Barry and Repatriation Commission

[2006] AATA 834

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR ORAL DECISION [2006] AATA 834

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1665

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBIN BARRY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date of oral decision        14 September 2006

Date of written reasons   28 September 2006

PlaceSydney

Decision The decision under review is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly  

CATCHWORDS

VETERANS AFFAIRS – claim for increased disability support pension – whether war caused conditions only factors preventing applicant from continuing to work – found obstructive sleep apnoea and primary cardio-myopathy are also relevant factors – decision under review affirmed.

LEGISLATION

s24, Veterans Entitlement Act (1986)

CASES

Flentjar v Repatriation Commission (1997) 48 ALD 1

Starcevich v Repatriation Commission (1987) 76 ALR 449

Repatriation Commission v Hendy (2002) FCAFC 424

WRITTEN REASONS

1.At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

REASONS FOR DECISION

28 September 2006 Senior Member, Mrs Josephine Kelly   

1.      Mr Barry is 52-years of age.  He has not been employed in a full time job since he was retrenched from his supervisory position at a coal mine in March 1993.  He served in the Royal Australian Navy from 10 January 1971 to 20 July 1973.  His eligible defence service, as defined in the Veterans Entitlement Act (1986) Commonwealth, (“the Act”), was from 7 December 1972 to 20 July 1973.  Mr Barry suffers from many medical conditions.  He has been receiving a disability support pension since about six months after being retrenched and has had various medical conditions accepted as war caused pursuant to the Act since 1994. 

2.      He is seeking the special rate of pension pursuant to section 24 of the Act.  He is not pursuing conditions that were rejected in the reviewable decision made on 26 June 2002 which was affirmed by the Veterans Review Board on 1 July 2004.  The special rate is payable to a veteran who has at least 70 percent incapacity from war caused injury or disease and is totally and permanently incapacitated for paid work of more than eight hours per week due to that incapacity alone, and is consequently suffering a loss of earnings.

3.      It is conceded by the Repatriation Commission that Mr Barry satisfies section 24(1)(a) and (b) of the Act.  That is, his degree of incapacity is greater than 70 per cent (he already receives 100 per cent of the pension at the general rate), and his war caused conditions have rendered him incapable of undertaking paid work for more than eight hours a week. 

4.      The issue is, does Mr Barry satisfy the requirements of section 24(1)(c), that is, does he satisfy the “alone test”?  The ameliorative provision in section 24(2)(b) does not apply to Mr Barry because he has not been seeking to engage in remunerative work for some years.

5.      The assessment period commences on 26 March 2002.  That is the period during which Mr Barry must satisfy the requirements of the Act.  The correct approach to the application of section 24(1c) of the Act is to follow the four steps set out in Flentjar v Repatriation Commission (1997) 48 ALD 1. The questions to be determined are:

(1)      What was the remunerative work Mr Barry was undertaking?

(2) Is Mr Barry prevented from continuing to undertake that work because of his war caused conditions?

(3)If so, are his war caused conditions the only factors preventing him from continuing to undertake that work? 

(4)And if that is satisfied, is Mr Barry suffering from a loss of salary, wages or earnings that he would not be suffering if he were free of the incapacity? 

6.      The applicable standard of proof is reasonable satisfaction pursuant to section 124 of the Act.  

Consideration

7.      What was the remunerative work Mr Barry was undertaking?  Mr Barry provided written and oral evidence at the hearing.  When he was retrenched in 1993 he was working in a supervisory role in a coal mine.  He was a mine deputy in charge of the afternoon shift, responsible for all aspects of production and maintenance during that shift.  He had worked in collieries from 1974.  He started off as a labourer, became a machine operator, then engineer fitter, and later, a leading hand. 

8.      Following his retrenchment he sought other employment through the CES in Lithgow.  He was unsuccessful because his doctor would not give him an unconditional medical clearance because of his unstable diabetes.  He tried to get documents from that time but they no longer exist.  He said that the CES put him on the disability support pension in October 1993 because they could not help him and as he had three children he was allowed to earn $150 a week. 

9.      He applied unsuccessfully for many positions in various industries including as a safety or training officer and supervisory work in engineering workshops.  He put in tenders to TAFE to do course outlines for a mining course.  In about 1994 to 1995 he did some work.  He mowed lawns around the offices at a gold mine using a ride-on mower but could not continue because of his bad health.  He became unreliable.  He also did some odd jobs including welding and working out requirements for an electric fence for a friend who owned property.  He said that he stopped looking for work and he started having major problems with neuropathy, an accepted condition, 24-hours a day. 

10.     I find that the remunerative work Mr Barry was undertaking pursuant to section 24(1)(c) of the Act, was mine deputy at a colliery.  In coming to that conclusion I have taken into account the decisions of Starcevich v Repatriation Commission (1987) 76 ALR 449 and Repatriation Commission v Hendy (2002) FCAFC 424 at paragraph 36. The Tribunal is not concerned with a particular job with a particular employer but with the substantive remunerative work that Mr Barry has undertaken in the past. Further, the Tribunal is not bound to limit its consideration to the last employment that he undertook.

11.     The next question is, is Mr Barry prevented from continuing to undertake that work because of his war caused conditions?  Mr Barry’s accepted war caused conditions are generalised anxiety disorder (GAD), diabetes mellitus (diabetes), diabetic peripheral neuropathy (peripheral neuropathy), irritable bowel syndrome (IBS) and impotence.  I accept his evidence that he was retrenched in 1993 because he was medically unfit because of his unstable diabetes.  He said that “medically unfit” was written at the bottom of the statement of benefits document that he was given at that time.  His diabetes has continued ever since. 

12.     Dr Burns, occupational physician, relates what Mr Barry told him when he assessed him on 25 August 2005 at the request of the Commission.  GAD was first accepted in 1994.  Dr Burns records that before that, Mr Barry had been treated with antidepressants by his general practitioner for several years.  Since 1996 Mr Barry has been under the care of Dr McClure, a psychiatrist.  He is still taking medication.  Socially he was a loner since his days in the Navy.  He has become totally withdrawn in his activities.  Mrs Barry described in oral evidence, how her husband is easily upset and cannot be consoled, but perhaps it is not as bad now as it was when he was working.      

13.     Mr Barry was diagnosed with diabetes in 1989 and was treated for the first six months with diet control and tablets.  In 1990 he commenced taking insulin.  Mr Barry said that his diabetic control has always been problematic.  It tends to wildly fluctuate from either being too low or too high.  Dr Burns also records Mr Barry’s history of neuropathy which was first diagnosed in 1998 or 1999.  He notes that it has progressed substantially and that Mr Barry reported ongoing pain 24 hours a day in both his lower limbs and occasionally in his upper limbs.  He also reported having a burning sensation occasionally up as far as his umbilicus.  At night he said he cannot stand the bedclothes on his feet. 

14.     Since 1999 or 2000 Mr Barry has taken various narcotic analgesia.  Dr Burns noted that documentation showed that Mr Barry had significant sensory problems but he was unable to determine whether he had any motor problems arising from the condition.  Mr Barry told him that he believes his legs are weaker than they have been in the past.  In relation to the IBS, Mr Barry told Dr Burns that he currently goes to the toilet between four and 30 times per day and he takes medication regularly.  Mr Barry told me that when the need arises he has to go to the toilet immediately.  Mr Barry said that impotence would not affect his ability to work.  Dr Burns did not give an opinion on this point. 

15.     On the basis of the above summary of evidence about his accepted conditions and their effects, I find that Mr Barry is prevented form continuing to undertake work as a mine deputy at a colliery because of war-caused conditions. 

16.     The next matter to determine is, are his war caused conditions the only factor preventing him from continuing to undertake the work that I have determined he undertook?  Dr Burns considered conditions from which Mr Barry suffers which have not been accepted by the Commission.  They are pilonidal sinus, arthrodesis left wrist, primary cardiomyopathy, sleep apnoea, morbid obesity and low back pain. 

17.     Mr O’Reilly took me to documents in evidence in the T documents and clinical notes from Dr Bakhilova in an attempt to establish that Mr Barry suffers from additional conditions relevant to this issue including depression and emotional myopathy.  That material was before Dr Burns and he stated in his report that he had read all the documents.  I am not persuaded by the evidence Mr O’Reilly took me to that there have been diagnoses of those other conditions.  My conclusion is supported by the fact that Dr Burns has not dealt with them.  I infer that if Dr Burns had determined from the material before him, which is also before me, that Mr Barry suffered from another condition that was relevant to this question, he would have addressed it.

18.     Dr Burns considers each of the conditions in detail.  I do not accept some of his conclusions, where Mr Barry’s evidence is to the contrary.  Mr Barry said that Dr Burns did not examine him at all which is also apparent from Dr Burns’s report and that he only seemed interested in the non-accepted conditions.  An example of Dr Burns’s making mistakes is his conclusion that Mr Barry’s compensation payment in 1993 was in relation to injuries he suffered when he was buried in a roof collapse in 1988 from which Dr Burns concluded that that injury was more severe than a 1985 left wrist injury.  The payment actually related to Mr Barry’s earlier injury to his left wrist. 

19.     I accept Mr Barry’s evidence that the injuries suffered in the 1988 incident healed.  He continued to work until 1993 despite both injuries with no apparent difficulty.  I would also observe that he had the pilonidal sinus while he was working and that did not deter him from working.  

20.     Dr Burns’s understanding about the extent of the 1988 injuries led him to another error when he said that Mr Barry is unable to exercise in part because of his musculo-skeletal problems.   Rather, Mr Barry said it was because of his neuropathy.  Dr Burns also said that Mr Barry was uncertain whether the machine he has for his sleep apnoea was beneficial whereas Mr Barry said that it was a godsend. 

21.     Dr Burns’s conclusion was that Mr Barry’s inability to work is due to a mixture of both his accepted and rejected disabilities.  In his opinion Mr Barry’s major problems would include his peripheral neuropathy, his diabetes, his GAD, obstructive sleep apnoea and his primary cardiomyopathy.  Dr Burns did not believe that is was possible to say if Mr Barry is unable to work solely due to his accepted disability.  In his consideration of primary cardiomyopathy Dr Burns reported that Mr Barry told him that he continues to be tired and lethargic throughout the day and that he does not have any energy and finds that he has no stamina for activity.  Dr Burns reports that it is still a major concern as it adversely affects his capacity to do activity.

22.     In his consideration of sleep apnoea Dr Burns recorded that Mr Barry continues to be extremely tired throughout the day but believed that this may be associated with his cardiac disease.  Mr Barry told me that he does not know whether the tiredness and lethargy are caused by his heart or the sleep apnoea but later, he and his wife said that it could be caused by his diabetes which Mr Barry also said is well controlled now.  He also said that he suffers from shortness of breath and irregular heartbeat at times. 

23.     The test to be satisfied in this part of the analysis is stringent.  I accept Mr and Mrs Barry gave their evidence honestly.  Mr Barry suffers from many health problems.  Given all the evidence I am unable to conclude that his accepted conditions are the only factors preventing him from continuing to undertake work as a mine deputy at a colliery.  I find that obstructive sleep apnoea and primary cardio-myopathy are also relevant factors.  It follows that Mr Barry has not been successful. 

24.     Mr O’Reilly argued that his time out of the workforce was also a factor preventing him from working.  See Hendy at paragraph 37. It is not necessary to consider that matter given my conclusion.

25.For the above reasons I affirm the decision under review. 

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: Ms Preethi Nimmagadda

Associate

Date of Hearing  13 September 2006 
Date of Oral Decision                14 September 2006
Date of Written Reasons          28 September 2006
Representative for Applicant     Self-represented

Advocate for the Respondent   Veterans Affairs