Butterfield and Repatriation Commission [2009] AATA 609 (17 August 2009)

Last Updated: 18 August 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 609

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2313

VETERANS' APPEALS DIVISION		)
	Re		WILLIAM ERIC BUTTERFIELD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier C Ermert (Retd), Member Dr K J Breen, Member

Date 17 August 2009

Place Melbourne

Decision

The Tribunal sets aside the decision under review and in substitution decides that Mr Butterfield is entitled to be paid a pension at the Special Rate with effect from 28 June 2007.

[sgd] C Ermert
Member

VETERANS’ AFFAIRS – operational service – accepted war-caused disabilities of posttraumatic stress disorder and alcohol abuse – in receipt of disability pension at 100 per cent of General Rate – claim for Special Rate - four Flentjar questions – type of remunerative work – whether war-caused disabilities prevent veteran from working greater than eight hours per week – whether other factors prevent resumption of remunerative work – whether veteran suffers loss of earnings – whether veteran satisfies s 24 of the Act - decision set aside – veteran eligible for pension at Special Rate.
Veterans’ Entitlements Act 1986 ss 23, 24, 120(4)

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1
Repatriation Commission v Van Heteren [2003] FCA 888; (2003) 75 ALD 703
Chambers v Repatriation Commission [1995] FCA 1144; (1995) 55 FCR 9
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Forbes v Repatriation Commission [2000] FCA 328; (2000) 58 ALD 394
Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329

REASONS FOR DECISION

17 August 2009

Brigadier C Ermert (Retd), Member Dr K J Breen, Member

INTRODUCTION

1. Mr Butterfield, the applicant in this case, was born in 1945. He left school at the age of 15 and undertook an apprenticeship as a moulder in a factory before joining the Australian Army in 1967. His service in Vietnam in 1968 and 1969 constitutes operational service as defined in the Veteran’s Entitlements’ Act 1986 (the Act). After his discharge from the Army Mr Butterfield was employed in foundries in positions of increasing responsibility. From 1998 until 2004 Mr Butterfield was the Foundry Manager and Sales Manager at Burn Brite Lights Pty Ltd (Burn Brite). Mr Butterfield contends that he was having increasing difficulty at work due to emotional problems, losing concentration, making stupid mistakes and drinking more alcohol. He resigned on 31 August 2004 and has not worked in paid employment since. Since ceasing work Mr Butterfield has joined a woodworking club and works once per fortnight as a volunteer with the Puffing Billy Railway.
2. Mr Butterfield suffers from a number of medical conditions. The Repatriation Commission (the respondent) has accepted that the following conditions were war-caused:
   • bilateral sensorineural hearing loss;
   • post traumatic stress disorder;
   • alcohol abuse;
   • gastro-oesophageal reflux disease;
   • chronic bronchitis and emphysema;
   • osteoporosis; and
   • malignant neoplasm of the prostate.

3. Mr Butterfield was receiving a pension at 100 per cent of the General Rate. He made an application for an increase to his pension. In June 2007 the respondent refused the application. He applied for a review of the decision by the Veterans’ Review Board (VRB) and on 9 May 2008 the VRB affirmed the original decision. This matter is an application for review of the VRB decision.

THE HEARING

3. The hearing was conducted over two days. Mr Butterfield was represented by Ms C Serpell of Counsel. The respondent was represented by Mr K Rudge of the Advocacy Section of the Department of Veterans’ Affairs. The Tribunal heard evidence in person from Mr Butterfield and Dr W Glaser, consultant psychiatrist. By telephone the Tribunal heard evidence from Dr C Thomas, consultant in rehabilitation and pain medicine, Dr M Epstein, consultant psychiatrist, Dr R Horsley, occupational physician, Dr M Clarence, respiratory and sleep physician, Dr M Sosnin, the treating general practitioner, and Mr B Sutherland, Engineering Manager from Burn Brite. In addition to letters, reports and statements from each of the witnesses the Tribunal took into evidence an internal minute from the Veterans’ Affairs Victorian State Office dated 12 January 2005 (Exhibit A8), the transcript of the VRB hearing of 9 May 2008 (Exhibit R5), Mr Butterfield’s Service Pension Claim Invalidity Details dated 15 and 16 March 2005 (Exhibit R6) and a Work Test Questionnaire dated 15 March 2005 (Exhibit R7).

THE ISSUE

4. The issue to be determined is whether Mr Butterfield is entitled to a pension at a rate greater than the 100 per cent of the General Rate as provided for in section 24 of the Act.
5. The matter is to be decided on the balance of probabilities as provided by section 120(4) of the Act.

MR BUTTERFIELD’S EVIDENCE

6. In his written statement dated 26 May 2008 (Exhibit A1) Mr Butterfield said:

Unfortunately, over time, I found increasing difficulty coping at work and my interpersonal relationships came to suffer and I started having disputes with customers, my supervisors, accounts department and those with whom I was dealing in the Foundry. ... Increasingly I found that I was having difficulty coping at work due to my emotional problems. I found that I was losing concentration and memory and making stupid mistakes. This in turn increased my anxiety. I tended to drink more alcohol when under emotional stress. On 31 August 2004 I resigned from my employment. I did so because of my emotional state. I found that I was being involved in too many arguments, was losing patience with colleagues and customers and was making too many silly errors.

7. Mr Butterfield confirmed these statements in his oral evidence. He recounted his increasing anger and aggression at work, his increasing anxiety levels leading to an increase in his alcohol consumption. In regard to his woodworking hobby and volunteer work with Puffing Billy Railway, Mr Butterfield said that there was no pressure because there was no responsibility and he could leave if he wanted to. When asked about his capacity to undertake remunerative work in a non-pressure position he said that he honestly did not know. When asked why he did not talk to his general practitioner about his psychiatric symptoms Mr Butterfield said that he was ashamed of his mental issues.

THE MEDICAL EVIDENCE

8. The Tribunal experienced considerable difficulties in evaluating and attempting to reconcile the various medical reports and evidence it received in writing and in person. A report by psychiatrist Dr J Gelb should have been of most assistance to the Tribunal as it resulted from an assessment made closest to the event of Mr Butterfield resigning from his employment in 2004. The Tribunal has reason to conclude, however, that the report is not the result of a standard professional psychiatric assessment but has been based almost entirely on questionnaires that Mr Butterfield was asked to take home, complete and mail back to the psychiatrist. The words used in the report imply that much of the material was derived from a face-to-face interview with Mr Butterfield and his wife. However, from their sworn evidence that appears not to be the case. Although the Tribunal did not have the opportunity to hear from Dr Gelb, it has no reason not to accept the sworn evidence given on oath by Mr Butterfield that neither he nor his wife was interviewed. As a consequence, the Tribunal discounts the evidence of Dr Gelb. The Tribunal finds this most unsatisfactory in that the applicant has been denied the potential value of an expert contemporaneous report.
9. The unsatisfactory basis of Dr Gelb’s report has other ramifications for the Tribunal. Until this hearing, all parties (including the VRB) had accepted Dr Gelb’s report as having at least as much weight as the reports of other specialists. Several specialists who were asked to assess Mr Butterfield were given a copy of Dr Gelb’s report. Because the report states, in very concrete terms, some alleged remarks Mr Butterfield made at interview it may well have influenced to an unknown, and now unknowable, degree the opinions formed by other doctors. The Tribunal has tried to keep this in mind in evaluating the other reports and oral evidence.
10. The two treating doctors who had regular contact with Mr Butterfield during 2004 were Dr Sosnin, his general practitioner, and Dr Clarence, his respiratory specialist and their evidence should theoretically be of the most use to the Tribunal and the applicant. However, in certain aspects, their evidence was not as helpful as it could have been.
11. The evidence of Dr Sosnin was encompassed in 420 pages of Mr Butterfield’s clinical record and the oral evidence he gave to the Tribunal by telephone. The clinical records showed that Dr Sosnin had referred Mr Butterfield to a psychiatrist, Dr C Seabridge, in 2000 and Dr Seabridge had confirmed Dr Sosnin’s tentative diagnosis of posttraumatic stress disorder (PTSD). Dr Sosnin had followed Dr Seabridge’s advice and had continued to prescribe Zoloft to Mr Butterfield for a period of time. Thus, it is clear to the Tribunal that Dr Sosnin was well informed about Mr Butterfield’s mental health issues at that time.
12. Dr Sosnin’s oral evidence, in summary, was that during 2003 and the first half of 2004, he and Dr Clarence were focussed on Mr Butterfield’s respiratory health problems including asthma and sleep apnoea, and (for Dr Sosnin) diabetes. Dr Sosnin indicated that he was unaware of Mr Butterfield experiencing emotional or psychological problems during this time until August 2004 when PTSD came out of left field and Mr Butterfield was forced to confront his inner demons. Incorporated within the 420 pages of clinical notes were 17 pages of computer print-outs headed Patient Medical History covering Mr Butterfield’s attendances between 14 September 1998 and 16 July 2008. This record reveals two pertinent entries made by Dr Sosnin, one on either 2 or 3 August 2004 as follows gen run down with PTSD needs time off – 1/12; and another on 17 August 2004 Dx Disorder; post traumatic stress (P02023)-Viet vet. Dr Sosnin was unable to recall any more detail of these encounters and thus he was unable to assist the Tribunal in regard to any symptoms that may have been troubling Mr Butterfield at that time.
13. In the absence of more detailed entries we do not know whether Dr Sosnin inquired any further or simply accepted that Mr Butterfield was unwell because his previously diagnosed PTSD was now greatly troubling him. The most that the Tribunal could glean from the evidence of Dr Sosnin was that his evidence supported Mr Butterfield’s contention that he left work because of his mental health issues and not because of his long-standing physical health issues.
14. Dr Clarence, respiratory physician, had been seeing Mr Butterfield regularly since 2000. He provided two reports and gave oral evidence by telephone. He informed the Tribunal that he did not have with him the complete medical records of Mr Butterfield as he had placed his earlier records, depending on format, into either a computer-based archive or a hard copy archive. He had no recollection of the letter prepared by Dr Sutherland dated 6 September 2004 and was unable to turn to his records to refresh his memory of that letter. He was able to explain that Dr Sutherland had acted as his locum for three months in 2004 and that the records of existing patients made available to Dr Sutherland consisted solely of computer-based copies of letters Dr Clarence had sent to referring doctors. (This is of some relevance, as it is one of a number of factors which diminishes the potential usefulness of the contemporaneous report of Dr Sutherland).
15. Dr Clarence’s first report dated 3 November 2004 (T4, p11) emphasised the physical issues that Dr Clarence was handling (ie severe long-standing asthma with emphysema, obstructive sleep apnoea) and specifically stated that he had no knowledge of Mr Butterfield’s mental health issues. Without any awareness of the latter, it is difficult for the Tribunal to accept that Dr Clarence was in a position to evaluate the real reason(s) that Mr Butterfield left his employment. As a consultant physician he had not turned his mind to the competing possibility that mental ill health had led Mr Butterfield to give up work. In his first report he wrote (T4, p12);

Untreated or under treated sleep apnoea can lead to problems with excessive daytime sleepiness which can affect vigilance and affect concentration, short term memory and mood.

Dr Clarence gave no intimation as to whether he had formed a view that these problems had actually affected Mr Butterfield. In oral evidence, Dr Clarence agreed that he had composed his first letter without recourse to Mr Butterfield’s files. As a respiratory specialist, it is understandable that his report covered only Mr Butterfield’s respiratory problems. The Tribunal accepts that Dr Clarence concluded in late 2004 that these health issues were serious and could have interfered with his work capacity. However, for the reasons already given, we are unable to use that opinion as any guide as to why Mr Butterfield left work.

16. Dr Clarence wrote a further report dated 23 March 2009 (Exhibit A2). With the benefit of having perused his records to examine Mr Butterfield’s health progress subsequent to mid 2004, Dr Clarence now took a different view. His report now stated that he believed during 2004 and afterwards, Mr Butterfield’s respiratory problems were improving or stabilising and that these would not have contributed to his inability to work.
17. The Tribunal was provided with a copy of a letter from Dr Sutherland addressed to the Department of Veterans’ Affairs (the DVA), dated 6 September 2004. Mr Butterfield could not recall seeing Dr Sutherland and it is not clear to the Tribunal what question(s) Dr Sutherland was addressing in that letter. A locum physician is limited in the information he can obtain at a single review attendance, to be able to appreciate in depth the various medical issues that could impact on a patient’s work capacity. Such limitations are exemplified by the assumption in this letter that Mr Butterfield worked in a foundry. The short report also conveys the impression that Mr Butterfield’s respiratory problems were related to heavy cigarette smoking and makes no mention of asthma. With these limitations in mind, and knowing, as the Tribunal does now, that Dr Sutherland did not have access to Mr Butterfield’s complete medical record, the Tribunal is reluctant to attach any weight to his opinion.
18. The Tribunal received a number of other medical reports; all but one had been written well after the time Mr Butterfield ceased to work. The one exception is the December 2000 report of Dr Seabridge to which the Tribunal attaches some significance in that it preceded the decision of Mr Butterfield to cease work and thus is not contaminated by employment or compensation issues. Dr Seabridge saw Mr Butterfield twice and concluded that he suffered from post-traumatic stress disorder, and ... substance abuse – alcohol. We did not have the benefit of hearing from Dr Seabridge and thus were unable to inquire as to how much Dr Seabridge saw his role then as providing a type of medico-legal report as opposed to playing an important therapeutic role. The Tribunal is able to glean from Dr Seabridge’s report that Mr Butterfield’s mental health problems were of long-standing and of considerable severity. This aspect of his report has to be kept in mind in assessing the reports of the two psychiatrists (Drs Epstein and Glaser) who later saw Mr Butterfield for the purpose of these proceedings.
19. Dr Epstein, psychiatrist, assessed Mr Butterfield on 15 September 2008. The Tribunal was provided with the report of that assessment dated 17 September 2008 (Exhibit A3) and a second report dated 28 November 2008 (Exhibit A4). The second report consisted of Dr Epstein’s comments on the report of Dr Glaser. Dr Epstein’s first report contained a detailed account of Mr Butterfield’s life story and a description of symptoms reported by Mr Butterfield between 2002 and 2004. These included:

irritability, anxiety and depression ... frequent arguments and felt explosive much of the time. He continued to make mistakes and felt unable to cope.

In his opinion, Mr Butterfield suffered from PTSD, alcohol abuse and a number of other medical conditions and that:

the combination of all these has led on to the development of a chronic Adjustment Disorder with depressed mood.

Dr Epstein had also turned his mind to the question of whether Mr Butterfield’s respiratory problems may have been causing problems and stated that during the interview, he could observe no obvious problems.

20. Dr Epstein stated in his first report that:

On the balance of probabilities, given his description of his behaviour and its effect on his family and given that the same behaviour has been manifested in his work situation, it seems more likely that his behaviour has been the cause of him ceasing work rather than his asthma or sleep apnoea.

Dr Epstein also formed a view as to Mr Butterfield’s degree of disability stating that:

his ... accepted war caused injuries are themselves alone preventing him from undertaking remunerative work for periods aggregating more than eight hours per week.

Dr Epstein was asked whether treatment for PTSD would change this assessment. He was very guarded about the likely benefits of treatment for this long-standing condition. He was also asked to comment on the hobby and the voluntary work Mr Butterfield was presently engaged in and commented that voluntary work involved little pressure and was very different from paid employment. He felt that Mr Butterfield’s condition would get worse if he attempted to return to paid work.

21. Dr Glaser, psychiatrist, saw Mr Butterfield for an assessment at the request of the DVA on 30 September 2008 and his report was dated 22 October 2008 (Exhibit R1). Dr Glaser’s report and conclusions agreed overall with those of Dr Epstein in regard to the psychiatric diagnosis but assessed Mr Butterfield’s current psychiatric problems as being of only mild severity. This led to his report differing also in regard to Mr Butterfield’s work capacity. In response to the question posed by the DVA as to the reasons why Mr Butterfield ceased remunerative work, Dr Glaser wrote On this assessment, I am unable to state these with any degree of certainty. He then went on to note the contemporaneous accounts of other doctors in so far as they related to this question. The Tribunal has already decided that it will not rely upon some of these contemporaneous accounts, especially those of Dr Gelb, Dr Sutherland and the first report of Dr Clarence.
22. In his oral evidence, Dr Glaser placed considerable emphasis (when assessing Mr Butterfield’s capacity to return to remunerative work) on the potential benefit of treatment for PTSD and noted his belief that Mr Butterfield had previously benefitted from treatment with Zoloft. Dr Glaser agreed that voluntary work was different to paid work. He also acknowledged that veterans were at times ashamed to talk about PTSD.
23. Finally, the Tribunal received reports from and heard oral evidence by telephone from two occupational health physicians, Drs Horsley and Thomas. Each had seen Mr Butterfield once for the purpose of preparing reports for these proceedings. Dr Thomas’s report (Exhibit A6) was based on an assessment made on 29 September 2008. His evidence was clear in that he thought that Mr Butterfield’s respiratory problems would not be disabling as he was working in sales. He concluded that:

As such it does seem that the problems that disable him relate to the war caused conditions, in particular the post traumatic stress disorder.

24. Dr Horsley’s evidence proved difficult for the Tribunal to evaluate. In her initial report, dated 21 August 2008 (Exhibit R2), she concluded that Mr Butterfield’s war-caused physical disabilities did not prevent him from working more than 8 hours per week. Dr Horsley appeared to accept Mr Butterfield’s explanation that he had left work because of his psychiatric condition but indicated that it was out of her area of expertise to comment further. She wrote a second report dated 29 November 2008 (Exhibit R3), based on an invitation to her to review a large number of reports of other doctors, including the reports of Drs Gelb and Sutherland. While she appeared to alter her views as to why Mr Butterfield may have given up work, her putative explanation for how Mr Butterfield’s respiratory problems may have impacted on his work capacity appeared confused. On pages 4 and 5 of her second report she states:

His respiratory function however, had been at a similar level based on respiratory function tests for a number of years prior to his cessation of work ...
and
On the basis of the respiratory function tests that are now available, I believe that his reduction in respiratory function would have had an impact upon his capacity for work, even in a clerical/managerial role.

Dr Horsley was unable to explain these apparently contradictory paragraphs but was disadvantaged by not having a copy of her second report in front of her when being asked questions about this.

EMPLOYER’S EVIDENCE

25. Mr Sutherland, Mr Butterfield’s immediate supervisor at Burn Brite, provided a written statement and gave oral evidence to the Tribunal by telephone. Mr Sutherland described Mr Butterfield’s job as the operations’ manager of the factory site, responsible for the supervision of between three and eight people, with a further role of obtaining business for the company and finding new customers. Mr Sutherland gave clear evidence of the excellent standard of work performed by Mr Butterfield in his early years at Burn Brite, including achieving quality accreditation, increasing company turnover to about $1 million and breaking into the automotive market. Mr Sutherland said that in Mr Butterfield’s last year at Burn Brite he became less tolerant, was grumpy and moody, had reduced concentration levels, was less diligent, and had lost his enthusiasm. Mr Sutherland said that, for the most part, Mr Butterfield’s work was exceptional but towards the end it waned quite a bit.

THE LEGISLATION

26. 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. The applicant seeks the Special Rate. Therefore, these reasons for decision will only consider section 24 unless or until there is a need to also consider section 23.

SPECIAL RATE OF PENSION

27. Entitlement to payment of a Special Rate of pension is provided for in section 24 of the Act:

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.

28. There is no dispute between the parties that Mr Butterfield satisfies sections 24(1)(aa) and 24(1)(aab) of the Act. The Repatriation Commission has already found that Mr Butterfield’s degree of incapacity from war-caused injuries is 100 per cent. Hence, the Tribunal finds that Mr Butterfield satisfies sections 24(1)(aa), (aab) and (a).
29. In considering whether Mr Butterfield satisfies the provisions of sections 24(1)(b) and (c) of the Act, 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 and 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

30. The first of the Flentjar issues to be determined is the type of remunerative work that Mr Butterfield was undertaking.
31. In addressing this issue Ms Serpell referred the Tribunal to the decision of the Federal Court in the matter of Repatriation Commission v Van Heteren [2003] FCA 888; (2003) 75 ALD 703 at 708, in which Finn J notes :

... the “remunerative work” to which the paragraph [s 24(1)(c)] refers is the remunerative work undertaken by the veteran before he or she was prevented from continuing to undertake that work.

Ms Serpell submitted that in this case the remunerative work is clerical work, being on the end of the telephone and dealing with people.

32. Mr Rudge referred the Tribunal to the decision of the Full Court of the Federal Court in Chambers v Repatriation Commission [1995] FCA 1144; (1995) 55 FCR 9. He submitted that the Tribunal must apply a broad interpretation to the term remunerative work. He said that the term must be extended so that the skills, qualifications, and general aptitude gained from work, education and experience are included. It should not be restricted to the types of work done in the past but include any type of work for which the applicant has a broad aptitude. In this case Mr Rudge contended that, while employed, Mr Butterfield performed at a very high standard, with high responsibility and pressure. However, there would be less onerous and less responsible jobs in industry for which Mr Butterfield would have an aptitude.
33. The Tribunal notes from Mr Butterfield’s evidence that the work he performed during his working career varied from that of a foundry moulder to a foundry manager. His last position was the Foundry Manager and Sales Manager at Burn Brite, indicating his progression from work on the foundry floor to the office environment of a manager. The Tribunal notes that Mr Butterfield’s working life has been in a foundry environment, which may be broadened to include other factory types. The Tribunal finds the type of remunerative work to be applied to Mr Butterfield in these considerations is factory management, noting that office-based clerical work is a part of the management function.

IS THE VETERAN PREVENTED BY HIS WAR-CAUSED INJURIES FROM CONTINUING THAT WORK?

34. The second Flentjar question requires the Tribunal to determine whether Mr Butterfield’s war-caused injuries prevent him from continuing his remunerative work. Mr Butterfield’s accepted war-caused injuries are bilateral sensori-neural hearing loss, posttraumatic stress disorder, alcohol abuse, gastro-oesophageal reflux disease, chronic bronchitis and emphysema, osteoporosis and malignant neoplasm of the prostate.
35. In regard to Mr Butterfield’s psychiatric conditions of PTSD and alcohol abuse, the Tribunal considered the evidence of Drs Glaser, Epstein and Seabridge. Dr Glaser assessed Mr Butterfield’s psychiatric problems as being of only mild severity. When asked if Mr Butterfield could do a job in a less responsible managerial role, Dr Glaser said that, with minor restrictions in regard to working times and numbers of customers, Mr Butterfield would be capable of performing his duties. Dr Glaser was of the opinion that Mr Butterfield would benefit from treatment for his PTSD. Dr Glaser disagreed with the opinion of Dr Seabridge, who assessed Mr Butterfield’s PTSD as permanent, and with the opinion of Dr Epstein, who said that results from treatment to long term sufferers of PTSD are much less likely.
36. In his oral evidence Dr Epstein affirmed his opinion, given in his report dated 17 September 2008 (Exhibit A3), that Mr Butterfield’s PTSD and alcohol abuse prevented him from engaging in remunerative work for more than 8 hours a week. He disagreed with Dr Glaser in regard to a possible improvement in Mr Butterfield’s psychiatric condition, saying that he saw no evidence of it. He also disagreed with Dr Glaser’s assessment of Mr Butterfield’s condition as mild by referring to the symptoms shown by Mr Butterfield’s reduction in the quality of his life, his irritability in the workplace, his lack of friends, the strain on his marital relationship and the fact that Mr Butterfield was clearly not coping. When questioned in regard to Mr Butterfield’s voluntary work, Dr Epstein said that this was quite different from remunerative work. In regard to the possibility of Mr Butterfield working in a non-managerial position, Dr Epstein said that while he hoped Mr Butterfield’s functioning might improve, he thought that such work may still be beyond him.
37. Dr Seabridge saw Mr Butterfield on three occasions. In his report dated 7 February 2008 (T14, p76) Dr Seabridge stated:

The clinical information given to me, both recently, and in my 2 previous interviews with Mr Butterfield on [sic], leave me no doubt that Mr Butterfield is incapable of working for 8 or more hours in a structured work environment and that it is more probable than not that this capacity is permanent. It is my considered clinical opinion, this incapacity is attributed 100% to his accepted disorder of PTSD.

38. In considering this issue, the Tribunal gave particular weight to the evidence of Dr Seabridge as he has seen Mr Butterfield on three occasions, the first two being prior to Mr Butterfield’s cessation of work. The Tribunal notes the opinions of Dr Glaser in describing Mr Butterfield’s symptoms as mild, but prefers the evidence of Drs Seabridge and Epstein, both of whom are clear in their opinions that Mr Butterfield’s PTSD is of such a severity as to prevent him from working for more than 8 hours per week. These opinions support the sworn evidence of Mr Butterfield, whom the Tribunal regarded as an honest witness. In regard to the possibility of working in a less pressured environment, the Tribunal notes the evidence of Mr Sutherland who said:

We all live under pressure if you ever got a management role ... To me the pressure here is what you expect in a role which is managing people and managing customers ... I think it’s important to understand that his skill level didn’t decrease, it was his attitude that was the problem and an attitude as management ... is the important part, not the skill level. ... If you don’t have the attitude or the willingness to do it, whether you’re doing one or 50 or 200 people it doesn’t make any difference. (Transcript pages 28-29).

39. From the evidence before it, the Tribunal is reasonably satisfied that Mr Butterfield is prevented by his war-caused injury of PTSD from continuing his remunerative work of factory management.

ARE MR BUTTERFIELD’S WAR-CAUSED INJURIES THE ONLY FACTORS PREVENTING HIS REMUNERATIVE WORK?

40. The third Flentjar question is whether Mr Butterfield’s war-caused injuries are the only factors preventing him from continuing his remunerative work.
41. Mr Rudge contended that Mr Butterfield suffered from the following non-service related medical conditions which caused or contributed to his incapacity for work: asthma, sleep apnoea, diabetes, obesity, microscopic polyarteritis and adjustment disorder and general fitness levels.
42. In his submissions in support of this contention Mr Rudge referred to Mr Butterfield’s respiratory condition requiring three periods of hospitalisation for pneumonia over a nine or ten month period. Mr Rudge also referred to the falls suffered by Mr Butterfield, his daytime sleepiness, diabetes, daytime urinary incontinence, the possibility of mild steroid myopathy, and his high body-mass index; all of which indicated that in late 2003 and early 2004 Mr Butterfield was not a well man with significant medical problems. Mr Rudge submitted that Dr Clarence’s notes showed that Mr Butterfield had problems with asthma and sleeping prior to giving up work. Mr Rudge submitted that Drs Gelb, Clarence, and Sutherland (a locum for Dr Clarence) all reported that respiratory problems were a significant reason in Mr Butterfield’s cessation of work.
43. Mr Rudge referred the Tribunal to forms filled out by Mr Butterfield in applying for an invalidity service pension (Exhibit R6). In those forms Mr Butterfield had listed asthma, chronic obstructive airways disease, sleep apnoea and osteoporosis and PTSD as conditions impacting on his ability to work. Mr Rudge also referred to Dr Glaser’s diagnosis of adjustment disorder which started with Mr Butterfield a couple of years ago, and submitted that that condition was therefore present at the start of the assessment period.
44. Mr Rudge referred to the oral evidence of Dr Thomas, an occupational physician. He had asked Dr Thomas:

We have an applicant with asthma, sleep apnoea, diabetes, obesity, microscopic polyarteritis, 62, 63 years of age; generally unfit. What’s the effect of that on work capacity?

Dr Thomas had replied;

He’s unemployable on the basis of that recitation. ... An employer wouldn’t take such a person on, because the risks of some health problem occurring are just too great. (Transcript page 76).

Mr Rudge also referred to the evidence of Dr Horsley, who said that up-to-date skills could be a factor in addition to age.

45. Mr Rudge referred to the decisions of Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47; Forbes v Repatriation Commission [2000] FCA 328; (2000) 58 ALD 394; and Repatriation Commission v Alexander [2003] FCA 399; (2003) 75 ALD 329. In Hendy the Full Court of the Federal Court said (at 54):

... The decision maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to undertake 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 24(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....

In Forbes Nicholson J said (at 401):

...The fact that a non war caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war caused condition. The possibility of the combination is recognised in the third conceptual environment identified in the applicant’s case....

In Alexander Spender J said (at 334):

The test under s.24(1)(c) is not, “would Mr Alexander’s war-caused conditions alone prevent him undertaking the relevant remunerative work?” ... It is whether war-caused conditions, alone, prevent the respondent from continuing to undertake remunerative work that he had been undertaking. ... The conclusion that “a combination of war service and non-war service related conditions preventing Mr Alexander from working is a non-issue” is simply wrong. If the non–service 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 s 24(1)(c) would not be satisfied.

Mr Rudge contended that in this case we have a number of non-service related factors which caused or contributed to Mr Butterfield’s incapacity for work.

46. In regard to Mr Butterfield’s respiratory problems, Ms Serpell referred to the evidence of Dr Clarence who, with the benefit of reviewing his records, reconsidered his original findings and stated that Mr Butterfield’s respiratory problems and asthma were improving or stabilising and would not have contributed to his inability to work.
47. Ms Serpell submitted that Mr Butterfield suffered a pain for a few weeks from microscopic polyarteritis but that would not mean that he would have left work as a result of it. Ms Serpell submitted that age was not a factor in Mr Butterfield’s inability to work. She said that Mr Butterfield’s work is mainly clerical and involves dealing with people. It is not manual work requiring enormous amounts of energy. Ms Serpell submitted that there are many people aged in their seventies performing at a very high level in the workforce.
48. Mr Butterfield’s own evidence was that in 2004 his general health was quite good. His weight decreased to about 80 kilograms. When asked about the flare up of his asthma in September 2004, Mr Butterfield responded that he got flare ups all the time but things were improving and there was nothing specific around September. In regard to the effects of pneumonia, Mr Butterfield said that he would have been off work for a couple of weeks at the most. With microscopic polyarteritis Mr Butterfield said that he would be off work at most for a few days, Enough to get some Panadol Forte or something (Transcript page 9). Mr Butterfield explained that his falls at work were caused by ill-fitting boots. He also said that he had had no problems with falling asleep at work and that his urinary incontinence was not a problem at work. Mr Butterfield’s evidence was that he would not have given up work for any of the conditions about which he was asked. He would have just taken sick leave, which is what he has done all his life.
49. The Tribunal also noted the evidence of Mr Sutherland who, when asked whether he noticed Mr Butterfield having any health problems towards the end of his career, said:

Well I was aware that Eric took, I think, some strong medication for his asthma. I’m an asthmatic myself ... he was wheezing more than I did, quite a lot more ... in the early stages he wheezed as well, so he was an asthmatic. Asthmatics we just accept that’s what we’ve got and we get on with it (Transcript page 29).

Mr Sutherland said that asthma was the only health problem of which he was aware with Mr Butterfield. Mr Sutherland also said that he had never observed Mr Butterfield falling asleep at work.

50. The only diagnosis of adjustment disorder comes from Dr Glaser. Dr Glaser’s evidence was that the major contributor to that diagnosis was the number of physical health problems experienced by Mr Butterfield over the years, including the recent conditions of microscopic polyarteritis and prostate cancer. Dr Glaser gave a heavily qualified opinion, that an adjustment disorder could have contributed 40 to 50 per cent to Mr Butterfield’s psychiatric condition when he saw him in October 2008. However, the Tribunal notes the evidence of Mr Butterfield and Dr Clarence that Mr Butterfield’s respiratory symptoms improved significantly over the last year of his work. Dr Glaser agreed that, in that case, his worries over his breathing difficulties were unlikely to form any real basis for Mr Butterfield leaving work. The Tribunal notes the evidence that Mr Butterfield’s microscopic polyarteritis was brought under control quite quickly. The evidence regarding prostate cancer was that Mr Butterfield had been told by his treating doctor that he thought he would be able to be cured. Dr Glaser agreed that he did not talk to Mr Butterfield in any detail about this issue.
51. From the evidence before it, the Tribunal is reasonably satisfied that Mr Butterfield’s adjustment disorder, to the extent that it exists, is not a factor in preventing him from undertaking remunerative work.
52. Following the decision in Hendy, where a period of time elapses after the veteran ceases remunerative work and before the commencement of the assessment period, the Tribunal must consider the issues of a lack of recent experience, time out of the workforce and increasing age. In this case the period of time out of the workforce is from August 2004 to June 2007. In regard to Mr Butterfield’s age, the Tribunal notes the general comment made by Dr Horsley about the impact of age in the workplace. The Tribunal notes, however, the lack of specific evidence in this case that Mr Butterfield’s age is a factor in preventing him from undertaking his work. Likewise, the Tribunal notes that there is no evidence before it of changes in the skills or knowledge required of a factory manager that have occurred during Mr Butterfield’s time out of the workplace that might impact on the performance of his work functions. There is ample evidence that Mr Butterfield is very experienced in his type of work. The Tribunal has already found that Mr Butterfield’s type of work is managerial, involving dealing with people and performing clerical functions. Without specific evidence the Tribunal is not satisfied that Mr Butterfield’s performance of these functions is affected by his age, experience or time out of the workforce.
53. In summary, the weight of the medical evidence (Drs Sosnin, Clarence, Horsley and Thomas) supports the conclusion that Mr Butterfield’s physical health problems (asthma, sleep apnoea, diabetes) were stable or improving in mid 2004. They were not the cause of him giving up work and do not prevent him from undertaking remunerative work. The weight of the medical evidence (Drs Seabridge and Epstein) is that Mr Butterfield’s PTSD was of much more importance to his health than Dr Glaser believed; and that his PTSD is the cause of his inability to undertake remunerative work. The Tribunal also accepts the evidence of Mr Butterfield, consistent with that of Mr Sutherland, that none of Mr Butterfield’s medical and non-medical conditions, other than PTSD, was a factor in his cessation of work.
54. The Tribunal is satisfied that none of Mr Butterfield’s non war-caused conditions are a factor in his inability to undertake remunerative work. Accordingly, the Tribunal is satisfied that it is Mr Butterfield’s war-caused PTSD alone that prevents him from continuing to undertake remunerative work.

IS THE VETERAN SUFFERING A LOSS OF EARNINGS?

55. The fourth Flentjar question to be addressed is whether the veteran, by reason of being prevented from continuing to undertake his remunerative work, is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of his war-caused incapacity?
56. The Tribunal heard no direct evidence on this issue. Ms Serpell contended that Mr Butterfield has suffered a loss of salary as a result of ceasing work. The Tribunal notes that Mr Butterfield was in full time employment up to the time at which he ceased work. The Tribunal has found that Mr Butterfield is prevented from continuing to undertake his remunerative work because of his war-caused disability of PTSD alone. The Tribunal has heard and accepts the evidence of Mr Butterfield’s high work ethic throughout his working life. Accordingly, the Tribunal accepts that the cessation of his full time work has resulted in the loss of the salary Mr Butterfield was receiving while working. As a result, the Tribunal is reasonably satisfied that but for his PTSD Mr Butterfield would not be suffering the loss of salary, wages or earnings that he is suffering as a result of being prevented from undertaking his remunerative work.

CONCLUSION

57. The Tribunal has found that:
    • (a) Mr Butterfield’s remunerative work is factory management;
    • (b) Mr Butterfield is totally and permanently incapacitated by his war-caused PTSD, which is of such a nature that it renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week;
    • (c) it is Mr Butterfield’s war-caused PTSD alone that prevents him from continuing to undertake his remunerative work; and
    • (d) as a result Mr Butterfield is suffering a loss of earnings that he would not be suffering if he were free of his PTSD.
58. Accordingly, the Tribunal has found that all the necessary elements of section 24 of the Act are satisfied, and as a consequence Mr Butterfield is entitled to be paid a pension at the Special Rate. As the Tribunal has found that Mr Butterfield is entitled to the higher Special Rate of pension, there is no need to consider whether he is entitled to the lesser Intermediate Rate under section 23 of the Act.
59. As there was no disagreement between the parties with regard to the date of effect, the Tribunal accepts the respondent’s submission that the date of effect to be applied is 28 June 2007.

DECISION

60. The Tribunal sets aside the decision under review and substitutes the decision that Mr Butterfield is entitled to be paid a pension at the Special Rate with effect from 28 June 2007.

I certify that the sixty [60] preceding paragraphs are a true copy of the reasons for the decision herein of:

Brigadier C. Ermert, Member

Dr K.J. Breen, Member

Signed: Leah Berardi

Clerk

Dates of Hearing: 28-29 April 2009

Date of Decision: 17 August 2009

Counsel for the applicant: Ms C Serpell of Counsel

Instructing solicitor: Williams Winter

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