Dwight and Repatriation Commission [2002] AATA 29 (17 January 2002)

DECISION AND REASONS FOR DECISION [2002] AATA 29

Tribunal Ms G Ettinger - Senior Member Dr J Campbell - Member

Decision The Administrative Appeals Tribunal affirms the decision of the Veterans' Review Board which decided on 6 November 2000 to set aside the decision of the Repatriation Commission of 26 November 1999, and substitute the decision that the disability pension payable to the Applicant, Mr George Edward Dwight, be assessed at 80% of the General Rate with effect from 6 August 1999, and at 90% of the General Rate with effect from 4 August 2000 pursuant to the Veterans' Entitlements Act 1986.

Veterans' Appeals - disability pension - whether veteran incapable of undertaking work other than part-time work due to his accepted disabilities alone - whether Special or Intermediate Rate - decision under review affirmed.

Veterans' Entitlements Act 1986 sections 23, 24, 28 and 120(4)

Banovich v Repatriation Commission (1986) 69 ALR 395

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

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

17 January 2002 Ms G Ettinger, Senior Member Dr J Campbell, Member

1. The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Veteran's Review Board ("VRB") of 6 November 2000 (T2) which set aside the decision of Repatriation Commission of 26 November 1999 (T28). The VRB decided that the Applicant, Mr George Edward Dwight's disability pension be assessed at 80% of the General Rate with effect from 6 August 1999, and at 90% of the General Rate with effect from 4 August 2000.

2. At the Hearing the Applicant was represented by Mr N Dawson of counsel, and the Respondent, the Repatriation Commission was represented by its advocate Ms S Breuer.

3. The Tribunal had to consider whether Mr Dwight was eligible for pension, including at either his present rate, being 90% of the General Rate, or the Intermediate Rate (section 23 of the Veterans' Entitlements Act 1986 ("the Act")), or in the alternative, the Special Rate (section 24 of the Act).

4. There was considerable discussion between the parties regarding the earliest date of effect, which was later consensually accepted by both parties and the Tribunal as 1 February 2001, should the Applicant be eligible for pension at the Intermediate Rate.

5. The relevant legislation in this matter was the Veterans' Entitlements Act 1986, in particular sections 23 and 24 which follow as relevant:

(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 pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran's incapacity from war-caused injury or war-caused disease, or both is, of itself alone, of such a nature to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c) the veteran is, by reason of incapacity from 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 from that incapacity; and...

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:

(i) if 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;

(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and ...

(a) 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

(b) the veteran has turned 65 before the claim or application was made; and

(c) paragraphs (1)(a) and (1)(b) (as affected by subsection (2)) apply to the veteran; and

(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and

(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

(f) the veteran was undertaking his or her paid work after the veteran had turned 65; and

(g) when the veteran stopped undertaking his or her last paid work, the veteran:

(i) if he or she was then working as an employee of another person - had been working for that person, or for that person and any predecessor or predecessors of that person; or

(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling - had been so working in that profession, trade, employment, vocation or calling;

for a continuous period of at least 10 years that began before the veteran turned 65; and

(h) section 24 or 25 does not apply to the veteran.

(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

(a) the veteran has ceased to engage in remunerative work for reasons other than his or her own incapacity from that war-caused injury or war-caused disease, or both; or

(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or

(c) the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.

(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 ...

(a) 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

(b) the veteran had turned 65 before the claim or application was made; and

(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and

(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and

(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and

(g) when the veteran stopped undertaking his or her last paid work, the veteran:

(i) if he or she was then working as an employee of another person - had been working for that person, or for that person and any predecessor or predecessors of that person; or

(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling - had been so working in that profession, trade, employment, vocation or calling;

for a continuous period of at least 10 years that began before the veteran turned 65; and

(h) section 25 does not apply to the veteran.

6. Section 28 of the Act provides:

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)."

7. The standard of proof applicable to matters related to sections 23 and 24 of the Act is that the Tribunal must decide all relevant matters to its reasonable satisfaction pursuant to section 120(4) of the Act, applying Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

8. Section 120(4) of the Act provides:

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

9. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") as Exhibit R1, and the following additional Exhibits:

Medical Report of Dr M Burns 14 March 2001 Exhibit A1

Applicant's Income Tax Return 30 January 2001 Exhibit A3

Medical Report Dr J Chen and Respondent's letter to her 3 April 2001 Exhibit R2

Medical Report Dr J Dreverman, Rayscan Imaging 8 August 2001 Exhibit R3

Medical Report of Dr J Chen 16 August 2001 Exhibit R4

Medical Report of Professor P Sambrook 28 August 2001 Exhibit R5

Medical Report of Associate Professor A Breslin 11 April 2001 Exhibit R8

Clinical Notes and Reports of Dr A De Angelis, in particular pages 12-15; 22-24; 42 Exhibit R9

10. Oral evidence was given by the Applicant, Mr George Dwight.

11. By way of background, the Tribunal noted that although the Statements of Facts and Contentions of the parties were written on the premise that section 24 of the Act would be addressed, and that the Applicant was claiming pension at the Special Rate, Mr Dawson made submissions with regard to section 23 of the Act, that is, in relation to the Intermediate Rate of pension. Ms Breuer stated that the Respondent conceded that Mr Dwight satisfied the requirements of sections 23(1)(aa), 23(1)(aab), 23(1)(a) and 23(1)(d) of the Act. This meant that the main issue to be decided was whether Mr Dwight satisfied the requirements of section 23(1)(b) and 23(1)(c) of the Act.

EVIDENCE OF THE VETERAN - MR GEORGE EDWARD DWIGHT

12. Mr Dwight, whose date of birth is 23 November 1948, gave oral evidence before the Tribunal. His written statement dated 6 June 2001 was before the Tribunal as Exhibit A2. He said that he enlisted in the AIF for three years in 1969, followed by a further three years. He said that he served in Vietnam for 10 months.

13. Mr Dwight gave evidence that he was a trained painter and decorator. He said that when he left the Army in 1975, he drove a bus for 20 years, leaving only when he was discharged medically unfit because of what he described as a "crook neck" . The records showed that he suffered cervical spondylosis. Mr Dwight said that he worked for the next 10 years full-time, painting and decorating.

14. Mr Dwight said that he ceased his business of painting and decorating some two years previous to the hearing because of breathing problems. The Tribunal noted that in Mr Dwight's Claim for Service Pension at T19/58, he gave the date on which he ceased working as, 2 June 1999. At T18/56, he completed the form asking for invalidity details saying that he had last worked on 2 May 1997. The Tribunal also noted that on his last tax return dated 30 January 2001, Mr Dwight's taxable income was shown as zero (Exhibit A3). He told the Tribunal that he did minimal work between June 1999 and June 2000, consisting of touch-ups once or twice a week, and no heavy work. In his statement at Exhibit A2, the Applicant said that he had to cease working in May 2000.

15. Mr Dwight also said that he suffered pains in the chest, and that his general practitioner, Dr De Angelis, had diagnosed chronic air flow limitation.

16. When asked whether his neck worried him, Mr Dwight said that he could not paint large ceilings because of his neck. He added however, that this did not stop him from working, and had nothing to do with him giving up work. He said he would take a couple of hours rest and then he would be fit to resume, but could not do full-time work because of his breathing, and because he tired easily. When asked at the hearing whether he would be able to do part-time work, Mr Dwight said that he could do a couple of hours a day a couple of days a week. He said that he would take part-time work because he was bored doing nothing. When asked whether he could work in a bar, or as a waiter, he said that he had no training to do so. Mr Dwight said that he was experienced at maintenance, for example tiling, carpentry, carpet laying, or cleaning. Mr Dwight said that he had tried to find work and had made telephone calls with regard to being a handy person, or doing detailing in a car yard.

17. Mr Dwight was examined and cross-examined, and questioned by the Tribunal Members regarding the dates on which he ceased full-time work, and how much part-time work he did. He told the Tribunal that he had a bad memory for dates, and had therefore commenced keeping a diary some three to four years ago.

18. When cross-examined with regard to a history given to Dr Burns which indicated Mr Dwight had closed his business in May 2000, Mr Dwight said that towards the end he had worked only in a supervisory capacity, albeit being on the job eight to 10 hours a day. He said he had been present on jobs, but not doing the heavy work. He confirmed he ceased doing heavy work in June 1999. The Tribunal noted that Mr J Burchett, Vocational Psychologist, in the report of the Vocational Capacity Centre Pty Ltd of an assessment made on 10 April 2001, had recorded similar information. The Tribunal noted that Mr Dwight had told Mr Cipriani and Dr Burns that his business had closed in May 2000. However at the Tribunal, Mr Dwight said that dates meant nothing to him, and said that "I still organise things [work] now." The Tribunal noted at T17/47, that Dr S Law, Psychiatrist, recorded Mr Dwight's work history as having ceased working a month previous to the visit on 2 August 1999. At T31/113, Dr Baz, Occupational Physician, recorded on 4 August 2000, that Mr Dwight had stopped housepainting six months previous to that date.

19. Mr Dwight was cross-examined about his Lifestyle Questionnaire dated March 1994, at T3. At T3/14, he had written: "Cramps and pain in my feet, legs and thighs limits my walking to less than 50 yards before having to stop and be seated." He told the Tribunal that he was not sure if he had recorded all the information in that Questionnaire himself. The Tribunal noted that Mr Dwight had ticked the box indicating that he had cramps all the time at T3/14, noting also that in his oral evidence he said that he did not have cramps all the time, but that he might have had them back then in 1994 when he filled in the form. The Tribunal noted at T7, a report of Dr G Leslie, upon whom Mr Dwight had attended with regard to his cramps. Dr Leslie had written in his report of 1 November 1994 that Mr Dwight had no overt evidence of severe vascular disease, and found his arteries felt "soft and pliable." He stated that he had warned Mr Dwight about the long-term effects of smoking.

20. Mr Dwight was referred to paragraph 19 of T3/16 (the Lifestyle Questionnaire), where he had indicated as follows, in reply to a question which queried what domestic activities took him longer than they used to: "Washing up due to difficulty standing before long periods and I need a stool to sit whilst watering the garden." Ms Breuer put to Mr Dwight that the information in that reply was not true. He agreed.

21. Ms Breuer also referred Mr Dwight to T16/41 where in reply to a question regarding how his injury or illness affected his ability to undertake his usual work, Mr Dwight had replied: "Lack of breath - painfull (sic) when I bend down". He agreed when questioned that his back problems also affected his ability to paint. He said that most of the time he could climb stepladders, but could not squat or kneel and could not stand for long.

22. Ms Breuer also questioned Mr Dwight about his interest in fishing, and the course to be a Fisheries Inspector (of 12 months duration), which he had undertaken. Mr Dwight answered that that had been a couple of years ago, and that in addition, as relevant to that job, he had no computer skills. However, he said that he went fishing about once a month, taking his boat out on the lake or to sea. Other activities included welding, occasionally.

23. Ms Breuer questioned Mr Dwight regarding his retirement to the South Coast. He said that for the present he was leasing the house to tenants and paying it off while he helped his sons with painting.

24. The Tribunal took into account all the medical evidence before it in the T-documents and in the documents tendered before it. Excerpts from the most relevant are listed below.

25. Dr Baz, whose report of 4 August 2000 was before the Tribunal as T31, concluded that Mr Dwight was unfit for his usual work as a painter, of eight or more hours duration weekly. She indicated that Mr Dwight retained some capacity to be employed for more than 20 hours weekly in an alternative occupation, adding that the psychiatric review may indicate that his anxiety state effectively precluded this.

26. The reports of Dr Law before the Tribunal were dated 17 July 2000 (T30), and 28 August 2000 (T32). At T30, dated 17 July 2000, Dr Law reported that Mr Dwight had retired from work three months previously and attached a GARP assessment which gave Mr Dwight a score of 26. In his report of 28 August 2000, Dr Law reported as follows:

"I think his prospects of being able to look for another job, or be trained or educated for work in the near future will be very bleak indeed, because of (i) his impaired concentration affecting his future learning and because of (ii) his anxiety and depression feelings adversely affecting his level of perseverance in work or training. His 'breathing problem' will certainly have negative impacts on his ability to look for work, but this aspect is outside my scope of expertise."

27. The Tribunal noted also at T10, a report of Dr A Davies, Psychiatrist, dated 4 August 1995, in which he said that he considered Mr Dwight had quite a marked anxiety state which was causing him to lose a considerable amount of time off work.

evidence of dr a de angelis - general practitioner

28. There were several reports of Dr De Angelis before the Tribunal, at T4 (16 June 1994), T24, (7 September 1999), and various pages of clinical notes at Exhibit R9. In his examination of Mr Dwight's musculo-skeletal spine, dated 16 June 1994, Dr De Angelis, recorded neck pain and stiffness and stated that "work aggravates pain."

29. The Tribunal also noted from Exhibit R9/12, a letter of Dr P Collett, Respiratory Physician dated 11 October 1999, where he opined following respiratory function and other tests, that the measurements were slightly better than previously in April 1998. A report of Liverpool Respiratory Laboratory of 17 September 1999, (Exhibit R9/14), indicated Mr Dwight had mild airflow obstruction with no reversibility, normal lung volumes, and a borderline gas transfer capacity. A further report at Exhibit R9/22, dated 14 April 1998, of Dr K Hui, Respiratory Physician, indicated that since Mr Dwight had ceased smoking six days previously, there had been a marked improvement in his cough. Dr Hui added that: "He works as a painter, and he is able to continue with his work."

30. A report of Dr M. Carr at Exhibit R9/24 dated eight August 1997, reported as follows: "There is minor degenerative spondylotic change with small marginal osteophyte formation at several levels. There is minimal narrowing of the C5/6 disc space but the remaining disc spaces are well preserved."

31. On 7 February 2001 (Exhibit R9/42), Dr A Lee, concluded as follows: "There are mild disc bulges at all levels images, as described. There is no significant canal stenosis. No definite evidence of nerve root involvement is seen."

32. The Tribunal also noted that Exhibit R3, dated 8 August 2001, was a report of Dr Draverman, who had conducted radiological examinations of Mr Dwight's right and left hand. He stated as follows: "Overall, plain xray shows no signs of an erosive arthropathy or significant osteoarthritic change on plain xray."

evidence of dr m burns - occupational physician

33. A report of Dr Burns dated 14 March 2001, was before the Tribunal as Exhibit A1. Dr Burns concluded as follows:

"With respect to employment, I believe that Mr Dwight would be unable to return to any significant physical activity. His breathing restriction would make it almost impossible for him to work as a painter

... I, therefore, do not believe that Mr Dwight would be capable of returning to work for eight hours per week in his previous job as a painter.

... I believe that his anxiety state is mild to moderate in severity.

... I believe that he would be physically capable of performing light or medium sedentary work. The type of activities that he could perform would include console operator at a service station or parking station attendant. I do not believe that he could be capable of being retrained in a clerical capacity as he has not skills in this area."

evidence of dr j chen - consultant in occupational medicine

34. A report of Dr Chen of 3 April 2001 was before the Tribunal as Exhibit R2. Dr Chen reported a number of matters including:

"During the interview portion of the consultation, Mr Dwight impressed as having a reasonable and normal level of concentration for his age and to have a reasonable memory for his age."

In rating Mr Dwight pursuant to GARP, Dr Chen measured his total impairment rating at 56 points. She further reported as follows:

"Mr Dwight's cervical spondylosis is degenerative in nature and is such that it prevents him from doing prolonged driving and working as a bus driver.

I consider that his cervical spondylosis would limit his ability to paint ceilings and to engage in overhead work for long periods.

In my opinion, Mr Dwight does have the capacity to undertake remunerative work as a bus driver during the assessment period for more than eight hours per week, but less than 20 hours per week, due to cervical spondylosis. His neck condition would probably prevent him from driving for more than two or three hours five days per week.

In my opinion, Mr Dwight does have the capacity to undertake remunerative work as a painter during the assessment period for more than eight hours per week, but less than twenty hours per week.

Mr Dwight denied that he suffers any back injury. Mr Dwight admitted that he does have neck pain from time to time he stated that occasionally, his low back is sore but it did not prevent him from working as a painter.

Mr Dwight's accepted disabilities are not the sole or substantial cause of his unfitness for work. ... The only objective evidence that Mr Dwight's accepted disabilities prevent him from undertaking remunerative work during the assessment period, is his spirometry results, which show a degree of respiratory impairment, which would probably affect his ability to paint at a normal pace. The easy fatigueability due to his respiratory impairment would probably prevent him from working a full day."

35. In a supplementary medical report dated 16 August 2001, (Exhibit R4), Dr Chen noted a copy of an X-ray report dated 8 August 2001, and added that:

"...the reported loss of physical strength in his hands would not prevent him from continuing to work as a painter. I would prefer to defer my opinion regarding the number of hours in which he could work as a painter pending assessment by the rheumatologist. My statement that Mr Dwight was unable to hold the paintbrush for more than ten-minute periods was based upon the history provided by Mr Dwight. This is not supported by any objective evidence so far."

evidence of professor p sambrook - rheumatologist

36. The report of Professor Sambrook dated 28 August 2001, was before the Tribunal as Exhibit R5. He reported that Mr Dwight has very minor osteoarthritis of the DIP joints of both hands. He further opined:

"I do not consider Mr Dwight's finger hand problems affected his ability to undertake remunerative work as a painter over the last two years. He described to me that the main limitation in that regard was airways disease and my findings today in his hands would concur with opinion. I do not consider these problems would effect (sic) his ability to undertake remunerative work of another nature either."

evidence of mr j burchett - vocational psychologist

37. The Tribunal had before it reports of assessments carried out by Mr Burchett on 10 April 2001 and 15 May 2001 as Exhibit R6. Mr Burchett reported as follows about Mr Dwight in his report of 10 April 2001:

"Qualities and rewards valued by him in relation to work suggests that Mr Dwight is likely to have very high expectations of receiving self-fulfilment and of having opportunities for creativity, autonomy, flexibility and control. His expectations of work appear unrealistic and suggest that his current motivation may be directed more towards opportunities for self-fulfilment and self-expression through leisure activities than for seeking further paid employment.

Although he still exercises a minor management role in organising for others to carry out such work, he is not currently taking any active steps to cultivate such opportunities.

It is also noted that Mr Dwight reported having undertaken, in the last five or six years, courses in fishing and coastal navigation. He has plans to move to the coast and to occupy himself with fishing in his retirement. The only employment, in fact, which he volunteered as being a future work prospect was fisheries inspector. It can be concluded that lifestyle considerations have influenced him, to an extent, in his decision to withdraw from work."

38. Mr Burchett appended a list of appropriate vocational choices for Mr Dwight.

evidence of mr d cipriani - clinical psychologist

39. Mr Cipriani's report of 4 May 2001 was before the Tribunal as Exhibit R7. The Tribunal noted that Mr Cipriani found as follows:

"On a very sensitive measure of learning memory ability, the Rey Auditory- Verbal Learning Test, Mr Dwight performed in the average range overall. He showed a normal rate of learning and was able to retain information post interference and after delay at an average level. There was no evidence of attention/concentration difficulties on the Wechsler Memory Scale - Revised.

Overall, there was no evidence of impairment of learning and memory or attention/concentration. Mr Dwight performed at an average level compared with others his own age.

In summary, Mr Dwight's employability has been affected by a combination of factors including chronic airway limitations, lack of motivation to seek appropriate work and to a much lesser degree, periods of anxiety/depression which appear to relate to conflict with his sons.... His current report of symptoms would not qualify him for any DSM-IV anxiety or mood-related disorder attributable to operational service. He is capable of at least part-time work (more than 20 hours per week) in a range of sedentary or semi-sedentary occupations that he has chosen to limit his choice to one position of interest to him (Fisheries Inspector). His vocational options are being mainly affected by lack of motivation to find suitable work."

evidence of professor a breslin - thoracic surgeon

40. The Tribunal had before it the report of Professor Breslin dated 11 April 2001 as Exhibit R8. Professor Breslin opined that Mr Dwight has:

"...smoking-induced airways disease of chronic bronchitis with airflow limitation. ... he has obstructive sleep apnoea ... His degree of incapacity from his chronic bronchitis is not severe.... On the information available to me I believe that Mr Dwight is fit for work. In my view he is fit for full-time work and indeed has better lung function than many patients that I see who are working full-time."

"He says that tiredness is one of the things he finds makes it difficult for him to work and I believe that this is due to his obstructive sleep apnoea..."

42. The Tribunal had to take into account the evidence, submissions, case law and the legislation to make the correct and preferable decision, to decide at what rate pension should be paid to the veteran. The Tribunal noted that Mr Dwight's existing rate of pension as determined by the VRB, was 80% of the General Rate with effect from 6 August 1999, and 90% of the General Rate with effect from 4 August 2000.

43. The Tribunal noted that after lengthy discussion, the parties agreed that the earliest date of effect was 1 February 2001, should the Applicant be found to be eligible for pension at the Intermediate Rate.

44. The Tribunal had before it, the T-documents and Exhibits tendered including medical reports and other written evidence regarding Mr Dwight's accepted medical conditions. It had also, of course, the oral evidence Mr Dwight gave at the Tribunal regarding how his disabilities affected him.

45. The Tribunal noted that Mr Dwight's disabilities accepted as war-caused, were acne vulgaris, anxiety state, and chronic airflow limitation. His disabilities not accepted as war-caused were tinnitus, leg cramps, cervical spondylosis, sensori-neural hearing loss and strongyloidasis.

WHETHER MR DWIGHT QUALIFIED FOR PENSION AT THE SPECIAL RATE PURSUANT TO SECTION 24 OF THE ACT OR THE INTERMEDIATE RATE PURSUANT TO SECTION 23 OF THE ACT

46. In Mr Dwight's original application at the Tribunal, he sought pension at the Special Rate pursuant to section 24 of the Act, which, during the hearing, was changed to the Intermediate Rate (section 23 of the Act). Ms Breuer submitted that the Respondent would concede in relation to section 23 of the Act, the same concessions made in its Statement of Facts and Contentions in relation to section 24 of the Act.

47. This meant that Mr Dwight satisfied the requirements pursuant to section 23(1)(aa) of the Act, as he had lodged an application for pension on 5 August 1999. He further satisfied the requirements of section 23(1)(aab) of the Act in that he had not turned 65 years of age when he applied for the pension. The Tribunal noted that his date of birth was 1948, so that he was approximately 51 years old when he applied.

48. The Respondent submitted further that it accepted that Mr Dwight satisfied the requirements pursuant to section 23(1)(a) of the Act in that his degree of incapacity from war-caused injury or disease had been found to be at least 70%. The Tribunal noted that Mr Dwight had indeed, in satisfaction of the above, been awarded pension at 80% of the General Rate from with effect from 6 August 1999 and 90% of the General Rate with effect from 4 August 2000 (T2).

49. The Respondent also conceded that Mr Dwight satisfied the requirements of section 23(1)(d) of the Act, in that section 25 did not apply in his case.

50. The issues to be decided, were then, whether Mr Dwight satisfied the requirements pursuant to sections 23(1)(b) and 23(1)(c) of the Act. In the normal course of considering whether the Applicant satisfied the requirements of sections 23(1)(b) of the Act, the Tribunal would have to consider whether the war-caused diseases/injuries suffered by Mr Dwight, were alone, such as to render him incapable of undertaking remunerative work other than on a part-time basis, for less than 20 hours per week. The Tribunal would also have to consider whether, pursuant to section 23(1)(c) of the Act, Mr Dwight was by reason of incapacity from the war-caused diseases/injuries alone prevented from continuing to undertake remunerative work that he was undertaking, and for this reason was suffering a loss of salary or wages or of earnings on his own account, that he would not be suffering if he were free from that incapacity.

51. Further, in its consideration, the Tribunal would also have to be mindful that if the veteran had ceased to work or had engaged in part-time work for reasons other than his incapacity from war-caused disabilities/injuries, or both, then the veteran will not be taken to have suffered a loss of salary or wages, or of earnings on his own account by reason of that incapacity, pursuant to section 23(3).

52. The Tribunal was mindful that Mr Dwight's conditions accepted as war-caused were acne vulgaris, anxiety state and chronic airflow limitation. There was no evidence before the Tribunal to indicate that acne vulgaris contributed in any way to Mr Dwight's capacity to work. There is accordingly no discussion of this condition below.

53. The Tribunal was mindful that Mr Dwight suffers from certain problems in regard to his musculo-skeletal spine, which cause him some pain and neck stiffness. However, none of the following investigations, as done by Dr Carr on 8 August 1997 (Exhibit R9/24), Dr Lee on 7 February 2001 (Exhibit R 9/42), and Dr Dreverman on 8 August 2001 (Exhibit R3), results of which were before the Tribunal, indicated significant conditions. The Tribunal noted that any condition of the musculo-skeletal spine which Mr Dwight suffers has not been accepted as a war-caused disability.

54. The Tribunal accepted from Mr Dwight's evidence and that of Dr Chen, who opined that the veteran's cervical spondylosis was degenerative in nature, that he would be precluded from doing prolonged driving or working as a bus driver, and that his ability to paint ceilings and engage in overhead work for long periods would be limited as a result.

55. The Tribunal was mindful that Mr Dwight's anxiety state had been accepted as a war-caused disability. The Tribunal accepted the opinion of Dr Davies who, in August 1995 (T10), found that Mr Dwight had quite a marked anxiety state. The Tribunal accepted further the reports of Dr Law on Mr Dwight's visits in July and August 2000 with regard to his mental condition. At T32/118, in August 2000 Dr Law reported that: "Mental examination revealed he was obviously dejected and anxious, more so than during the previous occasion. ... his anxiety and depression feelings adversely affecting his level of perseverance in work or training."

56. On the basis of the medical evidence before it, the Tribunal was not satisfied with Mr Dwight's evidence regarding any memory failure he claimed to suffer. He had given various versions regarding his capacity to work, and dates of having ceased work to various doctors, psychologists and to the Tribunal. The Tribunal relied on the findings of Mr Cipriani, Clinical Psychologist, who stated as follows (Exhibit R7):

"On a very sensitive measure of learning memory ability, the Rey Auditory- Verbal Learning Test, Mr Dwight performed in the average range overall. He showed a normal rate of learning and was able to retain information post interference and after delay at an average level. There was no evidence of attention/concentration difficulties on the Wechsler Memory Scale - Revised.

Overall, there was no evidence of impairment of learning and memory or attention/concentration. Mr Dwight performed at an average level compared with others his own age."

57. Dr Chen in her report of 3 April 2001 (Exhibit R2), also stated that Mr Dwight impressed her as having a reasonable and normal level of concentration and memory for his age.

58. The Tribunal was mindful that Mr Dwight said that because of memory problems, he had been keeping a diary for the last three or four years. The Tribunal did not ask to see the diary, neither was it produced. If indeed Mr Dwight had been keeping a diary, then he could not have consulted it carefully or perhaps even recorded the events carefully, because the dates he gave varied greatly. When asked in cross-examination, why he had nominated a variety of dates with regard to cessation of work, Mr Dwight replied: "Dates mean nothing too me. I still organise things now."

59. The Tribunal was satisfied that the various professionals had recorded dates as told to them by Mr Dwight. Dr Law reported Mr Dwight had retired from work three-month previous to the visit of July 2000 (T30). Dr Burns reported Mr Dwight had told him he closed his business in May 2000. Dr Baz reported on 4 August 2000 (T31/113), that the Applicant had stopped house painting six months previous to that date.

60. At T18/56, Mr Dwight completed a form seeking invalidity details by stating he had last worked on 2 May 1997. In his claim for service pension at T19/58, he gave the date on which he ceased working as 2 June 1999. He told the Tribunal that he did some work between June 1999 and June 2000.

61. The Tribunal was satisfied from Mr Dwight's own evidence at the Tribunal that he was still working on a regular basis in a part-time capacity, and formed the conclusion that the decline in business was not due entirely to Mr Dwight's psychiatric and medical conditions, but also due to the economic downturn which meant that not as much painting work was available as previously. It also took into account the effect of his non-accepted disability of cervical spondylosis.

62. The Tribunal noted that Dr Chen and Dr Breslin had both commented on Mr Dwight's reports that he suffered fatigue, and in particular that Dr Breslin attributed the fatigue to sleep apnoea. Mr Dawson objected to the Tribunal taking that factor into account because the Applicant had not been afforded the opportunity of giving evidence on that point, noting that the medical evidence indicated Mr Dwight had had no problems with regard to sleep apnoea after he had an operation to assist his condition. The Tribunal noted that objection, mindful also of the evidence that depression also causes fatigue and lack of motivation, and medical evidence which indicated that Mr Dwight's fatigue arose out of his chronic air-flow limitation. It was therefore not necessary for the Tribunal to give any important consideration to the sleep apnoea. However, the Tribunal noted in direct contrast to the fatigue argument, that Mr Dwight gave evidence that he was bored, and would prefer to engage in more activities.

63. The Tribunal noted that in addition to his psychiatric condition, chronic airflow limitation was a problem from which Mr Dwight suffered, and which had been accepted as war-caused. Ms Breuer submitted that Dr Burns had relied on incorrect calculations, and that Mr Dwight had no small airways limitations. She added that Dr Burns and Dr Chen, relying on reports before them, had made similar errors.

64. The Tribunal noted that various reports of tests results at Exhibit R9, indicated problems with airflow obstruction**.** Both Dr Law (T30) and Dr Baz (T31) had commented on Mr Dwight's respiratory problems, and Dr Burns did not consider that Mr Dwight would be capable of returning to work for eight hours per week in his previous job as a painter. He did, however, nominate other positions in which Mr Dwight could perform adequately.

65. Ms Breuer submitted that Dr Chen, at paragraph 23 of Exhibit R2, provided the only objective evidence. The Tribunal noted that she had opined as follows:

"The only objective evidence that Mr Dwight's accepted disabilities prevent him from undertaking remunerative work during the assessment period, is his spirometry results, which show a degree of respiratory impairment, which would probably affect his ability to painter at a normal pace. The easy fatigueability due to his respiratory impairment would probably prevent him from working a full day."

66. The Tribunal noted that Dr Chen did not think Mr Dwight could paint ceilings or engage in overhead work for long periods. By contrast Professor Breslin reported on 11 April 2001, (Exhibit R8), that Mr Dwight was fit for full-time work, and had better lung function than many of his patients. The Tribunal was satisfied from the evidence before it, including that of Mr Dwight, who replied to questioning by the Tribunal, that he could indeed paint for four hours a day, perhaps three days a week, and that he could remain on the job for eight hours if he was sitting down. The Tribunal concluded from the evidence that he was in fact undertaking painting, without doing ceilings, whenever it was available. His capacity to retrain and to do other work is discussed below.

67. Having considered Mr Dwight's psychiatric and medical conditions, the Tribunal moved then to consider any restrictions on work that these caused him, and on his capacity to work. The Tribunal noted also Mr Dawson's acknowledgement that the non-accepted conditions of cervical spondylosis and leg cramps affected Mr Dwight's capacity to work to some extent. Mr Dawson submitted, relying on the case of Banovich v Repatriation Commission (1986) 69 ALR 395 that Mr Dwight was unable to continue with the work as a painter and decorator, which he was undertaking, due to his chronic airflow limitation and his psychiatric condition.

68. Mr Dawson submitted that the Applicant relied on Dr Chen's report of 3 April 2001 (Exhibit R2), in particular paragraph 21 which reads as follows:

"Given Mr Dwight's skills, experience and qualifications, his accepted disabilities would prevent him from continuing to undertake the remunerative work that he was undertaking for twenty hours or more per week. However, his accepted disabilities would not prevent him from continuing to undertake remunerative work that he was undertaking for eight hours or more per week.

His accepted disabilities would not have entirely prevented him from working during the assessment period, i.e. from 6 August 1999 until the present. His accepted disabilities would have allowed him to continue part-time work of less than 20 hours per week but not full time work."

69. Ms Breuer referred to Mr Dwight's ratings under GARP. She drew to the attention of the Tribunal that Dr Davies rated him at 40 points, Dr Law at 26, Dr Baz at 19, and Dr Chen at 20 points.

70. Due to the various and conflicting versions Mr Dwight had given a number of doctors and other professionals, whom he consulted in connection with this claim, the Tribunal spent quite a time considering what Mr Dwight's work restrictions amounted to. The Tribunal accepted from Mr Dwight's answers that he could be on the job, working part-time with his sons, for most of the day. The Tribunal accepted his evidence, and that of the various doctors who indicated that Mr Dwight could not paint large ceilings, and accepted also his evidence that he could only work for about four hours a day, and would rest or sleep in between. The Tribunal also noted the opinion of Professor Sambrook, Rheumatologist, who stated that Mr Dwight's finger/hand problems would not affect his ability to undertake remunerative work as a painter.

71. The Tribunal also accepted that Mr Dwight could be retrained, accepting that he presently had no computer skills, and accepting also that he had undertaken a fisheries course with no difficulties reported. The Tribunal did not accept the evidence of Dr Law that Mr Dwight had impaired concentration affecting his future learning, preferring the test results and opinion of Clinical Psychologist Mr Cipriani, that overall there was no evidence of impairment of learning and memory, or of attention/concentration.

72. The Tribunal accepted the opinion of Dr Burns, Occupational Physician, that Mr Dwight would be physically capable of performing light or medium sedentary work including console operator at a service station or parking station attendant. The Tribunal noted also that Mr Burchett, Vocational Psychologist, appended to his report a list of appropriate vocational choices for Mr Dwight. The Tribunal accepted also the opinion of Mr Cipriani, Clinical Psychologist, who concluded that Mr Dwight was capable of more than 20 hours work per week in a range of sedentary or semi- sedentary occupations, noting that he had chosen to limit his choice to one position of interest to him, namely Fisheries Inspector. He added: "His vocational options are being mainly affected by lack of motivation to find suitable work." The Tribunal noted that Mr Dawson objected to the Tribunal accepting that Mr Dwight could work as a console operator.

73. The Tribunal noted from all the evidence, including that of the Psychologists, a range of jobs which Mr Dwight would be able to do taking into account his war- caused disabilities, and noting that the Applicant and his legal representatives had full access to these reports from the time they were served. The Tribunal noted also Mr Dwight's oral evidence that he was bored without work, and that he could do maintenance work and occasionally did welding. He said that he was experienced in tiling, carpentry, carpet laying and cleaning. The Tribunal noted also that when asked whether he could do bar or waiter's work, Mr Dwight said that he had no training for that. In coming to its decision, the Tribunal took into account section 28 of the Act and the principles expressed in Chambers v Repatriation Commission [1995] FCA 1144; (1995) 55 FCR 9.

74. The Tribunal was satisfied that Mr Dwight's war-caused disabilities alone did not cause him the relevant restrictions in working. The Tribunal concluded from the evidence both written and oral before it, that Mr Dwight was able to work in a profession such as painting with the exclusion of high and large ceilings, or a continuous period of more than four hours a day. The Tribunal was also satisfied that Mr Dwight could work for more than 20 hours a week or be retrained to do so for the other above-mentioned positions. The Tribunal was also not convinced on the balance of probabilities that Mr Dwight's accepted disabilities were the substantial cause of his reduction in his work hours and capabilities. Mr Dwight does not therefore satisfy the requirements of section 23(1)(b) of the Act.

75. As to whether Mr Dwight suffered a loss of income due to inability to work as a result of his disabilities; the Tribunal noted at Exhibit A3, the Applicant's income tax return dated 30 January 2001 which recorded nil income for the previous period. The evidence regarding the recording of income between Mr Dwight and his sons who operated the business together, may have been self-incriminating, and the Tribunal declines to discuss it here. Suffice to say, the Tribunal was not convinced on the balance of probabilities that Mr Dwight suffered a loss of income in order to satisfy section 23(1)(c) of the Act. Further, in concluding above that the decline in Mr Dwight's business was not due entirely to Mr Dwight's psychiatric and medical conditions, but also due to economic downturn, the Tribunal finds, pursuant to section 23(3), that the Applicant cannot be taken to have suffered a loss of income as a result of his accepted disabilities. Therefore, the Tribunal finds that Mr Dwight is not eligible for pension at the Intermediate Rate pursuant to section 23 of the Act. The Tribunal was satisfied that Mr Dwight's eligibility for pension was as found by the Veterans' Review Board on 6 November 2000.

76. The Administrative Appeals Tribunal affirms the decision of the Veterans' Review Board which decided on 6 November 2000 to set aside the decision of the Repatriation Commission of 26 November 1999, and substitute the decision that the disability pension payable to the Applicant, Mr George Edward Dwight, be assessed at 80% of the General Rate with effect from 6 August 1999, and at 90% of the General Rate with effect from 4 August 2000 pursuant to the Veterans' Entitlements Act 1986.

I certify that the preceding 76 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr J Campbell, Member.

Signed: .....................................................................................