ANTHONY COOPER and REPATRIATION COMMISSION

[2010] AATA 1075

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0053

VETERANS' APPEALS DIVISION		)
Re		ANTHONY COOPER

Applicant

And REPATRIATION COMMISSION

Respondent

REASONS FOR DECISION [2010] AATA 1075

Tribunal   Deputy President S D Hotop
  Dr J Chaney, Member

Date of Decision  15 December 2010

Date of Written Reasons         19 January 2011

Place  Perth

1.At the conclusion of the hearing of this application on 15 December 2010, the terms of the decision made and the reasons for that decision were stated orally by Deputy President Hotop.

2.A copy of the decision of the Tribunal was sent to the applicant by the Tribunal by letter dated 16 December 2010 and, by letter dated 28 December 2010, the applicant requested the Tribunal to furnish to him a statement in writing of the Tribunal’s reasons for its decision.

3.The oral reasons for the Tribunal’s decision, as stated by Deputy President Hotop, were transcribed by Auscript Australasia Pty Ltd (“Auscript”).

4.An edited transcript of those reasons, as recorded by Auscript, is attached and is forwarded to the applicant and to the respondent as a statement in writing of the reasons of the Tribunal for its decision.

..........[sgd S D Hotop]........

Deputy President

ORAL REASONS FOR DECISION (edited)
ADMINISTRATIVE APPEALS TRIBUNAL – APPLICATION No 2010/0053

Re ANTHONY COOPER and REPATRIATION COMMISSION

DEPUTY PRESIDENT S D HOTOP and DR J CHANEY, MEMBER
15 DECEMBER 2010

THE D.PRESIDENT:  It is common ground that Mr Cooper, who is the veteran in this matter, suffers from a number of accepted service-related diseases and they include alcoholic liver disease, anxiety disorder, alcohol dependence syndrome, and Parkinsonism.  Those accepted conditions, however, do not include Parkinson’s disease.  At a hearing earlier this year, the question of whether or not Mr Cooper also suffers from Parkinson’s disease was considered by us and determined on that occasion.  And, on that occasion, we determined that Mr Cooper has, at all material times, suffered from idiopathic Parkinson’s disease (see attached extract of transcript of hearing on 24 August 2010).  On that occasion, we did not express an opinion regarding whether Mr Cooper has suffered or is presently suffering from Parkinsonism.  So the status of Parkinsonism as a service-related disease remains intact. 

So the question now is whether, having regard to those considerations, Mr Cooper satisfies the requirements of section 24 of the Veterans’ Entitlements Act, within the assessment period.  The assessment period in this case runs from the day on which he lodged the relevant application, and that was on 30 October 2008.  That was the application for the increase in pension rate.  And the assessment period runs until the Tribunal makes its decision.

The respondent has conceded that Mr Cooper satisfies the requirement that the degree of incapacity from war-caused conditions is at least 70 per cent. That’s in section 24(1)(a). The respondent has also conceded that Mr Cooper satisfies paragraph (b). That is to say, he is totally and permanently incapacitated; his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours a week. However, that is not the end of the section because there is paragraph (c) which must also be satisfied. This is the so-called “alone test” and is as follows:

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…

So the critical question for our determination is whether, in the assessment period, Mr Cooper is, by reason of incapacity from war-caused injury or war-caused disease, alone, prevented from continuing to undertake remunerative work that he was undertaking.  The kind of work that he was undertaking could generally be described as that of a commercial driver, either driving a taxi, which he was doing when he ceased work in 1999, or prior to that, truck driving; but certainly driving in a commercial context.

As Mr Ponnuthurai noted, the interpretation and application of the “alone test” has often arisen before the Federal Court.  If I could just refer to a few Federal Court decisions.  There was the decision of Forbes v Repatriation Commission (2000) where Nicholson J accepted that, if some other factor – that is to say, other than a service-related disability – has played a part in preventing the veteran from continuing to undertake remunerative work, the veteran cannot meet section 24(1)(c).

There is Repatriation Commission v Hendy, to which Mr Ponnuthurai referred, where the Full Federal Court said:

The language of section 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. 

And there’s also another case which wasn’t cited.  It’s a case called Repatriation Commission v Alexander.  This is a 2003 decision where Spender J noted that, in that case, the Tribunal concluded that if Mr Alexander [the veteran] did not suffer from war-caused difficulties “he would still have been working”.  Now, that’s the point that Mr West was seeking to make, I think, on behalf of Mr Cooper.  Spender J then went on to say:

This is not the test for which section 24(1)(c) calls.  It is whether war-caused conditions, alone, prevent the [veteran] from continuing to undertake remunerative work that he has been undertaking.  It seems to me that the Tribunal has not addressed the question of causation that section 24(1)(c) calls for, but has, in effect, applied the requirements of section 24(1)(b).  The conclusion that “a combination of war service and non-war service related conditions preventing [the veteran] from working is a non-issue” is simply wrong.  If the non-service related conditions were a factor in preventing [the veteran] from continuing to undertake remunerative work, albeit those conditions were “of secondary importance”, the “alone” requirement of section 24(1)(c) would not be satisfied.

So what those passages from those Federal Court decisions make clear is that it is sufficient for the “alone test” not to be satisfied that a non-service related condition is playing a part, or contributing, to the veteran’s being prevented from continuing to undertake the kind of remunerative work that he was previously undertaking.  The contribution or the part played does not have to be substantial or significant.  It certainly doesn’t have to be a major contribution or play a major part.  As long as it can be said that it plays a part or makes a contribution which is not so trivial or insignificant to be dismissed as, to use the Latin phrase, de minimis.

So the question for us to determine is whether it can be said that, in the assessment period, Parkinson’s disease, which is a condition from which we have found Mr Cooper has suffered at all material times and which is also a non-accepted condition for the purposes of the Veterans’ Entitlements Act, has played and is playing a part or making a contribution, even if not a major or substantial contribution, to his being prevented from working as a driver.

We have heard Mr Cooper’s evidence and Mr West’s submission in respect of that issue, and we have had regard to that.  But, at the end of the day, we are of the opinion that this really is a medical question.  And we have heard evidence from Dr Mary Wyatt, who is a specialist consultant occupational physician.  Accepting that Mr Cooper suffers from both Parkinsonism and Parkinson’s disease and is suffering neurological symptoms, Dr Wyatt was unable to say whether those neurological symptoms were coming from the Parkinsonism or the Parkinson’s disease or a combination of both.  She was, however, unable to exclude Parkinson’s disease as a contributor to Mr Cooper’s neurological symptoms, and that is the position that we find ourselves in as well.  We are unable to say whether those symptoms are entirely attributable to Parkinsonism or Parkinson’s disease or a combination of both.  It is, perhaps, likely that they are attributable to a combination of both but, at the end of the day, we also are unable to exclude Parkinson’s disease as making a contribution to Mr Cooper’s suffering those neurological symptoms.

Dr Wyatt went on to express the opinion that the neurological symptoms, from which Mr Cooper is suffering, do contribute, she said, to a major degree to his inability to work in the type of work that he was trained for and was doing.  She said that she considered that – this is in her report of 11 October 2010, Exhibit R3 – “the Parkinson’s disease is a significant component of his work incapacity, and was likely the major factor resulting in him ceasing work as a taxi driver within a month of the diagnosis being made”.

It is not necessary for us to go as far as Dr Wyatt did in her report in saying that the neurological symptoms arising from, or contributed to by, the Parkinson’s disease were themselves contributing to a major degree to his inability to work, or were the major factor, or even a significant component.  As I said before, it is enough for us to be satisfied that they were making a contribution, playing a part, which was not totally insignificant, trivial, or de minimis. On the evidence before us, and giving great weight to Dr Wyatt’s report – which, in our opinion, should be given to a report of a specialist occupational physician – we are satisfied, on the balance of probabilities, that neurological symptoms attributable, at least in part, to Mr Cooper’s Parkinson’s disease were making, and are making, a contribution - were playing and are playing a part – in his being prevented from continuing to work as a driver. That being the case, we conclude that Mr Cooper does not satisfy the “alone test” in section 24, subsection (1), paragraph (c) of the Veterans’ Entitlements Act and, therefore, he is not eligible for the special rate of pension provided for by that section. 

For those reasons, we affirm the decision under review, which is the decision of the Veterans’ Review Board, dated 14 December 2009.