Smith and Repatriation Commission [2003] AATA 121 (7 February 2003)

Last Updated: 21 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 121

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/203

VETERANS' APPEALS DIVISION	)
	Re	William Kenneth Smith

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Dr J D Campbell, Member

Date 7 February 2003

Place Sydney

Decision

The Tribunal determines that the decision under review be affirmed.

[SGD] Dr J D Campbell

Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Special rate - issue of accepted disabilities alone preventing continuing to work - issue of non-accepted disabilities - issue of redundancy leading to cessation of work - issue of multiple psychiatric diagnoses

Veterans Entitlement Act 1986 ss 22, 23, 24, 28

Cavell v Repatriation Commission (1988) 9 AAR 534

Birtles v Repatriation Commission (1991) 33 FCR 290

Banovich v Repatriation Commission (1986) 69 ALR 395

Forbes v Repatriation Commission [2000] FCA 328

Flentjar v Repatriation Commission (1997) 48 ALD 1

REASONS FOR DECISION

7 February 2003

Dr J D Campbell, Member

1. In this matter, Mr William Smith ("the Applicant") seeks a review of the decision of the Repatriation Commission (the Respondent") dated 2 June 2001 which increased the Applicant's disability pension to 100 per cent of the general rate with effect from 18 May 2001, but refused a disability pension payable at the Intermediate Rate, Special Rate or Extreme Disablement Allowance Rate. This decision was affirmed by the Veterans' Review Board ("VRB") on 21 January 2002.

2. A hearing was held before the Tribunal in Sydney on 18 November 2002 at which the Applicant was represented by Mr N Dawson of Counsel. The Respondent was represented by Ms S Breuer, a solicitor from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.

3. The following material was placed into evidence before the Tribunal:

Exhibit	Description	Date
T1-T14	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant's Statement	11 June 2002
A2	Medical Report of Dr Burns	29 April 2002
A3	Applicant's Statement of Facts & Contentions	25 June 2002
A4	Redundancy Estimate from the Civilian Personnel Administration Centre (3 page document)
R1	Bundle of documents, commencing with letter to Ms Robertson dated 30 August 2002
R2	Bundle of documents from the Applicant's personnel file
R3	Medical Report of Dr Brown	20 June 2002
R4	Medical Report of Dr Herman	28 May 2002
R5	Respondent's Statement of Facts & Contentions	13 August 2002

ISSUE

4. The relevant issue in this matter is whether the Applicant is entitled to payment of Disability Support Pension ("DSP") at either the Intermediate or Special Rate or at the Extreme Disablement Allowance Rate.

LEGISLATION

5. The relevant legislation is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 22, 23, 24, 28.

BACKGROUND

6. The Applicant was born on 31 October 1937, served in the Australian Army between 1959 and 1968, with a period of operational service in Vietnam in 1967. The Applicant has the following disabilities accepted as war-caused diseases/injuries:

* interigo

* plantar wart right heel

* bilateral aural exostosis

* bilateral high tone hearing loss

* post traumatic stress disorder

7. The following disabilities have not been accepted:

* chronic anxiety state

* tension headaches

* functional dyspepsia

* bilateral carpal tunnel syndrome

* ischaemic heart disease (8 February 2001)

8. The Applicant lodged his application for an increase in pension on 18 May 2001. On 2 June 2001 the Respondent increased the Applicant's DSP to payment at 100 per cent of the general rate. This decision was affirmed by the VRB on 21 January 2002.

APPLICANT'S EVIDENCE

9. The Applicant indicated that he left school at age 14having repeated sixth class to help his share farmer father, which he did until 1955, after which he helped his neighbour doing similar work at Mole's Creek for about four years. In 1959 the Applicant stated that he joined the Army and trained as a driver. During his army service he drove a variety of vehicles and in 1967 he served as a driver for a medical unit in Vietnam for a period of eight months, involving duties at both Vong Tau and Nhui Dat. In 1968 the Applicant stated that he left the army and worked as a watchman on the railways for two and a half months.

10. The Applicant told the Tribunal that in 1968 he joined the Department of Defence and commenced working on the Naval Ordnance Inspection at a Munitions factory at St Mary's, where he remained until 1984. From 1984 to 1994 he worked in the quality laboratory at St Mary's, but on closure of his section he moved to Orchard Hills, where he remained until he retired in August 2000. The Applicant stated that during the last twelve months prior to redundancy being effected, there was little work to be done in the unit, as it was moving to Victoria, and for the last three months he was on his own.

11. The Applicant stated that with the transfer of his unit to Victoria he had the choice of moving with the unit to Graytown in Victoria, applying for another position or applying for redundancy. The Applicant stated that the various options were detailed in writing. He stated that he did not wish to move to Victoria, because of his age and domestic circumstances and that he did not wish to apply for another position as this would involve interviews, which he found himself unable to do as he became nervous and confused. He exampled this by referring to a previous experience when applying for promotion at St Mary's in 1984. As a consequence the Applicant applied for redundancy, which took effect in August 2000. The Applicant stated that since his redundancy he has not applied for any other jobs because of his difficulties prior to and during interview situations.

12. The Applicant indicated that he had been seeing Dr S K Law, a Consultant Psychiatrist every three to four months since May 2000, and that he was receiving a treatment with Prothiaden and Valium tablets at night. The Applicant indicated that he spends most days hanging around the house, occasionally going to the cemetery or for walks around the block. He has no hobbies or interests and does not visit pubs or clubs. The Applicant does the maintenance around the house, reads the paper and watches television at night. The Applicant further indicated that he lives at home with his wife and one daughter and that sometimes he may stay at home for an entire week. He said that few visitors come to the house as he prefers it this way, but that on Saturdays he may go for a drive in his car down and up the M4 freeway.

13. The Applicant informed the Tribunal that he was diagnosed with ischaemic heart disease in 1994 and that this condition restricted his ability to lift, but that it did not bother him at work provided he worked within his limits. He further stated that he had had little time off work for this or other conditions in the period leading up to his redundancy in August 2000.

14. The Applicant in his statutory declaration dated 11 June 2002 (Exhibit A1) further emphasised his difficulties (stress) associated with the organisational changes over time at his work. For example, his inability to cope with interview situations as witnessed by his 1980 experience when applying for a higher position, and the stress occasioned by his last three months of employment, where he was alone with nothing to do, other than to worry about the future and his continuing apprehension in dealing with interview situations.

15. The Applicant also indicated to the Tribunal that he liked to work alone and stay alone at work. The characteristics demonstrated by the Applicant are detailed in statutory declarations by three of the Applicant's co-workers (T11, p50-53). The Applicant also indicated that the issue of being considered excess staff was first raised in 1998.

16. In response to questions in cross-examination, the Applicant stated that:

* his job was to test munitions, to repair and monitor equipment and also to carry out minor office duties, including updating a database. His work duties were 75 per cent physical and 25 per cent sedentary;

* his work up to 1984 involved inspecting the assembly line;

* he enjoyed his job and performed well and as best he could in it;

* he does not recall seeing a psychiatrist in 1981;

* he prefers to be on his own; it does not take much to upset him and he is argumentative with his wife and experiences some difference of opinion with his children;

* he had heart problems in 1994 for which he was treated at Blacktown Hospital. He had an angiography and angioplasty at Westmead Hospital in 1995 This treatment was successful for three months and thereafter the condition deteriorated, with the Applicant becoming unable to do heavy work and requiring some limitation of heavy lifting at work. The Applicant did inform Dr Herman, a Consultant Cardiologist, of chest pain when walking upstairs or slopes;

* he made a decision at time of redundancy to retire from the workforce on account of his "nerves", his hearing and the fact that he had noticed that he had started to make mistakes in writing things down, although his supervisors had been happy with his performance in 1999;

* that some three to four years earlier he had thought he might retire at age 63, and that since the issue of being excess staff was raised in 1998 he had become increasingly unhappy and experienced difficulty in coping, as evidenced by the letters of his co-workers (T11, p50-51);

* that during the period 1998-2000, he did not want to stay in his position; he was worried about applying for other positions and he felt there were too many changes and that he was too old fashioned.

17. In response to questions during re-examination, the Applicant confirmed that he received a leave entitlement and redundancy payment of $64,000, including a redundancy component of $30,000. Further he confirmed that Dr S K Law had advised him of his inability to work because of his "nerves", his hearing and his difficulties with interviews.

MEDICAL EVIDENCE

DR REID - CONSULTANT PSYCHAITRIST

18. The Applicant was interviewed by Dr A A Reid, a Consultant Psychiatrist, on 23 July 1981 and in his report (T4, p19-22) Dr Reid notes the following:

"History of Present Condition: He says that he gets very edgy and worries about little things. He tends to anticipate difficulties in advance and to worry about them. [T]his goes on most of the time. He says that he cannot relax. He is very satisfied and happy in his job as an inspector of Munitions for the Department of the Navy but he says that when he was offered an interview for promotion, he could not face the panel, and had to withdraw his application because he was so worried about the impending interview.

As far as his work is concerned he enjoys it end his "nerves" do not interfere with his work. The main problem appears to be at home where he is "edgy" and always yelling at the children. This is the main problem and occurs almost daily even although he resolves to be more patient. His sleep is fairly satisfactory as is his appetite. He tells me that if he is attempting very small jobs such as soldering electrical things his hands sometimes shake a little.. However, this is probably fairly normal. He describes his mood as "always a bit down" and this gets worse as the day wears on. He also complains that his memorey [sic] is bad and he cannot remember dates of engagements, etc. He says that he has to write out "shopping lists" before going shopping, and he also writes out lists of things he has to do at work."

19. Dr Reid concluded his report by stating that the Applicant suffered from a chronic anxiety state. In a further review on 8 June 1982, Dr I P Killalea, a Consultant Psychiatrist, noted that there were a number of events which would certainly contribute to the Applicant's chronic anxiety state, with there being "no clear cut obvious connection of this man's chronic anxiety state with his War Service" (T5, p23).

DR LAW - CONSULTANT PSYCHAITRIST

20. Dr S K Law, a Consultant Psychiatrist, saw the Applicant on 9 May 2000 for the first time, and in his report dated 15 May 2000 (T6, p24-25) noted the following:

* the Applicant had not been able to sleep well for many years;

* he had a lot of weird dreams about past war scenes;

* he was easily nervous and worried over small things;

* he has suffered spells of depression over the past many years;

* he had suffered from intrusive and repeated recollections on and off in the past many years;

* he suffered headaches;

* that after retrenchment he did not plan to work any more.

21. Dr Law concluded that the Applicant suffered from a moderate to moderately severe degree of PTSD as a result of his adverse military time experience in Vietnam. Further Dr Law stated that "Were it not for the presence of his PTSD symptoms, he will very likely be able to work until the age of 65 in a full-time position" (T6, p25).

22. In a report dated 7 May 2001, (T10, p46) Dr Law concluded, having seen the Applicant on three further occasions, "Mr Smith's service-related post-traumatic stress disorder (PTSD) has most probably worsened to some extent in the past one year. He is clearly unfit for work ... ".

23. In a further report dated 2 July 2001 (T11, p54), Dr Law concluded, "I think he is incapable of looking for work on a longterm [sic] basis".

DR BROWN - CONSULTANT PSYCHIATRIST

24. In a medical report dated 20 June 2002 (Exhibit R3), Dr P Brown, a Consultant Psychiatrist, detailed the clinical history of the Applicant, and having considered the following differential diagnosis of adjustment disorder, PTSD, anxiety disorder and malingering, Dr Brown concluded:

"DIAGNOISIS

In my opinion Mr Smith currently has an Adjustment Disorder as the result of being at home with his family.. This has increased his chronic state of anxiety and caused reactive depressive symptoms. His psychological constitution being susceptible to react in this manner.

If he has a PTSD, it is in the background. Its manifestations being the traumatic memories, occasional nightmares and avoiding Anzac Day marches. However, it has never prevented him from going to work. In my opinion any deterioration in these symptoms and so of any PTSD has been because he has left work and is stressed at being at home with his family. This same causation also applies to any deterioration in his chronic anxiety state and to the development of a reactive depression.

CAUSATION OF PSYCHOLOGICAL SYMPTOMS

In my opinion Mr Smith's current psychological symptoms are related to his chronic anxiety state and the problem of being at home with his family. However those specified above could also be the result of a PTSD. Given that he has PTSD as an accepted disability then this would probably have been accepted on the existence of his traumatic memories. It should be noted that such memories could also occur as part of a chronic anxiety state.

In can be difficult to distinguish a PTSD from a Chronic Anxiety State. Some factors are:

* a PTSD usually improves whereas a chronic anxiety state remains as a reactional tendency

* the anxiety of a chronic anxiety state is more general across the individual's life whereas that of a PTSD is more focused to the conditioning traumatic events

* a PTSD usually occurs in close proximity to the conditioning event whereas a chronic anxiety state is a constitutional tendency which can fluctuate with stressing situations." (Exhibit R3, p10)

25. In relation to the Applicant's fitness for employment, Dr Brown concluded:

"In my opinion his PTSD did not and would not have prevented him from continuing to undertake his remunerative work. It would not have prevented him from working from 2 June 2001 to the present. In fact being at work would have been therapeutic for him as there would be other things to occupy his mind.

I do not consider his PTSD to be a significant cause of his not being able to work. Thus it is neither a sole nor a substantial cause. He is now unable to work due to the degree of his angina. His chronic anxiety is such that he would not attend a job interview and this would be more so now in view of his age. His strategy for many years was to hold onto his job as long as he could and his anxiety worsened at any threat to his job.

Mr Smith has not sought any form of employment since accepting his redundancy.

Mr Smith's accepted condition of PTSD would not be obvious to his employer. More obvious would be his level of anxiety in the interview situation from his chronic anxiety state. In fact this would inhibit him from seeking an interview in the first place.

Mr Smith did not want to work after he accepted a redundancy due to his angina and anxiety about an interview situation. " (Exhibit R3, p11)

DR MARK HERMAN - CONSULTANT CARDIOLOGIST

26. In a medical report dated 28 May 2002, (Exhibit R4) Dr Herman, a Consultant Cardiologist, concluded that the Applicant suffers from ischaemic heart disease of mild to moderate severity. This ischaemic heart disease commenced in 1989 with increasing symptomatology in 1994. Dr Herman considered that the Applicant's ischaemic heart disease would not prevent him from undertaking remunerative work but this would need to be of a sedentary type in nature. Further Dr Herman concluded that the Applicant would be prevented from continuing to undertake the remunerative work that he was undertaking for more than eight hours per week, because of his ischaemic heart disease.

DR MARK BURNS - CONSULTANT OCCUPATIONAL PHYSICIAN

27. In a medical report dated 29 April 2002 (Exhibit A2), Dr Burns, a Consultant Occupational Physician, detailed the following conclusion, following his examination of the Applicant :

"With respect to employment, I believe it would be extremely difficult for Mr Smith to return to work. I believe that he was only able to remain at work with the Department of Defence because he was in a very narrow area where he felt comfortable. I note within the documents that his previous supervisor has stated that he was never a team player and tended to be a loner. It is obvious that he has a very narrow comfort zone and is not able to interact with other people easily.

He was eventually given three options when his work place was close. Two of these options significantly increased his anxiety, as they relied upon him doing new things or going to new places. Considering the degree of his PTSD, this would have been very hard. He eventually took the only option he believed he could, that of taking a voluntary redundancy. I believe that this was the right decision.

In conclusion, I believe that Mr Smith would be unable to return to any form of work for which he has skills qualifications, training or experience substantially due to his PTSD. I do not believe he would be capable of working more than eight hours per week in an open workplace situation. I do not believe that his coronary artery disease would have made him unemployable. He certainly worked for six years in a normal position after his ischaemic heart disease was diagnosed. I therefore believe the substantial cause of his inability to find and return to work would be his PTSD."

OTHER EVIDENCE

28. In a letter dated 27 August 2002 (Exhibit R1), Mr S Gibbons, the Applicant's previous supervisor between June 1998 to February 1999, detailed the nature of the Applicant's work, which was approximately 25 per cent sedentary (maintenance of data base) and 75 per cent physical/outdoors. Mr Gibbons detailed that the Applicant preferred to work alone, was reluctant to embrace new technologies and preferred a basic routine.

29. In a letter dated 28 August 2002 (Exhibit R1), Mr P Hetherington, the Applicant's supervisor for the period mid 1997 to February 1999, confirmed the nature and scope of the Applicant's duties as outlined by Mr Gibbons. Mr Hetherington confirmed that the Applicant "performed his duties to my 100% satisfaction. He was restricted from any heavy lifting and highly strenuous activities ... ".

SUBMISSIONS

THE APPLICANT

30. Counsel for the Applicant submitted that the Applicant's psychiatric condition was war-caused and that but for the Applicant's PTSD, he would have been better able to cope. Counsel, in noting the Applicant's withdrawal from promotional interviews in 1980, submitted that the Applicant was left with no other choice when the issue of voluntary redundancy was raised. This submission was evidenced by Dr Reid's report (T4), Dr Law's opinion that the Applicant was unable to work any more (T6), Dr Law's opinion that the Applicant's condition had worsened in the past year and that he was unfit for work (T11, p46), Dr Foong's opinion that he was incapable for work (T11, p49), the evidence of the Applicant relating to him being distressed and concerned because of his circumstances at work, his inability to face interviews and the concept of redeployment which he found stressful and his difficulties experienced in dealing with organisational change over time (Exhibit A1).. To accept either of the two other options available namely redeployment or transfer to Victoria and thereby remain in the workforce would have been contrary to and incongruent with the underlying symptomatology of his war-caused PTSD, which had been evidenced so clearly in both his domestic and work environments since 1980. In making such contentions Counsel relied upon the report of Dr Burns, submitting in turn that Dr Brown appeared to have less than a comprehensive understanding of delayed onset PTSD, and that while other psychiatric conditions have been raised by both Drs Brown and Reid, there has been an acceptance by the Respondent that the appropriate psychiatric diagnosis is a war-caused PTSD.

31. Further in relation to the issue of other factors, namely ischaemic heart disease and age, Counsel, relying upon both Banovich v Repatriation Commission (1986) 69 ALR 395 and Birtles v Repatriation Commission (1991) 33 FCR 290 submitted that the loss of remunerative work may be caused either by a loss of existing employment or by an inability to obtain new employment. Counsel further submitted that it is a question of fact whether it was a war-caused disability or other factors which prevented the Applicant from continuing to undertake remunerative work. In this matter Counsel contended that the factual situation indicated that the Applicant continued to work for a long period with his ischaemic heart disease present and was being treated medically and that age was not a factor in the factual circumstances which led to the Applicant's voluntary redundancy and his subsequent inability to work.

THE RESPONDENT

32. The Respondent contended that the Applicant did not satisfy section 24(1)(b) of the Act in that the Applicant had a long history of employment (over 20 years), with little time off work, that some of that time off work had been associated with the non-accepted disability of ischaemic heart disease and that the supervisor's review of his work performance had indicated satisfactory levels of achievement. Furthermore, the Respondent in relying upon Dr Brown's assessment, contended that the Applicant's PTSD did not prevent him from working up to the time of this voluntary redundancy and did not prevent him from continuing to undertake his remunerative work thereafter. As such the Applicant fails to satisfy s24(1)(b) of the Act.

33. In relation to section 24(1)(c) of the Act the Respondent, in again relying upon the opinion of Dr Brown (Exhibit R3), contended that the Applicant's war-caused PTSD did not prevent the Applicant from continuing to undertake remunerative work. Furthermore the Respondent contended that the Applicant's accepted disabilities alone did not prevent him from continuing to undertake the type of work that he was undertaking.. In this context the Respondent contended that the Applicant's ischaemic heart disease, the non-accepted disability of chronic anxiety state and age are significant factors in preventing the Applicant from continuing to undertake the type of work he was undertaking. In this regard the Respondent relies upon the report of Dr Herman (Exhibit R4).

CONSIDERATION AND FINDING

34. In addressing the issues raised in this matter, the Tribunal is mindful of the following statutory framework, within which resolution must be achieved, there being agreement between the parties and the Tribunal so finding that the Applicant satisfies subsections 24(1)(aa)(ab) and (a) of the Act.

Section 24(1)(b) of the Act provides that "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.

Section 28 provides assistance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question. The section provides as follows:

"28 Capacity to undertake remunerative work

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

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

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

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

Subsection 24(1)(c) provides that:

"(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 ... "

Subsection 24(2) provides that

"(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."

35. The Tribunal earlier in this decision has been particular in detailing the Applicant's evidence, the nature of the Applicant's previous work duties as described by his supervisors, the manner in which the Applicant had undertaken his work, the Applicant's response to organisational and work change processes as described by his supervisors and his workmates, the Applicant's various medical conditions in so far as they affected his capacity to undertake remunerative work, and in particular his responses "to interview situations" and the turbulence of his work environment when his unit of work was essentially closed and the activities transferred to Victoria.

36. The Tribunal notes that in 1981 and 1982 psychiatric opinion concluded that the Applicant was suffering from a chronic anxiety state and that the Applicant experienced difficulties in coping with intended promotional interviews in 1980. As a consequence of the factors listed in the preceding paragraph, however, the Tribunal concludes that, despite an alternate psychiatric diagnosis nominated by Dr Brown of an adjustment disorder, there is insufficient medical evidence before the Tribunal that would permit the Tribunal to either alter the psychiatric diagnosis before the Tribunal and/or allow the Tribunal to conclude that other psychiatric diagnoses exist. In so stating the Tribunal concludes that on the balance of probabilities the psychiatric symptomatology is properly diagnosed as post traumatic stress disorder. In so finding the Tribunal relies upon the evidence of the Applicant, his workmates and supervisors and the opinion of Dr Law, the treating psychiatrist. The Tribunal further notes that the Respondent has accepted the Applicant's PTSD as a war-caused disease.

37. In addressing section 24(1)(b) of the Act, the Tribunal notes the circumstance in which the Applicant ceased undertaking remunerative work, and also the nature of that remunerative work, and in particular the circumstances experienced by the Applicant over the last two years of undertaking that work. It is clear to the Tribunal that the Applicant was able to undertake such work, despite his psychiatric war-caused PTSD and his non accepted disability of ischaemic heart disease up to the time of his cessation. The Tribunal observes that there are particular comments by supervisors as to the satisfactory completion of such work, and that there are comments both by supervisor and workmates as to how the Applicant liked to work, his resistance to evolving work practices and his difficulties experienced in working through the various scenarios as organisational change occurred during the last two years of his employment.

38. In noting the alternatives offered to the Applicant during the last two year period of employment the Tribunal observes that one option involved being declared `excess' and requiring the Applicant to seek another position by way of interview. Another option involved relocation to Victoria and the third involved voluntary redundancy. As such circumstances confronted the Applicant, the Tribunal, mindful of the nature of the Applicant's psychiatric disability, is not surprised that the Applicant elected to take voluntary redundancy. Such an outcome is noted by Dr Burns as being the only viable decision for the Applicant to make in the light of his war-caused PTSD (Exhibit A2, p3).

39. The Tribunal observes that the Applicant elected to cease work, such an election being the only viable option for the Applicant in the light of his PTSD, and in particular notes his difficulties with interviews and change. The Tribunal accepts that the Applicant withdrew from any further attempts to search for remunerative work on the grounds that he was unable to cope with the issues surrounding interviews, namely stress and anxiety.

40. The Tribunal further notes that both Drs Law and Burns consider that the Applicant's PTSD prevents him from returning to any form of work for which he has skills, qualifications, training or experience. In particular Dr Burns is specific in nominating an inability by the Applicant to work more than eight hours per week in an open workplace situation. The Tribunal further notes the opinion of Dr Brown that anxiety and ischaemic heart disease are the main factors in the Applicant not wishing to work after his redundancy, and that his PTSD did not and would not have prevented him from continuing to undertake his remunerative work even up to the present (20 June 2002). Dr Herman concluded that the Applicant's ischaemic heart disease would prevent him from doing his original work for more than eight hours per week, but would not prevent him from undertaking work of a sedentary nature. Dr Foong, the treating general practitioner in a report dated 20 June 2001, considered that the Applicant was incapable of work and looking for work because of both his PTSD and chronic ischaemic heart disease (T11, p49).

41. The Tribunal in considering the various opinions of the treating Doctors is mindful that the Applicant continued to undertake remunerative work with both PTSD and ischaemic heart disease up to a point in time when he had to decide between various options. The evidence in the Tribunal's assessment indicates that the Applicant chose redundancy as the only viable alternative in light of his PTSD. Further the evidence as assessed by the Tribunal is that it was the Applicants PTSD, and the symptoms thereof that prevented him from undertaking interviews in any job application, which led to the Applicant not seeking employment after receiving his redundancy.

42. The Tribunal has already concluded that the Applicant's psychiatric symptomatology is encompassed within the diagnosis of a war-caused PTSD. Therefore any analysis as suggested by Dr Brown which seeks to isolate a chronic anxiety state as a separate diagnostic entity is seen by the Tribunal as being unnecessary with the diagnosis of PTSD in which symptoms of anxiety are a diagnostic requirement. Further such an emphasis on the anxiety features as a separate entity is inconsistent with the opinions of Drs Law and Burns.

43. The Tribunal, while noting Dr Herman's opinion in relation to the ischaemic heart disease, concludes that in relation to the issue of section 24(1)(b) of the Act, his opinion takes the matter no further, in that the issue relates to whether the Applicant's incapacity from his war-caused PTSD alone renders the Applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

44. The Tribunal, in the light of all the evidence considered, concludes that the Applicant satisfies section 24(1)(b) of the Act in that the incapacity ensuing from the Applicant's war-caused PTSD does prevent him from working more then eight hours per week. In making such a finding the Tribunal relies upon the nominated evidence and the opinions of Drs Law and Burns.

45. In addressing section 24(1)(c) of the Act, the Tribunal is mindful of what has been stated by Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 with regard to the "alone" test:

"The tendency of that is to distract the Tribunal from its true task - 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."

46. Further the Tribunal is mindful of the Federal Court's statement in Birtles v Repatriation Commission (1991) 33 FCR 290 at p299 regarding the phrase "prevented from continuing to undertake remuneration work":

"What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from "continuing" a type of remunerative work which he previously undertook (not been work undertaken for a short period)? The word "continuing" in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. If the answer to the question be "yes" and other subparagraphs apply, then s24 is applicable to that veteran."

47. Similarly the Tribunal is mindful of the reasoning in Banovich (supra) in which it was held that continuing to undertake remunerative work may arise either by loss of existing employment or by an inability to obtain new employment.

48. Further the Tribunal acknowledges that a proper consideration of section 24(1)(c) of the Act requires responses to four questions, outlined by the Full Federal Court per Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4:

"1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s24(1)(c) of the Act?

2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earning's on his own account that he would not be suffering if he were free of that incapacity?"

49. The Tribunal, in considering the first question raised, has already addressed the issue of what constituted the relevant remunerative work, when considering section 24(1)(b). The Tribunal concluded that such work that the veteran had undertaken had provided him with skills, experience and qualifications in particular inspection and testing activities, as well as in maintaining data bases, a sedentary activity.

50. In relation to the second question, the Tribunal concludes that the Applicant's war-caused disability of PTSD was the particular factor that led to his acceptance of voluntary redundancy and was the factor that prevented the Applicant from searching for new employment. In this matter the Tribunal finds that there is no evidence to suggest that the Applicant has been seeking to engage in remunerative work, and that this lack of seeking arises solely from the incapacities arising from his war-caused PTSD. In this regard the Tribunal also concludes that because of his failure to genuinely seek to engage in remunerative work, the ameliorating provisions of section 24(2) are not available to the Applicant.

51. In addressing the third question the Tribunal is mindful that the Respondent has raised as other factors the Applicant's age, his ischaemic heart disease and other psychiatric conditions of the Applicant. The Tribunal notes that there is suggestion in Dr Brown's report that the Applicant expressed a desire to retire at age 63 (Exhibit R3, p3). Dr Law similarly noted in his report that the Applicant stated that he planned not to work any more after retrenchment (T6, p24). The Tribunal also notes that the Applicant told Dr Brown that:

"if he had not been made redundant that he would have liked to stay at the job, as he was able to still do it." (Exhibit R3, p3)

52. In considering the evidence as regards age as a factor, the Tribunal concludes that this evidence is of insufficient probative value to allow the Tribunal to find on the balance of probabilities that age was a factor in the Applicant's being prevented from continuing to undertake remunerative work.

53. The Tribunal has already addressed the issue of other psychiatric diagnoses raised by Dr Brown and concluded that, in the circumstance of this matter, such symptomatology is already encompassed within the war-caused disease of PTSD. As such the Tribunal concludes that on the balance of probabilities as a separate disease entity chronic anxiety is not a factor in the Applicant "being prevented from continuing to undertake remunerative work" (section 24(1)(c)).

54. The final factor raised by the Respondent is the Applicant's ischaemic heart disease. The Tribunal has already noted that the Applicant continued to undertake his remunerative work, albeit with it some restrictions for a number of years prior to his decision to accept redundancy. Further the Tribunal notes the opinions of Dr Herman that the Applicant would be able to undertake sedentary remunerative work (Exhibit R4, p4), as opposed to his previous work, and Dr Burns, who considered that the Applicant's coronary artery disease would not have made him "unemployable" but that the Applicant "would be unable to return to any form of work for which he has skills, qualifications, training or experience substantially due to his post traumatic stress disorder." (Exhibit A2, p6) In May 2002, Dr Law considered that were it not for the presence of his PTSD symptoms the Applicant would be able to work until the age of 65 in a full time position (T6, p25). A year later Dr Law commented that the Applicant was clearly unfit for work (T10, p46). Dr Brown noted that the Applicant stated that he was limited from seeking employment by his angina and his anxiety associated with interviews (Exhibit R3, p11). Dr Brown detailed both the Applicant's medication for his psychiatric symptoms and his heart related symptomatology. Dr Brown did not consider PTSD to be a significant cause of the Applicant not being able to work, nor did he hold it a sole or substantial cause of his inability to work. Dr Brown held the Applicant unable to work because of his degree of angina. Dr Foong, the treating General Practitioner, states in his report of 20 June 2001 that the Applicant is "incapable of working and looking for work due to his severe post-traumatic stress disorder and chronic ischaemic heart disease" (T11, p49).

55. In addressing the question of whether his heart condition was a factor in preventing the Applicant from continuing to undertake remunerative work, the Tribunal is mindful that Dr Herman, Consultant Cardiologist, is of the opinion that the Applicant would be able to undertake sedentary remunerative work, but not his former remunerative work because of his ischaemic heart disease. The Tribunal also notes that Dr Burns is of the opinion that the Applicant would be unable to return to any form of work for which he has skills, qualifications, training or experience, with the substantial cause of his inability to find and return to work being his PTSD. It is with these statements in mind that the Tribunal concludes that on the balance of probabilities, the Applicant's ischaemic heart disease is a factor in preventing the Applicant from continuing to undertake remunerative work. The Tribunal in reaching such a finding acknowledges that the Applicant ceased worked as a consequence of a voluntary redundancy, and that the decision to cease work in such a matter was made by the Applicant in the knowledge of his own medical circumstances and of the options available to him at the time. The Tribunal recognises that such a decision was in many ways the only viable decision open to the Applicant in the light of his PTSD. Nevertheless it is clear to the Tribunal that the Applicant did not genuinely seek further employment, because of his fear of interview. However it is also clear to the Tribunal that angina existed at this time and that it limited the Applicant's activities, as evidenced by his reported statements to Drs Herman, Brown and Burns. Further the Tribunal notes the level of medication required for the Applicant's ischaemic heart disease and also the opinion of Dr Foong, namely that the ischaemic heart disease prevented the Applicant from working and looking for work. The Tribunal takes this to indicate that the Applicant's ischaemic heart disease was a factor in preventing the Applicant from continuing to undertake remunerative work.

56. The Tribunal has already concluded that there is no evidence before the Tribunal that the Applicant genuinely sought to engage in remunerative work, once he had been made redundant. As a consequence the ameliorating provisions contained within section 24(2)(b) are not available to the Applicant.

57. As a consequence of the Tribunal's finding that the Applicant's non war-caused disability of ischaemic heart disease was a factor in preventing the Applicant from continuing to engage in remunerative work, the Tribunal concludes that the Applicant fails to satisfy section 24(1)(c) of the Act.

58. For similar reasoning the Applicant fails to satisfy section 23(1)(c) of the Act. Further the Tribunal, in noting that the Applicant has a lifestyle rating of five, concludes that the Applicant does not satisfy the requirements nominated in section 22(4) of the Act.

59. The Tribunal finds that the Applicant does not satisfy the requirements for payment of a DSP at either the Special Rate, Intermediate Rate, or at the Extreme Disablement Allowance Rate.

DETERMINATION

60. The Tribunal determines that the decision under review be affirmed.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:

Associate

Date of Hearing 18 November 2002

Date of Decision 7 February 2003

Counsel for the Applicant Mr N Dawson

Solicitor for the Respondent Ms S Breuer