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Stiff and Repatriation Commission [2009] AATA 75 (6 February 2009)

Last Updated: 6 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. 2007/1915

VETERANS' APPEALS DIVISION
)

Re
IAN WILLIAM STIFF

Applicant
And
REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Miss E A Shanahan

Date 6 February 2009

Place Melbourne

Decision
The Tribunal sets aside the decision under review and substitutes the decision that Mr Stiff’s depressive disorder is a war-caused disease attracting pension payable at the intermediate rate.

(sgd) E A Shanahan
Member

VETERANS’ AFFAIRS – depressive disorder – post traumatic stress disorder – whether depressive disorder is secondary to accepted condition of ischaemic heart disease – level of incapacity – special rate – intermediate rate

Veterans’ Entitlement Act 1986 s9, s120(1), s120(3), s120A, s23, s24, s28

Statement of Principles Instrument No 17 of 2007 concerning depressive disorder

Statement of Principles Instrument No 27 of 2008 concerning depressive disorder

Statement of Principles Instrument No 58 of 1998 concerning depressive disorder

Statement of Principles Instrument No 5 of 2008 concerning post traumatic stress disorder

Statement of Principles Instrument No 54 of 1999 as modified by Instrument 3 of 1999 concerning post traumatic stress disorder

Statement of Principles Instrument No 53 of 2003 concerning ischaemic heart disease


Banovich v Repatriation Commission (1986) 69 ALR 395

Benjamin v Repatriation Commission [2001] FCA 1879

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

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

Fox v Repatriation Commission (1997) 45 ALD 317

Kattenberg v Repatriation Commission [2002] FCA 412

Re Reardon and Repatriation Commission [2008] AATA 609

Re Robertson and Repatriation Commission (1998) 50 ALD 668

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

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321

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

Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108

Repatriation Commission v Smith (1987) 15 FCR 327

Starcevich V Repatriation Commission (1987) 76 ALR 449

REASONS FOR DECISION


6 February 2009
Miss E A Shanahan

  1. Mr Stiff made a claim on 8 May 2006 for disability pension and medical treatment for incapacity as a result of major depressive disorder. The Repatriation Commission (the Respondent) rejected the claim on 22 June 2006 because the condition was not war-caused. That decision was reviewed by the Veterans’ Review Board (VRB) on 17 April 2007. In the interim Mr Stiff’s diagnosis was amended, on medical opinion, to post traumatic stress disorder (PTSD) with co-morbid depression and alcohol dependence or abuse in remission. The VRB affirmed the Commission’s decision. The VRB determined that Mr Stiff did not suffer from PTSD or alcohol abuse or dependence and that the correct diagnosis was that of a depressive disorder. Mr Stiff’s pension remained at 100 percent of the general rate. Mr Stiff sought review of this decision by the Administrative Appeals Tribunal (AAT) and consideration that pension be payable at special or intermediate rate given that he had ceased work on 13 July 2007.
  2. Mr Stiff was represented by Mr D De Marchi, a solicitor, and the Respondent by Mr G Purcell of counsel, instructed by Department of Veterans’ Affairs (DVA). The Tribunal was provided with the documentation pursuant to s 37(a) of the Administrative Appeals Tribunal Act 1975 (the T-Documents). In addition, the parties tendered the following documentation:

FOR THE APPLICANT

FOR THE RESPONDENT

  1. Oral testimony was given by Mr Stiff, Dr Martin Atkins, Dr Nigel Strauss, Mr Michael Burge, Ms Gayle Sanderson, Dr Robyn Horsley and Dr Kiernan Halliburton.
  2. The Respondent has accepted that Mr Stiff has the following disabilities: irritable colon, acne, ischaemic heart disease, bilateral sensorineural hearing loss, bilateral tinnitus and intervertebral disc prolapse at L4-L5. The respondent rejected Mr Stiff’s application for mild depression on 23 April 2002, as it did his later application for depressive disorder.

ISSUES BEFORE THE TRIBUNAL

  1. The issues before the Tribunal are:

(a) The correct diagnoses of Mr Stiff’s psychiatric disorder and the dated of clinical onset of this disorder.

(b) Whether this psychiatric disorder is primary, that is, resulted from his experiences in Vietnam or was a secondary to his accepted ischaemic heart disease with the date of onset in early 2001.

(c) The degree of Mr Stiff’s incapacity for work.

BACKGROUND TO THE APPLICATION

  1. Mr Stiff is now 61 years old. He was called up for National Service on 29 January 1969 and served in the Australian Army in South Vietnam from 12 May 1970 to 10 December 1970. While initially posted as a rifleman in C Company of 2 RAR he transferred to an administrative position two weeks after his arrival in South Vietnam. This position involved the running of the bar in the officers’ mess. In addition, Mr Stiff was required to take part in occasional security patrols around the camp at Nui Dat.
  2. Mr Stiff’s claim for an increase in pension is based on the development of a war-caused psychiatric disorder (be it either a major depressive disorder or PTSD) with depressive disorder or PTSD and separate depressive disorder as a result of certain stressful incidents which occurred during his operative South Vietnam service. These incidents were:

(a) Seeing the body of a young South Vietnamese girl known to him as Couc, the daughter of the owners of the laundry used by 2 RAR. Her throat had been cut, presumably by the Viet Cong. Mr Stiff had in the course of his regular visits to the laundry (four or five in all) established a rapport with Couc. He feared this relationship might have contributed to her death (The Cuoc Incident).

(b) His involvement in a patrol that had established an ambush position outside the wire of the Nui Dat camp. The position was moved on to two further sites without explanation. No contact was made with the enemy but the changes in position were a cause of alarm (The Ambush Incident).

(c) An explosion above the Nui Dat headquarters, believed to be due to outgoing fire. His reaction to this was described as being bloody scared (The Explosion Incident).

(d) Seeing two civilian bodies, minus limbs, in the gutter of a village as Mr Stiff and another soldier drove past. They did not stop (The Dead Civilian Incident).

  1. Of these four incidents the first had the greatest impact in psychosocial terms. The third incident has been confirmed by army sources. The first, second and fourth incidents have not been officially recorded or confirmed anecdotally but neither have they been denied. Writeway Research Services considered that those three events may possibly have occurred.
  2. Following his discharge from the army, Mr Stiff recommenced work with his pre-service employer within one week. He left after six weeks when his employer refused to give him a wage rise. Mr Stiff relocated to Melbourne and obtained employment as a printer with Trans Australia Airlines (TAA). He also worked part time at the Pascoe Vale RSL Club as a barman for two years. He remained with TAA until 1976. From 1976 to 1986 he managed a menswear store in Ballarat, which he owned jointly with his wife’s parents. From 1986 to 1991, after the sale of the menswear store, he managed a hotel in Ballarat. He then worked as a car salesman from 1991 to 1993 or 1996. Prior to leaving the car salesman position he had arranged employment at the Sovereign Hill Lodge. He was in charge of accommodation services. Sovereign Hill Lodge accommodated 450 guests with commensurate staff for whom Mr Stiff was responsible. Mr Stiff’s work history is exemplary. At Sovereign Hill he worked from 7.00 am until 11.00 pm, five or six days per week. His wife and children lived with him at the hotel in Ballarat and then at Sovereign Hill. They objected to this lifestyle. Mrs Stiff also objected to her husband’s drinking. They separated in 1996.
  3. Mr Stiff drank alcohol while in Vietnam without any substantial increase in his intake. He says that in 1986 he drank four to five beers after work each night and more on Thursday night, when the Ballarat traders met socially.
  4. Mr Stiff denied feeling depressed until 2001. For five years prior to this date he had been living alone. His mood had become low and he was drinking to excess. In September 2000 he developed angina and underwent semi-urgent coronary bypass grafting within two weeks. He ceased smoking cigarettes and drinking alcohol when admitted to hospital. After the coronary surgery he was depressed, emotionally fragile and took three months to recuperate. He spent much of his time in Adelaide with his new partner Gayle Sanderson. Ms Sanderson moved to Ballarat to live with him in 2001 and obtained managerial employment at the local golf club. Mr Stiff commenced taking anti-depressant medication in 2001.
  5. On his return to work in late 2001, Mr Stiff worked initially from 7.00 am to 3.00 pm, six days per week increasing to a finishing time of 6.00 pm. He was provided with additional managerial staff to assist him.
  6. In April 2006 Mr Stiff took sick leave from his job at Sovereign Hill as he wasn’t coping with the pressure of the business. He resigned his position and ceased work on 13 July 2007 having discussed the status of his health with his general practitioner and treating psychiatrist.
  7. Mr Stiff had originally planned to retire on reaching the age of 60 and had purchased a caravan in 2005 with the intention of travelling around Australia in his retirement. He also planned to work part time when necessary to supplement his and Ms Sanderson’s income. In late 2007 Ms Sanderson contacted Motel Minders via the internet searching for positions as relieving motel managers. A vacancy commencing on 26 December 2007 did not coincide with their plans, but a temporary position running a motel in Leeton for three months suited their intention to drive to northern Queensland. Ms Sanderson and Mr Stiff commenced work on 15 January 2008 and on 21st of that month they were told by the owner, one Mr Thomson that the arrangement just hadn’t worked out. There were several reasons. Mr Stiff was required to perform computer services for another motel in Newcastle and this he found beyond his capabilities. He was also required to paint the motel – an old house, as well as performing the nominated tasks of reception, breakfast preparation and bar work. The motel was running at a loss and going backwards at 100 miles per hour.
  8. Mr Stiff returned to Ballarat. He has not sought work since, except for seeking more information about a similar position in northern Queensland. In April 2008 he began receiving pension at 100 percent of the general rate.
  9. Ms Sanderson first met Mr Stiff in 1996. They have lived together since 2001. She dated Mr Stiff’s depressive symptoms as commencing in 2001 after his coronary artery surgery; and his social withdrawal as being of four years duration.
  10. All the psychiatrists who have examined Mr Stiff have made diagnoses of depression. On 4 April 2002 Dr Rajagopalan diagnosed mild depression with clinical onset in the year 2000 (T6, p16). Dr Rajagopalan appeared unaware of Mr Stiff’s coronary artery surgery of that year and refers only to a myocardial infarct. Dr Atkins, the treating psychiatrist, diagnosed chronic depression and anxiety in February of 2006. He changed his diagnosis to PTSD with secondary depression in June 2007. Dr Debenham diagnosed PTSD and a major depressive disorder with alcohol abuse or dependence in October 2006, when he assessed Mr Stiff for enrolment in the Vietnam Veterans’ Psychiatric Unit PTSD program. Dr David Kruse was the psychiatrist treating Mr Stiff while undertaking the PTSD inpatient course at the Austin Hospital. Dr Kruse accepted Dr Debenham’s diagnosis. He reported Mr Stiff’s improvement with counselling but noted that for the latter half of the four week course Mr Stiff’s anxiety related to his forthcoming coronary artery stenting and Ms Sanderson’s forthcoming knee replacement. For reasons that are not clear Dr Debenham and Dr Atkins were under the impression that Mr Stiff was already receiving a disability pension for anxiety and depression. Mr Burge, psychologist, diagnosed PTSD and a co-existing major depressive disorder in September 2007. He also opined that Mr Stiff met all the requirements of the relevant Statement of Principles (SoP). Dr Nigel Strauss diagnosed a depressive disorder of mild severity arising from Mr Stiff’s Vietnam experiences. He did not believe there was any resulting significant incapacity for full time work.
  11. Mr Stiff has a documented lumbar disc degenerative disorder and ischaemic heart disease both of which are accepted disabilities productive of symptoms and requiring ongoing treatment. In 1993 he developed right neck and shoulder pain which was attributed to a seventh cervical nerve root brachialgia, secondary to a cervical disc lesion. A laminectomy was contemplated but, to Mr Stiff’s relief, found not necessary on assessment by a neurosurgeon. Mr Stiff occasionally suffers neck pain but apart from one week’s hospitalisation in 1993 for investigation of this condition, it has never prevented him from working. Dr Horsley, occupational health physician, assessed Mr Stiff’s work capacity in relation to his physical condition and found him capable of working between 8 and 20 hours per week. She found that the neck condition, which the Respondent did not accept, also contributed to this limitation in his work capacity.

ORAL EVIDENCE BEFORE THE TRIBUNAL

MR STIFF

  1. Mr Stiff’s evidence has been summarised under BACKGROUND TO THE APPLICATION. However, there are some salient points which warrant further reporting. He felt that he had been coping well with his life in general, until his coronary artery surgery of 2000. Following this surgery he noted his memory was waning and had become erratic. In retrospect he believed he had been depressed for five to ten years prior to this event.
  2. Mr Stiff described his emotions in response to the four stressful incidents forming the basis of his claim. He had met the young Vietnamese girl, Couc, on four or five occasions before she was killed and had established a degree of rapport. His response to Couc’s murder was one of shock and horror. However, he coped with the event, describing it as not being a pleasant one. His response to viewing the two dead and dismembered Vietnamese citizens was one of shock. His major worry was about the future of their wives and children. The ambush incident caused him apprehension and he felt scared. Similarly, he was scared during and after the explosion at the Nui Dat camp.
  3. In his evidence before the Tribunal he raised another stressful event relating to the death of a Sergeant Tom Burnie, who had been shot by a fellow Australian soldier. Mr Stiff had not been present at the shooting but heard about it on the radio. He had known Sergeant Burnie in Townsville during their training and in Vietnam Sergeant Burnie drank regularly in the Sergeant’s Mess where Mr Stiff worked. He was upset by this accidental death.
  4. Mr Stiff believed that he had been more aggressive on his return from Vietnam but otherwise did not notice any abnormality in his behaviour. He did not feel depressed.
  5. During the first two years of his time with TAA Mr Stiff had a second job at Pascoe Vale RSL Club, working from 6.00pm to 9.00pm, two to three days per week and on Saturdays. He needed this extra income as he had purchased a house and had a mortgage to service. The club members were aware that he was a Vietnam veteran.
  6. During the period Mr Stiff managed a menswear store in Ballarat he had coped until the last four years, that is 1982 to 1986, during which time he developed difficulties dealing with the public. The main reason for leaving his job as a hotel manager was that his wife and daughters, who lived on the premises with him, did not like the lifestyle and asked him to find other employment. For approximately the next three to five years he worked as a car salesman and came into conflict with the manager of the business, as the latter would not discount cars. Mr Stiff worked on a commission basis and presumably this affected his income. He applied for and was appointed to the job at the Sovereign Hill Lodge before he resigned as a car salesman.
  7. He enjoyed his work at the Sovereign Hill Lodge. His family lived with him on site for approximately three to four years, before he and his wife separated in 1996. He and his wife had grown apart over a period of many years. Following their separation he lost most of his friends and his children refused to see him, blaming him for the failure of the marriage. Any conflict with staff members at Sovereign Hill related to the standard of cleanliness. He thought he had possibly been unreasonable in the standards he set. In the early 2000’s, he had reduced a housemaid to tears after chastising her about the standard of her work.
  8. Mr Stiff’s general practitioner had instituted treatment for his depression in late 2001 or early 2002. Dr Halliburton had initiated discussions regarding his (Mr Stiff’s) retirement. These discussions occurred in April 2007, although Dr Halliburton had raised the question in 2006.
  9. Mr Stiff denied that he ever had dreams regarding the Couc incident or saw images of the young girl. He thought about her occasionally, but his thoughts were to wonder what she would have been like in, for example, 2008, had she not been murdered.
  10. Mr Stiff confirmed his plans to retire and travel around Australia by caravan working part time as a relieving motel manager, in order to fund his travels.

MS GAYLE SANDERSON

  1. Ms Sanderson has known Mr Stiff for 12 years and they have lived together for the last seven years. From 1996 to 2000 she saw him on long weekends only. She shifted to Ballarat in early 2001. Despite working long hours six days a week Mr Stiff had believed he was coping well. However, housemaids from Sovereign Hill Lodge had told her of episodes where he had criticised staff unreasonably. This was in contrast to his behaviour prior to his heart surgery when they considered him as being firm but fair.
  2. Ms Sanderson described Mr Stiff’s sleep pattern since 2001 as being disturbed. He went to bed and to sleep at 8.00 pm, waking at 2.00 am feeling hot. He suffered frequent dreams and thrashed around in bed but was unable to remember the contents of his dreams. She had noted his irritability, anger, and poor concentration for the past three years. His social contact was limited to his doctors, their neighbours and her family and this had been the case for the past four years.
  3. Ms Sanderson confirmed their intentions to travel and work on a casual basis. Following the failed Leeton Motel experience, they had not looked for further casual work as Mr Stiff had lost interest and their financial status had improved on receipt of their DVA pension payments from April 2008.

DR KIERNAN HALLIBURTON – TREATING GENERAL PRACTITIONER

  1. Dr Halliburton’s clinical notes have been provided to the Tribunal (Exhibit R2). In his evidence he confirmed his initial diagnosis of a depressive disorder. He began treatment in 2002 and referred Mr Stiff to Dr Atkins in 2006. The diagnosis had changed to PTSD following Mr Stiff’s assessment by a psychiatrist at the Austin Hospital and Dr Atkins concurrence in this diagnosis.
  2. Mr Stiff had not complained to Dr Halliburton of any neck pain or movement restriction for more than 10 years. Dr Halliburton had attributed Mr Stiff’s headaches to the use of nitrates for his angina and his giddiness or light headedness to the existing depression and anxiety state. Dr Halliburton agreed he had raised the subject of retirement with Mr Stiff as Mr Stiff appeared not to be coping with his work. Dr Halliburton had also discussed Mr Stiff’s workload with Mr Johnson, his employer, and suggested a decrease in the hours he was working or that Mr Stiff retire. Mr Stiff tendered his resignation to Mr Johnson but the latter did not immediately accept it. These discussions with Mr Johnson and Mr Stiff took place in April 2007.
  3. The Tribunal notes from Dr Halliburton’s clinical records that Mr Stiff underwent limited investigation for ischaemic heart disease in 1996, having presented with central chest pain radiating to both arms. As the tests were negative, in that his ECG did not show evidence of ischaemia and his cardiac enzymes were normal, no further action was taken at that time.

PSYCHIATRIC OPINIONS

DR MARTIN ATKINS – PSYCHIATRIST

  1. Dr Atkins diagnosed Mr Stiff as suffering from a chronic depressive disorder with anxiety in February 2006. While he had considered the possibility of PTSD there was insufficient symptomotology to make such a diagnosis in early 2006 (Exhibit R3). Mr Stiff’s symptoms were said to have been present for more than 10 years but had worsened since 2001. Dr Atkins described Mr Stiff’s duties in Vietnam as working with a propaganda unit. A myriad of symptoms were listed but nightmares and flashbacks to the distressing incidents in Vietnam were not among them. Dr Atkins noted Mr Stiff did dream but had no recall of the content of these dreams. His social relationships which had diminished after his divorce in 1996 had further diminished in the previous four years. Mr Stiff had no contact with his children.
  2. In his evidence to the Tribunal Dr Atkins said he had taken his eye off the ball with respect to PTSD. He was now satisfied the correct diagnosis was PTSD with depressive mood, that is, the depression was part of the PTSD; although this linkage of the two conditions tended to downplay the severity of Mr Stiff’s depressive symptoms. He agreed with Mr De Marchi’s suggestion that Mr Stiff met the criteria for both PTSD and depressive disorder.
  3. Under cross-examination Dr Atkins acknowledged that he had relied on Dr Debenham’s opinion of late 2006. He agreed with the proposition that Mr Stiff’s coronary artery surgery and ischaemic heart disease could have given rise to his depressive state. However, he had not taken a detailed history of Mr Stiff’s surgical treatment nor his psychological response to that event.
  4. The Tribunal asked Dr Atkins if he could indicate the date of clinical onset of Mr Stiff’s depressive symptoms and whether he would meet Factor 5(d) of Instrument No. 58 of 1998 concerning the occurrence of a major illness within two years of clinical onset of depression. Dr Atkins was unable to give an opinion as he had not recorded the duration or onset of symptoms in detail.
  5. Dr Atkins’ clinical notes indicate that Mr Stiff intended to retire at the age of 60, regardless of the success of his DVA claim. The notes also indicate Dr Atkins was involved in discussions regarding and advising retirement. In April 2006 Dr Atkins had changed Mr Stiff’s medication from mirtazapine to venlafaxine (that is Avanza to Efexor). This had resulted in a noticeable improvement in his condition. This was corroborated by Ms Sanderson. Mr Stiff’s sleep improved significantly and he no longer experienced nightmares. His interests and enjoyment of day-to-day activities had also improved and he was less irritable than before (Exhibit R3). The Tribunal notes that according to the (MIMS Annual 2007) Avanza is associated with the adverse reaction of causing nightmares.

MR MICHAEL BURGE

  1. Mr Burge is a psychologist with extensive experience in management of PTSD, having worked as a counsellor for the Vietnam Veterans’ Association from 1989 to 1996. Mr Burge had seen Mr Stiff in July 2007 and reported that he complained of numb and flat feelings, avoidance of war films and ANZAC Day activities, ruminating about the death of Couc, anxiety and worry most of the time, increased vigilance, feeling keyed up, difficulty concentrating, difficulty falling asleep, nightmares, irritability, breakdown of relationships and suicidal thoughts but no flashbacks to the stressful Vietnam events. Mr Burge diagnosed PTSD with a co-existing major depressive disorder, both of which dated from his Vietnam service. He reported that Mr Stiff had benefited from attendance at the PTSD courses and was now more able to understand and express his psychological difficulties. Mr Burge concluded that Mr Stiff met all the diagnostic criteria for depressive disorder as outlined in Instrument No 17 of 2007, the SoP concerning depressive disorder, having experienced both Category 1A and 1B stressors. The existence of PTSD symptomotology for many years had resulted in depression and Factor 5(g) of the depressive disorder SoP was satisfied. Despite the overlap of symptoms of PTSD and a depressive disorder, Mr Burge maintained there were two separate psychiatric disorders suffered by Mr Stiff.
  2. Mr Burge’s oral testimony was to the same effect as his written report (Exhibit A8). While he had been aware of Mr Stiff’s coronary artery disease and surgery he had not referred to it in his report as he regarded the Vietnam events as the most important from the psychological viewpoint.

DR NIGEL STRAUSS (EXHIBIT R4 AND R5)

  1. Dr Strauss’ report was detailed, describing Mr Stiff’s unhappy childhood, leaving school midway through year 9 and successfully completing an apprenticeship in printing prior to his call-up for National Service in 1969. Mr Stiff had described himself as always a worrier.
  2. Dr Strauss recorded that Mr Stiff had smoked 12 cigarettes per day on entering the army and was smoking 60 per day when he was discharged. His alcohol consumption followed a similar pattern, drinking alcohol prior to enlistment at a moderate level and leaving the army as a heavy drinker. Dr Strauss emphasised Mr Stiff’s heart attack in 2000, the coronary artery surgery of the same year and the need for further coronary artery stenting in 2005 and 2007.
  3. Dr Strauss noted Mr Stiff’s work history, which was in accord with that given by Mr Stiff to the Tribunal.
  4. Dr Strauss noted that Mr Stiff said that his marriage had been relatively happy for 6 to 7 years and then deteriorated. He and his wife slept in separate rooms for at least 5 years before they officially separated. Mr Stiff had had no contact with his children since the separation.
  5. Dr Strauss also noted that Mr Stiff said he had commenced psychotropic medication in 2002. Mr Stiff described mood fluctuations, wherein for a few days he became emotional and tearful and on bad days he felt depressed, lacked motivation and withdrew from social contact. His symptoms had been much improved by the taking of antidepressants. For many years Mr Stiff’s sex drive had been diminished. Over the previous ten years he had had suicidal thoughts particularly when his marriage was falling apart. Mr Stiff told Dr Strauss that his memory and concentration had deteriorated and at times he was irritable but not as aggressive or angry as he had been before he commenced medication. Mr Stiff said he slept restlessly and woke frequently. He dreamt a good deal but could not remember what his dreams where about. While he thought about his time in Vietnam he had no specific frightening or intrusive flashbacks. Mr Stiff confirmed that he had never felt comfortable in crowds and that he did not attend the RSL or ANZAC Day events. He did not startle easily.
  6. The stressful incidents recorded by Dr Straus were the same as those previously reported.
  7. Dr Strauss concluded that Mr Stiff did not suffer from PTSD. His conclusion was based on the fact that there were no relevant nightmares or ongoing flashbacks. Dr Strauss did diagnose a depressive disorder, present for many years, and contributed to in part by Mr Stiff’s experiences in Vietnam. As Mr Stiff had ceased smoking and drinking after his coronary artery surgery, Dr Strauss concluded there was no evidence of a substance abuse or dependence disorder.
  8. Dr Strauss opined that Mr Stiff had made a conscious decision to retire.
  9. Dr Strauss found that Mr Stiff’s presentation and history met the SoP concerning depressive disorder. He was not convinced that Mr Stiff had any significant incapacity for employment and believed that he was in fact capable of normal full time employment. Dr Strauss was the only practitioner to have performed an incapacity assessment in accordance with the Guide to the Assessment of Rates of Veterans’ Pensions (GARP); assessing Mr Stiff’s incapacity at 20 points, with zero points for occupational impact, in accordance with Table 4.4 of the GARP.
  10. In his evidence before the Tribunal Dr Strauss again ruled out the possibility of PTSD as there were no flashbacks, no reliving of the stressful incidents and no real anxiety symptoms. He considered the coronary artery disease events occurring in 2000 could have made Mr Stiff’s depressive disorder worse. In reply to a question posed by the Tribunal, Dr Strauss confirmed that nightmares, flashbacks and the reliving of stressful incidents were the symptoms that differentiated PTSD from other psychiatric disorders.

ASSESSMENT OF WORK CAPACITY

DR ROBYN HORSLEY

  1. Dr Horsley assessed Mr Stiff’s capacity for work having taken an exhaustive history and completed a full medical examination. She found Mr Stiff capable of working between 8 and 20 hours per week, but not more than 20 hours because of his lower back pain and his neck pain (C7 brachialgia). The C7 brachialgia is not an accepted disability. Thus, she found his incapacity was not solely due to his accepted disabilities.

DOCUMENTARY EVIDENCE

  1. Mr Stiff was assessed by three other psychiatrists, Dr Rajagopalan in 2002, Dr Debenham in October 2006 and Dr David Kruse in April 2007.
  2. In 2002 Mr Stiff, having lodged a claim for disability pension based on war-caused depression, saw Dr Rajagopalan for an assessment at the request of the DVA, The only stressor identified by Dr Rajagopalan was the Couc incident. Mr Stiff denied to Dr Rajagopalan that he suffered any symptoms at the time of his return from Vietnam.
  3. Mr Stiff’s major complaint to Dr Rajagopalan was of 10 to 15 years of mood swings, becoming more prominent since 1997. He reported them as occurring once per week and lasting 10 to 15 minutes when Mr Stiff would get angry or lose control. Following the breakdown of his marriage Mr Stiff felt depressed for one month. His current mood swings had never lasted for more than a few days. Mr Stiff admitted to one episode of suicidal thought following an argument with his wife in 1987. While there might have been other episodes of suicidal ideation, Mr Stiff could not put a date on them. His sleep had been disturbed for two years. While falling asleep within 15 to 30 minutes he woke six hours later and it would take one hour before he dozed off again. Mr Stiff could not remember the content of his bad dreams.
  4. Dr Rajagopalan specifically excluded any history of anxiety or panic attacks, distressing flashbacks, easy startling and an aversion or anxiety arising from seeing people of Asian appearance. Mr Stiff said he was involved with the RSL and attended ANZAC Day parades regularly on returning from Vietnam but had recently dropped out. He had also been a member of Legacy. Mr Stiff had kept a scrapbook of his time in Vietnam and went through it at six-monthly intervals as one would do with a family album.
  5. Dr Rajagopalan diagnosed Mr Stiff as suffering from mild depression with onset in the year 2000 with no effect on capacity for work and no current impairment.
  6. Dr Debenham saw Mr Stiff in October 2006 in order to assess his suitability to attend the PTSD course at the Austin Hospital. The referral had been made by Dr Atkins.
  7. Dr Debenham’s method of report-writing is unusual in that he commences by stating each of the criteria for PTSD and then entering the symptoms Mr Stiff reported. Under Criterion A he mentions the various stressors to which Mr Stiff was exposed in Vietnam. Criterion B listed intrusive thoughts, recollections and images of Vietnam all of which occurred two to three times per month. On a nightly basis Mr Stiff was reported to yell in his sleep and thrash about in bed and wake in a sweat. Under Criterion C (subtitled avoidance) Mr Stiff is said to avoid thoughts of war and Vietnam, crowds, social gatherings and TV programs and films concerning war. Under Criterion D (subtitled arousal) Dr Debenham listed initial and middle insomnia, extreme irritation with people, hyper-vigilance, the seeking of safe seats in public places and mild startle response. As all the criteria A to D had unfurled since his time in Vietnam, Criterion E was satisfied. The symptoms were of definite clinical, social and occupational significance (Criterion F). Thus all the criteria were met and the Dr Debenhams’s diagnosis was war-caused PTSD.
  8. Dr Debenham also diagnosed alcohol abuse or alcohol dependence in remission. While it might be a typographical error, Dr Debenham records that Mr Stiff had ceased drinking eight months previously, that is in 2006. On all the other evidence this is incorrect. Mr Stiff told the Tribunal he reduced his drinking in 1998, that is eight years previously and further decreased his alcohol intake to one or two beers on a fortnightly basis after his coronary artery surgery. Dr Debenham also recorded frequent suicidal thoughts, which is not reported by others; and he seems to be under the impression that Mr Stiff has been in receipt of a DVA disability pension for anxiety and depression since the early 1990s.

DR DAVID KRUSE

  1. Dr David Kruse completed the discharge summary from the Austin Hospital on 3 April 2007, following Mr Stiff’s inpatient PTSD program. It would appear that Dr Kruse was the psychiatrist in charge of this program. The diagnosis recorded in this summary was PTSD, depression. Dr Kruse was also under the impression that Mr Stiff had accepted disabilities of anxiety state and depression. Dr Kruse reported that Mr Stiff had benefited from the course in that his mood had lifted and he was communicating better. Mr Stiff was reported as having decided to retire later in 2007, irrespective of the outcome of his DVA application. This decision was based primarily on his cardiac history. In the later part of this four week course Mr Stiff’s focus appeared to have shifted to other medical issues, namely his forthcoming repeat coronary artery stenting and Ms Sanderson’s planned joint replacement surgery.

OTHER DOCUMENTARY EVIDENCE

  1. As previously mentioned, the third incident relating to an explosion over the Nui Dat camp was verified by Mr John Tilbrook of Writeway Research Service. The other incidents while not recorded in any army documentation were not excluded and therefore remained a possibility.
  2. Mr Stiff provided tax returns verifying the loss of income following his resignation from employment with Sovereign Hill Hotel/Motel. The Respondent also provided the DVA printout of Ms Sanderson’s and Mr Stiff’s current pension rate.
  3. An email from Mr Thomson, the owner of the Leeton Motel, confirmed that Mr Stiff and Ms Sanderson had worked at Historic Hydro Motor Inn for a period of one week in January 2008.
  4. Mr Johnson, Chief Executive Officer of Sovereign Hill Lodge, confirmed Mr Stiff had been employed as manager of the Lodge since 1993, carrying out his role in an exemplary manner. During his term as manager the accommodation facilities at Sovereign Hill had doubled, the business increased in complexity and extensive growth had occurred in the schools’ sector. Mr Johnson described Mr Stiff as having a stoic outward approach but he was aware of Mr Stiff’s increasing concern as to his ability to cope with such stress because of his medical condition.
  5. Mr Johnson described Mr Stiff as a very honest person who had up until recent times kept a very difficult personal situation private. Mr Johnson expressed his desire to assist Mr Stiff in his application to DVA for pension benefits.
  6. In his evidence before the VRB, Mr Stiff had denied that he told Dr Rajagopalan that he attended the RSL, ANZAC Day marches and that he kept a scrapbook. He did acknowledge that he worked with Legacy and had a Battalion Book he flicked through fairly regularly. Mr Stiff described his recollections of Vietnam as thinking about Couc and other Vietnamese children he had seen. With respect to Couc his reflections were more a memory than a flashback. He hadn’t thought about her in the first two years after returning from Vietnam but did thereafter recall the young lady after conversations regarding experiences in Vietnam.

RELEVANT LEGISLATION

  1. Section 9 of the Act provides for compensation to Veterans resulting from war-caused injuries or disease where:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
  1. As the applicant has rendered operational service, s 120(1) and s120(3) of the Act are applicable with respect to the standard of proof. These sections state;
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
  1. As Mr Stiff’s claim was made after 1 June 1994, s 120A is attracted in relation to the testing of a reasonable hypothesis in terms of the SoP scheme. Section 120(4) provides that the standard of proof in relation to testing of the reasonableness of the hypothesis is that of reasonable satisfaction.
  2. The SoPs relied upon by the Applicant included not only the current SoP but earlier SoPs, should these be more favourable to the claim (Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108; Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321).
  3. In relation to depressive disorder the current SoP is Instrument Nº 27 of 2008. This SoP outlines the diagnostic criteria and the minimal factors that must be present to link the condition with service:
    1. (a) This Statement of Principles is about depressive disorder and death from depressive disorder.
(b) For the purposes of this Statement of Principles, “depressive disorder” means a group of psychiatric conditions which are manifested by a dysphoric mood. The mood disturbance is prominent and persistent. This definition is limited to major depressive episode, recurrent major depressive disorder, dysthymic disorder, depressive disorder not otherwise specified, substance-induced mood disorder with depressive features, or mood disorder due to a general medical condition with depressive features, or with major depressive-like episodes, where: ...

"major depressive episode" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):

  1. Five (or more) of the following symptoms have been present during the same two-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure. Symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations, should not be included.

(1) depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful). In children and adolescents, it can present as irritable mood;

(2) markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others);

(3) significant weight loss when not dieting or weight gain (e.g., a change of more than five percent of body weight in a month), or decrease or increase in appetite nearly every day. In children, consider failure to make expected weight gains;

(4) insomnia or hypersomnia nearly every day;

(5) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down);

(6) fatigue or loss of energy nearly every day;

(7) feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick);

(8) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others); or

(9) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.

  1. The symptoms do not meet criteria for a mixed episode.
  1. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
  1. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism).
  2. The symptoms are not better accounted for by bereavement, i.e., after the loss of a loved one, the symptoms persist for longer than two months or are characterised by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.
  1. The factor relied upon in order to raise a reasonable hypothesis (s120(3)) was Factor 6(a)(iii) of Instrument Nº 27 of 2008 – experiencing a Category 1B stressor within the five years before the clinical onset of depressive disorder.
  2. A Category 1B stressor is defined as one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
  1. While not relied upon by the Applicant, it is also relevant to consider the criteria for a mood disorder due to a general medical condition and the relevant factor.
"mood disorder due to a general medical condition with depressive features, or with major depressive-like episodes" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
  1. A prominent and persistent disturbance in mood predominates in the clinical picture and is characterised by depressed mood or markedly diminished interest or pleasure in all, or almost all, activities.
  2. There is evidence from the history, physical examination, or laboratory findings that the disturbance is the direct physiological consequence of a general medical condition.
  1. The disturbance is not better accounted for by another mental disorder (e.g., adjustment disorder with depressed mood in response to the stress of having a general medical condition).
  1. The disturbance does not occur exclusively during the course of a delirium.
  2. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

The relevant Factor is 6(a)(viii):

having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of depressive disorder;

A clinically significant condition is defined as:

any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

and:

"a medical condition as specified" means an endocrine, cardiovascular, respiratory, metabolic, infectious, or neurological condition, that causes symptoms consistent with depression, as a direct physiological consequence of the condition;
  1. The general medical condition being a direct physiological cause of the depression is addressed in the definition section:
signs or symptoms of depressed mood are directly related to the pathological process of the general medical condition, and:
(a) the depressive symptoms have a close temporal relationship with the onset or exacerbation of the general medical condition, and the depressive symptoms developed at the same time or after the onset of the general medical condition;
(b) treatment which causes remission of the general medical condition also results in remission of the depressive symptoms; or
(c) features of the depressive disorder, such as an unusual age of onset, a qualitative difference in symptoms, or disproportionately severe or unusual symptoms, are inconsistent with a primary diagnosis of any of the mood spectrum disorders.
  1. In relation to PTSD, Mr Stiff relied on Instrument Nº 6 of 2008. PTSD is defined in Clause 3 (b):
    1. (a) This Statement of Principles is about posttraumatic stress disorder and death from posttraumatic stress disorder.
(b) For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved
actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
  1. The factor which Mr Stiff relied upon to link the disorder to his relevant service is Factor 6(a) or 6(b):
The factor that must exist before it can be said that, on the balance of probabilities, posttraumatic stress disorder or death from posttraumatic stress disorder is connected with the circumstances of a person’s relevant service is:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or ...

Category 1A and 1B stressors are defined as follows:

"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
  1. Given the evidence before the Tribunal which points to the existence of a reasonable hypothesis linking Mr Stiff’s depressive disorder to his ischaemic heart disease which is an accepted disability, the SoPs concerning ischaemic heart disease are also relevant to the resulting complex hypothesis. The relevant SoPs are Instrument Nº 53 or 2003 as amended by Instrument Nº 9 of 2004 and the current SoP Instrument Nº 89 of 2007. In each of these SoPs the factor relied upon is that incriminating cigarette smoking, that is, Factor 5(f) of SoP Nº 53 of 2003 and Factor 6(h) of Instrument Nº 89 of 2007.
  2. The Tribunal is also required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82. The series of steps are as follows:
    1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
    2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
    3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
    4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

SUBMISSIONS

THE APPLICANT

  1. Mr De Marchi outlined the various diagnoses that might be attracted by the material before the Tribunal. These were a major depressive disorder or PTSD; or both co-existing conditions without any inter-relationship other than causation. Relying on the evidence of Drs Atkins, Halliburton and Debenham and that of Mr Burge, the correct diagnosis was PTSD with a separate diagnosis of a major depressive disorder. Dr Strauss alone diagnosed a major depressive disorder and had excluded the diagnosis of PTSD. Mr De Marchi contended that Dr Strauss’ evidence should not be preferred, given that he had only seen Mr Stiff on one occasion for approximately 50 minutes and had not spoken with Ms Sanderson, over the evidence of Dr Atkins who had treated Mr Stiff over a period of three years. Regardless of which diagnosis was favoured, all the psychiatric evidence had placed the clinical onset as being during or shortly after Mr Stiffs’ Vietnam service and certainly within five years of experiencing a category 1B stressor as required under SoP Nº 5 of 2008 and No 5 of 1998. Mr De Marchi contended that the PTSD had in turn resulted in the development of a major depressive disorder satisfying Factor 6(a)(vii) of SoP Nº 27 of 2008:
having a clinically significant psychiatric condition within two years before the clinical onset of depressive disorder.

In the alternative Mr Stiff relied on Factor 6(a)(viii):

having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of depressive disorder;
  1. Mr De Marchi submitted that if one looked at SoP Nº 5 of 1998 regarding PTSD, Factor 5(a) was satisfied.
  2. Mr De Marchi contended that applying the four steps of Deledio steps one, two and three were satisfied and therefore the hypothesis as raised was reasonable. Additionally, there was nothing in the material to satisfy the Tribunal beyond reasonable doubt that Mr Stiff’s psychiatric disorders were not war-caused, which satisfied the fourth step.
  3. Mr De Marchi contended that as Mr Stiff had lodged a claim for an increase in the rate of pension, is under the age of 65 and his degree of incapacity from his war-caused diseases had been determined to be 100 percent, s 24(1)(a) was met. While Dr Horsley had assessed Mr Stiff as capable of working up to 20 hours per week based on his accepted physical conditions, Mr De Marchi submitted that Mr Stiff’s psychiatric disorder alone totally prevented him from working. Section 28 was satisfied in accordance with the authority of Chambers v Repatriation Commission [1995] FCA 1144; (1995) 55 FCR 9 and Repatriation v Smith (1987) 15 FCR 327.
  4. In determining whether s 24(1)(c) was satisfied the Tribunal was required to consider the four questions posed by Branson J in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1:
    1. What was the “relevant remunerative work that the Veteran was undertaking” within the meaning of section 41(c) of the Act?
    2. Is the Veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
    3. If the answer to question two is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the Veteran from continuing to undertake that work?
    4. If the answers to question two and three 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 suffering if he were free of that incapacity?
  5. Mr De Marchi submitted that Mr Stiff’s skills, qualifications and experience were identified as managerial in the hospitality industry. There was a range of opportunities available to him to work in this sphere but he was prevented from doing so by his psychiatric disorder.
  6. Mr De Marchi submitted that Mr Stiff therefore qualified for disability pension at the special rate.

THE RESPONDENT

  1. Mr Purcell submitted that based on the material before the Tribunal the correct diagnosis of Mr Stiff’s psychiatric disorder was a depressive disorder, this diagnosis being adopted by Dr Rajagopalan, Dr Strauss and initially Dr Atkins. The Respondent relied on the evidence of Dr Strauss and particularly his consideration of Dr Debenham’s interpretation of the diagnostic criteria for PTSD, as symptoms consistent with these criteria were absent from the history given by Mr Stiff. While Dr Strauss had stated that the onset of depressive disorder was during Mr Stiff’s Vietnam service and certainly within five years of experiencing a category 1B stressor, Mr Purcell contended that Dr Strauss was generous in his interpretation, given the evidence that any depression of clinical significance commenced in 2001.
  2. Mr Purcell contended that should the Tribunal accept that the Couc incident met the more recent definition of a category 1B stressor, then the Commission would concede the existence of Factor 5(b) relating to a psychosocial stressor in SoP Nº 58 of 1998 concerning depressive disorder. Should the Tribunal find that the date of clinical onset was in 2001 then Factor 5(d),
having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of depressive disorder;

would be attracted.

  1. Mr Stiff’s ischaemic heart disease (IHD) is an accepted disability. Mr Purcell contended that if the Tribunal found that the cause of Mr Stiff’s depression was due to his ischaemic heart disease, it was submitted that the Tribunal would have to revisit the criteria upon which the acceptance of IHD as war-caused was based. This was Factor 5(f) of Instrument Nº 53 of 2003 relating to the quantity of cigarettes smoked per day (Factor 5(f)(i)) or the number of pack years of cigarettes being at least one pack year (Factor 5(f)(ii)). The evidence before the Tribunal was that Mr Stiff had smoked prior to his Vietnam service but this had increased from 20 to over 60 per day while in Vietnam. Based on the authority of Kattenberg v Repatriation Commission [2002] FCA 412, this increase in smoking and the level of smoking meets the requirement of the SoP concerning ischaemic heart disease. Mr Purcell indicated that such a finding would not be challenged by the Commission.
  2. Mr Purcell contended that the special rate of pension was not attracted on the basis of Dr Horsley’s report that Mr Stiff could work for more than eight but probably less than twenty hours per week. In addition, Dr Horsley was of the opinion that Mr Stiff’s non-accepted cervical brachialgia limited his capacity for work. Mr Purcell pointed out that Mr Stiff had an excellent work record and despite becoming significantly symptomatic from 2001 onwards, he continued to work at the Sovereign Hill Lodge for a further six years. Mr Johnson, the CEO of Sovereign Hill Lodge described Mr Stiff as an exemplary manager. Mr Johnson had not been aware of any psychiatric problems until the year 2007.
  3. Mr Purcell contended that Mr Stiff may qualify for the intermediate rate of pension in accordance with s 23 of the Act. He noted that although Dr Horsley had considered that Mr Stiff possibly had a capacity to work for 40 hours per week this would probably not be beneficial given his general state of health. The question of whether Mr Stiff qualified for the intermediate rate was a matter for the Tribunal based on the evidence before it.

SUBMISSION BY THE APPLICANT IN RESPONSE

  1. Mr De Marchi addressed the question of intermediate rate but maintained that special rate was attracted.

TRIBUNAL’S DELIBERATIONS

  1. Mr Stiff is a veteran who served in the Australian Army in 1969 and 1970. He had operational service in South Vietnam in 1970. He lodged a claim for acceptance of a depressive disorder as being war-caused in accordance with s 14 of the Act on 8 May 2006. He satisfies the requirements of s 9 of the Act and his claim attracts the standard of proof as outlined in s 120. In the interval between the lodgement of his claim and his application to the VRB for review of the Repatriation Commission’s decision denying his claim, the diagnosis of his psychiatric condition altered from a depressive disorder to PTSD with a co-existing but separate depressive disorder. Subsequent to the VRB’s affirmation of the primary decision on 17 April 2007 Mr Stiff tendered his resignation and ceased work on 13 July 2007. As part of his application to the Tribunal he has sought payment of a disability pension at the special rate. In his Statement of Facts and Contentions the applicant claimed only the condition of depressive disorder as being war-caused.
  2. Before proceeding to the identification of a hypothesis pointed to by the whole of the material before the Tribunal, it is necessary to determine the disease or injury from which Mr Stiff suffers (Repatriation Commission v Cooke (1998) 90 FCR 307) and the date of its clinical onset (Re Robertson and Repatriation Commission (1998) 50 ALD 668; Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690). Other authorities (for example Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200) have determined that the provision of a diagnosis in medical terminology is not necessary, it being sufficient to identify only the signs and symptoms. However, the application of the Deledio steps necessitates, at a minimum, the nomination of a provisional medical diagnosis in order to apply the relevant SoP (Benjamin v Repatriation Commission [2001] FCA 1879).

DIAGNOSIS AND CLINICAL ONSET

  1. Four psychiatrists and a psychologist provided expert opinion. They all agree that Mr Stiff has a depressive disorder. Dr Debenham and Mr Burge have diagnosed, in addition to depressive disorder, the quite separate and distinct psychiatric condition of PTSD. Dr Atkins the treating psychiatrist, initially diagnosed and treated Mr Stiff for a depressive disorder and subsequently changed his diagnosis to PTSD with depression. Dr Kruse accepted Dr Debenham’s diagnosis. Doctors Strauss and Rajagopalan diagnosed a depressive disorder and specifically excluded PTSD. With the exception of Dr Rajagopalan, all determined the date of clinical onset of any psychiatric disorder as being within two years of or during Mr Stiff’s service in Vietnam. Dr Rajagopalan placed the clinical onset as being in the year 2000.
  2. The medical history recorded by these experts varies considerably. Before this Tribunal Mr Stiff was an excellent witness who gave his evidence truthfully and concisely. The Tribunal has weighted his testimony accordingly. Mr Stiff denied the cardinal symptoms of PTSD, namely flashbacks, reliving the stressful experiences and having nightmares relating to these events. He described his reaction to Couc’s death as one of sorrow and a feeling of guilt that her friendship with him might have contributed to her death.

98. The Diagnostic and Statistical Manual of Psychiatric Disorders-IV-Text Revised (DMS-IV-TR), and its predecessor DSM-IV, establish the diagnostic criteria for PTSD and depressive disorder. On Mr Stiff’s evidence he does not meet Criterion A(ii) and B of SoP Nº 4 of 1999 concerning PTSD or Criterion B of SoP Nº 6 of 2008. Clause 2(b)A of SoP Nº 4 of 1999 requires that the persons response to the stressor involved intense fear, helplessness or horror and 2(b)B relates to re-experiencing the traumatic event in one of five ways which were not part of Mr Stiff’s evidence to the Tribunal. Clause 3(b)A of SoP Nº 6 of 2008 has similar requirements as does sub-clause B of that Instrument. Mr Stiff does meet the diagnostic criteria for a major depressive disorder in general and for depressive disorder due to a general medical condition in particular. The categorisation of a depressive disorder has changed between 1998 (SoP Nº 58 of 1998) and 2008 (SoP Nº 27 of 2008), reflecting a change in the psychiatric approach to this disorder and the classification of stressors is more prescriptive. In SoP Nº 27 of 2008 the features of each type of depressive disorder have been enlarged upon and major depressive episodes due to a general medical condition are now categorised as a separate type of depressive disorder.

  1. Based on Mr Stiff’s evidence the Tribunal is not reasonably satisfied that he suffers from PTSD as his evidence does not mirror the history recorded by Dr Debenham and Mr Burge. Dr Kruse and Dr Atkins appeared to have deferred to Dr Debenham’s opinion regarding the diagnosis of PTSD.
  2. The Tribunal is satisfied on the balance of probability that Mr Stiff suffers from a major depressive disorder and meets the diagnostic criteria of SoP Nº 58 of 1998, this being the Instrument in force at the time Mr Stiff lodged his claim on 8 May 2006. All of the psychiatric expert opinions support this diagnosis.
  3. Similarly, the majority of psychiatric opinions are to the effect that Mr Stiff’s depressive disorder was present within two years of experiencing the severe psycho-social stressor of the Couc incident. Doctors Strauss and Atkins, who gave oral testimony, considered that Mr Stiff’s coronary artery surgical procedure of September 2000 could have been the causative factor in Mr Stiff’s development of a depressive disorder or an aggravating factor making this disease clinically apparent and requiring treatment. Mr Burge did not record Mr Stiff’s history with respect to ischaemic heart disease nor its treatment.

APPLICATION OF THE STEPS OF DELEDIO

DELEDIO STEP ONE

  1. Several hypotheses were raised by the applicant based on the various possible clinical diagnoses. Having had the benefit of examining all the material before it, the Tribunal has determined that three hypotheses emerge from this material, namely that:
    1. Mr Stiff has developed a recurrent major depressive disorder as a result of his exposure to a severe psycho-social stressor or a category 1A or 1B stressor during his operational service in Vietnam.
    2. Mr Stiff has developed a depressive disorder as a result of this exposure but this was not clinically significant until aggravated by coronary artery surgery for ischaemic heart disease in 2000.
    3. Mr Stiff developed a depressive disorder (recurrent episodic major depressive disorder) in 2001 as a result of the general medical condition of severe ischaemic heart disease.

DELEDIO STEP TWO

  1. There exists an SoP concerning depressive disorder. The SoP attracted is generally that in force at the time the veteran’s claim was lodged. On this basis, the SoP Nº 58 of 1998 concerning depressive disorder is applicable. In accordance with the Federal Court decision in Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 and Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321, and given that two new SoPs, Nº 17 of 2007 and Nº 27 of 2008, have come into force since the decision of the Repatriation Commission to reject the claim, Mr Stiff elected to exercise his “accrued” right to have his claim considered in accordance with the newer SoP. The Tribunal agrees that Instrument Nº 27 of 2008 is marginally more favourable to Mr Stiff’s claim.
  2. The third hypothesis is complex given the sub-hypothesis concerning ischaemic heart disease. The Tribunal is required to re-examine the basis of acceptance of Mr Stiff’s ischaemic heart disease as being war-caused. Instrument Nº 53 of 2003 as amended by Nº 9 of 2004 and the two later SoPs of 2007 and 2008 concerning ischaemic heart disease are equally beneficial to the application. Therefore, Instrument Nº 53 of 2003 is the appropriate SoP.

DELEDIO STEP THREE

  1. Mr Stiff’s contentions have been based on Instrument Nº 27 of 2008 concerning depressive disorder. Having examined all the material before it the Tribunal finds that the hypothesis fits the template of this SoP. Four psychiatrists and a psychologist have diagnosed a depressive disorder with onset during Mr Stiff’s Vietnam service. Dr Rajagopalan diagnosed mild depression with onset in 2000. The Couc incident meets the requirement of a category 1B stressor, Mr Stiff having viewed the dead young girl’s body after her throat had been slit.

DELEDIO STEP FOUR

  1. The Tribunal is satisfied beyond reasonable doubt that Mr Stiff’s depressive disorder is war-caused.
  2. While not necessary to do so, having reached the above decision, the Tribunal has proceeded to fact-finding in order to identify the hypothesis that best fits an SoP template.
  3. There is conflict between the psychiatric opinions as to the clinical significance of Mr Stiff’s depressive disorder prior to 2001. In 2002 Dr Rajagopalan diagnosed mild depression with an onset in 2000, with no effect on work capacity and no current impairment. Dr Strauss doubted the clinical significance of Mr Stiff’s depressive disorder. Mr Stiff dated his symptoms from late 2000 or early 2001. The material strongly points to at least an aggravation, if not the onset, of depressive disorder in early 2001 following Mr Stiff’s semi-urgent coronary artery bypass grafting. Ms Sanderson who has lived with Mr Stiff since 2001 gave evidence of the onset of many symptoms as being within four to five years of Mr Stiff’s retirement in mid-2007.
  4. For the above reasons, the Tribunal has at the fact-finding step in the Deledio process examined the second and third hypotheses and posed the question whether Mr Stiff’s depressive disorder was aggravated or caused by his ischaemic heart disease. In the case of the third hypothesis the diagnosis would then be a mood disorder due to a general medical condition with depressive features or with major depressive episodes; the relevant factor connecting the depressive disorder with Mr Stiff’s service being Factor 6(a)(viii) of SoP Nº 27 of 2008:
Having a medical illness or injury which is life threatening or which results in serious physical or cognitive disability within the five years before the clinical onset of depressive disorder
  1. Mr Purcell conceded that this hypothesis was met at all stages of the Deledio process. While the Tribunal agrees that his concession is well based, it must look also to SoP Nº 53 of 2003 regarding ischaemic heart disease. Mr Stiff’s claim for his ischaemic heart disease being war-caused was based on his smoking history. During his operational service his smoking increased from 12 cigarettes per day before his service, to 20 per day immediately after call-up and reached 60 cigarettes per day at the completion of his service. He continued to smoke approximately 30 cigarettes per day until he entered hospital for his coronary artery surgery. He exceeds the pack year requirement of Factor 5(f) in SoP Nº 53 of 2003 in that he has smoked more than five cigarettes per day for at least one year, immediately before the clinical onset of ischaemic heart disease or one pack year of cigarettes before the clinical onset of ischaemic heart disease. Mr Stiff’s operational service resulted in a very substantial increase in the number of cigarettes smoked per day and, on the authority of Kattenberg v Repatriation Commission [2002] FCA 412
The smoking of the requisite number of cigarettes was contributed to in a material degree by the service or ... would not have occurred but for the rendering of the service.
the Tribunal finds Mr Stiff’s ischaemic heart disease was war-caused.
  1. The Tribunal is of the opinion that the third hypothesis is most strongly pointed to by the material before it and by the analysis of the evidence.

THE QUESTION OF ELIGIBILITY FOR SPECIAL OR INTERMEDIATE RATE

  1. Mr Stiff had hoped to retire at the age of 60, but could not afford to do so. By April 2007 he was forced to acknowledge he was not coping emotionally with his workload at Sovereign Hill Lodge because of his depressive disorder symptomatology. He was also concerned about the status of his heart, having required three invasive coronary artery procedures in the course of six and a half years for ischaemic heart disease. This concern impacted deleteriously on his depressive disorder symptomatology. Coronary artery interventions took place in September 2000, April 2005 and March 2007 and serial coronary angiography revealed progressive atherosclerotic disease in the dominant right coronary artery. This was despite measures he had taken to reduce the risk of progression, such as cessation of smoking and the oral use of statins, which returned his serum lipid levels to the normal range. The Tribunal did not have the benefit of the opinion of a cardiologist or cardiac surgeon with respect to Mr Stiff’s prognosis or what would be an appropriate work-load in such a setting.
  2. Following his retirement on 13 July 2007, Mr Stiff and Ms Sanderson planned to travel around Australia by caravan, working on a casual relieving basis, managing motels in order to supplement their income. Inquiries via the internet led to a three month position as a relieving manager at the Historic Hydro Motel in Leeton, New South Wales commencing on 15 January 2008. Their employment ended abruptly on 21 January 2008 apparently due to a combination of reasons, including Mr Stiff’s inability to perform all the duties he was expected to undertake. While this attempt to work may be considered unsuccessful, its failure was not due solely to Mr Stiff’s accepted disabilities.
  3. Mr Stiff meets the requirements of s 24(a) and s 23(a), having made a claim under s 14 for acceptance of his depressive disorder as being war-caused; being aged 61 and his degree of incapacity having been determined as greater than 70 percent. He was not required to lodge a separate claim for special or intermediate rate as he ceased work during the assessment period (Veterans’ Affairs Legislation Amendment Act 1988). Mr Stiff’s eligibility for payment of pension at an increased rate is to be assessed throughout the assessment period, which extends from the date he lodged his claim until the date of final decision.
  4. Mr Stiff’s claim for the special rate of pension is based on his contention that his war-caused diseases alone have rendered him incapable of undertaking remunerative work for more than eight hours per week (s 24(1)(b)) and prevent him from continuing to undertake remunerative work, such that he has lost salary or earnings that he would not have had he been free of his war-caused incapacity. (s 24(1)(c)).
  5. Eligibility for special and intermediate rate of pension is determined solely in terms of a veteran’s work capacity, in contrast to eligibility for the general rate, which requires a holistic approach.
  6. Dr Horsley had assessed Mr Stiff as having a work capacity of greater than eight hours and less than twenty hours per week taking into account both his physical and psychological disabilities. Her assessment includes a capacity-limiting contribution from Mr Stiff’s C7 brachialgia, which the Respondent has not accepted as war-caused. However, Mr Stiff continued to work and for long hours, for 14 years after the development of the brachialgia. He admits only to occasional neck and right shoulder area pain. These symptoms have never stopped him from working apart from the one week period during which he was hospitalised for investigation of these symptoms in 1993.
  7. Doctors Strauss and Rajagopalan have found the veteran capable of full time work from a psychiatric viewpoint. Doctors Debenham and Kruse did not comment on Mr Stiff’s work capacity and Mr Burge considered full time work would be a struggle and was uncertain if Mr Stiff could cope with part-time work. Dr Atkins opined that retirement from all work would be clinically advantageous to Mr Stiff. Dr Halliburton initiated and supported Mr Stiff’s decision to retire based on Mr Stiff’s conclusion that he was no longer capable of continuing at work, that work being as Manager of Sovereign Hill Lodge. While Mr Stiff’s work performance had been excellent, he was no longer coping with his work emotionally.
  8. Based on the above evidence and expert opinion, the Tribunal is satisfied that Mr Stiff retains a capacity to work greater than eight hours but less than twenty hours per week. Mr De Marchi cited and relied on the recent decision in Re Reardon and Repatriation Commission [2008] AATA 609. However, the facts of that case are such as to distinguish it from this case.
  9. It is sufficient for the claim to succeed if the Tribunal should find that at any time during the assessment period Mr Stiff’s incapacity for work met the requirements of s 23 or s 24 of the Act. Between lodgement of his claim on 8 May 2006 and his cessation of work on 13 July 2007 Mr Stiff worked full time as the Manager of Accommodation Services at Sovereign Hill Lodge. Since then he has worked for only one week as a relieving motel manager in January 2008. Since his retirement it has been his intention to work intermittently.
  10. Mr Stiff does not qualify for the special rate of pension. The Tribunal is thus required to consider only his eligibility for the intermediate rate. The Tribunal finds that he does qualify for payment at the intermediate rate.
  11. The vast majority of the authorities delineating the approach the Commission and this Tribunal must take in determining eligibility for a higher rate of pension have been concerned with the special rate and the interpretation of s 24. However, it is accepted that the Full Court of the Federal Court’s interpretation of s 24 applies equally to s 23.
  12. In Chambers the Full Court of the Federal Court outlined the approach to be taken in determining the work available to the individual but for his or her disability and the operation of s 28 in relation to s 24(1)(b) or in this case s 23(1)(b). Kiefel J in the decision of Fox v Repatriation Commission (1997) 45 ALD 317 adopted this approach. Section 28 was only relevant to considerations under s 24(1)(b) and (23(1)(b)).
  13. With reference to the interpretation of s 24(1)(c) and s 23(1)(c) the Full Court of the Federal Court in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 provided a series of questions that need to be answered in consideration of s 24(1)(c):
  14. It is necessary for the Tribunal to first identify, in accordance with s 28:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
  1. Mr Stiff left school at the age of 15 to commence an apprenticeship in printing. Having successfully completed his apprenticeship, he worked for approximately six or seven years as a printer, his employment being interrupted by two years of National Service. He has not worked in this trade since 1976. Between 1976 and 1986 Mr Stiff managed and worked in a retail menswear store owned with his parents-in-law. Between 1991 and probably 1993 (Mr Stiff says 1996 but his employment history at Sovereign Hill Lodge says he commenced in 1993) Mr Stiff was employed as a car salesman. He has approximately 13 years experience in sales.
  2. Mr Stiff’s longest work experience is in the hospitality industry. During his operational service he worked as a barman in the Officers’ Mess for a period of six months and following his discharge from the Army worked part time as a barman at the Pascoe Vale RSL club, working two to three nights a week and on Saturdays, for two years. Between 1986 and 1991 he managed a hotel in Ballarat and from 1993 until 2007 he was the Manager of the Sovereign Hill Lodge, a large facility catering for 450 guests. It is clear that Mr Stiff’s greatest area of experience is in the hospitality industry (s 28(a)).
  3. In light of his experience, Mr Stiff could work in sales and the hospitality industry but particularly in the management of accommodation facilities (s 28(b)).
  4. Dr Horsley has opined that Mr Stiff’s back condition (for which the Respondent has accepted liability) limits the amount of physical work he can undertake to light, maintenance-type activities. His concentration and memory are mildly impaired but to a level that, in Dr Horsley’s assessment, would impair him sufficiently so that he could only undertake part-time work. As part of his depressive disorder he has exhibited an intolerance or aversion to contact with the public in general. This would limit his ability to work in sales, a hotel or a bar other than for short periods of time. Dr Horsley and Mr Stiff have identified the most suitable part-time or intermittent work with which he could cope as being the managing of hotel-like accommodation on a relieving basis.
  5. Turning to s 23(1)(b) of the Act, which states in effect that the veteran’s incapacity from his war-caused disease of itself alone must render him incapable of undertaking remunerative work other than on a part-time basis or intermittently, the evidence is conflicting. However, on the balance of probability Mr Stiff can only work part time because of his depressive disorder. Dr Horsley, in her formal assessment of Mr Stiff’s work capacity, found that his C7 brachialgia also contributed to his incapacity and he therefore did not meet the requirements of the alone test. While the Tribunal acknowledges Dr Horsley’s expertise and values her assessment, the evidence before the Tribunal is to the effect that Mr Stiff worked uninterruptedly for up to 17 hours per day, 6 days a week over a period of 14 years despite his brachialgia. In this period it obviously did not impact on his capacity for work. There is no reason to believe it will do so in the future. The Tribunal finds that he satisfies s 23(1)(b) of the Act. However, should it be wrong in reaching this conclusion, the operation of s 23(3)(b) expands the circumstances by modifying the alone test, such that the war-caused disability need only be the substantial cause of the veteran’s cessation of work provided it meets the other requirements of s 23(1)(c). The Tribunal finds that Mr Stiff’s depressive disorder is the substantial cause of him ceasing his full time employment at Sovereign Hill Lodge in July 2007. This is consistent with the finding of Kiefel J in Fox in relation to the concept of substantial cause.
  6. Section 23(1)(c) has two limbs, the first being that the veteran by reason of incapacity from war-caused injury or disease or both alone was prevented from continuing to undertake remunerative work that the veteran was undertaking; and secondly, as a result the veteran is suffering a loss of salaries or wages or of earnings on his own account that the veteran would not be suffering if he were free of that incapacity.
  7. In Starcevich V Repatriation Commission (1987) 76 ALR 449, Fox and Jenkinson JJ interpreted the first limb of 24(1)(c) and (s 23(1)(c)). At p 450 their Honours held that the reference to continuing to undertake remunerative work that the Veteran was undertaking was unnecessarily restrictive and this limb should apply to substantial remunerative work that the veteran had undertaken in the past; even if that work was followed by work of a different type before the veteran ceased work altogether.
  8. In Mr Stiff’s case, the evidence indicates that he ceased work on 13 July 2007 because of his depressive disorder; although he was also influenced by his cardiac status. These same conditions impact on his capacity to work in the area of sales and as it is 32 years since he engaged in his trade as a printer he would require substantial retraining in order to even contemplate returning to such a trade. Even if such retraining was feasible, his accepted disabilities would impact on his ability to work full time to such an extent that part-time or intermittent remunerative work only would be appropriate.
  9. It is clear from the evidence that Mr Stiff, because of his disabilities and the consequent inability to work more than part time or intermittently has suffered a loss of income. Since his retirement on 13 July 2007 Mr Stiff has worked for one week and, in conjunction with Ms Sanderson, earned a total of $1100.00. Prior to his cessation of work Mr Stiff’s taxable income was more than $40,000.00.
  10. Neither s 24 nor s 25 applies to Mr Stiff. It has already been determined that Mr Stiff is capable of undertaking less than 20 hours per week of remunerative work.
  11. There is no evidence before the Tribunal to indicate that the questions posed in s 23(3)(a)(i), (ii) and (iii) of the Act should be answered in the affirmative. Mr Stiff did contemplate retirement in the year 2006 but decided he could not afford to do so. His decision was reached despite a report from his general practitioner, Dr Halliburton, advising retirement on medical grounds. In April 2007 Dr Halliburton again raised the question of retirement on medical grounds and discussed this with Dr Atkins, the treating psychiatrist, who supported such action. Shortly thereafter Mr Stiff accepted that he was not coping with his work at Sovereign Hill Lodge and decided to resign his position. The evidence clearly favours the finding that these actions were taken as a result of his depressive disorder and his concern for his cardiac disease.
  12. Section 23(3)(b) of the Act provides:

(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.

  1. Following his retirement, Mr Stiff and Ms Sanderson commenced planning in detail a prolonged tour of Australia by caravan. It was their intention to obtain work during this tour to supplement their income. With this in mind they commenced a search through the company known as Motel Minders seeking relieving jobs as motel managers along the east coast of Australia. All enquiries were made via the internet. Such a position was available from 26 December 2007 but this did not coincide with their travel plans. He accepted the position as relieving manager at the Historic Hydro Motor Inn in Leeton, for a period of three months commencing on 8 January 2008. This employment terminated on 21 January 2008. The motel owner, Mr Thompson, informed Mr Stiff that the arrangement had not worked out. The reasons it had not worked out were several. The motel was up for sale, the occupancy was extremely low, the business was apparently running at a loss and Mr Stiff was required to undertake work outside the norm for the position advertised. He was expected to paint the motel and also to operate at a distance the computing services of a Newcastle motel. Upon Mr Stiff and Ms Sanderson’s departure, the owners, Mr and Mrs Thompson, took over the running of the motel themselves. This disruption of Mr Stiff’s plans had a deleterious effect on his depressive state. The planned journey to Northern Queensland over several months was aborted and Mr Stiff and Ms Sanderson returned to Ballarat, their plans in chaos. They have continued to monitor the internet-advertised relieving motel managerial positions throughout 2008 but have not applied for one of these positions, pending Mr Stiff’s improvement in his depressive state and awaiting the determination of his claim.
  2. The Tribunal has found that, in accordance with s 23(1)(b), Mr Stiff’s depressive disorder is the substantial cause of his inability to obtain remunerative work to date. Ms Sanderson certainly expressed the intention to resume their touring and working plans on completion of the hearing and the handing down of this decision.
  3. Mr Stiff meets the requirements of s 23 of the Act and qualifies for pension payable at the intermediate rate. His depressive disorder is the substantial cause of his limited capacity for remunerative work and is war-caused.

I certify that the one-hundred and forty [140] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E A Shanahan


(sgd) Mara Putnis

Clerk

Dates of Hearing 8, 9 & 10 October 2008

Date of Decision 6 February 2009

Advocate for the applicant Mr D De Marchi

Solicitor for the applicant De Marchi & Associates

Counsel for the respondent Mr G Purcell

Solicitor for the respondent Department of Veterans' Affairs


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