Petersen and Repatriation Commission [2009] AATA 459 (24 June 2009)

Last Updated: 24 June 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/2443

VETERANS' APPEALS DIVISION		)
	Re		DARYL JOHN PETERSEN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier C. Ermert (Retd), Member Dr R.J. McRae, Member

Date 24 June 2009

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(sgd) C. Ermert
Member

VETERANS’ AFFAIRS - operational service – accepted war-caused disabilities of lumbar spondylosis, osteoarthrosis affecting both knees, spondylolisthesis – in receipt of disability pension at 80 per cent of General Rate – claim for acceptance of anxiety condition – ceased work because of back, knee and anxiety problems - four Flentjar questions – type of remunerative work – prevented from continuing work by war-caused conditions – other factors prevent the resumption of remunerative work – not eligible for disability pension at Intermediate or Special Rate – decision affirmed

Veterans’ Entitlements Act 1986 ss 23, 24

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Chambers v Repatriation Commission [1995] FCA 1144; (1995) 55 FCR 9

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1

Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329

Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

REASONS FOR DECISION

24 June 2009

Brigadier C. Ermert (Retd), Member Dr R.J. McRae, Member

INTRODUCTION

1. Mr Petersen, the applicant, joined the Australian Army Reserve in November 1967 and served until September 1968. In 1970 he volunteered for service in South Vietnam where he served from 15 February 1971 to 6 September 1971 during which time he worked as a storeman. Shortly after Mr Petersen’s arrival in South Vietnam, a friend of his was shot by the enemy and died instantly. Other stressful incidents while in South Vietnam were the accidental death of a soldier while on leave in Vung Tau, trying to find his weapon pit in the dark, hearing a shot in the tent lines one evening, and having to pack up the kit of soldiers killed and wounded in the Battle of Long Khanh.
2. On his return to Australia Mr Petersen found it difficult to settle down, socialise, and work in a shared environment. Mr Petersen has had problems with his marriage which is still fragile. He has had difficulty sleeping at night and is under the care of a psychiatrist. He worked in a variety of jobs for periods of about five years and his final job was as a gardener/handyman on a large rural property; a position he held for 14 years. On 27 July 2007 Mr Petersen resigned from that position and has not been in paid employment since.
3. On 8 May 2006 Mr Petersen submitted a claim for a disability pension and medical treatment to the Repatriation Commission (the Commission) on the basis that his bowel problems, back problems and knees, and nervous problems were war-caused. The Commission accepted his lumbar spondylosis, osteoarthrosis affecting both knees and spondylolisthesis as war-caused. The Commission rejected his nervous problems (subsequently diagnosed as avoidant personality disorder) and intestinal adhesions with obstruction as war-caused. The Commission granted Mr Peterson disability pension at 20 per cent of the General Rate. Via two subsequent decisions this was increased to 80 per cent of the General Rate. Mr Peterson sought review of the Commission’s decision by the Veterans’ Review Board (VRB). The VRB affirmed the decision of the Repatriation Commission on 15 May 2007. This matter is a review of the decision of the VRB.

THE HEARING

4. At the hearing Mr Petersen was represented by a solicitor, Mr D De Marchi of De Marchi and Associates. The Commission was represented by Mr K Rudge of the Advocacy Section of the Department of Veterans’ Affairs. The Tribunal heard evidence from Mr Petersen, Dr Robyn Horsley, occupational physician, Dr Nigel Strauss, psychiatrist, and Dr William Glaser, psychiatrist. The Tribunal took into evidence statements by the applicant, reports by Dr Strauss, Dr Gianni D’Ortenzio, psychiatrist, Dr Horsley, Mr Peter Scott, surgeon, and Colonel Peter Langford, military historian, as well as Mr Petersen’s employment questionnaires, clinical notes from the Eureka Medical Centre and the transcript of the VRB hearing of 15 May 2007.

THE ISSUES

5. There are four issues to be determined. The first is whether Mr Petersen has a diagnosed nervous condition. If so, the Tribunal must determine whether that condition is war-caused within the meaning of the Veterans’ Entitlements Act 1986 (the Act). The third issue is whether Mr Petersen’s claimed condition of intestinal adhesions with obstruction is war-caused. For simplicity in these reasons this issue will be dealt with first. The final issue is whether Mr Petersen has an entitlement to a pension at greater than the General Rate.

INTESTINAL ADHESIONS WITH OBSTRUCTION

6. Mr Petersen’s claimed condition of intestinal adhesions with obstruction was not addressed at the hearing. The condition was not included in the Statement of Facts and Contentions filed on behalf of the applicant. The Commission submitted in its Statement of Facts and Contentions that the Statement of Principles (SoP) template is not met in this case and therefore the claimed condition is not war-caused. No evidence was presented and no submissions were made in regard to this condition at the hearing. The Tribunal has no material on which to review the VRB decision on this condition and as a consequence the Tribunal is not satisfied beyond reasonable doubt that Mr Petersen’s intestinal adhesions with obstruction is war-caused. Accordingly the Tribunal affirms that part of the VRB decision under review.

DIAGNOSIS OF MR PETERSEN’S NERVOUS CONDITION

7. The Tribunal’s first task is to determine the diagnosis of Mr Petersen’s nervous condition. The standard of proof to be applied is to the Tribunal’s reasonable satisfaction (Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690). Consistent with these cases, in Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at 634 the Full Court of the Federal Court said:

...When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: ...

8. The Tribunal has before it the diagnoses of generalised anxiety disorder made by Dr Strauss, and avoidant personality disorder made by Dr D’Ortenzio. A third psychiatrist, Dr Glaser, is of the opinion that Mr Petersen is not suffering from any identifiable psychiatric disorder (including personality disorder). Another psychiatrist, Associate Professor Varma, stated that Mr Petersen does not suffer from any psychiatric disorder or drug or alcohol problems in accordance with the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) criteria. The Tribunal is required to decide the diagnosis to its reasonable satisfaction. Each diagnosis will be considered in turn.

GENERALISED ANXIETY DISORDER

9. In his oral evidence Dr Strauss affirmed his diagnosis of generalised anxiety disorder on the basis of the experiences suffered by Mr Petersen in Vietnam. Dr Strauss referred to Mr Petersen losing a very close friend under tragic or difficult circumstances (transcript page 50). In commenting about Mr Petersen’s post-service life Dr Strauss said:

... everything he does is, I think, is associated with a certain amount of tension and anxiety. He is not a relaxed individual. So I think when we talk about a generalised anxiety disorder, one can just accept that there’s free floating anxiety, that a person just approaches life in a very tense and anxious way ... I believe he has high levels of anxiety and – new situations, or dealing with individuals and people worry him more than it would worry the average person and hence he becomes more and more isolated ... reclusive ... so I am comfortable with that diagnosis ... I think overall he is anxious and tense” (transcript page 53).

10. In his oral evidence Dr Glaser was asked for his opinions in regard to Dr Strauss’s diagnosis of generalised anxiety disorder. He said: ... not that it’s not an appropriate diagnosis, I just don’t believe that there is a psychiatric diagnosis present (transcript page 66).
11. In giving his evidence Dr Glaser was taken to the features of the condition of generalised anxiety disorder as shown in paragraph 3(b) of the SoP concerning anxiety disorder (Instrument N°101 of 2007). Dr Glaser stated that he found no evidence of excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities (subsection A) (transcript page 66). He said the key word is excessive and in his view that feature was not present.
12. In regard to Mr Petersen’s ability to control the worry (paragraph 3(b) B) Dr Glaser said:

Mr Petersen himself admits that he gets occasionally cranky and doesn’t like being with people. On the other hand, we have got very good evidence that, in fact, he has controlled these concerns, particularly with respect to being with people around, by choosing ways of working, which mean that he doesn’t get too much exposure to others. And, in our society, that is a perfectly legitimate and reasonable way of controlling that sort of anxiety if it is, in fact, considered to be excessive (transcript page 67).

13. In regard to paragraph 3(b)C, Dr Glaser said that there was no evidence of restlessness, being easily fatigued, difficulty concentrating, or muscle tension. He said there was evidence of occasional irritability and that the difficulty falling or staying asleep could well be accounted for by Mr Petersen’s physical problems of the back and leg pain.
14. Dr Glaser stated that paragraph 3(b)D was not applicable. In regard to paragraph 3(b)E (the anxiety, worry or physical symptoms... cause clinically significant distress or impairment in social, occupational, or other important areas of functioning) Dr Glaser said:

... And again, you see, we’re coming to this subjective judgement as to what is clinically significant. But I think one could say with very considerable confidence, ... that this gentleman, in fact, given his childhood disadvantages, has done very well in life ... you wouldn’t say that what he has given as an account of things like his occupational functioning and interpersonal relationships and so forth indicates any significant distress or impairment in social, occupational or other important areas of functioning (transcript pages 67-68).

15. In his submissions Mr Rudge referred the Tribunal to these features of the condition of generalised anxiety disorder and submitted that there may be material that points to three of the features but there was no evidence to support the key elements of the definition, those being excessive anxiety and worry, the difficulty in controlling the worry and that the worry causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
16. Mr De Marchi submitted that the applicant was relying on the SoP concerning anxiety disorder (Instrument Nº 1 of 2000) and that the definition of the anxiety condition was different from that in Instrument Nº 101 of 2007. The Tribunal notes, however, that although the factors that must as a minimum exist to connect the condition with a person’s relevant service differ between the two SoPs, the definitions of the condition are the same. The features of the condition listed in paragraph 3(b) of Instrument Nº 101 of 2007 are identical to the features of generalised anxiety disorder as defined in paragraph 8 (Other Definitions) of Instrument Nº 1 of 2000.
17. In considering the diagnosis of generalised anxiety disorder, the Tribunal is persuaded by the detailed analysis of the features of the condition adopted by Dr Glaser in reaching his opinion that there is insufficient evidence of the presence of this condition. The Tribunal notes that the diagnosis of generalised anxiety disorder is not supported by Dr D’Ortenzio, who considers the correct diagnosis is one of avoidant personality disorder. The Tribunal notes that the diagnosis is also not supported by Associate Professor Varma who undertook the first psychiatric assessment of Mr Petersen and who was of the opinion that Mr Petersen does not suffer from any psychiatric disorder (T documents page 62).
18. The Tribunal prefers the opinions of Dr Glaser, Dr D’Ortenzio and Associate Professor Varma and is reasonably satisfied that Mr Petersen is not suffering from generalised anxiety disorder.

AVOIDANT PERSONALITY DISORDER

19. In his report dated 11 February 2008 (Exhibit A3), Dr D’Ortenzio confirmed that he remained of the view that Mr Petersen most likely suffers from an avoidant personality disorder. Dr D’Ortenzio stated that the series of stressful incidents suffered by Mr Petersen in Vietnam were situations of intense fearfulness giving Mr Petersen a sense of impotence and inability to control his environment. Dr D’Ortenzio said that these events need to be considered in the context of a 20 year old who has had a severe narcissistic injury with a significant damage to his sense of self and control of the world.
20. Dr Strauss disagreed with this diagnosis. In his evidence Dr Strauss said:

I’ve always felt that a personality disorder was a reasonably entrenched condition that begins usually in adolescence or even earlier ... I’ve never been of the opinion that a particular traumatic experience can suddenly bring about a personality shift which then brings about a whole pattern of behaviour that’s permanent ... it doesn’t cover the anxiety symptoms that I believe that he suffers from. I don’t think he just avoids things. I think he becomes very anxious under a whole lot of circumstances ... I think the anxiety is the predominant problem rather than the avoidant problem (transcript page 51).

21. In his submissions Mr De Marchi did not pursue the condition of avoidant personality disorder, stating instead that the Tribunal should be satisfied that the condition is one of generalised anxiety disorder. Mr Rudge, relying on the evidence of Dr Glaser, submitted that the avoidant personality disorder is explained by the lifelong history of medical and anatomical difficulties in the face, which has caused Mr Petersen to be avoidant and concerned about his appearance. However, the Tribunal notes that Mr Rudge’s submission assumes the presence of a condition of avoidance, which is an issue for the Tribunal to determine.
22. In considering this diagnosis the Tribunal is persuaded by the analysis of the diagnosis undertaken by Dr Strauss in reaching his conclusion that Mr Petersen is not suffering from a condition of avoidant personality disorder. The Tribunal also takes into account that neither Dr Glaser nor Associate Professor Varma are of the opinion that Mr Petersen is suffering from a psychiatric condition. As a result, the Tribunal is reasonably satisfied that Mr Petersen is not suffering from an avoidant personality disorder.

NO PSYCHIATRIC DISORDER

23. Dr Strauss has diagnosed a condition of generalised anxiety disorder which is not supported by the other three psychiatrists; and Dr D’Ortenzio has diagnosed a condition of avoidant personality disorder which is not supported by the other three psychiatrists. The Tribunal has already found that it is not satisfied with those diagnoses. There remain the opinions of Dr Glaser and Associate Professor Varma, who have both stated that Mr Petersen is not suffering from a psychiatric disorder.
24. Dr Glaser took a history from Mr Petersen of a reasonably successful occupational life, a seemingly stable marriage and a good relationship with his two children. He said that Mr Petersen acknowledged always being a loner but, in Dr Glaser’s opinion, certainly not to any abnormal degree. Dr Glaser noted that Mr Petersen held his most recent job for 14 years and that the main reason for leaving the position had nothing to do with his psychiatric state but rather his increasing physical problems. Throughout his cross-examination Dr Glaser maintained his opinion that there is no clinically significant psychiatric disorder present with Mr Petersen.
25. The Tribunal considered the evidence of all four psychiatrists however we preferred the opinions of Dr Glaser and Associate Professor Varma. In particular, the Tribunal was persuaded by Dr Glaser’s analysis of the features of the condition of generalised anxiety disorder based on a detailed history given by Mr Petersen, leading to his opinion that Mr Petersen was not suffering from a psychiatric condition. The Tribunal has already found that Mr Petersen was not suffering from the conditions of generalised anxiety disorder and avoidant personality disorder. No other psychiatric conditions were advanced for consideration. As a result the Tribunal is reasonably satisfied that, at the effective date of the claim, Mr Petersen was not suffering a psychiatric condition; and the Tribunal finds accordingly.

CONSIDERATION OF HIGHER RATES OF PENSION

26. The process to be followed by the Tribunal, should it reach a finding of a diagnosis of no psychiatric condition, was raised with the parties. Mr De Marchi submitted, in effect, that the Tribunal could continue with an assessment of Mr Petersen’s pension as he ceased work because of two accepted disabilities and nothing else. Mr Rudge, however, submitted that assessment was not before the Tribunal except if a psychiatric condition were found to be war-caused. He stated:

At the VRB, the board asked Mr Petersen, “Are you withdrawing assessment?” ... and he said “Yes”, and his advocate said, “Yes, assessment is withdrawn.” So the appeal that then comes on to the AAT is an appeal on entitlement only – that is, the psychiatric condition and the adhesions, and so if the entitlement conditions are found to be not war-caused, there is no other issue before the Tribunal (transcript page 98).

27. The Tribunal rejected Mr Rudge’s submission on this point. Mr Petersen’s incapacity from war-caused injuries has previously been assessed at 80 per cent of the General Rate. That satisfies the first of the provisions of sections 23 and 24 of the Act, which provide for the payment of the Intermediate and Special Rates of pension respectively. The Tribunal has heard evidence on the issue including evidence from experts in the occupational field. The Tribunal considered it would be contrary to the interests of all parties if it did not proceed to consider and make a determination on the assessment of Mr Petersen’s eligibility for a pension at the Intermediate or Special Rate.

HIGHER RATES OF PENSION

28. The provisions for the payment of pension at rates greater than 100 per cent of the General Rate are contained in section 23 of the Act in regard to the Intermediate Rate of pension, and section 24 of the Act in regard to the Special Rate of pension. The provisions for entitlement are the same for both rates, except for the capacity of the veteran to undertake remunerative work. For the Intermediate Rate, section 23 provides that a veteran must be not capable of working more than 20 hours per week, whereas for the Special Rate section 24 provides a limit of 8 hours per week. For simplicity, these reasons for decision will consider only the provisions of section 24 unless or until there is a need to consider also section 23.

SPECIAL RATE OF PENSION

29. Entitlement to payment of a Special Rate of pension is provided for in section 24 of the Act. The relevant sections are:

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 ... is determined under section 21A to be at least 70% ... ; or
• (ii) ... ; 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
...
(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.

30. There is no dispute between the parties that sections 24(1)(aa) and 24(1)(aab) of the Act are satisfied. The Commission has already found that Mr Petersen’s degree of incapacity from war-caused injuries is 80 per cent. Hence the Tribunal finds that sections 24(1)(aa), (aab) and (a) are satisfied.
31. In considering Mr Petersen’s capacity to undertake remunerative work the Tribunal notes the four questions to be determined, as set out in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 at 4, 5:
    1. What was the relevant “remunerative work that the veteran was undertaking” within ... s24(1)(c) of the Act?
    2. Is the veteran, by reason of the war-caused injury or ... disease, or both, prevented from continuing to undertake that work?
    3. If the answer to question 2 is yes, is the war-caused injury or ... disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
    4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

Remunerative Work

32. The first issue to be determined is the type of remunerative work that Mr Petersen was undertaking. Mr Petersen’s employment history is detailed in a signed statement headed Employment History of Daryl Petersen (Exhibit A2). It shows employment as a machine operator, supermarket night filler, truck driver and process worker. Mr Petersen’s last position was as a gardener/handyman, which he held for 14 years. Mr Petersen described his position as a gardener and handyman. Mr De Marchi made no particular submissions on the issue of the remunerative work Mr Petersen was undertaking. However, in his submissions on the other elements of the Special Rate consideration he did refer to Mr Petersen’s work as that of a gardener.
33. Mr Rudge referred the Tribunal to the decision of the Full Federal Court in Chambers v Repatriation Commission [1995] FCA 1144; (1995) 55 FCR 9 and submitted that the Tribunal must apply a broad interpretation to the term remunerative work. He submitted that the Tribunal should consider all types of light work that Mr Petersen might undertake, including light gardening, light work in a factory and a wide range of lighter manual jobs. Dr Horsley, in her report dated 8 November 2007 (Exhibit A6) refers to Mr Petersen’s employment in a gardening/general labouring position, for which he is qualified. Dr Horsley also notes the physical restrictions on the heavier aspects of employment which must apply to any consideration of employment for Mr Petersen.
34. The Tribunal considers that a reasonable description of Mr Petersen’s remunerative work is a gardener/light manual worker; which encompasses Mr Petersen’s 14 years as a gardener/handyman and includes a broader range of light manual work. The Tribunal finds accordingly.

Is the veteran prevented by his war-caused injuries from continuing that work?

35. The second Flentjar question requires the Tribunal to determine whether Mr Petersen’s war-caused injuries prevent him from continuing his remunerative work. Mr Petersen’s accepted war-caused injuries are lumbar spondylosis, osteoarthrosis affecting both knees, spondylolisthesis, bilateral sensorineural hearing loss and bilateral tinnitus.
36. Mr Petersen’s evidence was that he was finding his gardening work harder every year, particularly in winter, because of his legs and his back. He said that the garden was very big and he was actually required to do the work of more than one person. He said that manually the work was very hard. When asked if he could do a lighter job, some sort of light manual work for example, he agreed that if it wasn’t for his back he probably could. Mr Petersen stated that he is struggling to maintain the two acres around his house. He has a ride-on lawn mower but uses a hand mower around the edges, and he maintains a few garden beds. As a hobby Mr Petersen maintains two old cars. When asked if he could do light gardening work for 10 hours a week Mr Petersen answered no because he would not rest, he would just push on until the job was finished. When asked about the effects on his work of his injured calf muscle, pain in his testicle, hernia and bowel operations and diarrhoea, Mr Petersen stated that the effects were just discomfort. He also said that his back would prevent his driving a truck for 10 or 12 hours a week.
37. In her report, Exhibit A6, Dr Horsley stated that Mr Petersen’s physical areas of concern were his lumbar spondylosis and some degeneration in his right knee. Dr Horsley also had taken a history of Mr Petersen’s stomach adhesions and hernia operations but noted that he had been able to work through those. In regard to the work involved in gardening, Dr Horsley said that Mr Petersen’s physical restrictions would prevent him from performing the full complement of tasks required. She agreed that Mr Petersen is not prevented from working totally, but there’s just some components of his former role that he would have difficulty with or couldn’t do (transcript page 45). Dr Horsley also agreed that if Mr Petersen were working in a team environment, where the heavier work could be done by a colleague, it would be possible for him to have a role within his restrictions. Dr Horsley agreed that Mr Petersen could do light gardening work and light maintenance work on a part time basis for up to 20 hours a week.
38. Mr De Marchi submitted that Mr Petersen was doing fairly hard work as a gardener/handyman and stopped work when his back and knees gave way. Mr De Marchi said What was stopping him from working was the fact that his back went on him, and that is an accepted disability. His knees have gone; that’s an accepted disability (transcript page 90).
39. Mr Rudge submitted that Mr Petersen is not prevented from undertaking remunerative work for more than eight hours. Mr Rudge accepted that Mr Petersen’s last job was too onerous; but he submitted that Mr Petersen would be able to undertake a job of a lighter nature, including light gardening, light work in a factory or a vast variety of light manual work suitable to his accepted disabilities.
40. In considering the evidence the Tribunal notes the unanimity of opinion that Mr Petersen’s back and knee conditions prevent him from performing the full duties of his last position. The Tribunal notes that Mr Petersen is in fact still performing a number of tasks which align with his remunerative work of gardening/light manual work. They are the lawn mowing and gardening on his own property and the hobby maintenance work he does on his old cars. The Tribunal also notes the considered opinion of Dr Horsley, a specialist occupational physician, that Mr Petersen could perform relevant light duties for up to 20 hours per week.
41. After considering the evidence the Tribunal is reasonably satisfied that Mr Petersen’s accepted war-caused injuries of lumbar spondylosis and osteoarthrosis affecting both knees render him capable of undertaking his remunerative work for periods aggregating more than 8 hours per week but not more than 20 hours per week. Accordingly, the Tribunal finds that Mr Petersen’s circumstances do not meet the provisions of section 24(1)(b) of the Act, the Special Rate section. However, the circumstances do meet the provisions of section 23(1)(b) of the Act, the Intermediate Rate section.

Are war-caused injuries the only factor preventing remunerative work?

42. The third Flentjar question requires the Tribunal to determine whether it is Mr Petersen’s war-caused injuries alone which prevent him from continuing to undertake his remunerative work. When asked if he could do some sort of light manual work, Mr Petersen replied that he could not tolerate and would not work with people because there is always conflict. He stated I’m finished working, that’s the thing ... I will never work with any one or anything again (transcript page 24).
43. In her evidence Dr Horsley stated that she had taken a history that Mr Petersen had been able to work through the effects of his stomach adhesions and hernia operation. She agreed that Mr Petersen was not completely prevented from working but there are some components of his former work with which he would have difficulty if working on his own. Dr Horsley stated that Mr Petersen’s time off work, his geographic location, his manual working history, his educational background and literacy issues and his age (at 57 years) are, in combination with his physical disability, barriers to his re-employment.
44. When apprised of Mr Petersen’s statement that if he were free of his back and knee problems he would still be working as a gardener/handyman, Dr Strauss agreed that Mr Petersen’s psychiatric condition, if there was one, did not prevent that work.
45. Mr Rudge submitted that Mr Petersen’s circumstances did not satisfy the alone test of sections 23(1)(c) and 24(1)(c) of the Act. He said that other factors involved in the decision to cease work included a calf injury, a testicle problem, hernia and adhesions with obstruction, and a gastrointestinal problem which are not related to Mr Petersen’s accepted disabilities. Mr Rudge submitted:

So it does seem that the decision to cease work was multi-factorial, and all of those factors taken into account would indicate that there are factors other than the war-caused disabilities which impinged on the decision to cease work (transcript page 97).

46. Mr De Marchi submitted that matters presented by Mr Rudge as preventing Mr Petersen from continuing to engage in remunerative employment were perceptions rather than factors. He questioned the existence of evidence that any of the points raised played a part in Mr Petersen giving up his employment. He said:

There is absolutely no evidence at all that his diarrhoea stopped him or would stop him from engaging in employment if he did not have his anxiety, his back problem, and his knee problem, and certainly there is no evidence that his calf pain or his testicular pain ever stopped him from doing his work, or ever would stop him from doing his work, if he did not have his other accepted disabilities (transcript page 99).

Mr De Marchi submitted also that Mr Petersen’s age, geographical location, manual working history and educational history restricted his type of work but did not play a part in him giving up his employment. Mr De Marchi summarised his submission by stating:

On the balance of probability, there was ample material to say that, if he did not have a back problem and the knee problem, and we say, the anxiety problem as well, he would have continued to be employed, and probably would have been employed this very day (transcript page 100).

47. The Tribunal referred to the judgement of the Full Court of the Federal Court in the matter of Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at 54, in which their Honours held that:

The provision does not contemplate that other factors are only taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to undertake remunerative work.

48. Further, in Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329 at 334, Spender J said:

If the non-service-related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were “of secondary importance”, the “alone” requirement of section 24(1)(c) would not be satisfied.

49. In considering the evidence the Tribunal was not persuaded that Mr Petersen’s conditions of calf injury, a testicle problem, hernia and adhesions with obstruction, and a gastrointestinal problem were factors in preventing Mr Petersen from continuing to undertake remunerative work. The Tribunal accepts the evidence of Mr Petersen that those conditions were no more than a discomfort. The Tribunal is, however, persuaded by the evidence of Mr Petersen that he could not tolerate and would not work with people because there is always conflict and that he had decided that he had finished working and would never work with anyone or anything again. The Tribunal is satisfied that this decision of Mr Petersen, combined with the factors raised by Dr Horsley, Mr Petersen’s time off work, his geographic location, his manual working history, his educational background and literacy issues and his age at 57 years, prevent Mr Petersen from continuing to undertake the remunerative work that he was undertaking. Hence the Tribunal is not reasonably satisfied that Mr Petersen’s circumstances meet the provisions of section 23(1)(c) and 24(1)(c) of the Act and the Tribunal finds accordingly. As a result, Mr Petersen’s circumstances do not meet all the provisions of sections 23 and 24 of the Act. Therefore, he is not entitled to an increase in pension to either the Intermediate Rate under section 23 or the Special Rate under section 24 of the Act.
50. Mr Petersen’s application is therefore unsuccessful.

DECISION

51. The Tribunal affirms the decision under review.
    

I certify that the fifty-one [51] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C. Ermert, Member

Dr R. J McRae, Member

signed: Olympia Sarrinikolaou

Clerk

Dates of Hearing: 25-26 February 2009

Date of Decision: 24 June 2009

Solicitor for the applicant: Mr D De Marchi, De Marchi & Associates

Solicitor for the respondent: Mr K Rudge, Advocacy Section, Department of Veteran’s Affairs