Bell and Repatriation Commission (Veterans' entitlements)

[2017] AATA 1065

Bell and Repatriation Commission (Veterans' entitlements) [2017] AATA 1065 (11 July 2017)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2016/0998

Re:David Bell

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:11 July 2017

Place:Sydney

The Tribunal affirms the decision under review made by a delegate of the Repatriation Commission on 22 November 2013 that determined the rate of disability pension to be 80% of the general rate with effect from 28 February 2015, which was affirmed by the Veterans’ Review Board on 18 December 2015.

....................[sgd] ....................................................

Mrs J C Kelly, Senior Member

CATCHWORDS

VETERAN’S AFFAIRS – assessment of rate of pension –- applicant in receipt of pension at 80% of the general rate – a person with the applicant’s skills and incapacity is able to work for more than eight hours a week – a person with the applicant’s skills and incapacity is able to work more than part-time hours – the applicant is not eligible for the pension at the special or intermediate rate – decision under review is affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 23, 24, 28

Administrative Appeals Tribunal Act 1975 (Cth) s 37

CASES

Smith v Repatriation Commission [2014] FCAFC 53

REASONS FOR DECISION

Mrs J C Kelly

11 July 2017

Introduction

1. Mr Bell, the applicant, is a veteran, who has had several periods of operational and eligible defence service under the Veterans’ Entitlements Act 1986 (the Act). He is receiving disability pension at 80% of the general rate, with effect from 28 February 2013. He is seeking either the intermediate rate (s 23 of the Act) or special rate (s 24 of the Act) of the disability pension.

2. The earliest possible date of effect is 28 February 2013. The assessment period commences on 30 May 2013 and ends with the decision of this Tribunal (s 19(9) of the Act). Provided that a pension was payable at the intermediate or special rate at some time during that period, it will be payable, and if both are applicable, according to “whichever is most recently applicable”.[1]

   [1] Smith v Repatriation Commission [2014] FCAFC 53 per Buchanan J at [40].

3. The relevant standard of proof is reasonable satisfaction (s 120(4) of the Act).

4. It is accepted that Mr Bell satisfies the first three criteria under both s 23 and s 24 which are identical:

   ·He has made an application for an increase in pension;

   ·He had not turned 65 when the claim or application was made;

   ·His degree of incapacity from war-caused injury or war-caused disease, or both, has been determined to be at least 70%.

5. The following conditions have been accepted under the Act as related to Mr Bell’s operational and eligible defence:

   ·Osteoarthritis of the right hip

   ·Thoracic spondylosis

   ·Lumbar spondylosis

   ·Osteoarthritis affecting both knees

   ·Sensorineural hearing loss

   ·Tinnitus

6. Mr Bell had a total right hip replacement in 2014.

7. The following conditions that Mr Bell suffers have not been accepted as related to his operational and eligible defence service:

   ·Cervical spondylosis

   ·Osteoarthritis affecting both shoulders

   ·Asthma

8. Mr Bell withdrew his claim for cervical spondylosis, osteoarthritis of the left and right shoulders and asthma on 18 December 2015 when the matter was before the Veterans’ Review Board.

   The issues

9. The qualification criteria for both the intermediate and special rates of pension require, first, that incapacity from war-caused injury or war-caused disease alone, prevents him from undertaking specified hours of remunerative work, and secondly, the veteran is thereby suffering a loss of salary of wages or earnings that he would not be suffering if he were free of the incapacity.

   The qualification criteria for incapacity for work   

10. Qualification for the intermediate rate of pension requires that the incapacity from war-caused injury or war-caused disease alone renders the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently (s 23(1)(b)). That requirement is not fulfilled if:

    ·the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis) (s 23(2)(a)); or 

    ·where that paragraph is inapplicable to the work the veteran is undertaking or capable of undertaking, the veteran is undertaking or capable of undertaking that work for 20 or more hours per week (s 23(2)(b)). 

11. Qualification for the special rate of pension requires that a veteran is totally and permanently incapacitated from war-caused injury or war-caused disease, or both, which alone renders the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b)). 

12. Section 28 of the Act requires that 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, the Tribunal 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).

    The evidence before the Tribunal  

13. The evidence before the Tribunal included the documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), two written statements by Mr Bell dated 22 June 2016 and 26 October 2016, his oral evidence, reports and oral evidence from Doctors Rosenthal and Chase, occupational physicians, and clinical notes from the medical practice Mr Bell attended.

    Consideration of incapacity for work

14. Mr Bell’s work history is not contentious. He served in the Royal Australian Navy from 10 October 1969 until 15 January 1977.  He left with the rank of Leading Seaman Quartermaster Gunner.  He dealt with small arms and ammunition and undertook seamanship duties, which included moving pontoons and barges and boarding parties.  He had two specialisations, ships diver doing underwater maintenance, and sea cat aimer.

15. He then had a break for about 18 months doing various jobs, but predominantly truck driving.  Mr Bell joined the Royal Australian Air Force on 18 July 1978 and left on 21 July 1991 when he held the rank of sergeant.  The Interim Certificate of Service states that he was a motor transport driver.  Mr Bell told the Tribunal that he did regular interstate trips for a while, was an aircraft refueller in Darwin and Malaysia, and worked in a number of bases around Australia.  When he worked at Laverton he did refuelling, general duties and driving, but rarely drove interstate during this time.  He did licensing and trade testing, evaluating drivers for a particular level of licence to drive cars, and light to medium trucks.  He gave the drivers verbal and written examinations and processed the paper work.  When he worked at Kingswood he changed tyres on semi-trailers using tyre levers and mallets. 

16. When he left the Air Force, he joined Mobil as a tanker driver and then transferred to Tullamarine where he was refueller. He left in 1995 for a sea change to the New South Wales south coast. He got casual work on building sites doing labouring work but it was very competitive and so he did a welding course at TAFE. He joined Serco in 2000 working at HMAS Albatross where he was refuelling aircraft and responsible for maintaining fuel quality control.  He described that work as administrative work and said that he was looking after receipts for fuel, holding of fuel, and the issue of aircraft fuel. Mr Bell left that job in 2004. 

17. He worked as a truck driver for a small local earth moving business for about six weeks. He described the truck as having a “twin tipper”.  He then did some temporary work for a couple of months for his son who was a plumber which involved digging trenches and using a wheel barrow.

18. Mr Bell told the Tribunal that he holds a heavy articulated truck driving licence and has various qualifications from Yachting Australia, from deck hand to coastal skipper.  He agreed during cross-examination that he has some organisation, leadership and clerical skills.

19. Mr Bell maintained during the hearing that his neck and shoulder conditions do not contribute to his incapacity for work, including driving a truck, and did not contribute to his ceasing work.  At most, he conceded that they were a minor part of his incapacity to work.  He claimed that his neck condition improved after he had his hip replacement operation and that he was also assisted by a Department of Veterans’ Affairs health program he had been doing. He denied that he was suffering from depression or that depression impacts on his capacity to work.

20. Dr Jackson completed two Work Ability Reports. In the first, dated 8 July 2013, he wrote that the applicant’s last occupation was aircraft refueller and that he stopped work in 2004 because of pain in his hip and neck and that cervical spondylosis was a major contributor to Mr Bell’s incapacity to work.  Dr Jackson did not consider that the applicant was presently able to work 20 hours or more per week, between 8-20 hours a week, or less than 8 hours a week. 

21. In the second Work Ability Report dated 30 September 2015, Dr Jackson ticked the box indicating that Mr Bell was presently able to work less than 8 hours a week but wrote next to it:  “No (sic) fit for any work”.  He wrote that Mr Bell left his last occupation as a contract airport operator because he “could no longer work because of Rt hip pain”.  Dr Jackson wrote that the conditions contributing to Mr Bell’s incapacity were chronic low back pain and bilateral osteoarthritis of both knees which required bilateral knee replacement.  The doctor indicated that the low back pain was a major contributor to the incapacity. 

22. In response to a question seeking comments regarding any other factors that affect ability to work, Dr Jackson wrote:

    This is a physical problem NOT psychological but as a result of his disability he can’t work – chronic pain and has reactive depression.

23. In the clinical note for the same date Dr Jackson recorded that depression was noted “probably reactive difficulties at home … now unable to work trying to live on superannuation which is difficult”.  That note does not relate depression to chronic pain. 

24. There is also evidence in the clinical notes that Mr Bell suffered depression in July 2004 when he received a termination notice from Serco.  He told the Tribunal that the Union took the matter to court, he won, and then he left voluntarily.  There is no documentary evidence in relation to that claim.

25. In a file note dated 17 March 2014, Dr Jackson wrote:

    Very good result from total hip replacement. Excellent range of movement pain-free get rid of his stick wound dressing removed perfect.  

26. Before dealing with the evidence of Dr Rosenthal and Dr Chase, it is appropriate to make a finding in relation to the condition of depression which the respondent argued contributed to Mr Bell’s incapacity to work.  The Tribunal does not accept that argument. Although Dr Jackson made the file note and commented as he did on 30 September 2015, and there is a reference to depression by a different doctor in 2004, the Tribunal gives that evidence little weight. At the front of the clinical notes from the general medical practice Mr Bell attended is a Patient Health Summary printed on 11 April 2016. Depression is not a condition that is listed under the heading “Active Past History” or “Inactive Past History” and no medication for depression is listed under the heading “Current Medications”. If Mr Bell had suffered depression and been treated for it, the Tribunal would expect that it would have been recorded in the Patient Health Summary.  At the highest, the 2015 and 2004 entries point to some transient episodes of symptoms which were described as depression.  Further, neither Dr Chase nor Dr Rosenthal took a history of depression. The Tribunal does not accept that depression is a condition contributing to Mr Bell’s incapacity to work.

27. Dr Rosenthal’s written and oral evidence was generally consistent.  In his opinion, Mr Bell has the capacity to work between 8 and 20 hours per week in some sort of supervisory activities or administrative activities provided he receives suitable training and there was no prolonged sitting, standing or walking, climbing stairs or walking on uneven ground. In his opinion, Mr Bell’s neck and shoulders do have some impact on his capacity to work. His shoulders restrict him from work involving prolonged fixed postures or above shoulder height work, and prolonged sedentary work which would impact on his neck. 

28. Dr Rosenthal reported that since Mr Bell’s right hip replacement, Mr Bell still gets some discomfort and has difficulty standing for prolonged periods. On examination, Mr Bell’s neck movements “were restricted by approximately one third particularly with extension, rotation and lateral flexion”.  Mr Bell “did admit” to Dr Rosenthal that he left work because of neck pain as well as back pain and right hip pain.

29. The Tribunal does not accept the submission made on behalf of Mr Bell, that the effect of Dr Rosenthal’s evidence was that Mr Bell’s neck and shoulders did not preclude him from working as long as his pain was controlled. 

30. Dr Rosenthal understood that Mr Bell had no administrative or clerical skills.

31. Dr Chase’s written and oral evidence was also consistent.  He considered that Mr Bell was capable of light physical work for 8 to 20 hours per week. He also considered that Mr Bell’s neck and shoulders would be contributing to his partial work incapacity. In Dr Chase’s opinion Mr Bell may be able to work as a courier, possibly do some light delivery work, and would certainly be able to work in an office.  In Dr Chase’s opinion, Mr Bell could undergo rehabilitation or retraining.  Dr Chase wrote that Mr Bell had reached the rank of sergeant “which is a moderately high ranking non-commissioned officer and would therefore have some clerical, administrative and leadership skills”.

32. The Tribunal agrees with Dr Chase’s assessment that Mr Bell does have some clerical and administrative skills based on Mr Bell’s account of his employment, set out above. It accepts that he would be able to undergo retraining.

33. Where there is inconsistency, the Tribunal prefers the opinions of Drs Chase and Rosenthal to that of Dr Jackson about Mr Bell’s capacity for work because those doctors have provided detailed reports supporting their opinions and they specialise in such assessments. Dr Jackson’s 2013 assessment is consistent with their assessments in relation to Mr Bell’s neck contributing to his inability to work.

34. The Tribunal does not accept Mr Bell’s denial about the impact of his neck condition on his capacity to work and agrees with Dr Chase that he was downplaying his neck symptoms. His claims are inconsistent with the findings of both Dr Chase and Dr Rosenthal and the 2013 opinion of Dr Jackson.  Dr Rosenthal could not see any relationship between an improvement in neck pain and a right hip replacement, contrary to Mr Bell’s claim.  The Tribunal does not accept that a recent DVA health plan has improved his neck condition, which has been longstanding. 

35. The Tribunal accepts that a person with Mr Bell’s skills, qualification and experience might reasonably undertake work of an administrative or supervisory kind, for example in an office. 

36. Based on the evidence of Drs Chase and Bell, the Tribunal finds that Mr Bell is incapable of undertaking that work for 20 or more hours per week.  However, the evidence does not support a finding that Mr Bell’s degree of physical impairment is a result of his war-caused injury or war-caused disease.  The opinion of both Drs Chase and Bell was that Mr Bell’s incapacity to work for 20 or more hours per week was contributed to by his neck condition, which is not a war-caused injury or disease.

37. Therefore, Mr Bell’s incapacity from war-caused injury or war-caused disease or both is not of itself alone, of such a nature as to render him incapable of undertaking remunerative work. Therefore, Mr Bell does not satisfy the test set out in both s 23(1)(b) and s 24(1)(b) of the Act, and does not qualify for either the intermediate or special rate of pension.

38. In coming to that conclusion, the Tribunal has taken into account the submission made on behalf of the applicant that the test is whether Mr Bell’s accepted conditions are the substantial reason he cannot work. That submission relied on s 24(2)(b) which qualifies s 24(1)(c). It is not relevant to determining whether an applicant satisfies s 24(1)(b) of the Act. The Tribunal does not accept that submission.

    Decision

39. The Tribunal affirms the decision under review made by a delegate of the Repatriation Commission on 22 November 2013 that determined the rate of disability pension to be 80% of the general rate with effect from 28 February 2015, which was affirmed by the Veterans’ Review Board on 18 December 2015.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly

...................[sgd].....................................................

Associate

Dated: 11 July 2017

Date(s) of hearing:	12 April 2017
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Applicant:	Mr G Isolani, KCI Lawyers
Solicitors for the Respondent:	Ms S Leembruggen, Sparke Helmore