Pritchard and Repatriation Commission [2003] AATA 32 (15 January 2003)

Last Updated: 16 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 32

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/662

VETERANS' APPEALS DIVISION )

Re ROBERT MCNEILL PRITCHARD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Member

Date 15 January 2003

Place Brisbane

Decision The Tribunal affirms the decision under review.

..............................................

Ms N Bell

Member

CATCHWORDS

VETERANS' ENTITLEMENTS - continued payment of disability pension at 100 per cent of the General Rate - whether Applicant eligible for payment of disability pension at special rate - whether Applicant is prevented from undertaking remunerative work by reason of incapacity from war-caused conditions - whether modifications made to workplace or equipment required by Applicant as a result of non war-caused conditions enable Applicant to undertake remunerative work - Tribunal to consider whether a war-caused condition alone prevents Applicant from continuing to undertake remunerative work.

Veterans' Entitlements Act 1986 s 24

Banovich v Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v Smith (1987) 15 FCR 327

Forbes v Repatriation Commission (2000) 101 FCR 50

REASONS FOR DECISION

15 January 2003 Ms N Bell, Member

1. This is an application by Mr Robert Pritchard ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 15 September 1998 to continue to pay disability pension to the Applicant under the Veterans' Entitlements Act 1986 ("the Act") at 100 per cent of the General Rate. On 14 April 1999 the Veterans' Review Board affirmed the Respondent's decision and the Applicant lodged an application for review by this Tribunal.

2. At the hearing before the Tribunal on 13 November 2000 the Applicant sought payment at the special rate pursuant to section 24 of the Act. On 20 December 2000 the Tribunal affirmed the decision under review.

3. The Applicant appealed the Tribunal's decision to the Federal Court and the Court ordered, pursuant to terms agreed by the parties, that the Tribunal's decision be set aside and the matter be remitted to the Tribunal for re-hearing according to law.

4. At the hearing before the Tribunal on 17 October 2002 the Applicant was represented by Mr DarinHonchin of Counsel and the Respondent was represented by Ms Ann McMahon of Counsel. The Applicant gave oral evidence to the Tribunal as did Ms Kathryn Purse, occupational therapist. The Tribunal had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975, a statement by the Applicant dated 25 May 2000, a statement by Mr Howard Bullock dated 14 December 1999, three reports of Dr Michael Hickey dated 30 March 1999, 28 September 1999 and 1 June 2000, the report of Dr Michael Likely dated 23 March 2000, the report of Ms Kathryn Purse dated 19 May 2000, the report of Dr John Rogers dated 16 January 1997, the transcript of the proceedings before the Tribunal on 30 November 2000 and documents produced under subpoena by Dr Michael Hickey.

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

Exhibit Description Date

TD1 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 being T1-T6

A1 Applicant's Statement 25 May 2000

A2 Report from Dr Michael Hickey, General Practitioner 30 March 1999

A3 Report from Dr Micahel Hickey, General Practitioner 28 September 1999

A4 Report from Dr Michael Hickey, General Practitioner 1 June 2000

A5 Report from Dr Michael Likely, Consultant Psychiatrist 23 March 2000

A6 Report from Ms Kathryn Purse, Occupational Therapist 19 May 2000

A7 Mr Howard Bullock's Statement 14 December 1999

A8 Report from Dr John Rogers, Consultant Psychiatrist 16 January 1997

R1 Transcript of Proceedings 30 November 2000

R2 Bundle of Documents from Dr Michael Hickey, General Practitioner

6. The parties are in agreement as to following facts:

7. The Applicant was born on 9 July 1936 and attended school until he was 15 years old when he became an apprentice boilermaker. He completed his apprenticeship over the following five and a half years. His apprenticeship was interrupted when he was 19 years of age by National Service of 90 days.

8. The Applicant then worked as a boilermaker at the New South Wales Railways (for four months), at a firm of civil engineers (for 10 months) and at B & W Steel Wollongong (for three months). He then worked as a labourer at the atomic research facility at Lucas Heights. After the Applicant completed his National Service Training he spent four years as a part time member of the Citizen Military Force (CMF). He joined the Regular Army on 9 September 1959 as a blacksmith welder in the Engineers Corps.

9. During his 21 years in the Army the Applicant was posted to 10 different locations including postings to Australian bases, Papua New Guinea, Singapore and South Vietnam. He spent almost all of 1969 in Vietnam where he was a combat engineer at Nui Dat and he was also stationed at Xhuan Loc. He was promoted to Staff Sergeant while in South Vietnam.

10. Throughout his time in South Vietnam he experienced regular mortaring, at least three times per week. Shortly after his time at Xhuan Loc he experienced severe headaches which at that time would last for four to five days and would restrict him to simply lying on his bed. He eventually went to the field ambulance in late August or early September 1969 where he was given a course of a tablet a day over four days. That medication cured the particular headache at the time and he remained free of very severe headaches for a period of around 12 months.

11. The Applicant was discharged from the Army on 8 September 1980 by which time he had been promoted to the rank of Warrant Officer. After leaving the Army the Applicant joined the Army Reserve as an Artificer Sergeant Major for the technical support group RAIME with Four Transport in Townsville. This activity involved one night per week with regular weekend duties and an annual camp. He experienced occasional headaches and believes he also had overly aggressive reactions to people, surroundings and circumstances.

12. In the first two years after he left the Army he was employed as a yardsman at Neilsen Toyota (four months), a spare parts salesman at Unipart (one month), rubbish truck driver at Townsville Trade Waste (two months) and cleaner at Mundingburra Police Station (four months). He then commenced work at a Local State School from 25 January 1982 to 8 July 1996 as a groundsman/ janitor.

13. The Applicant has been active in sports including Australian rules, tennis, squash, rugby league, rugby union, golf, fishing, water polo, swimming, boxing, hockey and bicycle racing. After South Vietnam he played squash frequently and some golf. From 1979 he played baseball until 1993 when he turned 57 years of age. Up until and including 1998 he coached baseball. In 1998 his baseball coaching occupied about two hours training one night per week and games of two to three hours on a Saturday afternoon. He is currently President of the Townsville Junior Baseball Association.

14. The Applicant has been married twice, his first marriage lasting four years. He has five children from his second marriage.

15. The Applicant suffered from diabetes mellitus, which was first diagnosed in 1982. He considers that he had some of the symptoms of the diabetes as early as 1977 and possibly dating back to his days in Vietnam.

16. The Applicant was first diagnosed as suffering from post traumatic stress disorder (PTSD) by Dr Rogers, psychiatrist, in 1997 (A8). He had been referred to Dr Rogers by his general practitioner, Dr Hickey.

17. The Applicant has the following "service related disabilities":

* muscle contraction headaches

* chronic solar skin damage

* squamous cell carcinoma (NSR) (for the purpose of treatment only)

* post traumatic stress disorder (PTSD)

* bilateral sensori-neural hearing loss with tinnitus

* psychoactive substance abuse or dependence

18. The Applicant has the following "non-service related disabilities":

* refractive error

* presbyopia

* diabetes mellitus

* hypertension

* amputation below the right knee

19. The Applicant's right leg was amputated below the knee in November 1996 following a stubbed toe two days after he left his job at the school. He developed circulation problems, had a by-pass graft in his leg, developed osteomyelitis, and risked gangrene, which led to the amputation. He has worn a prosthesis since February 1997.

LEGISLATION

20. The Applicant seeks payment of disability pension at the "special rate". Eligibility for payment at that rate is provided for in section 24 of the Act as follows:

" 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

(a) either:

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

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

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

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

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

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

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

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

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

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."

21. The Respondent has conceded that the Applicant satisfies the requirements in sections 24(1)(a) and 24(1)(b) of the Act. In addition the Respondent concedes that the Applicant had suffered a loss of salary or wages that he would not be suffering if he were free of his incapacity.

22. The Applicant conceded that he has not been seeking to engage in remunerative work following his ceasing to work at the school.

23. The parties are in an agreement that the earliest date of effect, should the Applicant's rate of disability pension be increased, be 11 September 1998.

ISSUES

24. Given the concessions made by the Respondent, it remains for the Tribunal to consider whether the Applicant satisfies the requirements in section 24(1)(c), that is, whether, by reason of his incapacity from his war-caused conditions alone, the Applicant is prevented from continuing to undertake remunerative work that he was undertaking.

25. This, in turn, requires the Tribunal to identify the remunerative work undertaken by the Applicant and to examine the effect of the Applicant's accepted conditions on his ability to do that work. That examination must take place with reference to the Applicant's non-accepted conditions and to any other factor that may have an effect on his ability to undertake that work.

26. Given that the Applicant has conceded that he has not attempted to seek work, the possibility of the application of the provisions of 24(2)(b) does not arise.

APPLICANT'S EVIDENCE

27. The Applicant gave the following evidence, as part of his statement dated 25 May 2000 (A1):

"...

Between 25 January 1982 and 8 July 1996 I worked at Currajong State School (both primary school and pre-school) as a Janitor Groundsman.

My duties at Currajong State School, in a five (5) day week, included:

* changing lightbulbs;

* checking clocks;

* moving furniture;

* mowing - using hand mower, ride on mower and tractor (often this mowing occupied anything up to four (4) days of each five day week);

* watering - using hoses, underground hoses and an underground irrigation system (two inch (2inc) hoses were used and had to be physically dragged, or wheeled in a cart, into position);

* general garden maintenance;

* repairs - to the irrigation system, chairs, tables etc;

* occasional welding - goalposts etc; and

* emptying refuse bins - a daily task until wheelie bins were introduced at which time the bins were emptied twice per week.

...

Towards the end of my time at the School (ie the last fifteen (15) to eighteen (18) months) I was experiencing severe headaches around twice a week. At the time of my retirement I was experiencing a headache every day. Some of these had dissipated by morning tea time but others would last for a day or two.

Certainly over those last fifteen (15) to eighteen (18) months the headaches increased in frequency compared to the earlier years in the job.

As the headaches frequency increased my productivity decreased. Although I suspected that the Principal of the School, Howard Bullock was carefully avoiding any direct criticisms of my work performance I nevertheless knew that he was less than satisfied with my productivity level.

At one stage towards the end of my time at the School the Principal (in discussion with me) altered my starting time from 6.00am to 7.30am to accommodate my morning headaches.

I often had to finish a day's work early, upon advice to the Principal, due to headaches.

So conscious was I of my diminished work performance that I expected a couple of times that I might be facing dismissal due to my inferior performance.

Although I wasn't aware at the time that the symptoms were attributable to PTSD, I now recognise that elements of my behaviour at the Currajong School workplace reflected that condition.

I can recall any number of occasions upon which I became overly irate at the behaviour of parents and teachers and even (occasionally) students. Throughout this time I reacted in the same way within my marriage, subjecting my wife Rosalie to verbal abuse.

This behaviour was irrational in a number of ways, significantly in that the outbursts were entirely disproportionate to the events which triggered them and it was not unknown for me to simply stop in the middle of a tirade wondering what I was doing.

Throughout my time at the School, but particularly in the latter years I was susceptible to daydreaming about my prior service and particularly experienced flashbacks about my service in South Vietnam and in Papua New Guinea.

At night I was troubled then, and still remain troubled, by persistent bad dreams and inability to sleep. On only two (2) occasions since returning from South Vietnam can I recall having a good night's uninterrupted sleep.

I ceased work at the time I did because of the headaches I was experiencing. I waited until the 8^th of July to cease work because I was told by the Department of Veterans Affairs that I had to be sixty (60) to receive a pension. I persevered with the job long after I should have given it away, and long after my work performance was at an acceptable level simply because of my fear that, even though I should not be working as a result of the conditions, a pension would not be available until I turned sixty (60).

...

It had always been my intention during my working life to work until age sixty five (65).

After retirement I had intended to travel around Australia. I had spoken with my wife Rosalie about my plans in this regard and had had discussions with a mate in Sydney with a view to conducting some joint touring when he retired as well.

..."

28. In the Applicant's oral evidence to the Tribunal he added that the grounds of Currajong State School were 14 acres comprising, in addition to the school buildings, a 100 meter running track, football fields, two netball courts, two indoor basketball courts, two tennis courts and a tractor shed. He said that it was generally level, flat ground.

29. In relation to his duties of checking clocks and changing light bulbs, the Applicant said that he would generally reach the clocks on a six-foot ladder, they were generally battery operated and needed to be changed only once every 12 months. He added that the light bulbs were generally fluorescent and lasted approximately four years. He said that the teachers would often change the batteries in the clocks.

30. In relation to moving furniture, the Applicant said that this consisted of children's desks, generally at the end of the term and that he usually had help doing this. He said that he had no difficulty climbing step ladders and does so now without trouble. He also said he has no difficulty with stairs.

31. The Applicant said that he would be able to do most duties at school now but possibly a little slower. In answer to a question from the Tribunal, the Applicant said that using a ride on lawn mower would be a problem because he would not be able to properly feel the brake pedal.

32. The Applicant said that he had always intended to work until he was 65 and then travel around Australia with his wife. He said that when he retired at 60 he did not undertake this travel because he can no longer drive a manual car and does not own an automatic car.

33. In cross-examination the Applicant said that he was required to use a ride on mower for the front lawn of the school which comprised about one third of the grounds. He said that the mower was operated by way of a right foot brake and had a clutch. The Applicant said that the tractor he was required to use had a slasher permanently fixed to it and that it had a right brake pedal and a clutch as well.

34. The Applicant said that Dr Hickey has treated his headaches for about 10 to 12 years with Codeine Forte, which he takes most days. He said that this does not quite get rid of his headaches. He said he had a "headscan" just after he left the Army but it showed nothing wrong and he has never been placed on any preventative medication. The Applicant said that during 1996 Dr Hickey would give him a script for Codeine Fort every month. It was pointed out to the Applicant in cross-examination that in Dr Hickey's clinical notes there is no entry in 1996 in relation to headaches.

35. The Applicant said that he became insulin dependent after he lost his leg. He said that he has not driven since 1996 because of the loss of his leg and while he has experienced no phantom limb pain, he has recently had some pain at the hip from his prosthesis. He said that he initially had some balance problems with his prosthesis but this has been helped by the use of a walking stick. He said he now still has some difficulty with standing but no problems with balance or walking over uneven ground. He agreed that he would have been a lot slower at his job during the first three years after he had his prosthesis fitted.

36. The Applicant said that he has problems with his eyesight at short distance and has had laser surgery on his eyes. He agreed that his eyesight problems might be related to his diabetes condition.

37. The Applicant said that he was being paid $900.00 per fortnight at the time he left his job at the school. He said that he knew that when he turned 60 he would be able to get a service pension. He agreed that now that he receives a service pension, a disability pension and superannuation payments he receives a similar or slightly larger amount per fortnight as he did when he was employed.

38. The Applicant said that he has never had treatment for PTSD. He agreed that he is currently President of the Baseball Association, that he played baseball until 1994, that he has been married for 38 years, and that he gave up drinking in 1982. He agreed that emotionally the loss of his leg has had some impact on him and said that he jokes about it and that helps.

39. In re-examination the Applicant said that when employed at the school it had been one of his duties to pick up and deliver things occasionally for the school. He agreed that he no longer drives and noted that he had stopped driving before he stopped work.

40. The Applicant also said that he would be able to have a ride on mower modified by the replacing the foot brake and throttle with a hand brake and hand throttle.

41. Mr Howard Bullock, former Principal of Currajong State School, said in his statement of 14 December 1999 (A7):

"...

Bob Pritchard was employed as a Janitor Groundsman, but mainly his role and functions fell within the Groundsman area.

When I took up my position in 1987 Bob's work performance was not completely satisfactory in all respects. I worked with him on a program to improve his work performance and that performance improved within a relatively short period to be satisfactory. When that point was reached Bob was doing a good day's work for a good day's pay.

In the last couple of years leading up to his retirement from the school Bob showed signs of slowing down and his level of productivity dropped. There was no diminution in the quality of Bob's work, it was just that gradually he took longer and then longer to achieve the same level of productivity.

During this same period Bob came to take more time off work, through illness, than previously was the case.

In truth I could have placed Bob on what was then known in the Queensland Public Service as "Diminished Work Performance". This would have meant that had he not improved his work performance according to a nominated schedule, he could have been dismissed.

I recognised Bob as a person who had sought to contribute conscientiously to his work position in the past and accordingly chose to work with him, once again, to improve his level of performance rather than add to his difficulties by placing him under the work performance regime.

In all the years of my acting as Bob's supervisor he never once refused an instruction which I had given to him. He obviously placed great pride in his groundsman activities because even with the drop in productivity mentioned earlier in this statement the grounds at the school always looked good.

During the last six (6) to eight (8) months of his employment Bob occasionally spoke of retirement and so I was not surprised when he chose to leave the workforce.

Bob didn't mention to me his reasons for retiring, although I did not think that was particularly unusual because Bob always had been a reticent and self effacing employee.

...

He did speak from time to time of his difficulties with his headaches, but Bob prided himself in being (or appearing to be) physically fit and so, to my perception at least, generally avoided any discussion of himself or his health.

..."

MEDICAL EVIDENCE

42. Dr Michael Hickey, the Applicant's general practitioner gave the following evidence in his report of 28 September 1999 (A3):

"...

It was and still is my opinion that Mr Robert Pritchard ceased gainful employment due to his PTSD and recurrent headaches.

It was mainly his PTSD that caused his cessation of work and it is his PTSD which continues to render him incapable of gainful employment.

Mr Pritchard has other medical problems which are significant but do not exclude his working.

..."

43. Dr Michael Likely, Consultant Psychiatrist, in his report of 23 March 2000 (A5) said:

"...

1. The nature and extent of post traumatic stress disorder suffered by Mr Pritchard is outlined above. His symptoms have been severe and chronic and were interfering significantly with his functioning when he was working at the Currajong State School, in terms of irritability and angry outbursts, together with chronic headaches which were a feature of his anxiety disorder.

2. Mr Pritchard continues to suffer significant symptoms of post traumatic stress disorder and in my opinion they alone would be responsible for him being unable to undertake any future remunerative employment.

3. In my opinion Mr Pritchard's headaches and post traumatic stress disorder are currently, and were at the time of his ceasing work in July 1996, sufficient to render him incapable of working more than eight hours a week as a janitor/groundsman.

..."

44. Ms Kathryn Purse, Occupational Therapist, in her report dated 19 May 2000 (A6) said:

"...

Post Traumatic Stress Disorder

Currently he experiences flashbacks, intrusive thoughts and dreams relating to war experiences. He particularly notices that he is often irritable and becomes angry very easily with little provocation. He notices that he has poor concentration.

He has difficulty sleeping. He said that he goes to bed at about 10.30pm and then wakes at about 2am. He is even awake and does not fall back to sleep until about 5am or 6am, then finding himself very tired when it is time to get out of bed. He arises between 9 and 11am.

Mr Pritchard said that he coped with these symptoms for many years however in the last 12 to 18 months of his employment he found that he was becoming increasingly irritable and fatigued. He found it increasingly difficult to maintain friendly relationships with other staff in the school and felt angry much of the time.

His work pace slowed. He was having short naps during work hours.

Headaches

Mr Pritchard has experienced headaches since his service in the Vietnam War. He said that he coped with the headaches which remained fairly unchanged until about late 1994 or early 1995 when the headaches became more intense and the severe intermittent headaches that he had been experiencing became more frequent.

Since then he has a headache most days and very severe headaches occur about once per month on average. The daily headaches can settle by about lunchtime or persist for the entire day. The very severe headaches persist for 2-3 days at which time he has to lie down in a darkened room. He takes medication for the headaches but finds that the medication does not really relieve the pain to a great extent. The severe headaches are provoked by stress but often occur for no reason that Mr Pritchard can discern.

During the last 12-18 months of his employment he found that the headaches had started to significantly interfere with his work performance. He had days off work when he had severe headaches. He said that he often left work early in the last 12-18 months of his employment. He found that his work pace had slowed and he had difficulty completing the work tasks in the usual time.

Other Accepted Disabilities

Mr Pritchard did not consider that his other accepted disabilities (chronic solar skin damage, squamous cell carcinoma, psychoactive substance abuse or dependence and bilateral sensorineural hearing loss) impacted upon his work performance in the long term.

Right Below Knee Amputation

Mr Pritchard had his right leg amputated below the knee in late 1996. Currently he wears a prosthetic limb. He uses a walking stick when walking longer distances but often carries the stick rather than using it for support. He has some hip pain upon prolonged walking and finds that use of the stick decreases the hip pain and improves his walking tolerance. He does not use the stick when moving about his home and yard or over short distances. He does not experience pain in the stump and does not experience phantom pain. He wears the prosthetic limb all day other than if he lies down with a severe headache in the day time.

He is able to walk 1½km continuously at a steady pace and said that he walks this distance to nearby shops on a regular basis. He has a sit down rest before walking back to his home.

He is able to negotiate stairs without difficulty although is safer when holding the handrail and this is his habit.

He is able to safely lift and carry loads up to 14kg.

He cannot squat and kneeling is very difficult.

He is able to reach to the floor using a combination of spinal flexion and knee flexion.

He is able to sit on the floor however has to push and pull himself up to a standing position using the left leg power and his arms.

...

In response to your questions:

5.1 Whether the amputation of Bob's leg, considered alone would preclude his having continued in his position at the Currajong School.

This question has been addressed with regard to the list of duties provided by you on page 3 of your letter of 13 September 1999.

Based on the functional testing carried out I consider that Mr Pritchard would be physically able to undertake a range of the duties required however there would be some significant restrictions and he would require the consideration of his employer in the way of providing help with some tasks. His work pace would be slower.

He would be unsafe climbing ladders to change light bulbs and check clocks. He is able to move furniture about a room but would not be safe shifting furniture up and down flights of stairs. He is able to use a push mower and ride on mower for periods of up to 30 minutes continuously. Hand mowing would be slower than prior to the amputation and he would need to pace out the task. In regard to tractor operation he would be able to operate the tractor with care in regard to the right foot controls. He is physically capable of watering the grounds and moving hoses. He is physically capable of carrying out general repairs with some difficulties performing repairs at ground level. He is physically capable of welding although low level fixtures would present difficulties and he would need to use a stool. He is physically capable of emptying wheelie bins and other rubbish bins.

5.2 The extent to which the amputation of Bob's leg would limit his employment prospects generally.

The physical limitations imposed upon Mr Pritchard by the amputation preclude him from heavy physically demanding work and work that has the critical demands including but not limited to continuous sustained standing and walking with no opportunity for sitting intermittently, moving at speed, moving continuously over uneven surfaces, climbing ladders and assumption of awkward and sustained low postures.

5.3 The extent to which the headaches (as described by Bob) would limit his employment prospects.

Mr Pritchard was working in his job as a janitor/groundsman whilst suffering headaches however when the headaches became worse he reported that he had increasing difficulty in performing his work at a normal pace and his required days off work and early days on a regular basis. The headaches would hinder his current employment prospects similarly. He would require days off work about once per month on average. His work pace slows when the headaches are more severe. He has difficulty maintaining social relationships with co-workers. Employees with these limitations are not generally accepted in the open labour market.

5.4 The extent to which the post traumatic stress disorder suffered by Bob would limit his employment prospects.

The symptoms reported by Mr Pritchard and outlined by Dr Likely place significant limitations on his prospects for employment. He is fatigued much of time due to poor sleep and experiences disturbing flashbacks, dreams and intrusive thoughts. He has difficulty maintaining social relationships at work and becomes angry and irritable much of the time.

...

He was having difficulties coping with this work and other types of work would present the same if not further difficulties.

..."

45. In cross-examination Ms Purse said that the Applicant's amputation produces some limitations but that he could do most of his former job as a groundsman but would need a considerate employer and help with a number of his duties. She said he would be slower and would tire easily.

46. Ms Purse conceded that she did not consider whether the Applicant's other leg might also be at risk. She said that she considered that the Applicant would have difficulty with a ladder, uneven surfaces, kneeling and that it would not be safe for him to move furniture up and down stairs.

47. Ms Purse conceded that there were a lot of important specific details about the Applicant's former job of which she was not aware. She conceded that she obtained no specific information in relation to the Applicant's duties of driving a tractor and ride on mower. She also conceded that she did not know the diagnosis of and treatment of the Applicant's headaches, whether he was treated for his PTSD , the nature of the Applicant's vision problems and in particular that he had cataracts, and was unaware of the Applicant's general health issues.

48. In re-examination Ms Purse said that equipment modifications can be made to accommodate many disabilities and she said that tractors and ride on mowers can be modified to have hand controls instead of foot controls. She said that some ride on mowers are made with this modification already in place. Ms Purse considered that the Applicant would be able to drive an automatic car or a vehicle with hand controls.

RESPONDENT'S EVIDENCE

49. Dr John Rogers, Consultant Psychiatrist, in his report of 16 January 1997 (A8) said:

"...

From appointment of his return to Australia following his year in Vietnam he has continued to be troubled by recurring dreams. These involved being chased by Viet Cong. His wife reports very unsettled sleep which ostensively was the reason for sleeping apart two years ago. He continues to avoid crowded places, such as shops, social gatherings and the like. For a period he was involved with Vietnam Veteran's Association, but became disillusioned with this a number of years ago.

His father died at the age of 78 in 1957 and his mother died in 1986. He is the youngest of six siblings five of whom are still alive. He reports a good relationship with both parents and within the family and there is no indication of depression or other forms of mental disturbance.

Since the middle of last year progressively his right leg has been amputated. He is looking to having prosthesis fitted to this in the near future.

Although he describes memory and concentration as being poor, he continues to enjoy watching television particularly sporting activities. He himself played baseball up until he was 57.

I have no doubt that this man is suffering from a chronic post traumatic stress disorder. This includes recurring nightmares, agoraphobia and a history of significant alcohol abuse and irritability especially in relationship to his wife with result in deterioration in his marriage. I have no doubt that this condition is service related. I would rate his PTSD caused disability at 60%."

50. The report of Dr Wilfred Richards dated 15 December 1999, contained in the documents produced under subpoena by Dr Hickey (R2), while describing the Applicant's increased alcohol consumption and headaches together with his PTSD, also commented on the Applicant's general physical ill health as follows:

"...

Your client's diabetes was first diagnosed in 1982 and its management without insulin over the next 14 years did not prevent the development of major complications. Progressive amputations involving his right lower limb would suggest widespread arterial disease to any medically trained person. A physician could well find the following symptoms typical of diabetes, and to me they have an organic rather than a psychogenic flavour.

* Memory and Cognitive Problems - If something comes into his mind in the course of conversation he must say it or lose it. He has trouble finding the right word and recalling names.

* Deteriorating Eyesight - He now needs a magnifying glass as well as his reading glasses to cope with newsprint. He has had laser therapy to help with this diabetic condition.

* Increasing shortness of breath and chest tightness if he walks briskly for several hundred meters.

* Impotence.

Appellant confirms that he ceased work at the Currajong School on 08.07.96 the day before his 60^th birthday. He was just hanging on and didn't think he would be eligible for the service pension until then. He told you that if he knew he could have received the service pension earlier he would have ceased work earlier. I asked him whether he could have kept on working if the service pension were not available for another year or two and he said he would have had to try, although with his wakefulness, nightmares and increased headaches he is not sure how long he could have kept going.

...

Opinion

Mr Pritchard is a career soldier who was subjected to life threatening experiences in South Vietnam and who always gave of his best to the army. I agree with my colleague Dr John Rogers that he has suffered a typical Post Traumatic Stress Disorder of moderate degree. This was periodically unpleasant and latterly disturbed his sleep but would not in itself have rendered him incapable of undertaking remunerative work.

...

Veteran believes that his headache disturbed sleep and nightmares had or soon would have rendered it impossible for him to continue at work. It would be my view that age, amputation, and major systemic disease were more important than any psychiatric disorder in determining his unemployability over the last 3 years.

..."

consideration

51. Given the concessions made by each of the parties, the only issue for the Tribunal to consider is whether the Applicant's incapacity from his war-caused conditions alone prevent him from continuing to undertake remunerative work that he was undertaking.

52. The issue of what constitutes "remunerative work" was considered by the Full Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395. The Court said at 402-403:

"The term "remunerative work" is used in the Schedule in a context which indicates an intention to refer to work generally: see, for example, para [1](b)(ii), para [2](b), para [3]. Consistently with that use, the phrase "remunerative work which the respondent was undertaking" should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity -- and by that incapacity alone -- from continuing in that field of remunerative activity."

53. It is not in dispute that the Applicant worked as a groundsman/ janitor for the last 14 years of his working life. The Tribunal accepts the Applicant's evidence as to the range of his duties in that position (see paragraph 26 of these reasons) and notes, in particular, that the Applicant spent up to four out of five days each week mowing. The Tribunal therefore considers that the remunerative work that the Applicant was undertaking was that of a groundsman/ janitor, the major duty of which was to mow fields and grounds.

54. In relation to the issue of whether the Applicant is prevented from undertaking the work of a groundsman/ janitor by his war-caused conditions alone, the Tribunal is mindful of the effect on the Applicant of his amputation and of the condition that gave rise to the amputation. The report of Dr Richards suggests that it is the Applicant's diabetes and the possible widespread arterial disease caused by the Applicant's diabetes that cause the Applicant's inability to work.

55. Ms Purse's evidence, in relation to the effect of the Applicant's amputation, was that the Applicant would have "some significant restrictions and he would require the consideration of his employer in the way of providing help with some tasks. His work pace would be slower." She addressed some further specific limitations, but said that he would be able to use a push mower and ride on mower for periods of up to 30 minutes continuously and would be able to operate a tractor with care in relation to the right foot controls. However, it was the Applicant's evidence that using a ride on mower would be a problem because he would not be able to feel the brake pedal. In re-examination, both the Applicant and Ms Purse said that a ride on mower or a tractor could be modified with hand controls.

56. The Tribunal is satisfied, on the basis of the evidence of the Applicant, Dr Richards and Ms Purse, that the Applicant is restricted in his ability to undertake the remunerative work he was undertaking by his diabetes and his consequent right leg amputation. In particular, the Tribunal finds that the Applicant is unable to use a ride on mower or tractor without modifications and would require an employer who is prepared to provide the Applicant with help with some tasks and would tolerate the Applicant working at a slower pace.

57. This raises the question of whether the accommodations that might be required by the Applicant, because of a non war -caused condition, to enable him to undertake the identified remunerative work, should be taken into account by the Tribunal in deciding whether it is the Applicant's war-caused conditions alone that prevent him from undertaking that work. The Tribunal has had the benefit of written submissions from Counsel on this point. In brief, and doing no justice to the detailed and thorough argument in each of the submissions, they were as follows.

58. Mr Honchin, for the Applicant, submitted that the Tribunal must consider the whole of the Applicant's circumstances including the availability and use of workplace or equipment modifications that enable the Applicant to carry out his employment. He submitted that where the use of modifications to equipment or workplace (or aids such as corrective lenses, prosthesis or hearing aids) would allow the Applicant to undertake remunerative employment, he should not be disentitled from payment at the special rate because of a disability that can be corrected by such measures. Mr Honchin referred the Tribunal to the decision in Repatriation Commission v Smith (1987) 15 FCR 327 in which, he submitted, the question for the Tribunal was said to be:

"what the [veteran] would have done if he had none of his service disabilities".

59. Mr Honchin also referred the Tribunal to the decision in Forbes v Repatriation Commission (2000) 101 FCR 50 where Nicholson J said:

"...any factor having employment consequences which played a part in the applicant's inability to work or obtain and hold remunerative employment, is sufficient to displace the applicant's case for pension at the special rate".

60. Mr Honchin submitted that in the Applicant's case the particular required modifications are available and in some cases come as "standard options" on equipment and that there is no evidence before the Tribunal that the Applicant is prevented from undertaking remunerative employment because of the need for or the inability to obtain such workplace or equipment modifications.

61. Ms McMahon, for the Respondent, referred to the evidence of Ms Purse as to the effect of the Applicant's right leg amputation, which included work at a slower pace, tiring more readily, the inability to do physically demanding work, difficulty on uneven surfaces, lack of safety in climbing ladders and the inability to use a ride on mower or tractor that was not equipped with hand controls. She submitted that the Tribunal is required to consider the position of the Applicant as he is with the position he would be in without his war-caused incapacities and also referred the Tribunal to the decision in Smith (supra). She also noted that the relevant time for this consideration is during the assessment period, which starts on the day of the Applicant's claim and ends on the day the claim is determined. Ms McMahon submitted:

"The answer to this question requires an assessment of the Applicant's employment prospects as a 62 year old man with diabetes, hypertension, hip pain, eyesight problems, arterial disease, chest pain, shortness of breath, peripheral vascular disease and below right knee amputation who, in addition, is precluded from physically demanding work, requires an employer who was prepared to be considerate and provide him with help and allow him to work at his own pace and requires the provision of expensive modified equipment to enable him to perform the duties of a groundsman."

62. Ms McMahon added that there is no evidence that any employer would employ the Applicant as a groundsman with these restrictions or make the accommodations required by the Applicant to do that work.

63. Ms McMahon submitted, as did Mr Honchin, that the Tribunal is entitled to consider the availability and use of workplace or equipment modifications that would enable the Applicant to carry out the remunerative work that he was undertaking. However, she made the distinction between the use of such aids as corrective lenses, prosthesis or hearing aids, which are within the power of a veteran to obtain, and modifications to equipment or to the workplace, which must be the responsibility of the employer.

64. She also submitted that even with the provision of modified equipment the Applicant would still be prevented from performing the duties of a groundsman as a result of the other physical restrictions identified by Ms Purse. The Applicant's position, she submitted, is made even worse by the other non war-caused physical problems that affect him.

65. Finally Ms McMahon submitted that the issue remains whether a war caused injury or disease alone prevents the Applicant from continuing to undertake remunerative work that the Applicant was undertaking. She submitted that the Applicant's need for modified equipment and workplace, his amputation, his prosthesis and his non war-caused conditions have employment consequences. In this respect she referred the Tribunal to the passage from the decision in Forbes (supra) extracted above.

66. The Tribunal, having found that the Applicant's amputation has the employment consequences described in paragraph 55 above, considers that the Respondent's submission identifies the correct approach to the question. While it is appropriate for the Tribunal to have regard to accommodations or modifications that can be made to the workplace or to employer expectations or to the equipment to be used that would enable the Applicant to perform the relevant remunerative work, the Tribunal must also be reasonably satisfied that those accommodations or modifications are available. In the absence of any evidence that a relevant employer would be reasonably likely to provide such accommodations, the Applicant's need for them must stand as a factor preventing him from undertaking the remunerative work that he was undertaking. While Ms Purse gave evidence that modifications can be made to ride on mowers and to tractors to equip them with hand controls, and that some machinery is manufactured with hand controls, there was no evidence of the cost of those modifications or of the cost of machinery with those modifications. Similarly, there was no evidence of the preparedness of a relevant employer to provide help to the Applicant or to tolerate his working at a slower pace.

67. The distinction between those modifications that can be made by an applicant, such as corrective lenses, prosthesis and hearing aids, and those modifications that are beyond the control of the Applicant to make, such as modifications to machinery and expectations of productivity, is important to the question of whether the need for the modification has the effect of preventing an applicant from undertaking relevant remunerative work. In this application, the Tribunal considers that the modifications required by the Applicant are significant and beyond his control to make. Without evidence that they are reasonably likely to be made by a relevant employer, the Applicant's need for those modifications in order to undertake the work of a groundsman/janitor serves to prevent him from undertaking that work. Given that the Applicant's need for those modifications arises from his amputation, a non war- caused condition, it cannot be said that it is the Applicant's war-caused conditions alone that prevent him from undertaking the remunerative work that he was undertaking.

68. It follows that the Applicant does not satisfy the requirement in section 24(1)(c) of the Act and so he is not entitled to receive payment of pension at the special rate.

decision

69. The Tribunal affirms the decision under review.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

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

Associate

Date/s of Hearing 17 October 2002

Date of Decision 15 January 2002

Representative for the Applicant Mr Honchin

Representative for the Respondent Ms McMahon