Barry Schwind and Repatriation Commission

Case [2014] AATA 503

[2014] AATA 503

Division VETERANS' APPEALS DIVISION

File Number

2013/3007

Re

Barry Schwind

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 23 July 2014
Place Brisbane

The Tribunal affirms the decisions under review.

...............................Sgd.........................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements - Disability pension – Operational service with Australian Regular Army – Claim for bilateral hip pain - Diagnoses of trochanteric bursitis and abductor tendonitis both hips – Concession by applicant that hip conditions not attributable to Army service – Entitlement decision under review affirmed

Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Accepted disabilities sufficient to prevent applicant from working eight hours per week - Incapacity from war-caused conditions not sufficient, alone, to prevent undertaking remunerative work for more 8 hours per week – Neither intermediate nor special rate payable – Assessment decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 14, 15, 19, 21A, 23, 24, 120(4)

CASES

Banovich v Repatriation Commission (1986) 69 ALR 408

Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1

Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363

Repatriation Commission v Alexander (2003) 75 ALD 329

Repatriation Commission v Butcher (2007) 94 ALD 364

Repatriation Commission v Hendy (2002) 76 ALD 47

Richmond v Repatriation Commission [2014] FCA 272

Van Ewijk v Repatriation Commission [2004] FCA 17

Willis v Repatriation Commission [2012] FCA 399; (2002) 202 FCR 323

REASONS FOR DECISION

Mr R G Kenny, Senior Member

23 July 2014

BACKGROUND

  1. On 21 December 2010, Barry Schwind (“the applicant”) who was aged 64 at that time, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension in respect of osteoarthritis of the ankles and knees, lumbar spondylosis, sensorineural hearing loss, tinnitus, chronic bronchitis and emphysema and bilateral hip pain, which was subsequently diagnosed as trochanteric bursitis and abductor tendonitis of both hips. In his claim form, the applicant contended that these conditions were related to circumstances of his service with the Australian Regular Army (“the army”).

  2. On 27 May 2011, the applicant was assessed by the respondent at 100% of the general rate, with effect from 21 September 2011, in relation to osteoarthritis of the ankles and knees, lumbar spondylosis, sensorineural hearing loss, tinnitus and chronic bronchitis and emphysema. In that same decision, the respondent determined that the trochanteric bursitis and abductor tendonitis were not related to his service. On 27 February 2013, the Veterans’ Review Board affirmed the decision of 27 May 2011. The applicant sought review of the decision by this Tribunal. However, Mr Matt Black, for the applicant, conceded that the applicant’s trochanteric bursitis and abductor tendonitis of both hips were not related to his service and requested that the decision in that regard be affirmed.

    SERVICE, LEGISLATION AND ISSUES

  3. The

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Barry Schwind and Repatriation Commission [2014] AATA 503
Case
[2014] AATA 503
Decision Date

CaseChat Overview and Summary

Barry Schwind was the applicant in a case before the Social Security Appeals Tribunal, contesting a decision by the Repatriation Commission regarding his pension entitlement. The dispute centred on whether Schwind’s disabilities and their impact on his ability to work qualified him for a pension under specific sections of the Veterans' Entitlements Act 1986 (Cth). The applicant claimed that his physical conditions, particularly those affecting his hips, knees, and lower back, were severe enough to prevent him from working more than eight hours a week, a threshold required for pension eligibility under the Act. The Tribunal had to determine if Schwind’s conditions met the statutory criteria for pension eligibility and assess the medical evidence provided to support his claim.

The primary legal issue before the Tribunal was whether Schwind's physical conditions, particularly those affecting his hips and lower back, met the statutory requirements under sections 23 and 24 of the Veterans' Entitlements Act 1986 (Cth). This involved interpreting medical evidence and determining the impact of Schwind's conditions on his capacity to work. The Tribunal had to consider conflicting medical opinions regarding the severity and impact of Schwind's conditions on his ability to perform work. Specifically, the Tribunal needed to decide whether the applicant's conditions were severe enough to prevent him from working more than eight hours a week, as required by the legislation.

The Tribunal examined the medical reports from various specialists, noting the differing opinions on Schwind's work capacity. Dr Buckley and Dr Sharwood opined that Schwind could not work for more than eight hours a week due to his conditions, while Dr Khursandi suggested that Schwind could work for more than 20 hours a week with certain restrictions. The Tribunal found that Dr Buckley's and Dr Sharwood's opinions were more consistent with the applicant's evidence and the contemporaneous reports of Dr Buckley and Dr Stephenson. It concluded that Schwind's conditions did prevent him from working more than eight hours a week, satisfying the statutory requirement for pension eligibility. However, the Tribunal also noted that some of Schwind's conditions, such as trochanteric bursitis and abductor tendonitis, were not attributable to his military service, thus not qualifying for pension under the Act.

The Tribunal ultimately affirmed the Repatriation Commission's decision, finding that while Schwind met some criteria for pension eligibility, the conditions not attributable to his military service meant he did not qualify for the pension under the Act. The decision highlighted the importance of consistent and contemporaneous medical evidence in assessing eligibility for veterans' pensions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant said that his company ceased trading in mid-2010 although he did some consultancy work without payment for his brother in late 2010. He has not applied for any work since then. He agreed that his company was not deregistered until July 2013. He explained that he was not able to deregister the company before this because a creditor had been placed in receivership and he was awaiting a payment. This happened in 2013 when he received the sum of $42,000 for work completed before mid-2010.Medical evidence The applicant’s treating doctor from the 1990s is Dr John Buckley, whose clinical records of the applicant were in evidence. Dr Buckley’s notes reveal many references to burning pain in the applicant’s lower limbs. On 16 February 2011, Dr Buckley wrote that the applicant was unable to perform any remunerative work at all and that the applicant was prevented from working by emphysema, lumbar spondylosis and osteoarthritis of his hips, knees and ankles. Orthopaedic surgeon, Dr H J P Khursandi, completed a report on 7 April 2011. He noted that the applicant had described a history of several years of pain on the lateral aspects of both hips which was not precipitated by any trauma or incident. He noted X-rays taken on 24 March 2011 which revealed no abnormality in the hips and his opinion was that the applicant suffered from trochanteric bursitis and abductor tendonitis of the trochanters. Dr Khursandi also considered that the applicant’s back, ankle, knee and hip conditions would not prevent him from working for more than 20 hours per week. Orthopaedic surgeon, Dr Peter Sharwood, completed a report on 6 December 2013. He had seen the reports of Dr Khursandi and Dr Buckley as well as a magnetic resonance image (“MRI”) report from December 2013. Dr Sharwood noted that the applicant claimed to have had hip pain “for the last 20-30 years”, that it was mainly on the outer aspects of the hips and that he could not recall any specific injury to the hips during his army service. Dr Sharwood also noted that the applicant rated his hip pain at 8/10, that his hip pain is made worse by walking and that he has a walking limit of 200 to 250 metres after which he needs to sit down for five to ten minutes. He observed that the applicant had a 20% reduction in the range of movement in the hips because of pain but said that this was “about normal” for a man of the applicant’s age. Dr Sharwood diagnosed trochanteric bursitis in both hips and he said that he was able to do this by pressing on the applicant’s hip and noting the applicant’s painful reaction. Despite that, in his evidence, Dr Sharwood referred to the subjective nature of the reporting of pain. He said that he did not believe that the applicant experienced any pain in his hip and that “classic hip pain” is not experienced in the hip but in the groin and knee. He could not detect any evidence of abductor tendonitis or osteoarthritis in the applicant’s hips. Dr Sharwood considered that it was significant that the applicant felt the need to sit when his pain was brought on by walking. He described this as typical for spondylosis and associated referred pain to the legs. He contrasted that with vascular leg pain which, he said, is relieved by standing.

Decision

Reasons for decision

It follows that s 24(1)(c)[20] of the Act is not met in this case. On the material before me, I am reasonably satisfied that pension is not payable to the applicant at the intermediate or special rate under s 23 or s 24, respectively, of the Act and the decision under review in respect of assessment is affirmed.[20] As well as its s 23(1)(c) equivalent.DECISION The Tribunal affirms the decisions under review.

Ratio Decidendi

Legal Principle Established

For the respondent, Mr Purcell conceded that ss 24(1)(aa), (aab), (a) and (b) were met by the applicant. He submitted that the applicant did not meet the terms of s 24(1)(c) thereof. In that regard, he submitted that it was not only the applicant’s accepted disabilities which prevented him from working. In particular, he submitted, there was contribution from his hip conditions which have not been accepted as being related to his service as well as the burning sensation described by the applicant as impacting on his mobility and his capacity to stand and sit. Mr Purcell submitted that there were internal inconsistencies in Dr Sharwood’s report in the manner he described the hip pain and the way in which he assessed the impact on the applicant of his hip conditions. CONSIDERATION Having considered the material in evidence, particularly the reports of Dr Casperson, dated 18 April 2011, and of orthopaedic surgeons Dr Khursandi, Dr Sharwood and Dr Peter Dodd, dated 7 April 2011, 6 December 2013 and 9 May 2012, respectively, I am satisfied beyond reasonable doubt that Mr Black’s concession that trochanteric bursitis and abductor tendonitis both hips do not arise out of and are not attributable to the applicant’s army service was properly made. The decision in relation to those conditions is affirmed. I am also satisfied that the concessions by Mr Purcell in relation to ss 24(1)(aa), (aab), and (a) of the Act are properly made. Accordingly, I am satisfied that the applicant made a claim under s 14 of the Act; that he had not turned 65 at the date of that claim; and that the degree of his incapacity has been assessed at least as 70% in accordance with s 21A of the Act. In relation to s 24(1)(b) of the Act, there are differing opinions about the applicant’s work capacity. Dr Khursandi considered that he could work for more than 20 hours per week. However, he qualified that opinion significantly by adding:provided he is not called upon to bend, lift, push, pull, carry heavy loads, walk on rough terrain, or maintain the back and lower limbs in certain postures for long periods of time. That opinion is in contrast to the opinion of Dr Sharwood that the applicant could not work for more than eight hours per week. While Dr Khursandi’s report is 20 months earlier than that of Dr Sharwood, it is contemporaneous with those of Dr Buckley and Dr Stephenson. Dr Buckley’s opinion was that the applicant is unable to work for more than 8 hours per week. Dr Stephenson said it was unrealistic to expect him to work for 10 to 15 hours per week. Their evidence is consistent with the applicant’s evidence concerning his breathing and mobility difficulties and his problems with sitting or standing in one place for even quite short periods. On the question of s 24(1)(b) of the Act, I prefer the opinions of Dr Buckley and Dr Sharwood to that of Dr Khursandi. Accordingly, I am reasonably satisfied that the applicant meets the requirements of s 24(1)(b) of the Act.[9] [9] He also satisfies s 23(1)(b) of the Act.