Butler and Repatriation Commission [2003] AATA 789 (12 August 2003)

Last Updated: 20 August 2003

DECISION AND REASONS FOR DECISION [2003] AATA 789

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V02/243

VETERANS' APPEALS DIVISION	)
	Re	PETER BUTLER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr J Handley, Senior Member

Date 12 August 2003

Place Melbourne

Decision

The decision under review is set aside and in substitution IT IS DECIDED that at all relevant times the applicant has had an entitlement to Special Rate pension.

(Sgd) J Handley

Senior Member

VETERANS' ENTITLEMENTS ACT - Work caused injury in 1982; incapacity by that injury until 1990; PTSD diagnosed in 1995 accepted as war-caused; application for Special Rate pension in 2000; whether s24(i)(c) and (2)(a) and (b) satisfied; decision set aside.

Veterans' Entitlements Act 1986 s24(1), s24(2)

Fry v Repatriation Commission (1997) FCA 771

Forbes v Repatriation Commission (2000) FCA 328

Magill v Repatriation Commission (2002) FCA 744

Flentjar v Repatriation Commission (1997) FCA 1200

Repatriation Commission v Hendy (2002) FCAFC 424

Cavell v Repatriation Commission (1989) 9 AAR 534

Repatriation Commission v Smith (1987) 15 FCR 327

Hornery v Repatriation Commission (1998) 52 ALD 317

Conway v Repatriation Commission (2003) FCA 704

REASONS FOR DECISION

12 August 2003

Mr J Handley, Senior Member

1. The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 14 February 2002. The VRB then affirmed a decision made by the Repatriation Commission on 12 January 2001 to increase pension to 80% of the general rate with effect from 8 May 2000. The claim made by Mr Butler upon the respondent and pursued at the VRB was for pension at the Special Rate. The review before this Tribunal sought the same pension.

2. Mr Butler is presently 56 years of age, having being born on 3 April 1947. He is a Vietnam veteran and has the accepted disabilities of tinnitus and Post Traumatic Stress Disorder (PTSD).

3. The claim upon the respondent which has given rise to these proceedings was made on 8 May 2000. The assessment period therefore commences at that date.

4. The hearing of the application was convened in Shepparton on 17 March 2003. Ms Bornstein of Counsel appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent. The applicant gave evidence as did Mr Liddell, the proprietor of a local supermarket and Dr Drennen, the applicant's local medical officer. A number of documents were received into evidence and will be referred to in these reasons.

THE LEGISLATION

5. Section 24 of the Veterans' Entitlements Act 1986 ("the Act") determines qualification for Special Rate pension. It relevantly provides as follows:

(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.

CASE LAW

6. There have been many decisions of this Tribunal and the Federal Court upon the interpretation of s24 of the Act. In the present case, Mr Douglass conceded (in my view properly) that the applicant satisfies s24(1)(a) and (b). The respondent did not concede s24(1)(c). Additionally it was the submission of Mr Douglass that the applicant could not satisfy the provisions of s24(2)(a).

7. The Federal Court in Fry v Repatriation Commission (1997) FCA 771, Forbes v Repatriation Commission (2000) FCA 328 and Magill v Repatriation Commission (2002) FCA 744 discussed the inter-relationship between s24(1)(c) and s24(2)(a) and (b).

8. In the Full Federal Court decision of Flentjar v Repatriation Commission (1997) FCA 1200 the following stages were recorded by the Court as requiring satisfaction in order to meet the qualification imposed by s24(1)(c).

(a) What was the relevant `remunerative work that the veteran was undertaking' within the meaning of s.24(1)(c) of the Act?

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

(c) 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 that work?

(d) If the answers to question 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?

9. It was the submission of the respondent that should the applicant be able to satisfy the stages as recorded by the Full Court in Flentjar (above), the Tribunal was then required to consider whether the applicant qualified under s24(2)(a).

10. It was submitted that the veteran shall be deemed not to be suffering loss if he ceased to engage in remunerative work for reasons other than incapacity from

war-caused injury or disease or was prevented from undertaking remunerative work for a reason unrelated to war-caused injury or disease.

PETER CHARLES BUTLER

11. Mr Butler lodged a comprehensive statement shortly after the proceedings in this Tribunal commenced. He adopted his statement and it was received into evidence as Exhibit A. It is reproduced as follows:

I was born on 3 April 1947.

I served in the Australian Army from 1967 to 1969. I served in Vietnam for 12 months from June 1968 to June 1969.

During my service I was a Transport Driver serving with 8th Field Ambulance out of Nui Dat and as such saw many casualties.

I am currently in receipt of a disability pension from the Repatriation Commission at 80% of the general rate with respect to the following conditions which have been accepted as war caused:

Post Traumatic Stress Disorder ("PTSD") and tinnitus.

I successfully completed form 3 secondary level schooling. I left school at age 15 and then worked as a Butcher and Slaughter Man although I did not undertake an apprenticeship. I was so employed (mainly by Jacksons Meatworks in Geelong which is now defunct) up until my enlistment.

During service I was trained as a Transport Driver.

After discharge I resumed work in the Meatworks until about 1974 or 1975. I then undertook some short term jobs as a Transport Driver. I drove semi-trailers in the local area and was mainly carting car bodies for Ford. I did not drive on interstate runs.

I was employed as a Transport Driver for a total of about 3 years and then obtained work as a Builder's Labourer until 1980.

In 1980 I commenced employment with Alcoa as a Forklift Driver/Machine Operator. The work was not heavy. In about 1982 or 1983 I injured my back when I manually manoeuvred a heavy bar. I suffered acute pain in the low back with referred pain into both legs. I was diagnosed as suffering injury to a disc in the lower level of my back. I was in a lot of pain at the time and I ceased work and went on Workers Compensation Benefits. Approximately 12 months after ceasing work I received a lump sum payment and my employment was terminated at that stage. I have not been engaged in remunerative employment since.

By about 1989 my back symptoms had gradually improved with ongoing treatment. By that time I was suffering few symptoms in my back and I was suffering no leg pain. Previously my symptoms had been acute with constant low back pain and pain into both legs. By 1989 I had only mild low back pain. By 1989 I wanted to get back to work because I had always been active and I found inactivity frustrating. Accordingly, in about 1989 I approached a man named Sidebottom who owned a few semi-trailers and ran a transport business out of Numurkah. Sidebottom carted general cargo. I did not know Sidebottom personally but I lived in the area and knew of him. Sidebottom interviewed me and asked me about my work experience. He seemed happy with my work background and indicated that he had work which was available. He lost interest in my application once I told him about my back injury and I accept that the reason that I did not obtain employment with Sidebottom was because of his concerns about my ability to cope due to back pain.

From the time of my service in Vietnam I had noticed that I was suffering anxiety, depression, mood swings, poor sleeping patterns, poor concentration and memory, short temperedness and irritability. I was also drinking to excess. Prior to my service in Vietnam I had regarded myself as fit, healthy, active and social. I enjoyed the company of others. I did not suffer depression or anxiety before service in Vietnam.. I had noticed all of the above problems from my discharge and, indeed, I deliberately obtained nightshift work at Alcoa so that I did not have to work closely with people. I had found that I encountered trouble relating with people and this had caused problems and disputes. I was therefore keen to try and obtain work at Alcoa which minimised my involvement with other workers.

The emotional symptoms have gradually worsened. I have been suffering marital problems since the early 1970s and my relationship with my wife has been poor since then with numerous disputes. The disputes are related to my drinking habits, my reluctance to socialise, my short temperedness and depression.

Prior to my service in Vietnam I was basically a non drinker. I had tasted alcohol but was not keen on it. I started drinking regularly and excessively in Vietnam due to stress and peer group pressure. I found that the events which I witnessed in Vietnam were very disturbing. I saw some horrible casualties and I dealt with my stress by drinking alcohol.

I had never heard the expression PTSD until about the early 1990s. At around that time I became re-acquainted with some Vietnam Veterans. From my discharge until then I had kept away from Army reunions and had tried to forget my memories of Vietnam service. When I saw some Vietnam Veterans in the 1990s I entered discussions with them about their emotional problems and realised that my problems were similar to theirs. Additionally, at around this time the area around my home was flooded and I had to apply sandbags to protect my home. I had done similar duties in Vietnam. The sandbagging occurred in the 1990s with news helicopters flying overhead. These factors stimulated my memories of my service in Vietnam and aggravated my emotional problems. Accordingly, around that time I came to realise that my emotional problems were probably related to my war service in Vietnam. I hadn't really dwelt on my problems previously.

In about 1993 I first sought medical help for my emotional problems. I saw a psychologist in Shepparton. I cannot now recall his name although I do recall that he was convicted of a criminal offence and that this caused me to seek treatment from Dr. J. Douglas (psychiatrist) at his rooms in Albury. I was treated by Dr. Douglas from about 1994 to 1996 when he moved from the area. I have not seen a psychiatrist since.

My treating family doctor for approximately the last 6 years has been Dr. J. Drenen of Nathalia. He has been prescribing medication for my emotional problems similar to that previously prescribed by Dr. Douglas.

Accordingly, since about the early 1990s my back symptoms have improved and I believe that my significant health problems have been due to my PTSD.

After the rebuff from Sidebottom, I stopped looking for work for some time. I was depressed and my state of mind was poor. Then, in about September 2001, I applied for employment positions with T J Supermarket at Nathalia and Danny Madden Transport of Nathalia.

The Manager of T J Supermarket is Jim Liddell. Liddell coincidently is a Vietnam Veteran. I shopped at his Supermarket and I knew who Liddell was to say hello to but I had never mixed with him socially and I did not know him well. In September 2001 I approached Liddell for a job as a Forklift Driver/Storeman/Stacker. He gave me an interview. My PTSD had been diagnosed by that time. Liddell indicated that he had a position available for somebody with my experience. He seemed satisfied with my experience and background in stores and operating Forklifts (I had retained my Forklift licence). During the course of the interview he asked about my various health problems. I told him about my back injury and that I was suffering few symptoms from it and he seemed unconcerned about my back problems. On the other hand, he did become quite concerned when I told him about my symptoms from PTSD. During the course of the interview Liddell told me that his brother-in-law had managed Liddell's other store but had been unable to cope with his duties because he also had suffered PTSD.. Liddell was concerned because his brother-in-law had had to cease work and that left Liddell in the lurch. He therefore was concerned to know how I thought I would cope with dealing with people, coping with regimented hours and the need to concentrate and work with others. In the end, I had to concede that I thought I would have problems because of my PTSD (indeed, the doubts that I had about my inability to cope with work due to my emotional problems was the reason that I had not registered with CES or actively pursued employment since the interview with Sidebottom some years previously.

It is my understanding that Liddell did not employ me at the Supermarket because of his concerns about my ability to cope with duties due to PTSD rather than any other factor.

At around the same time that I was interviewed by Liddell I also applied for work with Danny Madden Transport. I know Madden by sight but we have never socialised together. Danny runs a transport business and has 3 semi-trailers. I was aware that he needed a new driver. He interviewed me. The duties did not require lifting as he carted grain. Madden indicated during the interview, however, that he was concerned about the symptoms connected with my PTSD. His concerns came out when he was indicating the strict deadlines that his trucks ran to. He expressed concern that my symptoms from PTSD would not enable me to cope with the deadlines and he seemed particularly concerned about my impaired ability to concentrate. I therefore understand that the reason why he did not offer me employment was due to the PTSD.

Currently I continue to suffer depression, mood swings, flashbacks about the war, nightmares about the war, insomnia, irritability and short temperedness, marital problems and problems relating with my children and others, avoidance of others and reluctance to socialise, poor concentration and memory and lethargy. Additionally I am aware that I am drinking too much alcohol. I guess that on average I currently consume about 10 pots (i.e. 10oz) of beer each day. Some days I drink more but I rarely drink less than that. Generally I drink to the point where I feel intoxicated. I mainly drink on my own in my shed at home. I have no person whom I would regard as a close friend and I have become a loner.

I believe that I am incapable of undertaking remunerative work because of the symptoms associated with my PTSD.

12. In evidence Mr Butler expanded on the contents of his statement. He said that his work as a butcher prior to enlistment was as a slaughterman and as a shop butcher serving customers. In service he was a transport driver and after discharge he drove semi-trailers which he enjoyed. He later entered into partnership with another person and was engaged as a builders labourer until approximately 1980 but by reason of a down turn in the domestic housing market, the work ceased. He eventually obtained work by a Commonwealth Employment Service referral at the Alcoa Smelter near Geelong where he suffered back injury in approximately 1982 or 1983. Workers Compensation proceedings followed and a Statement of Claim was issued in the Supreme Court of Victoria. Those proceedings were eventually settled and on 2 January 1985 Mr Butler accepted an offer of redundancy from Alcoa because he was "medically restricted in the performance of other duties" (Exhibit 4 page 20). Mr Butler has not worked since the day of injury.

13. Eventually the applicant left the Geelong district and moved to Nathalia in northern Victoria. He said that his back improved by 1990 and he commenced to seek employment.

14. Mr Butler said the improvement in the function of his back was indicated by his ability in 1989 to cut firewood following a number of injections which he received from Mr Beetham, an orthopaedic surgeon in Ballarat. By 1990 he said he was able to undertake physical activity without pain or restriction. However at or about that time he commenced to realise that he had severe emotional symptoms which he later learnt were consistent with the diagnosis eventually made of PTSD.

15. Mr Butler said that he sought employment as a truck driver in 2000 and 2001 where he would be "away from people with no one standing over me or having to communicate with me". He sought work with two local truck operators named Sidebottom and Danny Madden. When those persons learnt of his PTSD and the probable inability of Mr Butler to maintain tight work schedules, his application for employment was rejected. He had also sought work with a chicken processor in Numurkah as a driver and boner, and as a labourer with a local piggery in about 1990 or 1991. Those applications for employment were unsuccessful. Mr Butler recalled that he did prefer to work but said that he "would not be safe or confident of my mental capacity".

16. In about 1993 the Nathalia township was flooded. Mr Butler recalled that he was required to install sand bags around his house and to use water pumps to divert water which had the potential to flood his home. Whilst he recalled that he had no physical restriction undertaking work of this type, the movement of sand bags and the presence of helicopters which were preforming rescue operations caused him to have severe flash backs to his service in Vietnam and he "fell apart". He sought assistance from the Vietnam Veterans' Association and was referred to a psychologist in Shepparton who unfortunately was later de-registered. He was then referred to Mr Douglas, a psychiatrist in Albury and continues to have treatment.

17. Between 1993 and 2000 Mr Butler said that he did not seek employment. He said "I knew that as soon as I said that I had PTSD I wouldn't get a job".

18. In about 2002 Mr Butler approached Liddell's Supermarket in Nathalia. He said that he had heard that there was a high turnover of staff at that supermarket. Mr Butler said that he did not recall that a job was then advertised as being vacant but he nonetheless made a "cold call".. He said that if a job had been offered he would have attempted to undertake it because he wanted to work, however he was pessimistic that he would be able to continue with employment.

19. Mr Butler said that he had not sought employment through the Commonwealth Employment Service ("CES"). He said that he had an experience prior to enlistment where he sought work as a butcher and was referred by the CES to a fish and chip shop. Additionally he said that he did not believe that the CES would locate work for him if it were known that he suffered from PTSD.

20. Despite the relative isolation of Nathalia, Mr Butler said that he moved because it gave him "freedom", there were no close neighbours and the dry heat of northern Victoria assisted him in relief from symptoms of prickly heat rash which he has suffered since Vietnam.

21. In cross-examination Mr Butler said that following his back injury at Alcoa in approximately 1983 he received weekly compensation until approximately 1985. It was at or about that time that he took a voluntary redundancy package and his Supreme Court claim was settled in the sum of either $106,000 or $112,000. After ceasing work with Alcoa he qualified for disability support pension from Centrelink which was paid until 1995. Thereafter, service pension has been paid from the Department of Veterans' Affairs by reason of permanent unemployability.

22. The applicant described his work at Alcoa as operating machinery. He said that had he not suffered back injury it was unlikely he would have remained employed at Alcoa because the work was dirty, hot and involved long hours (although he acknowledged that he received a good salary). He said he was offered light work after he suffered his back injury and worked part-time in the Alcoa computer room for approximately six weeks. Mr Butler experienced difficulty working in a small room however he left work early on one occasion (because of back pain) and his employment was terminated.

23. By way of treatment, Mr Butler said he received a number of injections at the St John of God Hospital in Ballarat and was advised by Mr Beetham, his treating specialist, that his back would eventually improve over a number of years but surgery would not be of assistance. The advice of Mr Beetham was apparently accurate because by approximately 1989 or 1990 Mr Butler agreed that he did not have any back pain.

24. With respect to his applications for employment, Mr Butler said that the chicken abattoir to whom he had applied was a "dodgy operation" and he had not received any response from his application to the local piggery. He did not disclose his back injury when he made applications for employment at those places.

25. Mr Butler was taken to his claim for an increase in pension lodged in July 1992 where in a section enquiring of employment history, Mr Butler recorded that from 1986 he was "retired". Mr Butler said that he was advised by his advocate to use that expression and he accepted that advice.

26. Mr Butler agreed that in or about 1990 or 1991 he made a number of job applications as described earlier but did not disclose his prior back injury. He said at that time he did not have symptoms from the back injury. He also said that he did not notify the Department of Social Security that he had become symptom free from the back injury despite having previously qualified for disability support pension because of it. He said that at or about the time he had noticed that his back was improving "something else was occurring and I didn't know that it was PTSD". He said "in my condition then I didn't think to tell Centrelink".

27. In relation to the application made to Liddell's Supermarket Mr Butler said that he had heard that a vacancy was about to exist for a forklift driver and storeman. He therefore made an application for that position.

28. With respect to the local labour market Mr Butler said that within half an hour of Nathalia the townships of Shepparton, Echuca and Cobram had a number of job vacancies advertised in local newspapers. He said that in those districts there were major fruit processing plants, abattoirs and stock feed mills. He acknowledged that whilst employment in those industries existed in the late 1980's, at the present time there are greater work opportunities.

29. In the claim which has given rise to these proceedings Mr Butler recorded (page 6) that his PTSD worsened over a period of approximately two years prior to the claim being lodged (May 2000). Nonetheless he said that he had had the symptoms of it from the late 1980's.

30. In re-examination Mr Butler said that PTSD was not diagnosed when he made his application to the chicken abattoirs and to the piggery. At that time, Mr Butler said that he "knew something was wrong" because he was intolerant of people, was irritable and suffered sleeplessness. He also recalled that he was anxious and angry, had poor concentration and was noise intolerant. PTSD was diagnosed in 1992 or 1993.

JAMES LIDDELL

31. Mr Liddell is the proprietor of the Nathalia Supermarket Pty Limited. He said that he currently employs between 55 and 60 people, both permanently, part-time and casual. His workforce varies between men and women of differing ages. He said that when employing persons he considers honesty, reliability and the ability to deal with customers and other staff as influencing factors.

32. Mr Liddell said that he was approached by Mr Butler "a few years ago" for work. He said that Mr Butler "asked for anything" and was "happy to take on anything". He said after he discussed the potential of employment he learnt that Mr Butler suffered from PTSD and he rejected his application for work. He said that had there been a vacancy at the time of application and if Mr Butler did not have PTSD he would have employed him.

33. In cross-examination Mr Liddell said that at the time that Mr Butler made an application for work he did not then have a vacancy. He said that Mr Butler made a "cold call". He said he was "wary" of employing a person with PTSD because of his prior experience with another person who had the same illness.

34. Additionally, Mr Liddell said that he would be "wary" of a person who had a prior back injury, but would be prepared to talk to such an applicant to determine whether they were capable of undertaking work.

35. Mr Liddell said that Nathalia had a poor reputation for employing persons and most Nathalia residents travelled to Shepparton, being approximately 25 minutes away. He said there were two or three other employers in Nathalia and the main employer was a local abattoir. Mr Liddell said that he receives a number of enquiries from persons seeking employment and most jobs are filled by "word of mouth".. He found this a more preferable basis to employ persons because it would indicate to him those who are genuinely seeking employment. If upon an application for employment a vacancy did not exist he said a record was kept of the application and that person was notified when a vacancy did occur.

36. In re-examination Mr Liddell said that had he known that Mr Butler had had a back injury approximately 20 years earlier, but had "recovered" from it approximately 10 years earlier, he would have considered employing him. He said that he presently employs a casual person with a back injury who is not precluded from working and he is prepared to "take the risk" with that employee. The person currently employed with a back injury had it before she started and was initially employed in the delicatessen of the supermarket but is now a weekend supervisor.

37. Mr Liddell perused records that he had at the time of giving his evidence and said Mr Butler applied for work in September 2001 and subsequently there had been a number of vacancies which he estimated to be ten on average per annum. The job vacancies since were as forklift drivers and storepersons, five or six shelf fillers, six cash register attendants and a van driver delivering groceries to customers.

DR JOHN DRENEN

38. Dr Drenen is in practice in Nathalia and is the applicant's local medical officer. He said he has treated Mr Butler since January 1995. Prior to that time Mr Butler was treated by another doctor in his practice.

39. Dr Drenen said that he first consulted Mr Butler after there were floods in Nathalia in late 1994. He said that Mr Butler presented as an anxious person who was also sleep deprived and who specifically spoke of his reaction to the presence of helicopters assisting in flood relief. He recalled that Mr Butler requested a referral to a specialist psychiatrist and arrangements were made for him to consult with Dr Douglas in Albury.

40. Despite medication being prescribed and medication being adjusted from time to time, Dr Drenen said Mr Butler had not "changed" since 1995. In a report of 18 December 2000 (T-document page 60) Dr Drenen recorded (and recalled) that the applicant had consistently given a history over the years of poor sleep, anxiety, restlessness, night sweats, poor concentration and avoiding people. He noted that at first presentation Mr Butler was then totally and permanently incapacitated and it was his opinion that he remains totally and permanently incapacitated for employment.

41. In cross-examination Dr Drenen said that the applicant's sleeplessness affected his ability to concentrate and function during the day. He also noted that sleep apnoea was diagnosed in January 2002. Whilst he had no record of ever having treated Mr Butler for back pain or back injury nor had any back type symptoms ever been reported, it was noted from his medical records that Panadeine Forte was prescribed. Dr Drenen said that medication provides a "relaxing numbing" affect and enhances the Mogadon medication which is prescribed. He said Panadeine Forte is prescribed modestly at 20 tablets every two months and he has cautioned Mr Butler against driving a motor vehicle or using machinery when he has consumed that medication.

CONCLUSION AND REASONS FOR DECISION

42. In the present application the respondent has accepted PTSD as war-caused. The overwhelming medical evidence also supports the applicant as being totally incapacitated by reason of his PTSD (refer report and evidence of Dr Drenen and report of Dr Swift). Dr Barton appears to have been asked to examine only upon the issue of whether a prior back injury presently incapacitated the applicant and in his report of 6 September 2002 he found that the applicant presented "with normal back findings". It was his opinion that the applicant was not incapacitated by reason of back injuries. Dr Rossiter performed a GARP assessment in June 2000 and found that the applicant "cannot work" by reason of "emotional and behavioural" injuries

(T-document page 31).

43. Whilst this application concerns a claim for Special Rate pension pursuant to s24 of the Act, the focus was not upon whether the war-caused injuries incapacitate Mr Butler but whether war-caused injuries, alone, prevent him from continuing to undertake remunerative work that he was undertaking and consequently whether he is suffering a loss of salary or wages.

44. The application is, in my experience, unusual because it is conceded by the applicant and his representatives that incapacity commenced initially by an injury which arose out of employment. However, the applicant submitted that he later recovered from those injuries and his capacity for employment was regained but shortly thereafter the war-caused PTSD became apparent. The applicant submitted that the war-caused PTSD alone, affected his capacity for work and he therefore was able to satisfy the provisions of s24.

45. The applicant impressed me at the hearing as being a person who was candid and gave his evidence in a sound and rational manner. He did not exaggerate or embellish and I believe him to be a witness of truth.

46. The witnesses Dr Drenen and Mr Liddell I would regard as being truly independant and neutral who gain nothing by their evidence other than credit in their balanced and rational presentation.

47. In short, the applicant suffered a work caused back injury in approximately 1983 when employed by Alcoa in Geelong. Lighter duties were provided by the employer but they caused the applicant continuing discomfort and pain. His employment was later terminated and for a short period received weekly workers compensation benefits. Common law proceedings were later resolved by a lump sum payment. The applicant had been under the treatment of Mr Beetham in Ballarat who advised against surgery but recommended a course of injections which the applicant accepted. Mr Butler said that Mr Beetham expressed confidence that within a period of time the applicant would recover from the back injuries by reason of the injections. His advice was apparently sound because by 1989 or 1990 the applicant said that he was able to cut firewood without restriction and was otherwise pain free. It was at or about that time that he sought employment in Nathalia but was unsuccessful.

48. In about 1994 the applicant suffered acute symptoms of PTSD following an episode of having to manoeuvre sandbags whilst attempting to preserve his home from local floods. He also worked in the presence of an overhead helicopter performing rescue operations. Mr Butler said that the manoeuvring of sandbags and the presence of the helicopter reminded him of his experiences in Vietnam and thereafter he has been treated by a psychologist and later by Dr Douglas, a psychiatrist. He continues to attend Dr Drenen on a regular basis and medication is provided. The respondent accepted the condition of PTSD as war-caused in about 1993. From 1995, the applicant has received service pension from the respondent.

49. In approximately 2000 or 2001 Mr Butler made a number of job applications to some local trucking companies and was rejected because of his PTSD. He also made an application at the supermarket owned by Mr Liddell and was specifically denied employment because of PTSD.

50. The respondent asserts that the applicant cannot satisfy the "alone" test under s24(1)(c) because he left the workforce by reason of back injury and the combined effects of his age, period of time out of the workforce, intention to retire on a disability pension and lack of recent work experience render him effectively unemployable. That is to say, the war-caused injury of PTSD "alone" is not responsible for the applicant's incapacity.

51. Ms Bornstein and Mr Douglass delivered well reasoned and thorough submissions at the conclusion of the hearing and later filed written submissions of an equally high standard. On balance I prefer the evidence of the applicant and his witnesses and the submissions of Ms Bornstein for the following reasons.

52. I accept the applicant initially left the workforce by reason of his back injury which was not war-caused. I also accept that there was a lengthy period of incapacity following that injury and a lengthy period away from the workforce. In 1983 the applicant was then 37 years of age and in 1990 when he regained capacity by reason of the absence of incapacitating effects of that injury, he was 43 years of age. I am satisfied and find as a fact that by 1990 the effects of the work related back injury had ceased and at that time there was no prohibition upon the applicant seeking employment. Whilst he had moved from Geelong to the relatively small district of Nathalia (necessarily with lesser work opportunities) he did so only because the local dry heat assisted his treatment of prickly heat which he has endured since Vietnam. Nonetheless in or about 1990 there were work opportunities within the district by reason of advertised job vacancies to which Mr Butler did apply. His applications then for employment prior to any claim for service pension from the respondent would be inconsistent with a person who then regarded himself as being retired or unable to work.

53. I am satisfied that the applications made by Mr Butler for employment at that time were consistent with a person who was genuinely seeking employment. Additionally I would add that seeking employment in or about 1990 would not be inconsistent with or contravene the terms of settlement of his common law claim following the injuries at Alcoa. Settlement of a claim for damages incorporating a claim for loss of earnings and loss of earning capacity does not prohibit an injured worker/plaintiff from ever returning to the workforce. Indeed such a prohibition would contravene contemporary labour laws and would be in breach of Victorian workers compensation legislation.

54. Prior to 1990 the applicant had worked in a number of different industries namely as a builders labourer, in an abattoir, as a machinist and as a transport driver. The absence of back injury at 1990 would have otherwise permitted him to return to the workforce in industries of that type. Indeed there is nothing to have prevented the applicant from returning to any form of unskilled manual labour being a characteristic, I am satisfied, of his former work history.

55. However the applicant was unsuccessful in his attempt to return to employment but at or about late 1994 he suffered the incapacitating effects of PTSD which was later accepted by the respondent as war-caused. At or about that time also the respondent accepted the applicant's claim for service pension which continues to be paid.

56. At the commencement of the assessment period (8 May 2000) Mr Butler was 53 years of age. He did live in a town with limited employment opportunities but employment did and continues to exist in surrounding districts in the Goulburn Valley. In any event, employment opportunities obviously did and continue to exist in Nathalia based on the evidence heard in these proceedings.

57. Additionally I would say that the applicant did not regard himself as being retired. Whilst I note that the word "retired" appears in his application for Invalidity Service Pension, Mr Butler said in evidence that he was advised to use that word by an advocate from the Vietnam Veterans' Association. I am satisfied and find as a fact that his applications for employment in or about 2000, 2001 and 2002 are inconsistent with a person who did regard himself as being retired. Receipt of invalid pension occurs because a person satisfies statutory criteria of qualification. It is not evidence of or payable because of retirement. Qualification for a pension does not prohibit employment should suitable work become available.

58. If it is not already clear from the above, I am not satisfied that the applicant "voluntarily left the workforce" in 1984. He then ceased employment because of work caused injury. He sought employment in the early 1990's (unsuccessfully) when he regained his capacity. The condition of PTSD was diagnosed later. He again sought employment in or about 2000, 2001 and 2002 but was rejected because of PTSD. Mr Butler said that he did prefer to work because it gave him prestige and something to aim for. I believed the applicant when he said this in evidence. His prediction that he would be denied employment when PTSD was known was also accurate as was evidenced by Mr Liddell. The modest nature of the labour market in Nathalia is of little significance in the current application when a position of forklift driver and delivery driver has been available since Mr Butler made his application upon Mr Liddell's supermarket. Whilst that denial of employment was made at a time when a job vacancy did not exist, there is nothing to suggest that employment would not have been made available to Mr Butler when the vacancy as a forklift driver and or delivery driver did become available. I am satisfied that Mr Butler, absent PTSD, would have been capable of undertaking that employment.

59. In answer therefore to the questions posed by Flentjar (refer paragraph 8 earlier) I am satisfied that the "remunerative work that the veteran was undertaking" (being the criteria in (a)) was his work either as an abattoir worker, a transport driver, a builders labourer or a machinist. (The word "work" may either describe the act of working or be referable to a particular job. On either interpretation, it does not refer to "work" that was being undertaken immediately before the commencement of the incapacity.) I am satisfied the answers to questions (b) and (c) should be "yes" and it therefore follows, in answer to question (d), that the applicant is suffering from a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of the incapacity by the war-caused injury of PTSD, alone.

60. In a recent decision of the Full Federal Court in Repatriation Commission v Hendy (2002) FCAFC 424 the Court recorded in relation to s24(1)(c) (paragraph 37) that a decision maker "is required to take in account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period".

61. I interpret the above to mean that a period of time out of the workforce, lack of recent work experience and increasing age of themselves would not be a bar to Special Rate entitlement. They are factors only to be taken into account to consider the "effect, contribution to and relative weight to be attached" to those factors during the assessment period.

62. I am not satisfied that "lack of recent work experience" is relevant in the present proceedings. The applicant was largely engaged only in manual unskilled labour. His time out of the workforce cannot be relevant in the present circumstance where, were it not for PTSD, Mr Liddell would not have rejected his employment application. That is to say, whilst no job vacancy existed at the time Mr Butler applied, he was specifically prohibited from employment when a vacancy did occur, because Mr Liddell learnt that he suffered from PTSD. Indeed it appears Mr Liddell has employed persons with injuries as may be gleaned from his evidence of employing a person with a back injury. There was nothing about his unsuccessful job application to Mr Liddell - or indeed the other applications to the trucking companies - that would indicate that time out of the workforce had any bearing upon the inability to obtain employment. The rejections of employment by the trucking companies were also because of the knowledge they had of Mr Butler suffering PTSD. I would also say that the applicant's age of 53 is not a bar to obtaining employment and in the context of contemporary labour conditions, 53 is a relatively young age. There is nothing to indicate that a 53 year old person is unable to undertake manual unskilled type employment and I do not believe that in the absence of PTSD, Mr Butler would have been unable to undertake work of that type. It may be thought that an absence from the workforce from 1984 would be an insurmountable hurdle for the applicant. If nothing else was known, this may be an appropriate conclusion to an enquiry into the factors contributing to a veteran being prevented from engaging in remunerative work. But much is known about Mr Butler and as may be seen from Hendy (refer earlier) a broad and far ranging enquiry is required.

63. A practical and open minded approach dictates that the correct and preferable conclusion, when interpreting the beneficial legislation under which veterans entitlements are determined, is to find that Mr Butler does satisfy s24. Although the primary issue in Cavell v Repatriation Commission (1989) 9 AAR 534 was the meaning of the word "alone" as it appears in s24, the Court nonetheless, in discussing the responsibility of the Tribunal, decided that its responsibility is to "make a practical decision whether the veterans' loss of remunerative work is attributable to his service related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which common sense is a proper guide". Additionally, in Repatriation Commission v Smith (1987) 15 FCR 327 the Court decided that the issues contained within s24(1)(c) are of "hypothetical facts".. The Court decided that the Tribunal "must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities".

64. In Hornery v Repatriation Commission (1998) 52 ALD 317 a veteran suffered injuries caused as a civilian and in service. When the effects of the civilian injuries ceased, the Tribunal assessed his qualification for Special Rate pension. At that time, the service caused (and accepted) PTSD was enduring. It was found that despite a long period out of the workforce, lack of educational qualifications, his domicile and receipt of a Social Security pension being factors that impinged on the "alone" test, they did not disqualify him. When the civilian injuries no longer have an incapacitating effect, it is open to a veteran - in his quest to satisfy the "alone" test - to submit that incapacity is then by the effects of war-caused injuries. Of course the prior absence from the workforce, advancing age, and absence of recent work skills are all relevant factors in assessing the reasons for the loss of remunerative income but an incapacity free of a contribution by non war-caused injuries enlivens the opportunity of a veteran to establish satisfaction under s24(1)(c).

65. There will be no disqualification from satisfying Special Rate entitlement, by the operation of s24(2)(a) if there is cessation from engagement in remunerative work only by reason of war-caused injury (sub paragraph (i)) or if incapacity or prevention from engagement in remunerative work is not because of a reason other than war-caused injury (sub paragraph (ii)).

66. The conjunctive construction of s24(2) also require satisfaction of the ameliorative provisions of sub-section (2)(b). Here, the sub-section applies to a veteran under the age of 65 who has been genuinely seeking but has not been engaged in remunerative work. If his incapacity in the substantial cause of his inability to obtain remunerative work he shall be treated as being prevented by that incapacity from continuing to undertake the remunerative work that he was undertaking.

67. If the first part of s24(1)(c) - namely incapacity - is achieved by satisfaction of s24(2)(b), the remaining part of s24(1)(c), namely loss of salary or wages, will be satisfied if a veteran does not fall foul of either s24(2)(a)(i) or (ii) (refer Forbes & Magill - paragraph 7 earlier).

68. I am satisfied that at the date of his application, Mr Butler was prevented from continuing to undertake remunerative work that he was undertaking. By reason of that incapacity the applicant is suffering a loss of salary or wages that he would not be suffering if he were free of that incapacity (s24(1)(c)). I am not satisfied that Mr Butler has ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury (s24(2)(a)(i)) and I am not satisfied that he is prevented from engaging in employment for some other reason (s24(2)(a)(ii)). Despite the comments in Re Hornery (refer earlier) and Conway v Repatriation Commission (2003) FCA 704 I am satisfied that Mr Butler, who was not engaged in remunerative work at the commencement of the assessment period, had been genuinely seeking to engage in remunerative work that he would be continuing to seek if he were free of that incapacity. He should therefore be deemed to have been prevented from continuing to undertake the remunerative work that he was undertaking (refer Hendy (earlier) at paragraph 36).

1. 69. The decision under review should therefore be set aside and in substitution it is decided that all relevant times Mr Butler has been entitled to Special Rate pension.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,

Senior Member.

Signed: Elsa Genovese

Personal Assistant

Date/s of Hearing 17 March 2003

Date of Decision 12 August 2003

Counsel for the Applicant Ms J Bornstein

Counsel for the Respondent Mr R Douglass