Hall and Repatriation Commission [2010] AATA 249 (9 April 2010)

Last Updated: 9 April 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 249

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/5240

VETERANS’ APPEALS DIVISION		)
	Re		OWEN HALL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr I Alexander, Member

Date 9 April 2010

Place Sydney

Decision

The decision under review is set aside and in substitution the Tribunal decides that at the time of his application Mr Hall satisfied the requirements of s 24 of the Veterans’ Entitlements Act 1986. The application is remitted to the Respondent for calculation of Mr Hall’s entitlement.

..................[sgd]............................
Dr I Alexander
Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – eligibility for payment at Special Rate – whether totally and permanently incapacitated – whether incapacity from war-caused injury or disease was of such nature as, of itself alone, to render applicant incapable of undertaking remunerative work – kind of remunerative work – impact of non war-caused conditions – cessation of work when eligible for pension – whether applicant suffered a loss of earnings – decision under review set aside

Veterans’ Entitlements Act 1986 – s 19, 24, 24A, 28, 120

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

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

REASONS FOR DECISION

9 April 2010

Dr I Alexander, Member

1. Mr Hall is a veteran who ceased work in May 2005 at the age of 60 years.
2. On 20 June 2007 the Repatriation Commission (“the Commission”) accepted Mr Hall’s claim of 27 February 2006 that he suffered from post traumatic stress disorder (PTSD), major depressive disorder and alcohol dependence and that these conditions were war-caused. The Commission increased his disability pension to 100% of the General Rate with effect from 27 November 2005 but decided that he was not eligible for payment at the Special Rate.
3. In this proceeding, which was heard almost four years after the original date of claim, Mr Hall seeks review of the Veterans’ Review Board (“VRB”) decision dated 18 August 2008 which affirmed the decision of the Commission that he was not entitled to pension at the Special Rate.
4. Mr Hall has several other disabilities which have been accepted as war-caused including osteoarthrosis of his knees, lumbar spondylosis, bilateral sensorineural hearing loss and tinea of the skin.
5. He also suffers from various medical conditions which have not been accepted as war-caused and which relevantly include cervical spondylosis, osteoarthrosis of both wrists and the left elbow.

ISSUES

6. Mr Hall claims that at the time of his application for an increase in disability pension on 27 February 2006 he was entitled to a pension at the Special Rate.
7. The criteria for the grant of pension at the Special Rate are set out in section 24 of the Veterans’ Entitlements Act 1986 (“the VEA”) which states interalia:

24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
....

8. Relevantly, in considering the capacity to undertake remunerative work s 28 of the VEA states that:

28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(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)

9. The standard of proof in this proceeding is mandated by s 120(4) of the VEA and is to the Tribunal’s “reasonable satisfaction”.
10. Also, pursuant to s 19 of the VEA any consideration of Mr Hall’s incapacity and inability to engage in remunerative work must be made as and from the date of his application for an increase in the disability pension, which in this case is 27 February 2006.
11. Relevantly, s 24A of the VEA states interalia:

24A Continuation of rates of certain pensions
(1) Subject to subsections (1A) and (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
...
(c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.

12. The effect of s 24A is that if Mr Hall was entitled to be paid a pension at the Special Rate at the time of his application on 27 February 2006 any subsequent additional factor which may have contributed to his inability to engage in remunerative work does not affect his entitlement.
13. The respondent concedes that Mr Hall satisfies the requirements of s 24(1)(a) of the VEA but disputes that the requirements of s 24(1)(b) and s 24(1)(c) have been satisfied.
14. Therefore, the first issue to consider is whether on 27 February 2006 Mr Hall was “totally and permanently incapacitated”, that is, his incapacity from war-caused injury and/or disease was “of such a nature as, of itself alone” to render him incapable of undertaking remunerative work for more than 8 hours per week.
15. The second issue to consider is whether on 27 February 2006 Mr Hall was prevented from continuing to undertake remunerative work that he had been undertaking by reason of incapacity from his war-caused injury and/or disease alone and whether he had suffered a loss of wages or earnings which he would not have suffered if he were free of his war-caused incapacity.

EVIDENCE

MR HALL’S EVIDENCE

16. Mr Hall claims that as of 27 February 2006 he was totally and permanently incapacitated and was incapable of undertaking any remunerative work because of his war-caused injuries alone.
17. He relies on his statement of 10 February 2010, his oral evidence and the reports and oral evidence of Drs Altman, Andrews and Burns.
18. Mr Hall left school at the age of 15 and after an unfinished apprenticeship as a mechanic he was employed by the Department of Main Roads (“DMR”) as a plant operator until 1965. At the age of 20 he was conscripted and spent two years in the Royal Australian Engineers which included about five months in Sabah (North Borneo). During his time in the Army he was generally employed as a driver or clerical assistant.
19. On leaving the Army in 1967 Mr Hall drove a truck before regaining employment with the DMR as a plant operator. In the mid 1970s he fell off a grader and sustained a serious injury to his cervical spine which required an operation in the form of a cervical spine fusion procedure. Mr Hall’s employment with the DMR continued until 1977.
20. In 1977 he was offered a position as head steward of the Yass Bowling Club and subsequently was promoted to secretary manager, a position he held for about 13 year until he resigned in 2001.
21. In oral evidence Mr Hall said that he resigned because he believed that he was likely to be sacked as a result of his heavy alcohol consumption and abusive behaviour towards patrons of the club, other employees and board members.
22. Soon after he found employment as a club receptionist and barman at the Canberra Tradesmen’s Union Club (“the CTUC”) where he continued to be employed until his resignation in 2005. He had continued to drink alcohol to excess and his abusive behaviour and attitude to patrons and other staff led to several warnings from management.
23. In a letter dated 13 February 2008 the CEO of the CTUC stated that during Mr Hall’s employment there were a number of incidents that were attributed to his noticeable “anxiety and depression” which led to a decision to cease his employment.
24. Thereafter Mr Hall was employed for a period of about three to four months as a gateman at a construction site. In his oral evidence Mr Hall stated that he again left this employment because of excess drinking and argumentative and abusive behaviour.
25. In May 2005, at the age of 60, Mr Hall stopped work and after several months his general practitioner (GP) referred him to Dr Altman for psychiatric assessment and treatment. Mr Hall was admitted to hospital for a period of about three to four weeks during which time he was weaned off alcohol and started on anti-depressant medication.
26. In his oral evidence Mr Hall said that after his discharge from hospital he thought that he could go back to work, but found that he was frightened to go back to work particularly because of problems with his concentration. He said he thought he could go back to bar or club work or even grader driving which was the only kind of work he knew. In fact he was offered a job as a grader driver, but found that he no longer had the required skills and also realised that his knee and back conditions would restrict his ability to climb in and out of the graders. He also said that he tried to obtain work through Centrelink on several occasions, but was unsuccessful.
27. In cross examination Mr Hall was questioned about his non war-caused conditions, particularly his cervical spondylosis. He agreed that in about July 2006 he was referred to a Dr Stubbs because of increasing pain and stiffness in his neck and was treated with a cervical spine injection. Mr Hall was unable to recall the specific details of this episode and unfortunately relevant documents were inexplicably not available to the Tribunal.
28. Mr Hall was questioned at length about a Medical Impairment Assessment form dated 10 May 2005 which had been provided by Dr Gillies who was his GP at that time. This form suggested that Mr Hall had significant disability because of his cervical spondylosis and osteoarthrosis of his wrists and left elbow.
29. Mr Hall did not agree with several of the assessments contained in the form, but it was clear to the Tribunal that his recollection of the relevant details was significantly impaired.
30. Mr Hall was also questioned about a Lifestyle Questionnaire dated 18 March 2006 which described his symptoms in respect of several medical conditions including cervical spondylosis and arthritis of the wrists and left elbow.
31. It became clear to the Tribunal that although Mr Hall had signed the form he had not filled out the details of the form himself and was unable to recall who had in fact done so.

MEDICAL EVIDENCE

32. Dr Altman is Mr Hall’s treating psychiatrist and has been seeing him regularly, approximately monthly, since the first consultation in November 2005.
33. In a report dated 23 January 2006 Dr Altman expressed the opinion that Mr Hall suffered from severe chronic PTSD with an associated major depression and alcohol dependence. He added that as a result of these disorders alone Mr Hall was totally and permanently unfit to work and was not “well enough to work eight or more hours per week.”
34. In oral evidence Dr Altman confirmed his opinion that when he saw Mr Hall on the first occasion his PTSD was “severe enough to prevent him from working” and added that the situation remains the same up to the present time. He explained that Mr Hall was severely disabled and required a quiet environment without pressures because his chronic psychiatric condition makes him anxious, irritable and frequently aggressive. He expressed the opinion that Mr Hall was unsuitable for any work situation.
35. Dr Altman explained that Mr Hall continued to meet the DMS-IV diagnostic criteria for PTSD and major depression and that these two conditions are commonly present at the same time.
36. In response to a question from the Tribunal Dr Altman explained that in 2005 Mr Hall’s heavy alcohol consumption and alcohol dependence also contributed to his incapacity. Dr Altman added that although Mr Hall has stopped drinking alcohol, and that some of his symptoms have improved, he remains severely disabled from his PTSD and depression and requires ongoing anti-depressant medication and other forms of psychiatric therapy.
37. Dr Burns, occupational physician, in a report dated 12 March 2009 stated that after taking into account Mr Hall’s history since 2001 he had no doubt that his psychological condition would prevent him from returning to work for even eight hours per week. He also stated that “[w]ith respect to his other reported conditions of osteoarthrosis of the neck, left elbow and wrists I cannot see how these conditions would have stopped him [from] working either as a gatekeeper, his last position, or as a doorman and supervisor in a club”.
38. The respondent disputes Mr Hall’s claim and relies on the reports and oral evidence of Drs Lewin and Chase.
39. Dr Lewin, psychiatrist, saw Mr Hall on a single occasion and in a report dated 12 March 2009 concluded that Mr Hall suffered from alcohol related dementia and that he was totally and permanently incapacitated for work as a result of the dementia.
40. In his report Dr Lewin noted that during the consultation Mr Hall was “agitated and flustered” and that he became “increasingly distressed” and demonstrated problems with memory thereby raising concerns about a disturbance of cognitive function. Dr Lewin undertook a Mini Mental State Examination (“MMSE”) which resulted in a score of 24/30. He stated that this was “consistent with the early stage a dementing illness” (sic) and made a clinical diagnosis of early alcohol related dementia. Dr Lewin did not dispute the diagnoses of PTSD or depression and, in fact, noted that Mr Hall had reported a range of current and persistent symptoms of PTSD, anxiety and depression. However, he attributed Mr Hall’s total and permanent inability to work to the dementia alone.
41. In contrast, I note that, in his oral evidence, Dr Altman had indicated that he had tested Mr Hall with regard to memory on several occasions and although he had noted certain difficulties, particularly with forgetfulness, he had considered that this was consistent with PTSD. He also said that in the more than four years of seeing Mr Hall he had not presented a clinical picture consistent with evolving dementia.
42. Dr Altman conceded that the abnormal MMSE could point to early dementia, but added that anxiety and depression may influence a person when performing such a test. He also said that dementia usually evolves over time with gradual deterioration and is often a diagnosis of exclusion because certain symptoms may overlap with other psychiatric disorders.
43. In a report dated 11 August 2009 Dr Andrews, neurologist, stated that it was his impression that Mr Hall did not have any significant dementia, but in oral evidence conceded that he had not done any formal testing.
44. He added, however, that early dementia was often difficult to diagnose and if he were concerned about such a diagnosis his usual practice would be to refer a patient for formal neuropsychological testing. He considered the MMSE to be a screening test only which could be influenced by agitation and anxiety and commented that the fact that Mr Hall was agitated during his consultation with Dr Lewin suggested that he probably was not in “a fit state to be doing the test” at that time.
45. Dr Andrews also agreed that difficulties with memory and concentration are often seen in patients with PTSD, anxiety and depression.
46. In an additional report dated 9 September 2009 Dr Burns stated that when he saw Mr Hall he noted that he had “minor memory problems as well as being vague at various times” but attributed this to PTSD and depression. He added that in his experience formal psychometric testing would be necessary to establish a diagnosis of dementia.
47. In response to questioning from the Tribunal Dr Lewin agreed that the MMSE was a screening test and not a diagnostic test and conceded that diagnosing dementia is complex and would normally require more than a single consultation. He said that further investigations, a neurological evaluation and a corroborative history from a family member would be relevant when making a diagnosis of dementia.
48. Dr Lewin also agreed that after having seen Mr Hall on only one occasion it was not possible to pinpoint the onset of his purported dementia, particularly as the progression of alcohol related dementia is insidious. He also agreed that, in general, a treating psychiatrist seeing a patient over a long period of time should be in a good position to make an assessment in respect of any gradual deterioration in cognitive function.
49. Dr Chase, occupational physician, saw Mr Hall on one occasion and in a report dated 19 March 2009 expressed the opinion that he could see “no reasons why he could not engage in some form of part-time work, particularly in view of improvement in his psychological state since he stopped drinking” and that he was capable of working between 8 and 20 hours.
50. Dr Chase referred to Mr Hall’s problems with his neck and upper limbs and said the reduced ability to work was due to a combination of his accepted and non-accepted disabilities. Nevertheless, in his report he focused mainly on Mr Hall’s accepted conditions and did not make a rigorous assessment of his non-accepted conditions.
51. Dr Chase stated that he was not a psychiatrist, but nevertheless questioned Mr Hall’s diagnosis of PTSD but also admitted he had not read Dr Lewin’s report.
52. In oral evidence Dr Chase agreed that it was not his role to dispute a psychiatric diagnosis, but expressed the opinion that the presence of a psychiatric condition did not automatically preclude return to work. On further questioning Dr Chase conceded that he was talking in general terms and agreed that he had made no psychiatric assessment of Mr Hall. He indicated that he disagreed with Dr Altman’s opinion about Mr Hall’s incapacity for work primarily on the basis of his own assessment as an “independent medical examiner” and that in his opinion Dr Altman as a treating psychiatrist would be positively biased in favour of his patient.
53. In response to a question from the Tribunal Dr Chase agreed that his opinion with regard to bias on the part of a treating doctor was in general terms only and was unable to point to any specific aspects of Dr Altman’s evidence that would support his proposition.

CONSIDERATION

DID MR HALL SATISFY THE REQUIREMENTS OF S 24(1)(B) OF THE VEA?

54. For at least 28 years of his working life Mr Hall was employed in what could best be described as the hospitality industry in that he worked in clubs in a variety of positions including receptionist, barman and manager. He clearly worked in an environment which required frequent contact with patrons and other employees and where alcohol consumption and gambling, in the form of poker machines, were prominent features. Also, for many years he was in a managerial role with supervisory responsibilities and accountability to a board of directors.
55. After having considered the evidence and the requirements of s 28 of the VEA I am satisfied that the kind of “remunerative work” relevant for the purposes of s 24(1)(b) can best be described as work in a club or similar facility. There was no evidence that Mr Hall had had any formal training or further education.
56. Also I am reasonably satisfied that at the time of his application, and thereafter, Mr Hall’s incapacity from his war-caused psychiatric disorders, alone, was of such a nature that it rendered him incapable of undertaking any remunerative work.
57. In reaching my decision I have taken particular note of Mr Hall’s persuasive account of his difficulties during the latter period of his employment and placed significant weight on the evidence of Dr Altman.
58. In formulating his opinion Dr Altman had the advantage of seeing and treating Mr Hall soon after he stopped work and on a regular basis over the next four years. Also Dr Altman’s opinion was supported by the evidence of Drs Andrews and Burns.
59. I found Dr Lewin’s evidence somewhat problematic. I do not dispute his expertise as a psychiatrist and accept that at the time of the consultation he felt that Mr Hall exhibited signs consistent with early dementia. Nevertheless, he saw Mr Hall on only one occasion and in making his clinical diagnosis appeared to rely significantly on a single screening test which according to the evidence before me may have been unreliable on the day of examination. Also Dr Lewin’s assessment was contrary to the evidence of three other medical specialists.
60. On the issue of permanent incapacity as a result of Mr Hall’s psychiatric disorders I have placed little weight on the opinion of Dr Chase. Dr Chase agreed he was not a psychiatrist, saw Mr Hall on only one occasion in 2009 and, in my view, his evidence did not demonstrate sufficient expertise in psychiatric disability to challenge the opinion of Dr Altman.
61. Furthermore, I do not accept Dr Chase’s opinion that Dr Altman’s evidence was necessarily unreliable because he was the treating psychiatrist. Dr Chase appeared to base his opinion on a general or theoretical presumption that treating doctors should always be positively biased in favour of their patients but was unable to challenge Dr Altman’s actual evidence.
62. I found Dr Altman’s oral evidence to be reasonable and well balanced and noted nothing that would raise concerns with regard to bias.
63. For the above reasons I find that at the time of his application for an increase in disability pension on the 27 February 2006, and thereafter, Mr Hall satisfied the requirements of s 24(1)(b) of the VEA.

DID MR HALL SATISFY THE REQUIREMENTS OF S 24(1)(C) OF THE VEA?

64. Mr Hall claims that at the time of his application for an increase in disability pension he satisfied the requirements of s 24(1)(c) of the VEA, in that, by reason of his incapacity from his war-caused medical conditions, alone, he was prevented from continuing to undertake remunerative work, that he was undertaking, and that as a result he had suffered a loss of earnings.
65. The correct approach to the interpretation of s 24(1)(c) of the VEA was set out by Branson J in the Full Federal Court decision of Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 where his Honour said:

In my view the issues before the tribunal in this case were as follows:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(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 2 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 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?

66. In Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 the Full Federal Court followed the decision in Flentjar, but provided further clarification on certain points.
67. In respect of the first consideration, that is, the “remunerative work that the veteran was undertaking” their Honours said:

[36] The tribunal's task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.

68. They then went on to say:

[37] The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work....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...Moreover, having considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the tribunal is determining whether the veteran’s war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.

69. As I have I already noted above, the substantive remunerative work that Mr Hall had undertaken in the past was as an employee in a club and therefore, I find that for the purpose of s 24(1)(c) “the remunerative work that the veteran was undertaking” was work in a club or similar facility in the hospitality industry.
70. For the reasons set out above, I have already decided that at the time of his application for an increase in disability pension, and thereafter, Mr Hall’s incapacity from his war-caused psychiatric disorders, alone, had rendered him incapable of undertaking any remunerative work.
71. It follows logically that if Mr Hall’s incapacity from his war-caused conditions, alone, rendered him incapable of undertaking any remunerative work that his war-caused conditions would have also prevented him from continuing to undertake the remunerative work he had been undertaking.
72. Nevertheless, there may have been other factors which contributed to Mr Hall being prevented from undertaking that work which I will consider when addressing the final issue which is whether, by reason of being prevented from continuing to undertake that work, he suffered a loss of earnings which he would not have suffered if he were free of his war-caused incapacity.
73. In deciding this final issue I must consider the requirements of s 24(2) which states interalia that:

(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
...

74. There is no dispute that Mr Hall’s war-caused conditions were significant factors in his decision to cease to engage in remunerative work in May 2005 and continue to be significant factors in preventing him from engaging in remunerative work. Mr Hall claims that there are no other reasons.
75. The respondent, however, contends that there were three other reasons, namely, the purported dementia, incapacity caused by his non war-caused medical conditions and his eligibility for a service pension when Mr Hall reached the age of 60 in May 2005.
76. For the reasons set out above I am reasonably satisfied that the weight of the evidence does not support the diagnosis of dementia and, therefore, it cannot be a contributing factor.
77. The respondent contends that the relevant non war-caused conditions are cervical spondylosis and osteoarthrosis of the wrists and left elbow.
78. Mr Hall claims that because of these conditions he has had intermittent and variable symptoms for many years, but that he was never prevented from continuing his employment. He also asserts that these conditions did not contribute to his decision to stop work and were not factors in preventing him from working.
79. Mr Hall’s claim is supported by Dr Burns who noted in his report of 12 March 2009 that in respect of the cervical spondylosis:

Mr Hall reports having pain in his neck, which has been present on and off for a number of years....He realises he does have a degree of stiffness present. He stated though that his neck symptoms and neck pain have never been severe enough to require him to take any time off work.

80. In respect of the osteoarthrosis of the wrists and left elbow Dr Burns noted that:

Mr Hall reported that he also has a degree of arthritis [p]resent in both wrists.....In the past he has not had any specific treatment...He reports that his grip strength has remained reasonably good and he has been able to do most of his normal day to day activities. He states that his wrist and elbow problems have not resulted in him taking any time off work, even though they have been present for probably greater than 10 years.

81. As noted above, Dr Burns stated that he could not see how the conditions of the neck, wrists and elbow would have stopped Mr Hall from working either as a gatekeeper or doorman and supervisor in a club.
82. The respondent relies on the contents of the Medical Impairment Assessment form of May 2005 and the Lifestyle Questionnaire of March 2006, noted above, on the evidence of Drs Chase and Lewin and also the written report dated 23 May 2008 of Dr Talbot, orthopaedic surgeon.
83. The respondent submits that the Medical Impairment Assessment form of May 2005 and the Lifestyle Questionnaire of March 2006 when compared with the Medical Impairment Assessment form completed in 2001 demonstrate that the conditions not accepted as war-caused had significantly deteriorated over the intervening years and therefore must have been factors impacting on Mr Hall’s capacity to undertake remunerative work.
84. As noted above, Mr Hall has little recollection of the details contained in these forms which is not surprising given the elapsed time. Also, at the time the Medical Impairment Assessment form was completed in 2005 Mr Hall was clearly severely incapacitated by his heavy alcohol consumption and his as yet undiagnosed and untreated psychiatric disorders.
85. I have significant concerns about the Medical Impairment Assessment form which is essentially a “pick a box” form that provides no meaningful explanation to support the various assessments of impairment.
86. Furthermore, in his oral evidence, when questioned about this document, Dr Burns challenged its reliability on the basis that the severity of disability attributed to Mr Hall’s cervical spondylosis was substantially inconsistent with his physical examination.
87. I note that on 22 March 2006 Mr Hall’s new GP, Dr Bills, provided a Medical Impairment assessment form that made no reference to the neck, wrist or elbow conditions.
88. On reflection I conclude that the two documents on which the respondent relies are, for the purposes of this proceeding, unreliable and of limited value.
89. The evidence of Dr Chase does not assist as he considers Mr Hall’s incapacity from his war-caused and non war-caused conditions did not prevent him from working 8-20 hours per week. This would suggest that he considered the non war-caused conditions were not significant enough to prevent Mr Hall from working.
90. In a report dated 23 May 2008 Dr Talbot noted that Mr Hall denied any difficulties with his neck, wrist and elbow conditions and “stated strenuously” that the conditions had been present for years and did not interfere with his ability to work.
91. Dr Talbot stated that he found Mr Hall’s “current allegation” difficult to equate with the information contained in the VRB decision of 20 January 2007 and referred to the Medical Impairment Assessment form of 10 May 2005 and the lifestyle questionnaire of March 2006.
92. Dr Talbot noted that at the time Mr Hall ceased work in 2005 he had “seven service related accepted conditions” but was also suffering from cervical spondylosis and osteoarthrosis affecting his wrists and left elbow and concluded that there was “strong evidence ... that these three non-accepted conditions were important in his ceasing work” and that these conditions contributed to Mr Hall’s incapacity for work.
93. I found Dr Talbot’s report unhelpful as, in my view, he did not provide a satisfactory explanation for his conclusion about the effect of the non war-caused conditions on Mr Hall’s incapacity for work. His opinion was clearly influenced by documents, which I found to be unreliable, and appeared to be based on a presumption that the mere existence of the non war-caused conditions meant that these conditions must have contributed to Mr Hall’s decision to cease undertaking remunerative work. As my reservations about Dr Talbot’s report were unable to be tested I have placed less weight on his opinion.
94. The final contention by the respondent is that one of the reasons Mr Hall ceased work in May 2005 was that he had reached the age of 60 and was eligible for a service pension.
95. In his oral evidence Mr Hall said that he would have stopped work sooner but did not have sufficient financial support and that his entitlement to a pension when he reached the age of 60 provided a timely opportunity.
96. Notwithstanding the submission by the respondent I am reasonably satisfied that Mr Hall’s eligibility for a pension at the age of 60 was not a reason for ceasing to engage in remunerative within the meaning of the VEA.
97. It is quite clear from the evidence that Mr Hall had been suffering severe incapacity because of his undiagnosed and untreated war-caused psychiatric disorders for a significant period before he stopped working in May 2005 and perhaps should have stopped working much sooner. In my view, given the evidence of Mr Hall’s circumstances leading up to May 2005, it would be unreasonable to conclude that the fortuitous financial opportunity provided by Mr Hall’s eligibility for a service pension was a reason for ceasing to engage in remunerative work.
98. Furthermore, it was clear that after Mr Hall’s psychiatric conditions had been diagnosed and treated he did try and find suitable employment, but found that his ongoing incapacity caused by his psychiatric disorders prevented him from doing so.
99. Therefore, for the above reasons, I find that at the time of his application for an increase in disability pension and thereafter Mr Hall was prevented from undertaking the remunerative work he had been undertaking because of his war-caused psychiatric conditions, alone, and as a result suffered a loss of earning. This means that he satisfied the requirements of s 24(1)(c) of the VEA.

DECISION

100. After having considered all the evidence and for reasons set out above I find that at the time of his application on 27 February 2006 Mr Hall did satisfy the requirements of s 24 of the VEA and was entitled to disability pension at the Special Rate.
101. The decision under review is set aside and the matter is remitted to the Repatriation Commission.
     

I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed: ..............[sgd]..................................................................

Associate

Dates of Hearing 17 and 18 February 2010

Date of Decision 9 April 2010

Counsel for the Applicant Mr L Karp

Solicitor for the Applicant Ms A Toliopoulos, Legal Aid Commission

Solicitor for the Respondent Dr S Thompson, Sparke Helmore