Baird and Repatriation Commission
[2002] AATA 784
•10 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 784
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/731
VETERANS' AFFAIRS DIVISION
Re: John Baird
Applicant
And: Repatriation Commission
Respondent
DECISION
Tribunal: Mr P.J. Lindsay, Senior Member, Dr. P. Lynch, Member
Date: 10 September 2002
Place: Sydney
Decision:The decision under review is affirmed.
[SGD] Mr P.J. Lindsay
Senior Member
ORDER TO AMEND WRITTEN DECISION
TribunalMr P.J. Lindsay, Senior Member
Date25 September 2002
PlaceSydney
WHEREAS:
The Tribunal released a written decision in this matter, which was dated 10 September 2002.
It has come to the Tribunal's attention that there was an error in the decision as to the rate of pension.
The Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
NOW THE TRIBUNAL THEREFORE ORDERS:
(a) That the decision of the Tribunal as recorded should read as follows:
The Tribunal sets aside the decision under review and substitutes a decision that the Applicant should be paid pension at 100 per cent of the General Rate from and including 25 March 1999.
(b)That paragraph 58 of the reasons for decision should read as follows:
It follows that Mr Baird is not entitled to Special Rate of pension, but as the Commission has conceded a pension assessment at 100 per cent of the General Rate, the decision under review should be set aside. In substitution for it, the Tribunal decides that Mr Baird is eligible for pension at 100 per cent of the General Rate from 25 March 1999.
[SGD] P.J. Lindsay
Senior Member
CATCHWORDS Veterans' entitlements – disability pension – whether applicant entitled to special rate – whether applicant totally and permanently incapacitated – whether applicant prevented from continuing to undertake remunerative work by reason of war-caused incapacity alone.
Veterans' Entitlements Act 1986 – ss.19, 24, 25, 28 and 120.
Cavell v Repatriation Commission (1988) 9 AAR 534
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
Forbes v Repatriation Commission (2000) 171 ALR 131
Fry v Repatriation Commission (1997) 47 ALD 776
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Smith (MJ) (1987) 74 ALR 537
Chambers v Repatriation Commission (1995) 36 ALD 207
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286
Flentjar v Repatriation Commission (1997) 48 ALD 1
Turnbull v Repatriation Commission, Federal Court, 21 May 1997, 421/1997
The Guide to the Assessment of Rates of Veterans' Pensions, 5th edition, Department of Veterans' Affairs, Canberra, 1998
REASONS FOR DECISION
Mr P.J. Lindsay, Senior Member
This is an application by Mr John Baird, the applicant, for review of a decision by the Repatriation Commission (the Commission) of 9 February 2000, which was affirmed by the Veterans' Review Board on 19 February 2001. The Commission's decision was to accept, with effect from 25 March 1999, Mr Baird's claim for alcohol dependence with depressive disorder but to refuse his claim for other conditions. Disability pension at 90 per cent of the general rate was granted with effect from 25 March 1999.
At the hearing, Mr Baird was represented by Mr N. Dawson of counsel and the Commission by Mr P. Godwin, a departmental advocate. Mr Baird gave evidence and Dr Dinnen, consultant psychiatrist, gave evidence on his behalf.
The Tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the following documents were tendered at the hearing:
- Exhibit A1 Report by Dr Dinnen dated 22 November 2001
- Exhibit R1 Report by Dr Lewin dated 30 October 2001
- Exhibit R2 Report by Dr Burns and Supplementary Documents dated 24 October 2001
- Exhibit R3 Records from Centrelink, Walgett and Letter dated 24 September 2001
- Exhibit R4 Transcript of Veterans' Review Board Hearing dated 19 February 2001
- Exhibit R5 Clinical Notes of Dr Karen
- Exhibit R6 Clinical Notes of Dr Hanna
background
Mr Baird was born in Brisbane on 22 July 1951. After leaving school, he trained as a carpenter and completed his apprenticeship before he joined the Army at age 20. In recognition of his civil qualifications, he obtained Army trade qualifications as a carpenter and joiner. While in the Army he qualified as a seaman and was posted as a shipwright. He served aboard the Army Ship AS3051 John Monash and served on duty in Vietnamese waters. He had operational service in Vietnam from 31 March 1972 to 21 May 1972 and from 19 June 1972 to 23 September 1972. He was discharged from the Army on 2 August 1974, on expiry of his period of service.
Once out of the Army Mr Baird started working as a carpenter.
On 25 June 1999 he lodged a claim for disability pension. A delegate of the Commission accepted Mr Baird's claim in respect of Alcohol Dependence with Depressive Disorder and granted disability pension at 90 per cent of the General Rate with effect from 25 March 1999. The delegate refused the claim in respect of lumbar spondylosis, healed fracture of the ribs and lumbar intervertebral disc prolapse. Mr Baird applied to the Veterans' Review Board for review of the Commission's decision but was unsuccessful. On 1 June 2001 he lodged an application for the Tribunal to review the Commission's decision.
issueThe Commission concedes that Mr Baird is entitled to a pension at 100 per cent of the general rate. The Tribunal must decide whether Mr Baird is entitled to pension at the special rate or, alternatively, whether he is entitled to temporary payment at special rate.
evidenceMr Baird's evidence was that, following his discharge from the Army, he went to New Zealand for about 12 months. He worked there as a carpenter on high rise buildings and towards the end of his stay, his work included the construction of home units. He returned to Brisbane and found work as a carpenter. Over the course of the next few years, he moved around Queensland from job to job doing carpentry and also worked in Darwin. He said that initially he did not have much trouble picking up work. At times, he remained out of work for some months, by choice. After he completed his job at Expo 88 in Brisbane he had a long time off. During that period out of work he said he did a lot of drinking and also went fishing.
In 1989 he was injured in a motorbike accident and broke his right tibia and injured his knee. Mr Baird has a shortened leg as a result. He had physiotherapy treatment. His doctor suggested he visit the Commonwealth Rehabilitation Service. He was rehabilitated and retrained. Through that agency, in 1991 he found employment, training apprentices. There was not any physically demanding work involved, since the apprentices had to do everything themselves, Mr Baird said. Although not able to be definite, Mr Baird believes he remained in that work for about two years until his heavy drinking intervened.
Mr Baird said that around 1993 he found regular work again, building houses and in unit construction. Apart from a couple of weeks' break at the end of some jobs, he was in that type of work for about two years. During periods of work, he said, he would drink only on the weekend and would not overdo it.
It was around 1990 that Mr Baird moved in with his father, who was then in poor health, to look after him. His father died in 1994 and Mr Baird stayed in his father's house until it was sold as part of the deceased estate. He then moved to Beenleigh.
Mr Baird has not worked in paid employment since December 1995. Towards the end of his carpentry career, Mr Baird was working more in a supervisory role. When asked why he decided not to look for another job after December 1995, when his last contract finished, Mr Baird said that he could not go on with it. He said he lost all his concentration and did not want to do anything. This led him, about a month after finishing his last job, to sell all his tools because he could not look at them and did not want anything to do with his work. Then there was a period of some months when he lived on an island in Moreton Bay and fished. He received unemployment benefits and sickness benefits for approximately two years. During this time, he did an odd job for a friend and built an internal stairway.
For no apparent reason, Mr Baird decided to go to Lightning Ridge in the outback in November 1997. This was a time when he was drinking very heavily. While at Lightning Ridge he continued to drink a lot. His health was such at this time that he started to receive the meals on wheels services. On 20 July 1999 Ms Sandra Thomas, a mental health worker at the Lightning Ridge Health Service, recorded that Mr Baird presented to accident and emergency on 12 June 1999 (Exhibit R6). He was depressed, unable to sleep, had mixed up feelings and suicidal thoughts. Ms Thomas observed Mr Baird over a four week period and found him to have poor appetite and sleeping patterns and to be depressed. She noted a history of alcohol abuse over many years. The history noted no previous admission to a psychiatric hospital. Dr Hanna, a general practitioner in Lightning Ridge, requested a cranial CT scan. The radiologist's report of 29 July 1999 noted that the ventricular system of the brain appeared not to be compressed and to be normal in outline. There was no evidence of recent lesion or haemorrhage (Exhibit R6). Dr Hanna's clinical note for 6 August 1999 recorded "Previously a carpenter: - had to stop - 4 years ago, due to back problem.. Scoliosis" (Exhibit R6). A radiology request by Dr Hanna dated 6 August 1999 referred to back pain and scoliosis. The radiology report by Dr Hunter dated 10 August 1999 noted the following:
Thoracic spine.
There is a thoraco-lumbar scoliosis centred at the thoraco-lumbar junction, convex to the right. …
Comment. Degenerative disc changes at L5-S1. Compared to the previous examination, these changes have progressed. (Exhibit R6)
From Lightning Ridge he went to Taree to live for a while, before returning to Lightning Ridge even though he knew it was not good for him because he would drink too much there. He currently resides in Taree.
Mr Baird has been admitted to the St John of God Hospital in North Richmond, New South Wales, on three occasions. He was first admitted on 5 November 1999 under the care of Dr Schmidtman, consultant psychiatrist. The clinical notes recorded that Mr Baird had a severely depressed mood, anxiety and intrusive thoughts (Exhibit R6). He spent Christmas 1999 in the hospital and was discharged on 5 January 2000. He was readmitted to St John of God Hospital on 4 December 2000 and left on 11 January 2001. The three discharge summaries of St John of God Hospital refer to diagnoses of: chronic post traumatic stress disorder; alcohol abuse/dependence, secondary depression; chronic back pain and social isolation. He was admitted on 24 May 2001 to the Mayo Private Hospital in Taree under the care of Dr Robertson, consultant psychiatrist, and has been readmitted on a subsequent occasion. Mr Baird said he is currently being treated by Dr Robertson, seeing him every couple of months, and by Ms O'Neill, clinical psychologist. For approximately the last two years, Mr Baird's been taking 60mg of Cipramil and 1500mg of Epilim daily.
Mr Baird is still drinking quite heavily, and on occasions, such as while watching football on television at home, may drink up to 15 cans of beer at a time. Mr Baird's evidence was that he does not leave his home very often because he does not like being out. He can spend up to a week inside at home. If in the mood, he may do some sketching, otherwise he spends his time watching television. He does not read much as he has trouble with concentration.
He said that while he was on service in Vietnam, he fell down a ladder and hurt his lower back. Although it caused a dull pain he did not take pain-killers for it. He suffered from back spasms as a result, but was still able to work as a carpenter because he compensated for the injury. He said he could work all right despite the injury and did not have any treatment for it when he used to work. He said the injury causes him no ill effects at the present. He said in 1995, his back was painful at the end of a workday, once he had cooled down. He saw a doctor about it.
Mr Baird's evidence was that when he was in Lightning Ridge in 1999 he used to fossick for gems. This involved climbing down holes and digging and his back did not stop him or bother him but it was different kind of work, he said. Mr Godwin asked him about a radiologist's report in November 1999 regarding xrays and a CT scan of his lumbosacral spine. Mr Baird said that he told the doctor at the St John of God Hospital that he had been getting back spasms and the doctor requested the xray and CT scan.
Mr Baird said he cannot work because he cannot concentrate, he is unable to remember things and he does not want to leave his home at times because of his depression. Centrelink records showed that Mr Baird commenced receiving payments on 5 December 1995 and ceased on 6 October 1999 (Exhibit R3).
In cross-examination Mr Baird was referred to the clinical notes of Dr Willett, general practitioner (Exhibit R5) and to the entry for 8 November 1996:
… Off work since Dec. last year: Can't work because scoliosis in back. Bouts of depression, every month or so…
Mr Baird was asked whether the scoliosis was the reason he could not work at the time. He said it was not. He said he first saw Dr Willett in November 1996 about his feelings of depression. In answer to Dr Lynch, Mr Baird said he probably first had symptoms of depression fifteen to twenty years ago, starting around 1986 to 1988 and getting worse between 1990 and 1995. He said he lost interest in activities such as surfing, fishing and going to football matches. It was while he was at St John of God Hospital that a psychiatrist first explained his symptoms to him and explained depression.
Cross-examined about his evidence that his back did not bother him while at Lightning Ridge in 1999, he was asked if he could recall why a doctor at St John of God Hospital requested an xray and CT scan of his lumbosacral spine in November 1999 (T7 fol.28). Mr Baird answered that he was getting back spasms and he told the doctor about his back problem. He denied that the back pain started or worsened after his motor bike accident in 1989.
Mr Baird agreed that the medical certificates that Dr Willett provided to Centrelink in relation to his claim for sickness benefits covering the period November 1996 to October 1997 (Exhibit R5) diagnosed his problem as depression and back pain. He also agreed that Dr Willett's prognosis in the medical certificates, referring to long term limitations on his ability to work, had noted Mr Baird's being unable to do lifting and some certificates also noted his being unable to bend. But Mr Baird could not recall Dr Willett's asking him about these matters because it was a very long time ago. Mr Godwin asked him about the claim for pension form he signed on 15 June 1999 (T4) and in particular his answer to the question "Have the disabilities you are now claiming affected your employment or your ability to seek employment at any time?" The answer, which Mr Baird said was completed for him by a representative of a veterans' association, stated "Stress: Can not handle people around (unable to work due to depression). Back pain: Can not lift. Chest: Shortness of breath when climbing ladders." Mr Baird said he did not know what had been put in the answer and said it was not correct because he could lift.
Mr Baird agreed that he had told Dr Dinnen that "He doesn't think that he could work, and said that he had done a couple of jobs but not for money and had developed spasms and could not cope with anyone breathing down his neck." (Exhibit A1). He also agreed that he gave the following history to Dr Burns, occupational physician, on 22 October 2001 (Exhibit R2): "After giving up work his back pain was okay for several years. But in the last two to three years it has increased again. He's now having muscle spasms on a regular basis. He's had three or four major attacks of back pain over the last 12 months." Mr Baird said he has had problems with his back all his life. In reply to a question from Mr Godwin, he said he can get back spasms at any time, whether working or not; for example, while in the shower.
In answer to Dr Lynch, Mr Baird said his depression was better than it was when he was first down. It was about thirty-five per cent better. Mr Baird said Dr Burns was incorrect in concluding that his back pain gradually increased after he stopped wearing the orthotics that he had been given because of his shortened leg. Mr Baird agreed that the following history that Dr Burns reported was accurate: "By the time he gave up work in late 1995 he was finding he was required to finish work at 3.30pm and would be in bed by 5.30pm due to his back pain." Mr Baird explained that he has had the problem with his back for thirty years and it is gradually getting worse. However, by the end of 1995 and particularly in hot weather, once he stopped work for the day, his back was such that he would sort of seize up, causing him to have to go to bed early.
He told the Tribunal that he has helped people out with a few odd jobs since being in Taree. He has set out a large backyard shed, installed benches for a clothes dryer, and with help, laid a concrete path. He said his difficulties with concentration would not allow him to return to work in a foreman's job.
Dr CarneDr Carne, consultant psychiatrist, reported to Dr Hanna on 24 August 1999, that Mr Baird had come into casualty about two months earlier, confused, depressed and suicidal (Exhibit R6). The history referred to binge drinking over a long part of Mr Baird's life, and to his knee and back problems.
Dr SchmidtmanDr Schmidtman, consultant psychiatrist, examined Mr Baird at St John of God Hospital on 26 October 1999 and reported on 27 October 1999 (T11 fol.47) that he displayed marked avoidance, poor memory, intrusive thoughts and flashbacks to incidents in Vietnam. Mr Baird described a marked worsening in symptoms in the last four years.
Dr Schmidtman noted that Mr Baird had been well regarded in his trade as a carpenter. She recorded that he had not been able to work for at least the previous two years " … as a result of his severe depression and chronic back pain (history of back injury in the Army secondary to several falls on the ship's deck in heavy seas.)". In her opinion Mr Baird would benefit from urgent treatment in hospital, including alcohol detoxification, for his major depression and post traumatic stress disorder symptoms. On 8 June 2000 Dr Schmidtman noted that there had been a marked deterioration in his psychiatric condition and that he was re-admitted to St John of God Hospital on 4 May 2000 (T11 fol.58). In her opinion, he was unable to work in any form of full-time or part-time employment and was unsuitable for retraining, due to his war related psychiatric condition. The prognosis was poor and he was very unlikely to return to work in the foreseeable future.
Dr DinnenDr Dinnen examined Mr Baird on 13 November 2001 and prepared a report dated 22 November 2001 (Exhibit A1). Dr Dinnen reported that Mr Baird said his depression built up and became very bad at the end of 1995. He had difficulty with his concentration and his depression. He had no confidence. In December 1995 he stopped working as a sub-contractor "… he sold all his tools. He said 'I had a crook back, for starters.' He said that that was being blamed for his inability to work." In relation to his excessive consumption of alcohol, he noted that Mr Baird used to sweat it out while he was working as a carpenter. His drink driving convictions had led to suspension of his driver's licence a few times.
Dr Dinnen reported that Vietnam had bad memories for Mr Baird and one of the legacies of his time there is his dislike of going to sleep. Dr Dinnen's diagnosis was depressive disorder with associated alcohol abuse/dependence. He considered that there are features of post traumatic stress disorder present. Dr Dinnen assessed Mr Baird's impairment according to The Guide to the Assessment of Rates of Veterans' Pensions, 5th edition (GARP V) at 54 points, which he said was consistent with severe chronic illness and disability. In his opinion Mr Baird is permanently unemployable.
Dr LewinDr Lewin, consultant psychiatrist, examined Mr Baird on 22 October 2001 and provided a report dated 30 October 2001 (Exhibit R1). Dr Lewin recorded a history of the gradual onset of depressive symptoms in about 1996 and no prior history of depression. He recorded symptoms of insomnia, disturbed sleep, poor concentration, agitation and preoccupation. In Dr Lewin's opinion, Mr Baird's difficulties began with his abuse of alcohol.
In his GARP V assessment of Mr Baird's impairment, Dr Lewin noted that in relation to Table 4.4 Occupation Functional Loss, Mr Baird had not missed work due to depression or drinking, but had missed a few days due to his back complaint. Dr Lewin concluded that "…there is a long established pattern of abuse of alcohol and Mr Baird probably demonstrates early clinical features of alcohol dependence. This condition has been complicated in the last five or six years by depressive reaction which has been rather chronic and resistant to treatment. In recent months there has been some improvement … Mr Baird noted clinical improvement in regard to his depressive symptoms and did not report any clear pattern of ongoing post - traumatic symptoms of anxiety."
Dr BurnsOn his examination carried out on 22 October 2001, Dr Burns, occupational physician, noted tenderness from L4 to S1 in the midline. Mr Baird's back flexion was 75 per cent of predicted. Mr Baird's left leg was one inch longer than his right due to the fracture of his tibia. Dr Burns noted a scoliosis in his low back, that Mr Baird walked slowly, and was able to sit comfortably for about fifteen minutes and then would need to change position. Mr Baird said that walking downhill can cause him back pain. Dr Burns further reported that Mr Baird worries a great deal about his back. Dr Burns noted that a CT scan of the lumbar spine revealed degenerative disc disease at L4/5 and L5/S1 with a disc protrusion at L5/S1. Dr Burns noted that Mr Baird's last job was working as a foreman, but it still required him to do a significant amount of hands-on work. Mr Baird's GP in Brisbane started treatment of his depression in February or March 1996. The dull ache in his back at the time was not as severe as it is currently.
In Dr Burns' opinion
… I believe that Mr Baird is currently unable to work even eight hours per week due to a mixture of his psychiatric problems and also his lumbar spondylosis. Of the two conditions, the psychiatric condition would appear to be the most significant. I thus believe it is predominantly his psychiatric condition that is currently keeping him out of the workforce.
In a supplementary report dated 8 February 2002, Dr Burns referred to additional information received including Dr Hanna's clinical notes and Dr Smyth's report. Dr Burns said that he could conclude from the additional information that Mr Baird ceased work due to his back problems in 1995 and soon after developed major depression.
Dr SmythDr Smyth, a doctor at St John of God Hospital, completed a medical report to the Department of Veterans' Affairs on 3 December 1999 (T7) in relation to Mr Baird's permanent incapacity. Dr Smyth noted a lumbar injury with chronic pain and a disc protrusion. Dr Smyth also noted the 1999 fracture of the right tibia that resulted in Mr Baird's leg being shortened and exacerbating his back problems. He also noted scoliosis of the spine. In Dr Smyth's opinion the back injury would cause permanent incapacity.
LEGISLATIONThe following provisions from the Veterans' Entitlements Act 1986 (the Act) are relevant to determining this matter:
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
(d) section 25 does not apply to the veteran.
(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(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
25. Temporary payment at special rate
(1) Where the Commission is satisfied that:
(a) a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies; the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsections 24(4) and (5).
(3) The Commission may, under this section:
(a) determine a period that commenced before the date on which the determination is made; and
(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.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).
SUBMISSIONS
For Mr Baird, it was submitted that there was entitlement to special rate pension under s.24 or if appropriate, s.25 of the Act. It was submitted that Mr Baird's incapacity will permanently keep him out of the workforce. Mr Dawson referred to Burchett J's judgment in Cavell v Repatriation Commission (1988) 9 AAR 534, in the context of interpreting the word "alone" which appears in both ss.24(1)(b) and 24(1)(c).
In relation the expression "remunerative work" in s.24(1)(c), Mr Dawson submitted that, applying the principle established in Banovich v Repatriation Commission (1986) 69 ALR 395 and Starcevich v Repatriation Commission (1987) 18 FCR 221, the Tribunal is required to look not at why a veteran left his last job, but why the veteran has left the type of work he was doing. Mr Dawson submitted that such work is not restricted to hands-on physical carpentry but extends to working as a supervisor on a building site and an instructor of apprentice carpenters. In Mr Dawson's submission, there was no evidence of Mr Baird's back condition being a major, debilitating problem. Mr Baird had put up with a back problem all his life and had little treatment for it. Mr Dawson distinguished this application from the facts in Forbes v Repatriation Commission (2000) 171 ALR 131 and Fry v Repatriation Commission (1997) 47 ALD 776. It was submitted that Mr Baird's accepted condition of alcohol dependence with depressive disorder would prevent him from remunerative work involving driving, use of power tools and climbing over building sites.
Mr Godwin agreed that the type of work undertaken by Mr Baird should be seen as including carpentry, building supervision, foreman and trainer of apprentices. Mr Godwin relied on reports of Dr Smyth and Dr Lewin in submitting that Mr Baird was not permanently incapacitated.
Mr Godwin submitted that it could be difficult for someone with a significant back problem to work in any of those areas. By reference to various clinical notes and medical reports he submitted that Mr Baird has a significant back condition. It was submitted that Mr Baird's back condition contributes significantly to his incapacity for work and therefore he fails the test in s.24(1)(c).
CONSIDERATION AND FINDINGSThe criteria governing eligibility for special rate of pension are in s.24 of the Act. Eligibility for the special rate of pension is determined during the "assessment period": s.19 of the Act. In this application, the assessment period starts from the day that Mr Baird claimed his pension, 25 June 1999, and continues until determined. The Tribunal notes the dictum of Pincus J in Repatriation Commission v Braund (1991) 23 ALD 591 (at 595) that the "critical question" about eligibility under s.24 is not to be determined at the date that the veteran retired. There is no dispute between the parties regarding the matters covered in s.24(1)(aa), (aab) and (a). The Tribunal is satisfied that Mr Baird lodged a claim for disability pension on 25 June 1999, he was under 65 at that time and that his degree of incapacity under s.21A of the Act has been assessed to be at least 70 per cent. In an application such as the present, s.120(4) of the Act provides that the Commission, and therefore the Tribunal in its stead, must decide the matter or make a determination "to its reasonable satisfaction". In Repatriation Commission v Smith (MJ)(1987) 74 ALR 537 the Court held that this introduced the standard of proof required in civil litigation, that is, reasonable satisfaction upon the balance of probabilities.
Section 24(1)(b)In relation to s.24(1)(b) the Commission argued that Mr Baird is not permanently incapacitated. Reference was made to the improvement that Mr Baird was making in relation to his depression. Dr Lewin noted Mr Baird's recognition of clinical improvement regarding his depressive symptoms and in his opinion Mr Baird's situation was quite fluid. On 3 December 1999, Dr Smyth was unsure whether Mr Baird's alcohol abuse/dependence and major depressive illness would be temporary conditions.
The Tribunal notes that the Commission has accepted that Mr Baird is incapacitated due to the war-caused condition of alcohol dependence with depressive disorder. Is Mr Baird's incapacity from that condition total and permanent? The provision describes the nature of that total and permanent incapacity being such that it renders the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours a week. In determining whether Mr Baird is incapable of undertaking remunerative work for that length of time, the Tribunal must have regard to, firstly, his vocation, trade and professional skills, qualifications and experience: s.28 of the Act. Mr Baird has trade qualifications and long experience as a carpenter. Referees have attested to his broad knowledge of the construction industry and allied trades, his acting as a foreman and also his training of apprentice carpenters (T11). The Tribunal observes that, following his stint as a trainer of apprentice carpenters while undertaking rehabilitation, Mr Baird worked during 1993 to December 1995 in hands-on, physical carpentry, building houses and in unit construction. The Tribunal is mindful of the opinion dated 3 April 1991 of Dr Walsh, clinical psychologist, who assessed Mr Baird's intellectual capacity as being more than adequate for his successfully undertaking clerical work or tertiary studies (T17). A reference from the Commonwealth Rehabilitation Service noted that Mr Baird successfully completed three of the four requisite subjects in Associate Diploma of Applied Science (Building). Having regard to his qualifications, skills and experience, the kinds of remunerative work that Mr Baird might reasonably undertake should not be narrowly confined: Chambers v Repatriation Commission (1995) 36 ALD 207.
Section 28 (b) of the Act requires the reasonableness of various opportunities for remunerative work to be taken into account. The joint judgment in Chambers' case referred to the following passage from the Full Court's judgment in Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 (at 290):
One thing which is abundantly clear is that para (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is defined an objective criterion for the assessment of the extent of the impairment. The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open.
Applying these principles, the Tribunal finds that, for the purposes of s.24(1)(b) reference to "undertaking remunerative work" is a reference to undertaking work as a carpenter, a foreman of carpentry work, a supervisor of building sites and a trainer of carpentry apprentices.
Is Mr Baird incapable, by reason alone of his condition of depressive disorder with alcohol dependence, of undertaking such remunerative work for more than eight hours per week? The Tribunal had regard to Dr Dinnen's diagnosis of alcohol dependence with depressive disorder and his conclusion that Mr Baird was permanently unemployable. In her report dated 8 June 2000 (T11 fol.58) Dr Schmidtman said that, due to his war related psychiatric conditions of major depression, alcohol dependence and chronic post traumatic stress disorder, Mr Baird is unable to work in any form of full-time or part-time employment. In Dr Burns' opinion, Mr Baird is unable to work even eight hours per week, although Dr Burns wrote that this was due both to his accepted condition and lumbar spondylosis, with the former condition being the predominant reason. The Tribunal has determined, to its reasonable satisfaction, on the basis of the foregoing expert evidence that Mr Baird's accepted condition of alcohol dependence with depressive disorder alone has rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
Section 24(1)(c)Turning to s.24(1)(c), the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 held that the Tribunal's task is to determine four matters (at 4-5):
1. What was the relevant 'remunerative work 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 answer 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?In Banovich's case, a decision relating to legislation in substantially similar terms to s.24(1)(c), the Full Federal Court discussed the term "remunerative work" as follows (at 402):
But it is, in our opinion, erroneous to read the phrase 'remunerative work that the member was undertaking' as referring to a particular job with a particular employer. The term 'remunerative work' is used in the Schedule in a context which indicates an intention to refer to work generally … Consistently with that use, the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job.
The Tribunal finds that the work that Mr Baird carried out in his trade as a carpenter, and the work that he performed as a supervisor on construction sites, and a foreman of carpentry work, and as a trainer of apprentice carpenters, constitutes the "remunerative work that the veteran was undertaking" for the purposes of s.24(1)(c).
For the reasons given above in relation to s.24(1)(b), the Tribunal finds that the answer to the second Flentjar issue is "yes".
When addressing the third issue the Tribunal is required " … to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which commonsense is the proper guide.": Cavell's case (at 539).
It was argued by the Commission that Mr Baird's back condition has contributed to his being prevented from continuing to undertake remunerative work. Dr Burns noted that a CT scan of the lumbar spine showed degenerative disease at L4/5 and L5/S1 and a disc protrusion at L5/S1. The clinical notes of Dr Hanna included an xray report on 6 August 1999 that recorded Mr Baird having a thoracolumbar scoliosis centred at the thoracolumbar junction, convex to the right (Exhibit R6). The back condition was diagnosed by Dr Hanna as thoraco-lumbar scoliosis and degenerative disc disease at L5/S1. Dr Smyth referred to the back condition as chronic lumbar pain and disc protrusion, as well as scoliosis of the spine. Dr Burns referred to the condition as lumbar spondylosis and a scoliosis. The Tribunal accepts the expert evidence of Dr Burns and finds that Mr Baird's back condition consists of a scoliosis in the low back and lumbar spondylosis. In addition, Dr Burns and other doctors have reported his having spasms in his back muscles.
Mr Baird's evidence was that he has always had back pain and has lived with it. Does the back condition and the spasms affect his ability to undertake remunerative work? The Tribunal is influenced by the following:
the number of references made to Mr Baird's back pain in Dr Willett's medical certificates provided to Centrelink in support of his claim for benefits, while allowing for the fact the certificates diagnose both depression and back pain. The certificates ask " Can the patient currently do his or her usual work?" and "Can the patient currently do any work for eight hours a week or more?" to which Dr Willett answered "No". The certificates state that an inability to lift and, in some instances, an inability to bend, place limitations on his ability to work. The Tribunal is satisfied that the information in the certificates would have been given to Dr Willett by Mr Baird.
Dr Dinnen's report of 22 November 2001 that recorded him having a "crook back for starters" in December 1995 when he gave up work. Dr Dinnen noted that "he doesn't think that he could work, and said that he had done a couple of jobs but not for money and had developed spasms and could not cope with anyone breathing down his neck." Mr Baird's evidence was that these were spasms in the back.
Dr Burns' report (Exhibit R2) that recorded Mr Baird's dull ache in the back increasing to such an extent that by the end of 1995 he would be in bed on work days at 5.30pm due to the pain in his back. Dr Burns reported that the back pain had increased again in the last two to three years. Also, Dr Burns reported Mr Baird's now having regular muscle spasms and suffering three to four major attacks of back pain in the past twelve months. In Dr Burns' opinion, the combination of Mr Baird's psychiatric condition and his lumbar spondylosis is causing his inability to work.
Dr Willett's clinical note dated 8 November 1996, that referred to Mr Baird's being off work since December 1995, and attributed that to scoliosis in the back and bouts of depression. Throughout Dr Willett's notes from November 1996 to June 1997 there are many references to depression. Although not as numerous, there are a number of references to back pain throughout the period from 8 November 1996 to 29 May 1997.
Dr Hanna's clinical note dated 6 August 1999 that referred to Mr Baird's having to stop work as a carpenter due to a back problem – scoliosis.
Mr Baird's disability pension claim form (T4) referred to his disabilities that affected his employment or his ability to seek employment at any time, as post-traumatic stress disorder, back pain and chest pain. The Tribunal accepts that the information would have been given by Mr Baird to the person who filled in the form for him to sign.
Dr Hanna's diagnostic report to the Department of Veterans' Affairs diagnosing thoraco-lumbar scoliosis and degenerative disc disease L5/S1 (T5).
Dr Schmidtman's report of 27 October 1999 (T11 fol.48) noting that "He has not been able to work for the past two years as a result of his severe depression and chronic back pain (history of back injury in the Army secondary to several falls on the ship's deck in heavy seas)."
Mr Baird's evidence to the Veterans' Review Board that his back pain gave him trouble when climbing scaffolds (Exhibit R4).
Dr Smyth's report to the Department of Veterans' Affairs regarding permanent incapacity (T7) that noted a lumbar injury with chronic pain and a disc protrusion. Dr Smyth also noted the 1989 fracture of the right tibia, that led to Mr Baird's leg being shortened and exacerbating his back problems, and scoliosis of the spine. In Dr Smyth's opinion the back injury would cause permanent incapacity.
Dr Karen's clinical note of an attendance on Mr Baird on 7 November 2001 that referred to his low back pain and needing Celebrex.
In cross-examination Mr Baird said that he was sent for xrays of his back in November 1999 because he had been getting back spasms.
Having regard to the evidence noted in the above paragraph, the Tribunal finds that Mr Baird has experienced major attacks of pain from his back condition and spasms in his back muscles, during the assessment period. The Tribunal rejects his evidence that the back condition did not cause him problems in 1999. This is contradicted by the history given to Dr Burns and Dr Schmidtman, and the request for xray of the thoracic and lumbar spine by Dr Hanna on 6 August 1999. The Tribunal finds that the pain from the back condition that he suffered in late 1995 has come back again during the assessment period. The Tribunal finds that the pain from the back condition in 1995 affected Mr Baird's capacity then to undertake remunerative work and refers to the notes of Dr Willett and Dr Hanna, and Dr Schmidtman's report. The Tribunal is reasonably satisfied that the back pain and spasms suffered during the assessment period have similarly affected his capacity to undertake remunerative work and in this respect refers, in particular, to the reports of Dr Dinnen, Dr Burns and Dr Schmidtman, and to the disability pension claim form. The Tribunal finds, on the basis of Dr Willett's medical certificates, that from November 1996 to October 1997, Mr Baird's back condition contributed to or played a part in his inability to work. Taking into account the evidence referred to in par 52, the Tribunal is not persuaded, on the balance of probabilities, that Mr Baird's inability to continue to undertake his remunerative work in the assessment period is by reason of his war-caused incapacity alone. The Tribunal finds that Mr Baird's back condition played a part in his giving away his remunerative work. But more relevantly for present purposes, the back condition and back spasms have played a part in his inability to undertake such work through the assessment period. In coming to this conclusion, the Tribunal accepted Mr Godwin's submission that training of apprentices in carpentry would require something more than merely watching them from a glass box: the level of involvement in the work would be over and above merely lecturing the apprentices.
The Tribunal is mindful of the evidence of Dr Dinnen that Mr Baird's actions in throwing away his tools because he could no longer look at them are suggestive of giving up an expectation of returning to the trade. Dr Dinnen also said that an individual's depression can alter their perception of a condition. Where in the past the individual may have endured the condition, they can become less tolerable of it as a result of experiencing depression.
It may be Mr Baird's depression is the major contributing factor to his being prevented from continuing to undertake remunerative work. The test to be applied in a common sense fashion, is whether that loss of work is attributable to his accepted condition and not something else as well. On the evidence before it, the Tribunal is satisfied that Mr Baird's back condition, diagnosed as lumbar spondylosis and scoliosis in the low back, and the back spasms, have played a part in preventing his continuing in remunerative work. The lumbar spondylosis, scoliosis and back spasms are not accepted conditions. The Tribunal notes the following dictum of R D Nicholson J in Forbes' case (at 138) :
The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. … it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sough to ameliorate this position by the provisions in s.24(2)(b), to which reference has been made.
Similarly, Merkel J in Turnbull v Repatriation Commission, Federal Court, 21 May 1997, 421/1997 held that an applicant for disability pension would not meet the test in s.24(1)(c) where a non war-caused condition contributed to, or played a part in, the prevention of the veteran's continuing to undertake remunerative work. The report of Dr Burns, who noted that Mr Baird had told him that pain in his back had increased over the past two or three years and that he is now having muscle spasms on a regular basis, and Dr Burns' conclusion that Mr Baird's inability to work is due to a mixture of psychiatric problems and lumbar spondylosis, supports the Tribunal's finding that the war-caused condition alone is not preventing him from continuing to undertake remunerative work.
It was conceded by Mr Dawson that Mr Baird had not been genuinely seeking to engage in remunerative work. Accordingly, the ameliorative provisions of s.24(2)(b) were not open to him.
As Mr Baird has not been prevented from continuing to undertake remunerative work by reason alone of his accepted condition, there is no need to consider the second limb of s.24(1)(c). There is no entitlement under s.25 of the Act to temporary payment at special rate because the criteria in s.24, leaving aside s.24(1)(b), have not been satisfied.
It follows that the decision under review should be affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate of Hearing 20 March 2002
Date of Decision 10 September 2002
Counsel for the Applicant Mr N DawsonAdvocate for the Respondent Mr P Godwin
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