Andrews and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 1008

Andrews and Repatriation Commission (Veterans’ entitlements) [2015] AATA 1008 (22 December 2015)

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2014/2395
Re	Graeme Andrews
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	22 December 2015
Place	Brisbane

The decision under review is set aside. In substitution, I decide the applicant satisfies the requirements in s 24 of the Veterans’ Entitlements Act 1986 (Cth) and is entitled to the pension paid at the special rate.

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Senior Member McCabe

Catchwords

VETERANS’ AFFAIRS – benefits and entitlements – special rate pension – whether non-service related factors contributed to inability to work – applicant stopped work because of service-related conditions alone – decision under review set aside and substituted

Legislation

Veterans’ Entitlements Act 1986 (Cth) s 24

REASONS FOR DECISION

Senior Member McCabe

22 December 2015

1. This is an application for a pension paid at the special rate pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). The respondent says there is an obstacle in s 24(1)(c): it says the applicant’s inability to work (which is accepted) is at least partly explained, or also explained, by non-service related factors including:

   ·The fact he left work in 1999 to look after his aged father;

   ·The impact of cervical spondylosis on his continuing inability to work;

   ·The effects of shortness of breath;

   ·Labour market conditions and his age;

   ·A long absence from the workforce;

   ·The effects of dizziness or disequilibrium.

2. The applicant has answers to most, if not all, of these concerns. He says he already decided to leave work in 1999 before his father showed up and asked to be taken in. The applicant says he made the decision to stop work because he was physically unable to continue, not because he had responsibilities to the father he had not seen for over 30 years. The tiling work in which he was engaged was not as arduous as other labouring jobs, he said, so shortness of breath was not a serious issue, but one had to bend down and kneel or stand for long periods, which his accepted back condition would not allow. (He also said the accepted alcohol abuse condition was not an issue.) He denied that he played a purely managerial role in his tiling business: he had to be physically present to direct the work but it was also economically necessary for him to play an active role in the workplace – albeit that he would usually do the easier work (from his point of view) like tiling in bathrooms where he did not need to bend down or kneel as much. He expressly denied that economic conditions played a role in his decision to quit: there was still plenty of work available, he said, he just could not do it because of his back and knees.

3. His evidence on these points is uncontradicted. I am satisfied he gave his evidence in the witness box truthfully and in a straight-forward way. There is no reason why I should not accept his account of his experience and motivations. His physical disability upon cessation of work is corroborated by the evidence that he did not play an active role in the construction of his new home shortly after he moved to Yarraman. There was tiling work to be done in the new dwelling but he did not make any effort to save money by doing it himself. That behaviour is consistent with a man who believed he was unable to work. I note Mr Andrews also gave evidence of attempts to return to the workforce as a tiler. He said he was simply unable to do the work.

4. The applicant called Mr Andrew Waterton, a registered builder, to give evidence about the likely significance of the applicant’s age and period of absence from the workforce. Mr Waterton did not know the applicant personally but provided a statement (exhibit 4) and gave oral evidence. He told me tilers are, and were, in demand. Mr Waterton said the fact Mr Andrews has been out of the workforce for some time is not a problem in and of itself: a tiler’s skills do not necessarily erode over time, and there have not been significant technological advances in tiling. Mr Waterton said older tilers may actually be preferable to their younger counterparts because they tended to have better skills and be more reliable.

5. That leaves the effects of cervical spondylosis and dizziness. The applicant denied cervical spondylosis was an issue. He acknowledged he had experienced episodes of neck pain in the past, and instances of ‘locking’. He attributed all that to the way in which he was sleeping. (He said he formerly slept on his stomach, but the problem largely resolved itself once he stopped doing that regularly.) In his evidence, he said he experienced acute pain around 2002 when he changed cars and then adopted a different driving position, and may have mentioned that fact to his treating general practitioner. He said the acute pain and restrictions were short-lived. He acknowledged a claim had been submitted on his behalf to the respondent in relation to cervical spondylosis but said he was only dimly aware of the substance of the claim. His general practitioner wrote the report but never really discussed it with him, and his claim was put together by the secretary of the local RSL.

6. Dr Alan Home examined Mr Andrews at the request of the Commission. Dr Home is a specialist occupational physician. He provided reports dated 18 December 2014, 21 April 2015 and 2 September 2015 (exhibits 6, 7 and 14). He also gave telephone evidence at the hearing. In his initial report, he noted the applicant experienced reduced range of active motion in the cervical spine. Dr Home’s second report was prepared in response to a report provided by Dr Peter Sharwood (exhibit 5), a consultant orthopaedic surgeon who examined the applicant. Dr Sharwood had noted the applicant appeared to have a wide range of motion in his cervical spine. Dr Home said that was unlikely, and it was certainly inconsistent with his own observations. In his telephone evidence, Dr Home explained the applicant was unable to perform a range of movements, including touching his chin to his shoulder. As he spoke, the applicant – who was present at the rear of the hearing room – proceeded to demonstrate he was able to freely perform all of the movements that Dr Home said were restricted. In particular, the applicant demonstrated he had extraordinarily good range of motion in his neck consistent with the observations of Dr Sharwood. (I asked Dr Home whether the fact the applicant was able demonstrate in the hearing room that he was able to touch his chin to his shoulder was evidence of a good range of motion, and he agreed it was.)

7. The preponderance of the evidence does not establish that the neck condition is or was an obstacle to doing the sort of tiling work the applicant had been doing.

8. That brings me to dizziness. Dr Home did not think it was an obstacle to work when he first examined the applicant because the applicant gave a history suggesting it was only a problem when he walked. Tiling does not involve a great deal of walking. The applicant gave the same evidence in the witness box. But Dr Sharwood apparently took a different history which is at odds with the applicant’s account in the witness box. Dr Sharwood suggested dizziness might also be an issue when the applicant bent forward. If that was so, Dr Home agreed it would be an issue for a tiler. It would also be an issue for anyone working at heights, in a crane, but tilers do not need to work at heights (even if some do).

9. I am satisfied the note in Dr Sharwood’s report about experiencing dizziness when bending forward is an anomaly. The applicant’s evidence in the witness box – and he was a credible witness who did not exaggerate and made appropriate concessions – suggests the dizziness was only an issue when he walked. It was not a practical obstacle to the applicant working as a tiler. Since the specialist opinion turns on the history, I should prefer the opinion of Dr Home who took what I am satisfied is an accurate history in this respect.

10. Out of an abundance of caution, I allowed the applicant to seek further medical opinion about the dizziness issue. He was examined by Dr Christopher Perry, a consultant in oto-laryngology and head and neck surgery. Dr Perry also referred the applicant for tests by an audiologist. Dr Perry’s initial report is dated 22 June 2015 (exhibit 10) and the final report, dated 11 August 2015, is exhibit 11.  The audiologist’s tests confirmed the applicant experienced significant high-frequency hearing loss and some impact on the balance mechanism in the right ear which Dr Perry said was probably age-related. In his oral evidence, Dr Perry said he was unable to find anything wrong with the applicant’s ears, apart from some age-related degeneration. He said the most likely explanation for the applicant’s occasional dizziness was related to changes in blood pressure that occur when an individual (especially an older individual) moves from a kneeling or crouching position to a standing position. But he also added Mr Andrews had said it was not a serious issue and Dr Perry said he had no reason to doubt that evidence.

11. Dr Home also provided a report. He suggested the most likely explanation for the dizziness was inner ear pathology. That may be so, although Dr Perry, who possesses the relevant expertise, was less inclined to make that call. But it makes no difference in the circumstances. There was nothing discovered that suggested the applicant had serious problems with his balance that would compromise his ability to work. Given the applicant insists he was not seriously troubled by the occasional bout of dizziness, there is no reason to disturb my finding that the applicant was not prevented from doing his work by this non-service related condition.

12. I should say that questions arose over Dr Perry’s report dated 11 August 2015 because he provided two different versions. In the first version, he opined:

    Graeme found tiling was pretty solitary work. He had little to do except think of things. He felt that the solitude of being a tiler impacted on his post traumatic stress associated with his experiences in Vietnam. He feels that’s the main reason why he gave up work, not the physical demands of the job.

13. In the second version, he modified the paragraph so it read:

    Graeme found tiling was pretty solitary work. He had little to do except think of things. He felt that the solitude of being a tiler impacted on his post traumatic stress associated with his experiences in Vietnam. He feels that he gave up work because of the physical demands of his job and his sore back, as well as the stress associated with solitary work giving him time to relive past stressful situations in Vietnam.

14. Dr Perry said he made the change after his secretary was contacted by Mr Andrews. Mr Andrews had read the original report and wanted to correct that aspect of the history which he believed was inaccurate. (Mr Andrews agreed he made contact with Dr Perry’s rooms to make the change. He did so without telling his lawyer.)

15. I do not think I should make anything of the discrepancy. I accept Dr Perry made the change in good faith and was not attempting to mislead. The opinion is ultimately irrelevant in any event. Dr Perry was being consulted about whether the applicant’s dizziness was an obstacle to him working. His opinion as to other potential causes that lie outside his area of expertise does not change my analysis.

    Analysis of the law

16. There are two limbs to s 24(1)(c). Under the first limb, I must consider whether:

    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…

17. The veteran was working as a self-employed tiler. He had previously worked as a farmer, a backhoe operator and a crane driver: exhibit 3. I am satisfied the work that the veteran was undertaking was tiling. The veteran says he ceased that work and cannot return to it because of his accepted back and knee conditions. I have no reason to doubt that evidence. I am satisfied the other non-service-related conditions or factors discussed in these reasons did not cause him to cease working as a tiler, and do not prevent him from returning to that role.

18. The second limb of the test requires that I be satisfied that, as a consequence of the service-related factors alone, the applicant is:

    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…

19. The second limb in particular is informed by ss 24(2)(a)(i) and (ii) which specify circumstances in which the applicant will be taken not to have suffered a financial loss by reason of a war-caused incapacity. I am satisfied the applicant did not cease engaging in remunerative work for some other reason, such as the need to look after his elderly father. I accept the applicant had already decided to cease work because of his service-related conditions by that point. I was also unable to identify any other reason for Mr Andrew’s decision to quit work. I am satisfied he behaved as he did in response to his service-related conditions alone. In doing so, he suffered a loss of earnings from his business which was otherwise viable and would have continued to generate income.

    Conclusion

20. The applicant stopped work because of his service-related conditions alone – and he remains unable to work because of those conditions alone. I am satisfied if he was not affected by those conditions, he could still be a tiler on the Gold Coast, or elsewhere.

21. The decision under review is set aside. I decide in substitution that the applicant has satisfied the requirements in s 24 of the Veteran’s Entitlements Act 1986 (Cth) and is entitled to a pension at the special rate.

22. The parties did not make any submissions on the date of effect. If they are unable to agree on the date of the effect, each should make written submissions to the Tribunal within 28 days and a decision will be made on that issue.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 22 December 2015

Dates of hearing

3 June 2015, 5 November 2015

Counsel for the Applicant

Mr A Harding

Solicitors for the Applicant

Advocate for the Respondent

Terrence O’Connor Solicitor

Mr G Purcell