Gibson and Repatriation Commission [2003] AATA 24 (14 January 2003)

Last Updated: 16 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 24

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/334

VETERANS' APPEALS DIVISION )

Re PAUL ANTONIO GIBSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President Dr P A Staer, Member

Date 14 January 2003

Place Perth

Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that disability pension is payable to the applicant at the "intermediate rate" under s23 of the Veterans' Entitlements Act 1986, with effect from and including 8 December 1995.

...........(sgd S D Hotop)........................

Deputy President

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - disability pension - veteran suffering from defence-caused diseases of osteochondromatosis and osteoarthritis of right hip and both knees - appropriate rate of pension payable to veteran - whether pension payable at rate of at least 70% of general rate - whether pension payable at special rate - whether pension payable temporarily at special rate - whether pension payable at intermediate rate

Veterans' Entitlements Act 1986 ss 19, 21A, 22, 23, 24, 24A, 25, 28, 29, 71, 73, 119(1), 120(4)

Flentjar v Repatriation Commission (1997) 26 AAR 93

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

14 January 2003 Associate Professor S D Hotop, Deputy President

Dr P A Staer, Member

Introduction

1. On 12 September 2001 Paul Antonio Gibson ("the applicant") lodged with the Tribunal an application for review of a decision of the Veterans' Review Board ("VRB") made on 15 August 2001. In that decision the VRB:

* set aside a decision of a delegate of the Repatriation Commission ("the respondent"), dated 15 March 2001, whereby the rate of disability pension payable to the applicant under Part IV of the Veterans' Entitlements Act 1986 ("the Act"), in respect of his defence-caused diseases of osteochondromatosis and osteoarthritis of the right hip and osteochondromatosis and osteoarthritis of both knees ("the defence -caused diseases"), was increased to 60% of the "general rate" with effect from 8 December 1995; and

* decided, in substitution for that decision, that the rate of disability pension payable to the applicant under Part IV of the Act, in respect of the defence-caused diseases, was 50% of the "general rate" with effect from 8 December 1995, but that the "special rate" was payable to him temporarily, under ss 25 and 73 of the Act, in respect of the period from 27 April 1999 to 15 August 2002.

2. At the hearing the applicant was represented by Ms T Gatell-Gamir, a lay advocate, and the respondent was represented by Dr J T Schoombee of Counsel. The Tribunal had before it the documents ("T documents", T1-T56, pp1-426) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and various documentary exhibits tendered by the applicant (A1-A13) and by the respondent (R1-R10). Oral evidence was given by the applicant and by the following witnesses: Dr J Fenollosa, Dr W Anell (who were called by the applicant), and Ms R Booth, Dr D Williams, Dr B Dare and Ms L Jones (who were called by the respondent).

The Factual Background

3. The relevant background facts, as found by the Tribunal on the basis of the T documents, are as follows.

4. The applicant, who was born on 11 March 1968, served in the Royal Australian Air Force ("RAAF") from 29 January 1991 to 28 November 1995 and rendered "defence service", within the meaning of ss 5Q(1A) and 68(1) of the Act, during that period.

5. On 28 November 1995 the applicant was discharged from the RAAF on the ground that he was medically unfit for further service.

6. On 8 March 1996 the applicant lodged with the Department of Veterans' Affairs ("DVA") a claim for disability pension in respect of a disability described as "diaphysial aclasis". (T4)

7. On 1 April 1996 a delegate of the respondent determined that the applicant's condition of diaphysial aclasis was not defence-caused and refused his claim for disability pension. On 16 February 1998 the VRB affirmed that decision. (T10)

8. On 12 February 1999 the Tribunal set aside the abovementioned decision of the VRB and, in substitution therefor, decided that the applicant's conditions of multiple osteochondromatosis and osteoarthritis of the right hip were defence-caused, within the meaning of s 70 of the Act, with effect from 8 December 1995, and remitted the matter to the respondent for assessment of disability pension payable to the applicant under the Act in respect of those conditions. (T12)

9. On 18 May 1999 a delegate of the respondent decided to grant to the applicant disability pension at the rate of 50% of the "general rate", with effect from 8 December 1995. That assessment was based on a "combined impairment rating" of 30 points together with a "lifestyle rating" of 2 in accordance with the Guide to the Assessment of the Rates of Veterans' Pensions ("GARP"): see ss 21A and 22 of the Act. (T22)

10. On 24 November 2000 a delegate of the respondent decided to increase the rate of the applicant's disability pension to 60% of the "general rate", with effect from 17 July 2000. That assessment was based on a "combined impairment rating" of 30 points together with a "lifestyle rating" of 3 in accordance with the GARP. (T30)

11. As a result of proceedings in the Federal Court of Australia the matter was remitted to the Tribunal and, on 19 December 2000, the Tribunal made a decision, under s 42C(2) of the AAT Act, setting aside the decision of the respondent dated 1 April 1996 as affirmed by the VRB on 16 February 1998, and deciding in substitution therefor that the applicant's conditions of osteochondromatosis and osteoarthritis of the right hip and osteochondromatosis and osteoarthritis of both knees were defence-caused diseases within the meaning of s 70 of the Act, with effect from 8 December 1995. The matter was remitted to the respondent for assessment of the rate of disability pension payable to the applicant under the Act in respect of those defence-caused diseases. (T32).

12. On 15 March 2001 a delegate of the respondent decided to increase the rate of the applicant's disability pension to 60% of the "general rate", with effect from 8 December 1995. That assessment was based on a "combined impairment rating" of 35 points together with a "lifestyle rating" of 3 in accordance with the GARP. (T36)

13. On 15 August 2001 the VRB set aside the delegate's decision of 15 March 2001 and, in substitution therefor, decided that disability pension was payable to the applicant at the rate of 50% of the "general rate", with effect from 8 December 1995, "and then at the Special Rate temporarily with effect from 27 April 1999 to 15 August 2002". The VRB found that, as at 27 April 1999, the applicant had a "combined impairment rating" of 35 points and a "lifestyle rating" of 4 in accordance with the GARP, resulting in a degree of incapacity of 70%.

14. On 12 February 2001 the applicant lodged with the Tribunal an application for review of the VRB's decision of 15 August 2001. (T1)

15. On 30 July 2002 the Tribunal, pursuant to s 41(2) of the AAT Act, made a Consent Order in the following terms:

"... that the decision of the Veterans' Review Board made on 15 August 2001 be varied by extending the period during which disability pension is payable to the applicant at the special rate temporarily, pursuant to s 25 of the Veterans' Entitlements Act 1986, from 27 April 1999 until the decision of the Tribunal on this application for review or until further order by the Tribunal."

The Applicant's Evidence

16. The applicant tendered in evidence the following written statement signed by him which had been filed on 15 November 2001 (Exhibit A1):

"I immigrated to Australia in September 1988 after having completed a 4-year mechanical studies and qualifications course in Spain. When I arrived I started working as brickies labourer until my spoken English improved. I also worked as a storeman/driver. In September 1989 I applied for enlistment into the Australian Defence Force. Whatever job I did from that point I considered temporary until I enlisted. I spent 18 months working in the spare parts industry. I also worked as a sales representative for a lubricants company.

In January 1991 I was enlisted into the RAAF as an Airfield Defence Guard. When I sustained my injuries in May 1991 I was remustered to clerical duties.

In 1994 I realized that my medical condition was worsening and I now know that the medical advice and treatment I received was inadequate and misleading so I applied for discharge on my request having secured employment in Perth with a development company who would pay me $50,000 p.a. plus commission on land sales. My application was denied.

In July 1995 my injuries and medical conditions rendered me incapacitated to continue working even in an office environment. A month prior to my discharge I sat and passed an entry exam for computer programming studies at the Computer Power Training Institute in Perth. This was the only job I felt I would be able to do because of the advantage of being able to work from my home and thus allow me to minimize my movements and better manage the symptoms of my pain. This particular course was of 10 months duration and cost approximately $10,000, the time I had but not the money so, I applied under the resettlement training program to which I was entitled because of being discharged medically unfit. This application was denied because the program only covered any course to the maximum duration of 30 days, however I was informed that if I wanted to do this course I would have to apply through the Department of Veterans' Affairs. By the time I received my entitlements in 1998 my condition had deteriorated so much that it would be impossible for me to do any course.

The week after I discharged I worked at a supermarket 8 hours a week placing vegetables on shelfs (sic), however I had to quit after 3 weeks due to the pain in my knees.

My condition deteriorated and in October 1996 I underwent my first hip operation to remove what was believed to be a chondroma on my femur. This intervention left me worse off than I was before. In May 1998 I underwent another hip operation. In December 1999 I had a total hip replacement and a knee operation after being confined to a wheelchair for 7 months.

Since I discharged (sic) I have not been able to work because the pain and immobility my conditions cause me have rendered it impossible for me to retrain for suitable employment and the fact that nobody would want to employ someone who:

a. may not be able to attend every day because of incapacity to do so due to pain and discomfort,

b. relies on strong pain medication every day causing lack of concentration, memory loss, mood swings, occasional nausea and very rarely disorientation,

c. attends work, suffering pain because of an undying sense of obligation and commitment.

There is also the understanding (sic) reluctance to assume responsibility for an employee who may suffer a workplace accident due to any or all of the above.

I would only be too happy to be able to work and lead a normal life again but the sad fact is that due to the irresponsible and negligent actions of others I do not believe I will ever be able to work again. If in the future, by some miracle I cease to experience pain and recover the minimal mobility necessary to attend an educational course in order to gain employment, then I will gladly do so, but until that happens I am condemned to a life of pain and suffering.

I am currently on the committee of the Veterans Legion of Australia to which I dedicate approximately 1-2 hours a week. I actively take part in the neighbourhood watch program in my area and when I am awarded my rightful entitlements I will have some time to find suitable volunteer work to help out where I can in the community."

17. In his oral evidence-in-chief the applicant told the Tribunal that he had a hereditary condition, namely osteochondromatosis, of which he first became aware when he was about 6 years old. He said that that condition had been asymptomatic prior to his enlistment in the RAAF in January 1991 but that he began to experience symptoms in his knees after a 15-kilometre battle run in May 1991 and it had been "an ongoing thing ever since". He also said that in June 1995 he had a fall and landed on his hip and he "had problems as a consequence of that fall". He added that he had been noticing discomfort in his right hip from 1993 onwards but that when he had the fall in June 1995 he began having "major problems" with his hip. He said that after his discharge from the RAAF he had an operation in October 1996 to remove a chondroma from his femur but that after that operation his right hip pain symptoms were "a lot worse".

18. The applicant said that after his discharge from the RAAF he had obtained part-time employment with Woolworths in the vegetable section of a supermarket. He said that his hours of work were from midnight on Saturday to 8.00am Sunday, and that he carried out that work for 2-3 weeks but then left because the work caused "too much pain" in his knees. He added that that was the only employment he had been able to undertake since his discharge from the RAAF.

19. The applicant said that he continued to see orthopaedic surgeons during 1997 but that by the beginning of 1998 his condition was so bad that he "knew that [he] was going to die". He said that he then sold his possessions in order to raise enough money to buy a 1-way ticket to Europe so that he could say goodbye to his family and friends and die there. He said that his mother took him to see Dr Fenollosa in Spain who explained his condition and possible treatments for it. He said that he had an operation in Spain for the removal of a cyst in his right hip region, which gave him "great relief", but that Dr Fenollosa told him that there was "severe damage" to his hip and that he would eventually require a hip replacement. He then returned to Australia but he added that in 1999 his condition worsened to the extent that he was "in a wheelchair for a few months" before returning to Europe in August 1999 where he had a hip replacement operation in December 1999, and also an arthroscopy on his left knee.

20. Asked to describe his symptoms since the operation in 1999 the applicant said that he still suffers "a lot of pain as a consequence of this fluid and whatever is occurring inside the hip". He said that the pain is in the right hip and the groin and that he has had ongoing pain in his knees since 1991, especially during winter when they "swell up". He said that his medication comprises 2 forms of morphine, namely, "Oxycontin" and "Anamorph", which provide some pain relief but which have side-effects such as short-term memory loss, lack of concentration, and nausea.

21. The applicant told the Tribunal that he presently lives alone and that he has an "assistant" who visits him twice per week and "helps [him] out". As regards his "domestic abilities", he said that he is able to stack the top drawer (but not the bottom drawer) of the dishwasher; he is unable to do any washing up "because of the standing"; he is able to fill up the washing machine, but not to hang up the clothes; he has been unable to do any gardening since his discharge from the RAAF; he has also been unable to vacuum the carpets, clean the floors or carry out any home repairs and maintenance. The applicant also told the Tribunal that he avoids going outdoors and that he finds that just getting in and out of the car is painful. He said that he is unable to use public transport but that he is able to drive a car "but only ... if absolutely necessary". As regards recreational activities, he said that bushwalking and camping used to be among his favourite recreations but that since his discharge from the RAAF in 1995 he has been unable to engage in them. He said that he "will watch TV and that is about the extent of it".

22. In cross-examination the applicant said that he had been taking morphine medications prescribed by his treating general practitioner, Dr Anell, for 18 months. Prior to that he had taken a codeine-based medication, "Mersyndol Forte", and various other painkillers and anti-inflammatories. In response to specific questions the applicant said that he had never asked to be referred to, and had never seen, a specialist in pain management, although he acknowledged that he had "heard of" a pain management clinic in Perth. Asked why he had never sought expert advice on pain management, he said that he takes professional opinions "with a pinch of salt" and that he is dealing with his pain "the best way [he] can".

23. As regards his short period of part-time employment with Woolworths (in early 1996), the applicant said that during that period he worked one shift of 8 hours per week - on one night per week from midnight until 8.00am.

24. The applicant said that he had travelled from his home to the city by car in order to attend the Tribunal hearing and that he had walked to the Tribunal's premises from a nearby carpark with the aid of an elbow crutch. He said, however, that he did not use taxis because it would be too painful. He added that he would prefer to drive himself because mentally occupying himself by driving helps him to cope with his pain. He acknowledged, however, that when he travelled to Spain in 1998 and 1999 he travelled by aircraft in economy class for the duration of each flight.

25. The applicant acknowledged that he received helpful treatment from a physiotherapist, Mark Nolan, for a few months (in 2001) but that when he last saw him it was "just causing too much pain to do any good". He also acknowledged that he had never gone to an occupational therapist for an assessment because he had "been in too much bloody pain to get out of bed or get in a car to even think about working", even though such a course had been recommended by at least 2 medical practitioners who had examined him, namely Dr D Williams and Dr P Anderson.

26. As regards his qualifications and training the applicant said that, prior to migrating to Australia, he completed a 4-year mechanical studies course at a technical college in Spain which qualified him to work in motor mechanics. He said that during his period of service in the RAAF he did clerical work involving financial accounting and used computers in that work. In 1995, shortly before his discharge from the RAAF, he sat and passed an entry examination for a computer programming course at the Computer Power Training Institute in Perth. He said that he presently owns a laptop computer. He also said that in early 2000 he attended a TAFE course on airport management and that course involved working on an Excel spreadsheet computer program. He added, however, that he discontinued that course after 5 weeks because he "was in too much pain to carry on". He also said that because of the pain he experiences he cannot do any course or any work, even at home.

27. The applicant was asked by the Tribunal to describe his typical daily activities. He said that he usually rises early and, after getting dressed (which he finds painful), he prepares a cup of coffee. If he finds that he is in too much pain he will take a painkiller and lie down until he is feeling better. He may then watch television or access the internet or read magazines (mainly motor sport, motor vehicle, or computer magazines). He does not have breakfast or lunch and usually heats up a frozen meal for dinner. He drinks coffee and a lot of water, but not alcohol. He smokes about 20 cigarettes per day. He drives a 1989 model automatic car. He goes shopping once per fortnight, and his neighbour collects fresh milk for him each week and takes out his garbage bin at night. He sees Dr Anell either weekly or fortnightly (depending on how much pain he has be experiencing) and drives himself to the consulting rooms ("a fair distance"). Asked whether he felt that pain was his major problem, he responded:

"Well there is problem with mobility but if I lack the mobility it is brought on probably by the pain."

(Transcript, p120)

The Medical Witnesses

Dr J Fenollosa

28. Dr Fenollosa gave evidence by telephone from Paris, France, where he was attending a conference. He told the Tribunal that he practises orthopaedic surgery in Valencia, Spain, and that he is the Head of the Orthopaedic Surgery Department at a Spanish National Health Service hospital. Two reports of Dr Fenollosa, dated 5 May 1998 and 17 July 1998, appear in the T documents (T16, T55) and 2 more recent reports, dated 12 March 2002 and 10 June 2002, were tendered in evidence (Exhibits A7 and A8, respectively). The report of 12 March 2002 merely describes the right hip replacement and subsequent left knee arthroscopy procedures that Dr Fenollosa performed on the applicant in December 1999. The report of 10 June 2002 comments on an MRI scan of the applicant's hip and pelvis, dated 20 November 2001, and notes, inter alia, an "intraosseous chondroma of the right femur" which "can produce pain".

29. Dr Fenollosa said that he first examined the applicant in May 1998 regarding his right hip pain and that, at that time, the applicant was unable to work by reason of that pain. He next saw the applicant for the purpose of performing a total right hip replacement operation and left knee arthroscopy (in December 1999) and again expressed the view that, by reason of his right hip and knee pain, the applicant was incapacitated for work. He also agreed with the suggestion that the applicant had been incapacitated for work since 1996 after leaving the RAAF. He also opined that it was more probable than not that the condition of the applicant's knees would progressively deteriorate in the future and that he would ultimately require surgery on them.

30. In cross-examination Dr Fenollosa was first referred to his abovementioned 1998 reports in which he expressed the opinion that, at that time, the applicant had, according to the French and Spanish disability scales, a 5-10% reduction of his physical capacity. Asked whether, on that basis, the applicant could do "light work", Dr Fenollosa responded:

"Yes. ... when we factored in incapacity of 10 per cent, he can do light work, yes."

(Transcript, p54)

Asked specifically whether the applicant could, at that time, work 2 hours per day, Dr Fenollosa agreed that he could. When next asked whether the applicant could then work 4 hours per day, Dr Fenollosa responded:

"... I don't know exactly. That is just very, very slight difference but cannot say if he can work two or four hours. I was writing it some years ago."

(Transcript, p54)

Asked whether it was possible for the applicant to have then worked 4 hours per day if he were able to move about and change his position, Dr Fenollosa agreed that it was possible. Dr Fenollosa also acknowledged that he had not done any tests on the applicant specifically to assess his work capacity.

31. Dr Fenollosa was questioned by the Tribunal about the applicant's work capacity since 1998. He said that after the hip replacement operation (in December 1999) the applicant was "quite well" but that, having examined an MRI scan of the applicant's hip region (dated 20 November 2001), it appeared that "inflammatory problems" had subsequently arisen in his hip region and that, because of those problems, his capacity was now "nil". He added, however, that if those "inflammatory problems" disappeared, the applicant could do light work.

32. In further cross-examination Dr Fenollosa acknowledged that he had not physically examined the applicant in recent times and said that he could not recall exactly when he had last seen him. He also acknowledged that it is very difficult to assess a person's ability to work from an MRI scan alone, and that it was "absolutely necessary" to examine the person "in the flesh" to assess them perfectly. Dr Fenollosa ultimately said that he could not express an opinion on whether the applicant could work from home:

"Because it is difficult to say what ... can he do just now without seeing the patient here, certainly not."

(Transcript, p64)

Dr W Anell

33. Dr Anell told the Tribunal that he has been a qualified medical practitioner since 1981. He first saw the applicant in June 1996 and he has been his treating general practitioner ever since.

34. Dr Anell said that in 1996 the applicant was experiencing "a lot of pain" in his right hip and he referred him to Professor Wood, Orthopaedic Surgeon, who, in October 1996, operated on him to remove exostoses from his right hip region and debrided his hip area. He said, however, that the applicant continued to experience pain after the operation and he prescribed anti-inflammatories for him, but, as he subsequently was having "a lot more pain", he eventually prescribed a narcotic painkiller for him. He said that the applicant subsequently developed a cyst on the right hip and that he went to Spain in 1998 where that cyst was removed in May 1998. Asked whether he thought the applicant was capable of working during the period 1996-1998, Dr Anell said:

"No, no, not with the amount or degree of pain that he had."

(Transcript, p226)

Asked later whether he thought the applicant had been "capable of doing any work at all" since June 1996 to the present time, Dr Anell responded:

"No, not really. He has sort of tried minor things but really every time, sort of, he had pain. I think that really from him, it's sort of probably a few aspects. One is the constant pain that he's in. Number 2 is the disability that he has. He walks with a limp, with crutches and everything. He would find it very difficult to move around and get around and number 3 is probably the side effects from his pain killers as well. I mean, he's drowsy, he's nauseated, he's vomited a couple of times.

Concentration, yeah? --- That's the other one, that he can't really manage so well.

...

I think for him he would be sort of struggling to really provide any useful work. But for how long? It is really difficult to say per day. Some days might be good, some days might be terrible, but I really think that he has to continuously change position because he's uncomfortable. So from sitting he has to sort of change position from that. Standing, he has to change that position as well and to mobilise or walk anywhere is very difficult. To find toileting, things like that, all those things are hard and if he's on the pain killer and has to retain, sort of, a strong concentration on the issues to be doing, I don't think there would be really any purpose in doing it."

(Transcript, pp228-229)

35. In cross-examination Dr Anell confirmed that he had completed a medical impairment assessment form in relation to the applicant, dated 16 November 2000, at the request of the DVA (T28), but that he had never done a formal functional assessment of the applicant. He added that that was not really his occupation. Asked what he saw as his role in managing the applicant, Dr Anell said that his role was to provide encouragement, to help him to manage, to provide analgesics and painkillers, to inquire how he is managing any side-effects, and to refer him to specialists or for CT scans and the like, if necessary. He acknowledged, however, that he had never referred the applicant to a psychiatrist or a clinical psychologist or a pain specialist. He added that because the applicant had "multiple pains" he did not think anything could be achieved through a pain clinic, and that his best form of pain management was with medications. He also acknowledged that he had never referred the applicant to, or encouraged him to consult, an occupational therapist or a rehabilitation provider. He explained that, having regard to the applicant's level of pain and mobility, he did not see "much future for him to go to someone like that". He acknowledged, however, that he had no detailed knowledge of the work and expertise of occupational therapists.

Dr D Williams

36. Dr Williams told the Tribunal that he has practised as an orthopaedic surgeon for 30 years, specialising in surgery of the upper and lower limbs and hip arthroplasties. Dr Williams said that he had examined the applicant on 5 occasions - twice in October 2000, twice in April 2001, and finally on 30 May 2001 - and had prepared 3 reports, dated 16 November 2000 (T53), 23 July 2001 (T55), and 12 June 2002 (Exhibit R4).

37. Dr Williams' report of 16 November 2000 is devoted to the issue of the relationship between the applicant's conditions of osteochondromatosis and osteoarthritis of the right hip and knees and his defence service and, as those conditions have already been found to be defence-caused diseases, it is not necessary for the Tribunal to revisit that matter or refer further to that report for present purposes.

38. In his report of 23 July 2001 Dr Williams expressed the following opinion on the applicant's work capacity:

"...

c) With regard to his work capabilities and potentials he has the capacity for lighter sedentary work activity involving desk or office work activities where there is some flexibility between sitting and standing with some freedom of movement so he does not have problems of stress on his joints.

With a range of computer positions emerging this area is appropriate for his medium to long term work future and with his basic intelligence and capabilities these would be appropriate work areas.

d) I believe the appropriate path is continue with vocational rehabilitation with support if necessary and with part-time activities if necessary but I believe it is important to continue with vocational retraining efforts.

My current opinion and review is based on recent clinical assessments 5 April 2001, 19 April 2001 and 30 May 2001. I have not reviewed him in follow-up since that period."

39. In his report of 12 June 2002 Dr Williams reiterated the recommendations made in his earlier report as follows:

"In my report 23 July 2001 I emphasised the importance of continuing with rehabilitation efforts of training and looking towards a light sedentary work capacity and exploring the options of these work areas and part-time work options with a focus on bench or desk work activities.

I had previously expressed the view that the TAFE program of study should be continued and if a full-time capacity was not an option for the patient, he should continue at least on a part-time basis as training was important for his medium to long-term work future.

As well as a vocational path of ongoing management, I recommended he continue with swimming and exercise schedules maintaining muscle strength and mobility about his joints and I saw intermittent physiotherapy as only being a need if there was a particular flare-up of problems.

I therefore saw his management needs included appropriate clinical assessment focusing on x-rays and MRI studies of joints rather than invasive procedures.

Further I recommended ongoing physical rehabilitation and also ongoing vocational rehabilitation.

I saw his options in work would include lighter sedentary work activities involving desk and office work activities and some flexibility between sitting and standing positions to avoid postural stress on his joints.

I recommended training in the computer area which would facilitate these various work capacities and options."

In relation to a report of Dr J Roddy, Rheumatologist, dated 10 May 2002 (Exhibit A3 - see paragraph 53 below), in which the opinion was expressed that the applicant would not be capable of "any form of physically demanding work either now, in the medium or long term, as a result of his physical disability", Dr Williams stated:

"I have always suggested his work capacities are in the light sedentary bench and desk work areas with flexibility in the sitting position and I would agree that he does not have a capability of physically demanding work, but rather light sedentary or bench or desk work activities."

Finally, with regard to his assessment of the applicant's work capacity, Dr Williams stated:

"c) With regard to the patient's assessment with regard to incapacity in relation to his ability to undertake work, at the date of my last review 30 May 2001 he had work capacities which were light sedentary bench or desk work activities.

I reviewed the patient first 18 October 2000 and at that time he had similar light sedentary work capacities at bench and desk levels.

...

Further, into the future I would see his work capacities maintaining light sedentary bench or desk work activities as the osteochondroma lesions have matured and there should not be further growth of those lesions and the only risk is if a lesion proceeds to a malignant change and therefore if there is not further growth of the lesions there should not be increasing stress on the adjacent muscles and tendons.

I have not seen well supported evidence that assesses the plain x-ray and MRI evidence of the various weight-bearing joints of the hips and knees that defines the underlying pathology with regard to the degree of any osteoarthritic change currently present and any degree of change which would lead to progression into the future and as I have mentioned in previous reports, appropriate assessment appears to be lacking of these basic current joint structures.

d) I have outlined this patient's need for appropriate vocational assessment and vocational rehabilitation paths being initiated, building up his functional and vocational skills to fit him for desk or bench work activities and I have mentioned that the computer skilling path is an appropriate future work area.

Further I believe this patient should have appropriate assessment by an occupational therapist to assess vocational skills and capacities.

Further with regard to the ongoing stresses of these medicolegal aspects of his case, I see significant psychological stresses that would benefit by an appropriate psychological assessment and as we are targeting his rehabilitation path, an occupational psychologist would be an appropriate commencing point in this area of psychological assessment.

...".

40. In his oral evidence Dr Williams confirmed the opinions and recommendations expressed in his abovementioned reports. Much of Dr Williams' oral evidence centred on the nature of the applicant's right hip condition and he referred not only to the accepted defence-caused condition of osteochondromatosis but also to a condition of enchrondroma (which he described as "a very particular cartilage disturbance that results in cartilage growing inside the bone", quite distinct from the condition of osteochondromatosis which involves lumps or growths outside the bone) which, he said, was noted in the MRI report of 20 November 2001 (Exhibit A9) and was commented on in Dr Fenellosa's report of 10 June 2002 (Exhibit A8). He said that that enchondroma condition (which has not been accepted as defence-caused) might be a factor in the applicant's right hip pain, but he could not be sure. Indeed, he acknowledged that he did not know the cause or causes of the applicant's right hip pain and said that that matter needed to be properly investigated, assessed and managed. In his opinion that had not been done to date.

41. Dr Williams was asked by the Tribunal to express his opinion regarding the number of hours per week that the applicant, notwithstanding his defence-caused diseases, was capable of engaging in work. Dr Williams' view was that the applicant could work (ideally from home) at least two half-days per week - that is, two 4-hour blocks per week. His evidence continued:

"So, that sounds like you would say he could - notwithstanding his physical condition by reason of his accepted conditions, he could work 8 hours per week. Is that what you mean by two half days? --- Yeah, that is right, yeah.

Two four hour blocks say? --- Yeah.

So, 8 hours? --- And he could do three. And that is according to his accepted condition.

Right? --- But according to his current status, I can't say, because I haven't seen him clinically. But when I saw him, they were the potentials we were going to develop around that sort of level.

Right. But you wouldn't go as high as 20 hours a week? --- Well, I don't think I can do that without some more supporting evidence to really assess his capacities properly and find out where the limitations are.

All right. So, between 8 and 20 seems to be what you are saying? --- Yeah. I see that."

(Transcript, pp194-195)

Dr B Dare

42. Dr Dare told the Tribunal that he has been qualified as an occupational physician, and has worked as a specialist in occupational medicine, since 1986. He confirmed that he had prepared 2 reports regarding the applicant dated 23 April 2001 (T45) and 14 January 2002 (Exhibit R5).

43. In his report of 23 April 2001, which was based on a clinical assessment of the applicant conducted on 18 April 2001, Dr Dare, after setting out the history and his findings on physical examination, responded to specific questions asked of him by the respondent as follows:

"1. What is the loss of range of movement in each of the veteran's hips and knees?

There was no loss of range of movement of Mr Gibson's knees or of his left hip, however he was unwilling to move his right hip significantly on examination although this was not consistent with his ability to sit or move during the examination.

2. To what degree (expressed as a percentage) does osteochondromatosis of the left hip affect the overall lower limb function?

There is no abnormality of his left hip on examination.

As you are aware, he has undergone a total right hip replacement which has obviously affected his right lower limb function which I would express as a 20% loss of function of his right lower limb.

3. Is the veteran's incapacity in his right hip and knees sufficient to prevent him from being able to work more than eight hours per week (in a job for which he has experience or skills) and, if so, is this incapacity likely to be permanent?

I consider that Mr Gibson is able to work more than eight hours per week, taking into account his previous skill and work history. I consider he would be able to work in a clerical capacity although obviously could not work in any activity which involved any significant manual handling or heavy physical work.

4. If the answer to Question 2 (sic) above is 'No', is the veteran's incapacity in his right hip and knees sufficient to prevent him from being able to work more than 20 hours per week (in a job for which he has experience or skills)?

In my opinion, he would able to work more than 20 hours per week.

5. If the answer to Questions 1 and 2 (sic) above is 'Yes', does the veteran have the ability to be retrained in a more suitable type of work and, if so, please specify the sort of jobs he could do after retraining and the number of hours per week he could probably work in those sorts of jobs.

This question is not applicable.

6. To what degree does osteochondromatosis of the right hip affect his ability to do any of the kinds of work in which he has experience or skills and is this effect significant?

Certainly Mr Gibson's right hip disability limits his mobility however, with the use of either crutches or a wheelchair, I consider that he would remain capable of being able to continue work, specifically in clerical type work."

44. In his report of 14 January 2002, which was based on a clinical re-assessment of the applicant conducted on 9 January 2002, Dr Dare, after setting out the history and his findings on physical examination, responded to specific questions asked of him by the respondent as follows:

"1. What is the range of movement of each of Mr Gibson's hips and knees?

My limited examination of Mr Gibson revealed little significant change in the movement of his hip or knees since the previous examination in April 2001. The movement of his knees was within normal limits, as was that in his left hip, although there was obviously restriction of his right hip.

2. To what degree (expressed as a percentage) does osteochondromatosis of the right hip affect Mr Gibson's overall lower limb function?

Again, as best as I was able to assess, I consider the osteochondromatosis of his right hip affects his right lower limb with a 20% loss of function.

3. Is Mr Gibson's incapacity in his right hip and knees sufficient to prevent him from being able to work more than eight hours a week (in a job for which he has experience and skills); and if so, is this incapacity likely to be permanent?

There is no reason to change my previous assessment and I consider that Mr Gibson is currently able to work more than eight hours per week, taking into account his previous skills and work history; I again consider he is able to undertake employment in a clerical capacity at present.

4. If the answer to the first part of question 3 above is 'no', is Mr Gibson's incapacity in his right hip and knees sufficient to prevent him from being able to work more than 20 hours per week (in a job for which he has experience and skills); and, if so, is this incapacity likely to be permanent?

Mr Gibson stated that his work capacity is severely limited, even in performing clerical type activities, due to the constant pain in his hip with sitting. He considers that he is completely unable to work longer than 20 hours per week, as he only able (sic) to undertake work on his laptop computer whilst lying down.

I certainly appreciate that it would be difficult for Mr Gibson to find employment due to his disability; however, I still consider him capable of working 20-25 hours per week.

5. If the answer to the first parts of question 3 and/or question 4 above is 'yes', does Mr Gibson have the ability to be retrained in a more suitable type of work; and, if so, please specify the sort of jobs he could do after retraining and the number of hours per week he could probably work at those sorts of jobs.

Certainly, any retraining that would assist him to obtain employment would be beneficial and obviously if he were able to find work which did not require him to attend an office but which he could undertake at home using his laptop would be beneficial in ensuring he continues in the workforce.

6. To what degree does osteochondromatosis of the right hip affect Mr Gibson's ability to do any of the kinds of work in which he has experience or skills and is this effect significant?

The main limiting factor is Mr Gibson's chronic right hip and knee pain, which is aggravated by prolonged sitting and therefore reduces his ability to undertake clerical-type work.

7. What clinical progress (if any) has Mr Gibson made in his rehabilitation since your earlier assessment on 18 April 2001?

From the history obtained from Mr Gibson, he has achieved no significant clinical progress in his rehabilitation since his previous assessment in April 2001.

8. What is your clinical assessment of that progress?

My clinical examination was severely limited. However, from the history and my limited examination I would agree there has been no real improvement in his condition since April 2001.

9. What do you believe would be an appropriate path for Mr Gibson's vocational rehabilitation?

I consider Mr Gibson will only ever be able to perform sedentary/clerical/ administrative type work and any vocational rehabilitation should be aimed at helping him to perform this type of work."

45. In his oral evidence-in-chief Dr Dare explained that his clinical examination of the applicant on 9 January 2002 was "severely limited" (as stated in para 8 of the abovementioned report of 14 January 2002) because the applicant considered that the reassessment was unnecessary and was not happy about being physically examined, and also because he had been instructed by the respondent not to aggravate the applicant's symptoms or cause him any distress in the course of the examination. He said that in his examination the applicant was able to sit and flex his hip whereas when he was asked to stand and flex his hip he said he was unable to do so. Dr Dare regarded that as inconsistent. Furthermore, Dr Dare was of the opinion that the level of pain of which the applicant subjectively complained was "out of proportion to the level of pathology that was present".

46. In cross-examination Dr Dare said that he had seen plenty of cases of osteoarthritis but acknowledged that he was not an expert in relation to osteochondromatosis. As regards the applicant's right hip Dr Dare said that, having had a total hip replacement, there is "no reason why he should have the level of not moving that hip that he states that he has". He added that, as regards the applicant's knees, there was no evidence of degeneration that would explain the pain that he says he has in his knees. In Dr Dare's opinion there is no "significant degenerative disease" in the applicant's knees. Dr Dare reiterated that he was not saying that the applicant does not have any pain - rather, that the degree of pain that he says he has is not consistent with his physical condition.

Additional Medical Reports and Material Regarding the Applicant's Functional Incapacity

T Documents

47. A Department of Defence Medical Examination Record, dated 15 August 1995, noted that the applicant had a painful right hip and left knee. A medical report completed by a panel of 3 service medical officers, dated 16 August 1995, states:

"LAC Gibson has difficulty performing even clerical duties. The analgesics necessary to control the level of pain he suffers then interfere with his ability to concentrate. A warm weather posting may help reduce his ache. The condition is likely to be gradually progressive.

LAC Gibson requires constant analgesic medication and has difficulty performing sedentary duties. His condition is aggravated by cold weather and further specialist care is likely to be required."

The panel found that the applicant was medically unfit for further service. The applicant was, as stated in paragraph 5 above, discharged from the RAAF on that ground on 28 November 1995. (T3, pp35-37)

48. A DVA "Medical Impairment Assessment", dated 27 April 1999, completed by Dr J Cardwell, a Departmental Medical Officer, contains the following findings in relation to the applicant:

* loss of 25% normal range of movement in right hip;

* loss of 25% normal range of movement in left hip;

* full range of movement in both knees, with crepitus in left knee;

* constant pain in right hip when weight-bearing; pain also present in left hip and both knees;

* very severe pain at rest in right hip which does not respond adequately to medication and which regularly interferes with sleep; pain also in left hip and both knees;

* uses the assistance of both hands to stand from seated postion;

* walks at a significantly reduced pace compared with his peers on flat ground at c 4 kph or less;

* pain restricts walking on the flat to 100m or less at a time;

* needs the assistance of hand rails and walking stick when ascending or descending stairs.

Dr Cardwell found that the applicant's conditions of osteochondromatosis and osteoarthritis of the right hip - which at that time were his only accepted defence-caused diseases - represented about 50% of his total disability and functional loss in his lower limbs. (T17)

49. A DVA "Medical Report - Ability to Work" form completed by Dr Cardwell, dated 11 May 1999, described the effect of the applicant's (the accepted) defence-caused conditions on his ability to work as follows:

"His osteochondromatosis of R hip together with osteoarthritis of R hip make him unfit all heavy/manual work. He is unfit negotiating flights of stairs or steps as a regular routine. He is fit all sedentary work."

The effect of his other (not then accepted) conditions on his ability to work was described as follows:

"Due to pain and loss of function in L hip plus pain in the knees, he is unfit all heavy/manual work. He is unfit the regular negotiation of flights of stairs or steps. He is fit all sedentary duties."

Dr Cardwell then indicated that, having regard only to the applicant's "employment background, experience and skills", and his (then accepted) defence-caused disabilities, and disregarding the "availability of suitable work" or the effects of any non-accepted disabilities, the applicant was able to work more than 20 hours per week, but in sedentary duties only. (T18)

50. A DVA "Medical Impairment Assessment", dated 16 November 2000, completed by Dr Anell, the applicant's treating general practitioner, contains the following findings in relation to the applicant's conditions of osteochondromatosis and osteoarthritis of the right hip:

* constant pain (often exacerbated for no obvious reason) during ordinary activities and at rest (pain level 5-7/10);

* constant pain when weight-bearing (pain level 7/10);

* support of at least one hand required in order to rise from sitting position;

* walks with a marked limp and uses crutch constantly;

* walking distance on level ground restricted to approximately 200 metres before rest needed because of pain;

* requires hand rail and crutches to negotiate stairs and needs rest, because of pain, after negotiating 1-2 flights of stairs;

* loss of 50% normal range of movement in right hip. (T28)

51. A DVA "Medical Impairment Assessment", dated 28 March 2001, completed by Dr Anell contains the following findings in relation to the applicant's conditions of osteochondromatosis and osteoarthritis of the right hip, and osteochondromatosis and osteoarthritis of both knees:

* pain present every day (pain level ranges from 5/10 on a good day to 8/10 on a bad day);

* constant pain on weight-bearing (pain level as abovementioned or worse);

* pain, when resting, can last all day (pain level as abovementioned);

* requires support of one or both hands to rise from sitting postion;

* uses crutches - gait severely limited as compared with peers;

* walking distance on level ground restricted to 50 metres before rest needed because of pain;

* restricted when negotiating stairs - usually avoids stairs because of pain;

* loss of 75% normal range of movement in right hip;

* loss of 25% normal range of movement in right knee;

* loss of 25% normal range of movement in left knee.

Dr Anell also expressed the opinion that the applicant's "disorderly and painful gait" and use of crutches caused him to feel embarrassed in public places and to avoid going to such places. (T42)

52. The T documents also contain reports by Dr P Anderson, Rehabilitation Physician, dated 14 May 2001 (T47) and 22 May 2001 (T51), regarding the applicant. In his report of 14 May 2001 (addressed to Dr Anell) Dr Anderson stated:

"...

Right Hip

He has undergone a right total hip replacement in Spain in December 1999. At this consultation the following abnormalities were noted. He walks with difficulty with a single crutch. The range of movement in the right hip approaches the normal range, with formal assessment being difficult because of his knee pathology. He experiences pain and discomfort in terms of acute pain in his right hip from time to time on account of the complex nature of his disability in this region.

Right Knee

This man complains of pain and stiffness in the right knee where the range of movement is from zero to 80 degrees indicating loss of half the normal range of movement.

Under table 3.2.1 his knee condition attracts a 20-point impairment rating.

Left Knee

This man also complains of pain and stiffness in his left knee where the range of movement (20-90 degrees) was also at about one half the normal range, attracting a 20-point impairment rating under table 3.2.1.

Assessed under table 3.2.2 this man has an impairment rating at the 40 percent level under the GARP Publication on account of his knee conditions. His right hip attracts a 10 point impairment rating under table 3.2.4. He would also attract a 10 point impairment rating under table 3.4.1.

In relation to this man's expectations of being a member of the workforce, this matter was seriously considered during this consultation. This man is severely handicapped in terms of moving around an office on the ground floor level. In relation to working in a suitable place of employment, this man would have significant difficulties because of the pain and stiffness in his lower limbs, making it difficult for him to move into a car and conduct himself in the city and park in a suitable car park and transfer to using either 2 crutches or alternatively a wheel chair in terms of being able to reach his place of employment in an office. He would also have difficulty maintaining his work at a workstation because of the experience of pain, which is a complex problem in relation to his handicaps in the right hip and knees.

The recommendation that I am making at this time is that this man is totally unemployable in open or sedentary employment.

For these reasons, with his impairment rating as listed, this man becomes unemployable because of his inability to access suitable employment and open employment conditions and stay at work on account of the disabilities in his right hip and both knees, being significant handicaps in relation to accessing a place of employment under reasonable commercial conditions.

Moreover, the pain experienced in association with his knees would render it extremely difficult working for the full day because he has to lay down and rest because of joint pain experienced while he is at home.

Consequently, this man may be eligible for one of the higher rates of pension because of the impact of his disabilities on open employment with my understanding of the factors involved and documented in this report.

It is recommended that he is given an appointment for your occupational therapist to assess mobility and appliances. Advice can be obtained from his physiotherapist and also from the career advisor at Midland Technical College regarding his educational status."

In his report of 22 May 2001 (addressed to the Senior Medical Officer, DVA) Dr Anderson stated:

"Thank you for the opportunity of speaking to you about Paul Gibson who came to me for an assessment of impairment rating associated with a pension claim. This man has a white card with specific disabilities in his right hip, right and left knees. He has significant handicaps in his lower limb and problems with mobility. I think a thorough occupational therapy assessment would be desirable to look at the question of provision of aids. He might benefit, for example, from an adjustable calliper for his right leg to assist with his ambulation with a lock, which can be released to allow him to sit and possibly drive his motor vehicle.

This man had some experience in the pay section of his unit in the Air Force during his service career and may have ability to work in office procedures. Again, the occupational therapist could address the assessment of vocational expectations and referral to the Commonwealth Rehabilitation Service may enable this man to achieve the status of part time employment which he would find difficult because of his disabilities. Working from home may be a desirable objective. He may require an accounting qualification to meet this expectation."

Exhibits

53. The applicant tendered in evidence reports by Dr J Roddy, Specialist Physician in Rheumatology, dated 5 November 2001 (Exhibit A2) and 10 May 2002 (Exhibit A3). In her report of 5 November 2001 (addressed to Dr Anell) Dr Roddy summarised her findings on examination of the applicant as follows:

"On examination he appears quite anxious and has a blunted affect. His musculoskeletal examination was somewhat limited as Paul tells me that previous Doctors have examined him, severely flaring up his pain. Examination of his upper extremities reveals a full, pain free range of movement of all his joints. Scars from previous removal of exostoses are noted on the volar aspect of his right wrist. Examination of his cervical spine shows a good range of movement. Examination of his knees reveals discomfort and reduced flexion - no synovitis is noted. He has tenderness on palpation of both medial and lateral jointlines. Range of movement of his right hip is severely restricted due to discomfort. The scar is noted; it isn't locally tender, however there is numbness over this region. He is tender to deep palpation of the ischial bursa. He also notes a worsening of the pain on straight leg raise although this is localised to the ischial bursa and doesn't radiate into his thigh. Examination of his left hip reveals a good range of movement although he has some discomfort at the extreme of internal and external rotation. Range of movement of his lumbar spine is limited in forward flexion. Deep tendon reflexes and the rest of his systemtic examination is unremarkable."

In her report of 10 May 2002 (addressed to the Australian Government Solicitor) Dr Roddy responded to a series of questions asked of her in a letter dated 10 April 2002 (Exhibit A4) as follows:

"(a) Mr Gibson was seen on the 05/11/01 with the main problem being that of right buttock pain. I understand his problems began in May/June 1991 with bilateral knee pain. At the time he was working in the Defence Force. In June 1995 while working in Wagga he got out of a car, tripped, fell onto his buttocks and reported pain in his right hip starting at that time. In 1996 he was noted to have trochanteric exostosis. He subsequently had hip surgery, I believe removal of the exostosis, in 1998 he required a total hip replacement and unfortunately has had persistent pain since then.

My examination showed a marked restricted range of movement of his right hip, localised tenderness over the scar, as well as acute tenderness over the ischial bursa. The tenderness over the ischial bursa seemed to be the major problem, however, I wondered about other possible structures causing pain in this region. An MRI scan was performed which showed some atrophy of the obturator externus muscle, resolution of cyst previously noted, no evidence of ischial bursitis or greater trochanteric bursitis and no lesion in the region of the ischial tuberosity.

(b) Again, Mr Gibson's major pain appeared to be the right buttock, although reviewing his history, he had previously reported knee pain. In fact an MRI in 1998 had confirmed the presence of bilateral knee osteochondromas and certainly the presence of these osteochondromas could cause pain aggravated by the physical requirements of the military service.

(c) To my knowledge there is no definitive treatment of multiple osteochondromas, certainly from a medical point of view. I have suggested Mr Gibson continue on an exercise programme which should be pool based, as well as physiotherapy, in the hopes of further strengthening his muscles.

(d) From my initial consultation to when he was last seen on the 05/04/02 there was no appreciable difference in his symptoms.

(e) I do not believe Mr Gibson will be capable of any form of physically demanding work either now, in the medium or long term, as a result of his physical disability."

[The Tribunal notes that para (e) above was in response to the question: "what are Mr Gibson's work capabilities and potentials (i) now; (ii) in the medium term; and (iii) in the long term, as a result of the accepted disabilities?"]

The Evidence of Linley Jones

54. Ms Jones told the Tribunal that she has been working as an occupational therapist since 1977 after completing a 4-year university bachelor degree course in Applied Science (Occupational Therapy). She confirmed that she had prepared a report, dated 6 June 2002, in relation to the applicant (Exhibit R7). She also confirmed that she had not seen the applicant (an appointment arranged by the DVA for her to see him in May 2002 not having been kept by him) and that her report had been prepared on the basis of documentation provided to her by the respondent, namely, the parties' Statements of Facts and Contentions, reports of Dr D Williams and Dr B Dare, and physiotherapy reports. Ms Jones' report summarises the applicant's medical/functional capacity (based on the abovementioned medical reports) and his vocational history, and then canvasses "possible work options" which, in her opinion, the applicant had the "potential" to undertake in his home environment which would "allow him to work as he feels able at variable hours during the day" and "to change posture...as required". Ms Jones' report concluded as follows:

"From written information reviewed, it would appear that Mr Gibson has sufficient physical capacity and transferable skills consistent with performance of part-time work from home in a variety of areas including book-keeping, telemarketing, debt collection, software support, website development and telephone answering services.

To be more specific and prescriptive in relation to vocational rehabilitation direction and equipment required, I would recommend Mr Gibson engage in an active vocational rehabilitation program to determine training requirements, specific home and equipment needs, work trial or work experience placement to develop on the job skills prior to consideration of home-based work activity."

The Evidence of Robyn Booth

55. Ms Booth told the Tribunal that she is employed by Woolworths (WA) Pty Ltd and that, in response to a summons issued by the Tribunal, she had brought with her a computer printout of the applicant's employment record with Woolworths. That computer printout (comprising 23 pages) was tendered in evidence by the respondent (Exhibit R1). According to Ms Booth's evidence, that computer printout recorded the following information regarding the applicant's employment with Woolworths:

* the commencement date was 26 February 1996 (p1);

* the nature of the employment was a part-time position as a "produce night filler" at the Woolworths supermarket at Whitfords (p3);

* the base number of hours to be worked per week was 12 hours (p4);

* the termination date was 1 April 1996, the termination being for "personal reasons" (p9);

* in the pay period (week) ending 3 March 1996 the applicant worked 12 hours (p20);

* in the pay period (week) ending 10 March 1996 the applicant worked 8 hours (p21);

* in the pay period (week) ending 17 March 1996 the applicant worked 8 hours (4 hours were not worked owing to sickness) (p22);

* in the pay period (week) ending 24 March 1996 the applicant took 4 hours sick leave (for which he was not paid because he had no entitlement to sick leave) and did not work any hours (p23).

Other Material

56. The Tribunal has also had regard to the other material contained in the T documents and Exhibits but it is not necessary to set out the contents of that material here.

The Legislation

57. The relevant provisions of the Act are as follows:

"PART II...

Division 4 - Rates of pensions payable to veterans

21A Determination of degree of incapacity

(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.

...

22 General rate of pension and extreme disablement adjustment

(1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.

(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.

...

23 Intermediate 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

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

the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

the veteran is, by reason of incapacity from 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 from that incapacity; and

section 24 or 25 does not apply to the veteran.

(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking - if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

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

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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 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;

if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and

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.

...

24 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

either:

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

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

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

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

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:

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

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.

...

24A Continuation of rates of certain pensions

(1) Subject to subsection (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:

(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;

(b) in the case of a veteran to whom section 23 applies;

(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or

(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking - the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or

(c) in the case of a veteran to whom section 24 applies - the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.

(2) Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran.

25 Temporary payment at special rate

(1) Where the Commission is satisfied that:

(a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and

(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;

the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.

(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsections 24(4) and (5).

(3) The Commission may, under this section:

(a) determine a period that commenced before the date on which the determination is made; and

(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.

...

28 Capacity to undertake remunerative work

In determining, for the purposes of paragraphs 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).

29 Guide to the assessment of rates of veterans' pensions

(1) The Commission may, from time to time, prepare written document, to be known as the "Guide to the Assessment of Rates of Veterans' Pensions" setting out:

(a) criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and

(b) methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum.

...

(4) Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.

...".

By ss 71 and 73 of the Act, the provisions of, inter alia, Divisions 3 and 4 of Part II of the Act apply in relation to pensions payable in accordance with Part IV of the Act in like manner as they apply in relation to pensions payable in accordance with Part II. Pursuant to subss (5) and (9) of s 19 (in Division 3 of Part II) of the Act, the relevant "assessment period" during which the appropriate rate of the applicant's disability pension is to be assessed by the Tribunal commenced on 8 March 1996 (being the date on which his pension claim was received by the DVA). In accordance with s 120(4) of the Act, the Tribunal is required to decide the matter of the assessment of the rate of disability pension payable to the applicant under Part IV of the Act to its "reasonable satisfaction" - that is, on the civil standard of proof, namely, the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.

The Submissions

58. Each of the parties made extensive oral and written submissions which have been carefully considered by the Tribunal. Those submissions will not be set out in detail here, but their essence was as follows. Ms Gatell-Gamir (for the applicant) submitted, relying chiefly on the evidence and reports of Drs Fenollosa, Anell, Roddy and Anderson, that, since his discharge from the RAAF on 28 November 1995, the applicant has constantly satisfied the conditions specified in paras (a), (b), and (c) of s 24(1) of the Act and is, accordingly, entitled to payment of disability pension at the "special rate" under s 24 of the Act, permanently, with effect from 8 December 1995. Dr Schoombee (for the respondent) submitted, relying chiefly on the evidence and reports of Drs Williams and Dare, that, at all material times, the applicant has had the capacity to work for 20 hours per week, or at least for between 8 and 20 hours per week, and therefore is not entitled to payment of disability pension at the "special rate" under s 24 of the Act. He submitted, in the alternative, that if the applicant was unable to work for 8 hours per week, or for between 8 and 20 hours per week, that inability to work was not caused solely by his defence-caused diseases of osteochondromatosis and osteoarthritis of the right hip and both knees, but was also caused by other factors, including:

* an intraosseous enchondroma of the applicant's right femur (not one of the abovementioned defence-caused diseases), as noted by Drs Fenollosa and Williams from the MRI report of 20 November 2001;

* the applicant's psychiatric condition;

* the applicant's abuse of, or dependence on, at times alcohol and morphine-based drugs;

* the applicant's persistent failure to seek proper medical evaluation and treatment of his alleged chronic pain;

* the applicant's persistent failure to seek proper occupational assessment and rehabilitation.

Having regard to those additional causative factors, Dr Schoombee submitted that the applicant was not entitled to either the "special rate" of pension under s 24 of the Act or the "intermediate rate" of pension under s 23 of the Act. He submitted that the appropriate rates at which disability pension was payable to the applicant in respect of his accepted defence-caused diseases were, first, 50% of the "general rate" as from 8 December 1995, and, secondly, on the basis of a medical assessment of the applicant carried out by Dr Cardwell on 27 April 1999, 70% of the "general rate" as from the latter date.

Findings on Material Questions of Fact

59. The first substantive matter for the Tribunal's determination is the degree of the applicant's incapacity from his accepted defence-caused diseases of osteochondromatosis and osteoarthritis of the right hip and both knees, according to the provisions of the GARP: see ss 21A and 73 of the Act. Such a determination must first be made before it can be determined at what rate or rates disability pension would have been payable to the applicant during the "assessment period" (which commenced on 8 March 1996 - see paragraph 57 above), and at what rate disability pension is payable to the applicant with effect from the relevant date specified in the Tribunal's ultimate determination. The determination of the first abovementioned matter - namely, the degree of the applicant's incapacity from his accepted defence-caused diseases - is not assisted by the fact that the material before the Tribunal does not contain regular and frequent medical assessments of the degree of the applicant's incapacity throughout the entire "assessment period" - in particular, as the VRB noted in the reasons for its decision of 15 August 2001 (T1, p12), there is a "paucity" of such medical evidence in the early part of the "assessment period" - indeed, up until Dr Cardwell's medical impairment assessment dated 27 April 1999. Accordingly, for the purpose of making findings regarding the degree of the applicant's incapacity from his accepted defence-caused diseases during the "assessment period", the Tribunal will first consider the period from 27 April 1999 and then the earlier period from 8 February 1996 (the commencement of the "assessment period") until 26 April 1999.

The degree of the applicant's incapacity from his accepted defence-caused diseases as from 27 April 1999

60. According to the GARP (p5), the assessment of the degree of incapacity involves 2 elements, namely "medical impairment" (dealt with in Chapters 1-21) and "lifestyle effects" (dealt with in Chapter 22).

Medical impairment

61. In the present case the relevant chapter of the GARP as regards the applicant's defence-caused diseases is Chapter 3 - in particular, Part 3.2: Lower Limbs.

62. In its decision of 15 August 2001 the VRB, on the basis of Dr Cardwell's medical impairment assessment of 27 April 1999 and Dr J Yin's opinion, dated 15 March 2001, that the applicant's left hip condition (which is not an accepted defence-caused disease) contributed 25% to his lower limbs' functional loss (T34, p186), found, applying Table 3.2.2 ("Loss of Musculoskeletal Function: Lower Limbs (based on use of both lower limbs together)") together with Scale 19.1 ("Partially Contributing Impairment"), that the appropriate impairment rating was 24. [The Tribunal notes that Table 3.2.2 and Scale 19.1 were applied by the VRB, rather than Tables 3.2.1 and 3.6.1, because the former produced a higher impairment rating for the applicant.] The VRB also found, on the basis of Dr Cardwell's assessment, that the appropriate rating on Table 3.4.1 ("Resting Joint Pain") was 15. The VRB also applied Table 17.1 ("Disfigurement") - which had not been applied by Dr Cardwell - and found - presumably on the basis of an assessment by Dr Anell on 28 March 2001 (T42, p219) - that the appropriate impairment rating was 2. Those 3 impairment ratings were, in accordance with Chapter 18 of the GARP, then combined by applying Scale 18.1 ("Combined Values Chart") and that resulted in a "combined impairment rating" of 36 which, in accordance with Chapter 18, was rounded down to 35.

63. As previously noted (see paragraph 51 above) Dr Anell, the applicant's treating general practitioner, completed a medical impairment assessment in relation to the applicant's accepted defence-caused diseases on 28 March 2001. If Dr Anell's assessment is accepted, the following impairment ratings would, in the Tribunal's opinion, be appropriate:

Table 3.2.2 40

Table 3.4.1 10

Table 17.1 2.

Those impairment ratings would, by applying Scale 18.1, result in a "combined impairment rating" of 47 which, in accordance with Chapter 18 of the GARP, would be rounded down to 45. The Tribunal notes that the abovementioned impairment ratings on Tables 3.2.2. and 3.4.1. were supported by Dr Anderson in his report of 14 May 2001 (T47). Dr Dare, however, found, in his report of 23 April 2001 (T45), that there was no loss of normal range of movement in each of the applicant's knees. The Tribunal notes that Dr Dare was not requested (by the DVA) specifically to apply any of the tables in the GARP when examining the applicant and, accordingly, his report contains no findings in relation to Tables 3.2.1, 3.2.2 and 3.4.1. In these circumstances the Tribunal accepts the abovementioned impairment ratings as found by Dr Anell.

64. Accordingly, on the basis of the abovementioned material, the Tribunal finds that the applicant's "combined impairment rating" in respect of his accepted defence-caused diseases has, since 27 April 1999, ranged between 35 and 45.

Lifestyle effects

65. In its decision of 15 August 2001 the VRB, on the basis of a "Lifestyle Rating" form lodged by the applicant with the DVA on 31 March 1999 (T14), found that the appropriate lifestyle rating, in accordance with Tables 22.1-22.5 in Chapter 22 of the GARP, was 4. The Tribunal notes, however, that the applicant subsequently lodged with the DVA 2 "Lifestyle Questionnaire" forms on 17 July 2000 (T26) and 29 March 2001 (T41), which were not referred to in the VRB's reasons for decision. Having regard to the information provided by the applicant in those forms, and also to his oral evidence, the Tribunal finds that the following ratings are appropriate in respect of the tables in Chapter 22 of the GARP:

Table 22.1 ("Personal Relationships") 4

Table 22.2 ("Mobility") 4

Table 22.3 ("Recreational and Community Activities") 4

Table 22.4 ("Domestic Activities") 5

Table 22.5 ("Employment Activities") 4.

On the basis of those particular lifestyle ratings the Tribunal finds, in accordance with Chapter 22 of the GARP, that the "final lifestyle rating" is 4 (17÷4 = 4.25, which is rounded down to 4).

Degree of incapacity

66. The degree of the applicant's incapacity from his accepted defence-caused diseases is determined by combining the "combined impairment rating" and the "final lifestyle rating" in accordance with Scale 23.1 in Chapter 23 of the GARP. A "combined impairment rating" of 35, combined with a "final lifestyle rating" of 4, results, by applying Scale 23.1, in a degree of incapacity of 70%. A "combined impairment rating" of 45, combined with a "final lifestyle rating" of 4, results, by applying Scale 23.1, in a degree of incapacity of 80%.

67. Accordingly, on the basis of the abovementioned findings in relation to the appropriate "combined impairment rating" (see paragraph 64 above) and "final lifestyle rating" (see paragraph 65 above), the Tribunal finds that the degree of the applicant's incapacity from his accepted defence-caused diseases has, since 27 April 1999, ranged between 70% and 80%.

68. Because the degree of the applicant's incapacity from his accepted defence-caused diseases has, in respect of the period from 27 April 1999, been found to be at least 70%, it follows that the question may arise whether disability pension is payable to the applicant at either the "intermediate rate" under s 23 of the Act or at the "special rate" under s 24 or s 25 of the Act. The Tribunal will consider and determine that matter later in these reasons.

The degree of the applicant's incapacity from his accepted defence-caused diseases during the period from 8 February 1996 to 26 April 1999

Medical impairment

69. In the period from 8 February 1996 (the commencement date of the relevant "assessment period") to 26 April 1999 no medical impairment assessments in respect of the applicant, for the purposes of assessing the rate of pension in accordance with the GARP, were conducted either by DVA medical officers or his treating general practitioner, Dr Anell. This was no doubt due to the fact that it was not until the Tribunal's decision of 12 February 1999 (see paragraph 8 above) that the applicant's right hip conditions of multiple osteochondromatosis and osteoarthritis were found to be defence-caused and the matter of the assessment of the rate of disability pension payable to the applicant was remitted to the respondent. The applicant's additional conditions of osteochondromatosis and osteoarthritis of both knees were subsequently also determined by the Tribunal, in accordance with an agreement reached between the parties, to be defence-caused on 19 December 2000 (see paragraph 11 above). In the Tribunal's opinion the applicant should not be allowed to be disadvantaged by the lack of contemporaneous medical material regarding the degree of his incapacity from his subsequently accepted defence-caused diseases in the abovementioned period, and he should be given the benefit of any doubt that the Tribunal might have regarding that matter. In this connection the Tribunal notes the provisions of paras (f), (g) and (h)(ii) of s 119(1) of the Act in accordance with which a beneficial approach should be taken by the Tribunal in these circumstances.

70. The Tribunal notes that the applicant was discharged from the RAAF on the ground that he was medically unfit for further service on 28 November 1995 primarily because of the painful condition of his right hip and left knee (see paragraph 47 above). According to the applicant's oral evidence, after his discharge from the RAAF he continued to experience pain in his right hip and knees and the pain in his right hip in particular became much worse after his operation in October 1996 and that severe pain persisted throughout 1997 and into 1998 when he went to Spain for an operation (conducted in May 1998) from which he got "great relief". He also said, however, that his right hip condition deteriorated substantially in 1999 and that he returned to Spain later in that year for a total right hip replacement operation (which was conducted in December 1999), and also an arthroscopy on his left knee. The evidence of Dr Anell, who has been the applicant's treating general practitioner in Perth since June 1996, was also to the effect that the applicant had experienced ongoing pain in his right hip since that time, notwithstanding his operations, and that the severity of the pain was such that he continues to prescribe narcotic painkillers for the management of the applicant's pain.

71. The Tribunal also notes that the delegate of the respondent, in the primary decision in this mater dated 15 March 2001 (T36), found that, as from 8 December 1995 until 16 July 2000, a "combined impairment rating", in accordance with Chapter 3 of the GARP in respect of the applicant's defence-caused diseases, of 35 was appropriate. That finding is consistent with the "combined impairment rating" as found by the VRB on 15 August 2001 (T1) in respect of the period from 27 April 1999.

72. Having regard to the whole of the material before it and to the provisions of paras (f), (g) and (h)(ii) of s 119(1) of the Act, the Tribunal is of opinion that the abovementioned finding of the delegate of the respondent in his decision of 15 March 2001 was appropriate, and finds that the appropriate "combined impairment rating", in respect of the applicant's accepted defence-caused diseases during the abovementioned period, is 35.

Lifestyle effects

73. The Tribunal notes that the first lifestyle rating form was not lodged with the DVA by the applicant until 31 March 1999 and that 2 lifestyle questionnaires were subsequently lodged by him on 17 July 2000 and 29 March 2001. The Tribunal's findings on lifestyle ratings, on the basis of the information provided in those forms and the applicant's oral evidence, were set out in paragraph 65 above.

74. In the absence of earlier contemporaneous material regarding the lifestyle effects of the applicant's accepted defence-caused diseases during the abovementioned period, the Tribunal, having regard to the applicant's oral evidence and the provisions of paras (f), (g) and (h)(ii) of s 119(1) of the Act, is of opinion that the abovementioned findings on lifestyle ratings in respect of the period from 27 April 1999, as set out in paragraph 65 above, are also applicable in respect of the period from 8 February 1996 to 26 April 1999.

75. Accordingly, the Tribunal finds, in accordance with Chapter 22 of the GARP, that the "final lifestyle rating" in respect of the period from 8 February 1996 to 26 April 1999 is 4.

Degree of incapacity

76. On the basis of the abovementioned findings in relation to the appropriate "combined impairment rating" (namely, 35) and "final lifestyle rating" (namely, 4), the Tribunal finds, in accordance with Scale 23.1 in Chapter 23 of the GARP, that the degree of the applicant's incapacity from his accepted defence-caused diseases during the period from 8 February 1996 to 26 April 1999 was 70%.

77. Because the degree of the applicant's incapacity from his accepted defence-caused diseases has, in respect of the period from 8 February 1996 to 26 April 1999, been found to be 70%, it follows the question may arise whether disability pension is payable to the applicant at either the "intermediate rate" under s 23 of the Act or at the "special rate" under s 24 or s 25 of the Act in respect of that period.

Is disability pension payable to the applicant at the "special rate" under s 24 of the Act?

78. Section 24 of the Act applies to a veteran if the conditions specified in paras (aa)-(d) of s 24(1) are all satisfied. There is no dispute that the conditions specified in paras (aa) and (aab) are satisfied in this case. Furthermore the Tribunal has found that the condition specified in subpara (a)(i) is also satisfied in this case (see paragraphs 67 and 76 above). The remaining questions for the Tribunal's determination are, therefore, whether the conditions specified in paras (b), (c) and (d) of s 24(1) of the Act are satisfied in this case.

79. The condition specified in para (b) of s 24(1) of the Act is that the veteran must be "totally and permanently incapacitated" - that is, "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". For the purposes of the present case, the references in s 24(1)(b) to "war-caused injury" and "war-caused disease" are to be read as references to 'defence-caused injury" and "defence-caused disease": see s 73(2) of the Act.

80. For the purpose of determining whether the condition specified in para (b) of s 24(1) of the Act is satisfied in the present case, it is appropriate, in the Tribunal's opinion, to give the greatest weight to the relevant evidence and reports of medical practitioners. Unfortunately, however, the opinions expressed by the various medical practitioners in this case, as regards the extent of the applicant's incapacity, by reason of his defence-caused diseases, to undertake remunerative work, are far from consistent and, in some cases, are not altogether clear. Those opinions may be summarised as follows:

Dr Fenollosa

In his evidence-in-chief Dr Fenollosa said that when he saw the applicant in May 1998 and December 1999 he was incapacitated for work by reason of his right hip pain (1998) and right hip and knee pain (1999). In cross-examination, however, Dr Fenollosa acknowledged that in 1998 the applicant was able to do "light work" for at least 2 hours per day. When questioned by the Tribunal Dr Fenollosa said that the applicant, after his hip replacement operation in December 1999, was "quite well" but that an MRI scan dated 20 November 2001 had indicated "inflammatory problems" in his right hip region, because of which his work capacity was now "nil". He added, however, that if those "inflammatory problems" disappeared the applicant would be able to do light work.

Dr Anell

Dr Anell expressed the opinion that the applicant, because of his pain, has been incapable of doing any work since June 1996 (when he began to treat him).

Dr Anderson

In his report of 14 May 2001 Dr Anderson opined that the applicant, by reason of his right hip and knee conditions, is "totally unemployable in open or sedentary employment...because of his inability to access suitable employment and open employment conditions...". He regarded the applicant's hip and knee conditions as "significant handicaps in relation to accessing a place of employment under reasonable commercial conditions". In his report of 22 May 2001, however, Dr Anderson recommended that the applicant have a "thorough occupational therapy assessment" and stated that he "may have ability to work in office procedures". He also stated that referral to the Commonwealth Rehabilitation Service may enable the applicant "to achieve the status of part time employment" and added that "(w)orking from home may be a desirable objective".

Dr Roddy

In her report of 10 May 2002 Dr Roddy opined that the applicant will not be capable of "any form of physically demanding work either now, in the medium or long term, as a result of his physical disability".

Dr Williams

In his report of 23 July 2001 Dr Williams opined that the applicant has the capacity for "lighter sedentary work activity involving desk or office activities" and recommended vocational rehabilitation. In his report of 12 June 2002 Dr Williams reiterated those views, and also expressed agreement with the view of Dr Roddy that the applicant does not have "a capability of physically demanding work". He reiterated, however, that the applicant does have the capacity to undertake "light sedentary or bench or desk work activities". In his oral evidence Dr Williams said that when he saw the applicant (on 5 occasions between October 2000 and May 2001) he was capable of working (ideally from home) for at least two 4-hour blocks per week - and, he added, he could do three 4-hour blocks - notwithstanding his accepted disabilities. He agreed with the suggestion that the applicant was capable of working between 8 and 20 hours per week.

Dr Dare

In his reports of 23 April 2001 and 14 January 2002 Dr Dare opined that the applicant was capable of working more than 20 hours per week "in a clerical capacity" but not in any activity which involved any "significant manual handling or heavy physical work".

81. Of the various opinions expressed by the abovementioned medical practitioners, the Tribunal regards that of Dr Williams as the preferred opinion and, accordingly, it accepts Dr Williams' opinion that the applicant is capable of working between 8 and 20 hours per week in light sedentary work activities, but not in physically demanding work activities. Dr Williams is an eminent orthopaedic surgeon with particular expertise in surgery of the upper and lower limbs (including the hips) and, having examined the applicant on 5 occasions between October 2000 and May 2001, he was well placed to make a definitive assessment of the effect of the applicant's right hip and knee conditions on his work capacity and to make valuable recommendations with a view to maximising the applicant's future working life. The Tribunal was most impressed with the quality and thoroughness of his reports and it also regarded him as a most impressive witness.

82. The Tribunal, by contrast, was not persuaded by Dr Anell's evidence regarding the applicant's incapacity for work. Although Dr Anell has been the applicant's treating general practitioner since June 1996, he, according to his own evidence, saw his role in treating the applicant as providing encouragement, helping him to manage his pain by prescribing painkilling medications, and referring him to specialists if necessary. He has never, however, referred the applicant to a pain specialist or encouraged him to consult an occupational therapist or a rehabilitation provider. He also acknowledged that he had never done a formal functional assessment of the applicant. In the Tribunal's opinion Dr Anell's assessment of the applicant's incapacity for work is based largely on the applicant's own subjective account of the level of pain that he suffers and is lacking in objective analysis and an appreciation of, or it seems an interest in, the various work options which the applicant might be capable of undertaking notwithstanding his right hip and knee disabilities. In short the Tribunal does not accept Dr Anell's assertion that the applicant has been incapable of doing any work since June 1996.

83. Dr Fenollosa's evidence regarding the applicant's incapacity for work was, in the Tribunal's opinion, equivocal and inconclusive. On the one hand, in his evidence-in-chief he agreed with the suggestion that the applicant had been incapacitated for work since 1996 (notwithstanding the fact that he did not see him before May 1998), and on the other hand he acknowledged, in cross-examination, that when he first saw the applicant in May 1998 he was able to do "light work" for at least two hours per day. He later also acknowledged that the applicant, after his hip replacement operation in December 1999, was "quite well". Dr Fenollosa's opinion that the applicant's present work capacity is "nil" was based entirely on an MRI scan dated 20 November 2001 which indicated that there were, at that time, "inflammatory problems" in his right hip region, and he acknowledged that if those "inflammatory problems" were to disappear the applicant would be able to do light work. The Tribunal notes that Dr Fenollosa has not seen the applicant since early 2000 and that he himself acknowledged in his evidence that it was very difficult to assess a person's ability to work from an MRI scan alone. Finally, Dr Fenollosa felt unable to express an opinion as to whether the applicant could work from home because he had not had the opportunity to examine the applicant recently for the purpose of assessing him. Having regard to the whole of Dr Fenollosa's evidence, in the Tribunal's opinion that evidence acknowledges that, at least in May 1998 and after the operation in December 1999, the applicant was able to do light work for at least 2 hours per day. Furthermore Dr Fenollosa's opinion that the applicant's present work capacity is "nil" is, as he himself acknowledged, based on inadequate information, namely, an MRI scan dated 20 November 2001 alone, and was expressed without his having seen the applicant since early 2000. Accordingly, the Tribunal does not regard Dr Fenollosa's evidence as unequivocally supporting the proposition that the applicant is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.

84. Dr Anderson's opinion, as expressed in his report of 14 May 2001, that the applicant was "totally unemployable in open or sedentary employment" was apparently formed having regard to "reasonable commercial conditions" and was not based merely on the applicant's physical incapacity, by reason of his accepted defence-caused diseases, to undertake appropriate remunerative work. Indeed, in his subsequent report of 22 May 2001 Dr Anderson appeared to contemplate that, with the benefit of occupational therapy assessment and rehabilitation, the applicant could engage in part-time office, or home-based, work. Accordingly, the Tribunal does not regard Dr Anderson's opinion as inconsistent with the proposition that the applicant is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.

85. Dr Roddy opined merely that the applicant is not now, and will not in the future be, capable of "any form of physically demanding work". Dr Roddy expressed no opinion on whether or not the applicant is capable of light, sedentary work. Dr Roddy's abovementioned expressed opinion is, therefore, not inconsistent with the proposition that the applicant is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.

86. Dr Dare, a specialist in occupational medicine, went further than Dr Williams in opining that the applicant was capable of working more than 20 hours per week "in a clerical capacity". Dr Dare, however, examined the applicant on only 2 occasions (18 April 2001 and 9 January 2002) and his reports were not as comprehensive as those of Dr Williams. In the Tribunal's opinion, the view of Dr Williams should be preferred to that of Dr Dare.

87. The Tribunal also notes the applicant's evidence that he has been unable, by reason of his defence-caused diseases, to do any work since his discharge from the RAAF in November 1995, and his evidence that, because of his pain, he had to discontinue his employment with Woolworths in early 1996 after only 3 weeks and a TAFE course in early 2000 after 5 weeks. As regards the applicant's employment with Woolworths, the Tribunal notes from his evidence, however, that that employment required him to work one shift of 8 hours on one day per week (rather than 8 hours spread over a week) and, furthermore, that that employment was of a manual, somewhat physically demanding, non-sedentary nature (namely stacking vegetables on shelves) rather than of a light or sedentary nature. Accordingly, the Tribunal does not regard that employment experience as confirming that the applicant was in early 1996 incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. As regards the applicant's discontinuing the TAFE course after 5 weeks in early 2000, the Tribunal, having regard to the whole of the contemporaneous medical evidence, does not accept that the applicant was physically incapable of completing that course. The Tribunal notes that he commenced that course shortly after his right hip replacement operation (in December 1999) when, according to Dr Fenollosa's evidence, he was "quite well". Having regard to the whole of the evidence in this matter - in particular, the medical evidence - the Tribunal does not accept the applicant's evidence that he has been unable, by reason of his defence-caused diseases in his right hip and knees, to do any work since his discharge from the RAAF in November 1995.

88. As previously indicated (see paragraph 81 above) the Tribunal accepts the opinion of Dr Williams that the applicant is capable of working between 8 and 20 hours per week in light, sedentary work activities. Having regard to the whole of the evidence and material before it, the Tribunal finds that the applicant has been so capable since the commencement of the relevant "assessment period" on 8 March 1996 and continues to be so capable.

89. Accordingly, the Tribunal finds, having regard to the matters specified in s 28 of the Act, including the applicant's clerical work experience (in financial accounting) in the RAAF and his subsequently acquired computer skills, and the various kinds of remunerative work (as set out in the report of Linley Jones - see paragraph 54 above) that he might, given his experience and skills, reasonably undertake, that since the commencement of the "assessment period" on 8 March 1996 the applicant has not been incapable, and is presently not incapable, of undertaking remunerative work for periods aggregating more than 8 hours per week, within the meaning, and for the purposes of, of s 24(1) of the Act. It necessarily follows from that finding alone that the applicant has not been entitled since 8 March 1996, and is presently not entitled, to payment of disability pension at the "special rate" under s 24 of the Act, and the Tribunal so finds.

Is disability pension payable to the applicant at the "special rate" temporarily under s 25 of the Act?

90. In the Tribunal's opinion s 25 of the Act does not apply in this case. In the first place the evidence and material before the Tribunal do not suggest that the applicant's incapacity from his accepted defence-caused diseases is merely temporary. Furthermore the Tribunal has already found (see paragraph 89 above) that the applicant's incapacity (which, it accepts, is permanent) from his accepted defence-caused diseases is not such as to satisfy the condition specified in para (b) of s 24(1) of the Act and that, accordingly, s 24 of the Act does not apply to him.

91. The Tribunal finds, therefore, that the applicant is not entitled to payment of disability pension at the "special rate" temporarily under s 25 of the Act.

Is disability pension payable to the applicant at the "intermediate rate" under s 23 of the Act?

92. Section 23 of the Act applies to a veteran if the conditions specified in paras (aa)-(d) of s 23(1) are all satisfied. There is no dispute that the conditions specified in paras (aa) and (aab) are satisfied in this case. Furthermore the Tribunal has found that the condition specified in subpara (a)(i) is also satisfied in this case (see paragraphs 67 and 76 above), as is the condition specified in para (d) (see paragraphs 89 and 91 above). The remaining questions for the Tribunal's determination are, therefore, whether the conditions specified in paras (b) and (c) of s 23(1) of the Act are satisfied in this case.

93. The condition specified in para (b) of s 23(1) of the Act is that the "veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently". For the purposes of the present case, the reference in s 23(1)(b) to "war-caused injury" and "war-caused disease" are to be read as references to "defence-caused injury" and "defence-caused disease": see s 73(2) of the Act. By s 23(2), para (b) of s 23(1) shall not be taken to be fulfilled in respect of a veteran who is capable of undertaking work if either (a) the veteran is capable of undertaking that work for 50% or more of the time ordinarily worked by persons engaged in that work on a full-time basis, or, in a case where (a) is inapplicable, the veteran is capable of undertaking that work for 20 or more hours per week.

94. The Tribunal has already found (see paragraph 88 above), in accordance with the opinion of Dr Williams, that the applicant is capable of working between 8 and 20 hours per week in light, sedentary work activities (but not in heavy or physically demanding work activities). That is, the Tribunal has found that the applicant is capable, notwithstanding his accepted defence-caused diseases, of working more than 8 hours per week but less than 20 hours per week in such work activities. In other words the Tribunal has found that the applicant is incapable, by reason of his accepted defence-caused diseases, of working (even in light, sedentary work activities) for 20 or more hours per week. Accordingly, the Tribunal finds that the applicant's incapacity from his accepted defence-caused diseases is, of itself alone, of such a nature as to render the applicant "incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently", within the meaning, and for the purposes, of para (b) of s 23(1) of the Act. In making that finding the Tribunal has had regard to the matters specified in s 28 of the Act. The condition specified in para (b) of s 23(1) of the Act is, therefore, satisfied in this case.

95. As regards the condition specified in para (c) of s 23(1) of the Act, the following questions must be addressed by the Tribunal for the purpose of determining whether that condition is satisfied:

"1. What was the relevant 'remunerative work that the veteran was undertaking'...?

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 earnings on his own account that he would not be suffering if he were free of that incapacity?"

(See Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96.)

96. There is no dispute that the applicant was undertaking "remunerative work", namely, his service in the RAAF from which he was discharged, on the ground of medical unfitness for further service, on 28 November 1995. It is also clear that the applicant, by reason of his defence-caused diseases of osteochondromatosis and osteoarthritis of the right hip and both knees, was, and is, prevented from continuing to undertake that work.

97. The third abovementioned question involves the so-called "alone test" and the answer to that question is somewhat more problematic. The respondent submitted that the applicant has been prevented from continuing to undertake remunerative work not only by reason of incapacity from his accepted defence-caused diseases, but also by reason of various other factors (listed in paragraph 58 above), and, accordingly, the "alone test" is not satisfied for the purposes of s 23(1)(c) of the Act. The Tribunal, however, does not accept that submission because the evidence and material before it do not establish to its reasonable satisfaction that those other factors, either individually or collectively, played any causative role in the applicant's being prevented from continuing to undertake remunerative work. As regards the intraosseous enchrondroma of the applicant's right femur, which was noted by Drs Fenollosa and Williams from the MRI report of 20 November 2001, although Dr Fenollosa opined that that enchondroma "can produce pain" and referred, in his oral evidence, to recent "inflammatory problems" in the applicant's right hip region which rendered his present work capacity as "nil", the Tribunal is not thereby satisfied, on the balance of probabilities, that that enchondroma has in fact produced pain and thereby played, or is playing, a causative role in preventing the applicant from continuing to undertake remunerative work. The Tribunal also notes that Dr Williams, in his oral evidence, put it no higher than that the relevant enchondroma condition "might be a factor in the applicant's hip pain" - that is, a mere possibility, rather than a probability or likelihood. Likewise, the Tribunal, on the basis of the evidence and material before it, is not satisfied on the balance of probabilities that the applicant's psychiatric or psychological condition (there is no clear medical evidence that he suffers, or has suffered, from a recognised psychiatric disorder), or his use of, or dependence on, medications, are factors contributing to his being prevented from continuing to undertake remunerative work. Nor, in the Tribunal's opinion, can the suggested negative factors of the applicant's persistently failing to seek proper medical evaluation and treatment of his pain, and to seek proper occupational assessment and rehabilitation, reasonably be regarded as factors contributing to his being prevented from continuing to undertake remunerative work. In short, the Tribunal is satisfied that the applicant has been, and is, prevented from continuing to undertake remunerative work by reason of incapacity from his accepted defence-caused diseases alone, within the meaning, and for the purposes, of para (c) of s23(1) of the Act.

98. The final question posed by s23 (1)(c) of the Act is whether the applicant, by reason of his being so prevented from continuing to undertake remunerative work, is "suffering a loss of salary or wages, or of earnings on his own account, that [he] would not be suffering if [he] were free from...incapacity" from his accepted defence-caused diseases. That question is one of "hypothetical fact" and requires the Tribunal to consider what, if anything, the applicant probably would have done by way of remunerative work if he had none of his defence-caused disabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 337; Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96. There is nothing in the material before the Tribunal to suggest that, had the applicant not been suffering from his accepted defence-caused diseases, he would not have continued (at least for a period of time) with his service in the RAAF or have undertaken, or been undertaking, other suitable remunerative work. The Tribunal notes that the applicant was aged only 27 years at the time of his discharge from the RAAF on medical grounds in November 1995 and was described in RAAF service documents in August 1995 as "a conscientious and stoic member [who] has tried to minimise the impact of his condition on his duties". (T3, p36). The Tribunal is satisfied that, if the applicant were free of the incapacity from his accepted defence-caused diseases alone, he would have continued, at least for a period of time, with his RAAF service and would still be continuing to undertake either that, or other suitable, remunerative work. Accordingly, the Tribunal finds that the applicant, by reason of his being prevented, by incapacity from his accepted defence-caused diseases alone, from continuing to undertake remunerative work that he was undertaking, is suffering a loss of salary or wages that he would not be suffering if he were free of that incapacity, within the meaning, and for the purposes, of para (c) of s23(1) of the Act. Having regard to the Tribunal's above findings in relation to the "alone test" (see paragraph 97 above), subparas (i), (ii) or (iii) of s23(3)(a) are not satisfied in this case.

99. Accordingly, the Tribunal finds that the condition specified in s23 (1)(c) of the Act is satisfied in this case. That finding makes it unnecessary for the Tribunal to consider the "ameliorative provision" in s23 (3)(b) of the Act.

100. The Tribunal finds, therefore, that disability pension is payable to the applicant at the "intermediate rate" under ss23 and 73 of the Act. The Tribunal finds, furthermore, that the applicant has satisfied all the conditions specified in s23(1) of the Act for entitlement to the "intermediate rate" of pension as from the commencement of the "assessment period" on 8 March 1996. Pursuant to ss20(1) and 71(1) of the Act, the Tribunal approves payment of disability pension at the "intermediate rate" to the applicant from and including 8 December 1995.

101. Finally, the Tribunal notes s24A of the Act whereby it is provided, in para (1)(b) thereof, that if pension is payable to a veteran at the "intermediate rate" under s23 that rate continues to apply unless:

"(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or

(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking--the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week".

Subsection (2) provides, however, that para (1)(b) does not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme ("VVRS"). A pamphlet about the VVRS published by the DVA, and Instrument No 5 of 1997 whereby the respondent made the VVRS under s115 B(1) of the Act, were tendered in evidence by the respondent (Exhibits R3 and R11, respectively) for the information of the applicant.

Decision

102. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that disability pension is payable to the applicant at the "intermediate rate" under s23 of the Act, with effect from and including 8 December 1995.

I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Dr P A Staer, Member

Signed: ..........(sgd V Wong)............................................

Associate

Date/s of Hearing 13-14 June, 28 August 2002

Date of Decision 14 January 2003

Counsel for the Applicant Ms T Gatell-Gamir

Counsel for the Respondent Dr J Schoombee

Solicitor for the Respondent Australian Government Solicitor