be suffering if free from the incapacity from the accepted disabilities. This second pat of the test by virtue of section 24(2)(a) looks to other external factors than the accepted disabilities and what impact they have had. He submitted that sub-section 24(2)(a) relates to a veteran who ceased to engage in remunerative work for reasons other than his accepted disabilities or the veteran being prevented from undertaking work for some other reason.

42. Mr White submitted that the word "alone" has been considered on a number of occasions, including the authorities of Moorcroft v Repatriation Commission [1999] FCA 862 and Forbes v Repatriation Commission [2000] FCA 328. He submitted that these clearly state that the word "alone" is to be given its ordinary natural meaning applied in a common sense approach by looking at what impact the accepted disabilities have had.

43. He summarised that the applicant worked as a caretaker doing general maintenance-type work at the SA Gas Company and its successor for some twenty-six years. For the latter part of that time he was based in the Waymouth Street building in the city. He further submitted that the building had clear accessibility to lifts and that the work undertaken was moderate in terms of how heavy it was. The applicant could work at his own pace and had a discretion in deciding what jobs to do as well as delegate work to others. As well, the applicant had contractors available that could assist him with jobs that he himself chose not to do.

Respondent's Submissions

44. Mr Doube in his submissions agreed that the issue before the Tribunal is whether or not the applicant satisfies subsection 24(1)(c) of the Act which is a two part criterion that must be satisfied for a person to be able to be granted a special rate pension. Her submitted that the first part of that test requires that the veteran, through incapacity from war-caused injury or war-caused disease or both alone, be prevented from continuing to undertake remunerative work that the veteran was undertaking. He further submitted that this requires a person to have ceased working solely because of incapacity from war-caused conditions. He also stated that the veteran must be suffering a loss of salary or wages or of earnings on his own account that he would not be suffering if he were free of that incapacity.

45. Mr Doube submitted that the second part of the criterion is a hypothetical test and that is that of the need to look at the veteran without his war-caused conditions and consider whether or not there are any other conditions that would prevent him from working. He submitted that this is clarified by subsection 24(2)(a). In this case he submitted that the applicant from the time he ceased work has never sought any other work but instead went on a service pension on the grounds of permanent incapacity. He submitted that accordingly the applicant does not satisfy either criterion of subsection 24(1)(c) in that the applicant's incapacity has not been from war-caused conditions alone that prevented him from continuing to undertake work.

Discussions and Findings

46. As previously stated the Tribunal notes that the parties are in agreement that the date of effect is not in dispute. It is agreed that in the event of the application being successful then the earliest date of commencement is 12 August 1998.

47. The parties were each in agreement that the applicant satisfied the provisions of subsections 24(1)(a) and (b) of the Act, in that the applicant's degree of incapacity from war-caused disabilities is in excess of 70% of the General Rate and he is permanently incapacitated. In fact the applicant has been assessed as being 80% of the General Rate. The applicant's incapacity from war-caused diseases or injury or both is such that they alone render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

48. Before the Tribunal then, is the question of whether or not the applicant satisfies subsection 24(1)(c) of the Act. The first part criterion of that subsection provides that a veteran by reason of incapacity from a war-caused injury or war-caused disease, or both, alone is prevented from continuing to undertake remunerative work that the veteran was undertaking. This is to be read in conjunction with subsection 24(2)(b) of the Act which provides where a veteran, not yet having attained the age of 65 years, who has not been engaged in remunerative work satisfies the respondent that he has been genuinely seeking to engage in remunerative work, that he would but for such an incapacity, be continuing so to seek to be engaged in remunerative work, and that the incapacity is the substantial cause of his inability to obtain such work, as the result of which the veteran is treated as having been prevented by reason of that incapacity from continuing to undertake the remunerative work that the veteran was so doing.

49. The second criterion of subsection 24(1)(c) provides that a veteran must, because of that incapacity, suffer a loss of salary or wages, or of earnings on his own account that he would not be suffering if in fact he were free of that incapacity. This criterion is to be read in conjunction with subsection 24(2)(a) of the Act which provides that the veteran if 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 own account, by reason of that incapacity if the veteran has ceased to be engaged in remunerative work for reasons other than his or her incapacity from such war-caused injury or war-caused disease, or both. Further also if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason.

50. There is a further requirement in subsection 24 (1)(d) that section 25 of the Act does not apply to the veteran and it is common ground that such is the case in this application.

51. In applying the legislation to the present case the Tribunal is satisfied and so finds that the remunerative work that the applicant was engaged in was essentially as a caretaker with the Gas Company. He held this position for an extensive period of time. This was a position that allowed him considerable flexibility, particularly whilst based in the city in Waymouth Street. The building in which he worked had clear accessibility to lifts and the work was described by the applicant as moderate in terms of how heavy it was. The applicant sated that he could work at his own pace and was left to his own discretion in deciding what jobs to do and what he could delegate to others. The applicant also stated that he had contractors that he could call in to assist with jobs he chose not to do.

52. There is also in evidence an account by the applicant of the difficulties he was having at work prior to his ceasing and of the arguments that he had with fellow employees. The Tribunal also takes into account the applicant's explanation of the difficulties he had with concentrating and of his being tired and lethargic at work as well as having nightmares during the night and his difficulty with sleeping.

53. Whilst the Tribunal is satisfied that the issue before it is whether or not the applicant satisfies subsection 24(1)(c) of the Act, to be eligible for the special rate pension the applicant needs to satisfy all the criteria of subsections 24(1)(a),(b) and (c) to have the special rate pension granted. The second criterion of subsection 24(1)(c) is essentially a hypothetical test in that it seeks to look at a person without his war-caused conditions and ask whether or not there are any other conditions that would prevent him from working. Mr Doube submitted that on this basis if a veteran has ceased to engage in the work that he was doing for reasons other than the incapacity from the war-caused conditions, then they can't be considered to satisfy the second part of subsection 24(1)(c). Hence if that is not satisfied then the applicant fails the whole of the special rate criteria.

54. As to the first criterion of subsection 24(1)(c), it is qualified by subsection 24(2)(b). This is usually referred to as the ameliorating provision for a person who has attempted to seek work after ceasing work and has been unable to obtain work due substantially to the war-caused conditions. In the current matter such does not apply as the applicant, from the time that he ceased work, has never sought work. The applicant went on a service pension on the grounds of permanent incapacity and he has not worked since that time.

55. The Tribunal on the evidence is satisfied and so finds that the applicant during the whole time he was working never consulted Dr Gogia regarding symptoms of his PTSD at any time prior to ceasing work or even until March 1999. He never even saw a psychiatrist until March 1999, and that was not for treatment. The first occasion that he actually received treatment from a psychiatrist, namely Dr M. Ewer, was in June 1999.

56. The applicant ceased work in 1997. This was before he ever lodged a claim for PTSD which was not until November 1998 and being some thirteen months after ceasing work. In fact the applicant in his evidence indicated that he was not aware of the nature of PTSD until quite some time after he had ceased work. The evidence is quite clear in indicating that the applicant was an unfortunate person. In the lead up to his making the decision to resign he had a number of disabilities that were clearly affecting him. Some of these related to his accepted disabilities which at that stage included hypertension and deafness. However, most of his disabilities related to non-accepted conditions such as sleep apnoea, arthritis, diabetes mellitus and obesity.

57. Dr Gogia, the applicant's general practitioner, at not time attempted to comment on any topic which he felt was outside his scope. In particular he impressed with his refusal to even consider or comment on the PTSD or related condition because he was not a specialist in that area. Dr Gogia, in his evidence, indicated that if the applicant ceased work because of continuing ill health, as stated by the applicant in his letter of resignation, then that continuing ill health would relate to all his conditions, and not his war-caused conditions alone.

58. Dr Ewer examined the applicant some seventeen moths after he had ceased work and this was on 12 March 1999. He stated that if one only looked at the applicant's psychiatric condition that he was still capable of working between eight and twenty hours a week. He also indicated in his report (T9) that when considering the applicant's physical problems the applicant is unable to work at all.

59. When the applicant first put in a claim his work situation was investigated as a result of which a report was prepared (T11). It stated the difficulties encountered by the applicant in the workplace including the avoidance or working on an extension ladder during the last twelve to eighteen months due to arthritis. The evidence also indicates that the applicant also experienced giddiness when using an extension ladder. It was submitted by Mr Doube that the conditions of hypertension, bilateral sensorineural hearing loss, diabetes mellitus, obesity and sleep apnoea could all be contributing factors. Certainly it was known at the applicant's place of work that he was having trouble with ladders due to arthritis.

60. The applicant's evidence about that time contained contradictions. It was certainly evident that he contradicted himself in relation to evidence given at the VRB concerning whether or not he had been told that his job was in jeopardy. He had previously mentioned that he had been told by a work colleague that the Gas Company would be moving to a new building and that he would not be required. However, before this Tribunal he indicated that he had never been aware of such and nor was he aware of the likelihood of the move to a new building and of his job disappearing.

61. Also, the applicant in his evidence agreed with everything written by Dr Seith in his report (T13). Dr Seith referred to a number of conditions including the applicant telling him that the arthritis caused him crippling pain "on and off". He also mentioned PTSD and at which time he had already seen Dr Ewer and lodged a claim for PTSD. He in fact told Dr Seith that he was not aware of his PTSD at work in 1997 and that his problems were tiredness and pain in his hands and knees. Even as late as May 1999, the applicant thought that all his symptoms were due to sleep apnoea.

62. The applicant also prior to his resigning from work applied for a service pension on the grounds of permanent incapacity and in his application he mentioned the conditions that he considered were contributing to that permanent incapacity. These included his blood pressure, sleep apnoea, diabetes, tinnitus and arthritis and being a combination of some war-caused conditions and some non-war-caused conditions. He was medically examined by Dr Gogia at the time and those conditions were the ones stated to be causing the applicant's permanent incapacity for work.

63. The Tribunal is satisfied that on the evidence it was on the basis of these conditions upon which the applicant was granted a service pension on the grounds of permanent incapacity. The Tribunal also notes that at that time the applicant had been medically examined by Dr Gogia who found those were the conditions to be causing the applicant his permanent incapacity for work. Dr Gogia in his examination of the applicant also included an assessment of the applicant's mental state at the time and mentioned that it was good. In his oral evidence Dr Gogia affirmed this but also described in terms of the mental state the way the applicant presented himself initially in comparison with later presentations. Dr Gogia in his evidence indicated that his understanding of the applicant's continuing ill health was a combination of all these conditions to the extent that the applicant decided to give work away. The Tribunal is satisfied that this is the case and so finds.

64. The Tribunal accepts, and there is no disagreement between the parties, that at the time of the hearing of this matter the applicant was permanently incapacitated and that he suffers with all the conditions referred to herein including PTSD. What the Tribunal is not satisfied, however, is that the applicant ceased work by reason of his PTSD alone. It is satisfied that the applicant's ceasing work was a contribution of his accepted and rejected disabilities including PTSD and so finds. He was certainly suffering significant problems with arthritis and sleep apnoea as well as having diabetes mellitus and obesity. The hypertension appeared to be well controlled at that time and his deafness was an ongoing problem but not severe enough of itself to cause him to cease work at that stage. Furthermore, the applicant at that time was unaware that he was suffering from PTSD.

65. The Tribunal having found that the applicant resigned as a result of the effects of all his disabilities, it follows that he cannot satisfy the first criterion of subsection 24(1)(c) of the Act. Also, because other conditions also contributed the applicant is unable to satisfy the loss of earnings test prescribed, being the second criterion of subsection 24(1)(c) as qualified by subsection 24(2) of the Act.

66. Accordingly, the Tribunal finds that the applicant does not satisfy subsection 24(1)(c) of the Act and hence does not qualify for pension at the Special Rate. For the reasons previously set out, the Tribunal affirms the decision under review.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J. A. Kiosoglous MBE.

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

John Howell, Associate

Date/s of Hearing 2 April 2002

Date of Decision 21 October 2002

Counsel for the Applicant Mr T. White

Solicitor for the Applicant Tindall Gask Bentley

Counsel for the Respondent Mr G. Doube

Solicitor for the Respondent Department of Veterans' Affairs