Birch and Repatriation Commission
[2003] AATA 1218
•4 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1218
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/313
VETERANS' APPEALS DIVISION ) Re NORMAN JAMES BIRCH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K L Beddoe Date4 December 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution decides that the applicant qualified for assessment of pension in terms of section 24 of the Veterans’ Entitlements Act 1986 with effect from 24 March 2001.
(Sgd) K L Beddoe
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – rate of pension – whether applicant entitled to pension payable at the special rate – whether the applicant’s service related conditions alone prevent him from working – whether applicant ceased work due to his service related conditions
Veterans’ Entitlements Act 1986
REASONS FOR DECISION
4 December 2003 Senior Member K L Beddoe 1. The applicant seeks review of a decision to assess his disability pension at 90% of the general rate – subsequently conceded to be 100% of the general rate.
2. Paragraphs 24(1)(b) and (c) of the Veterans’ Entitlements Act 1986 (“the Act’) read as follows:
“Special rate of pension
…
(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 …”
3. Prior to hearing the respondent had conceded, in effect, that paragraphs 24(1)(aa), (aab), (a) and (b) were satisfied and paragraph 24(1)(c) was the only issue. At the hearing the respondent withdrew the concession in respect of 24(1)(b) on the basis that it was alleged the concession had been wrongly made in its statement of facts and contentions.
4. Section 24(2) of the Act relevantly provides:
“(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. …”
5.Also of relevance is section 28 of the Act, which reads as follows:
“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).”
6. At the hearing Mr Harding appeared for the applicant and Mr Smith represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal and further documents were tendered and marked as exhibits.
7. Oral evidence was given by the applicant, Dr Knight and Dr Bond for the applicant. The respondent did not call evidence.
8. I make the following findings of fact. The applicant was born 23 March 1941, made application for pension on 20 April 2000 (age 59) and retired from employment with Queensland Ambulance Service on 23 March 2001 (age 60). He had been employed with the Ambulance Service for approximately 33 years which commenced shortly after discharge from the Army in July 1977.
9. Employment with the Ambulance Service was mainly as an ambulance driver/paramedic involving accident and house calls tending and carrying victims and patients etc. He was not employed on duties of a sedentary nature such as office work or radio operations and had no opportunity to transfer to such duties. His hearing difficulties precluded employment as a radio operator.
10.The applicant’s accepted disabilities are:
(a)Bilateral Sensori-Neural Hearing Loss
(b)Bilateral Tinnitus
(c)Injury to left knee and upper leg
(d)Tinea
(e)Non-melanotic Malignant Neoplasm of the Skin
(f)Chronic Gastritis
(g)Lumbar Spondylosis (accepted from 20/1/2000)
His rejected disabilities are:
(a) Malignant Neoplasm of the Prostrate
(b) Hypertension.
11. It is apparent that there is no dispute that the applicant’s lumbar spondylosis had its genesis in his military service and it is not disputed that he has suffered back pain for many years. That condition was aggravated in 1999 by an incident in the course of the applicant’s employment with the Ambulance Service. Liability for workers compensation was accepted and the applicant was treated, mainly it seems, by physiotherapy.
12. I accept that the applicant had been receiving chiropractic treatment in respect of his back for many years prior to the workplace incident. I do not understand why he did not make a claim under the Act until after the workplace incident. It seems he relied on certain advice which he now thinks was a mistake.
13. I accept that the applicant had to leave his employment with the Ambulance Service because his knee condition and back condition were each causing him greater difficulty in his duties to the extent that it was becoming unsafe for him to carry a stretcher. He was able to avoid carrying stretchers if students were available to do the heavy work.
14. The applicant made a conscious decision to try to remain in his employment until he turned 60. He was motivated by the fact that he would receive additional superannuation money if he retired at 60 years of age. To some extent that decision was contrary to the advice of his general practitioner and his physiotherapist who had been recommending he cease employment.
15. He said that upon retirement from the Ambulance Service he registered with CES at Caloundra. When cross-examined about that he thought it might have been Centrelink. In any event I am satisfied that he did register for employment with an agency located in Caloundra.
16. The applicant’s evidence, which I accept, is that over many years he has been to many chiropractors and physiotherapists seeking treatment for his back problem. Undoubtedly he achieved relief but did not achieve resolution of the condition to the extent that he became pain free.
17. I am satisfied he decided to retire at age 60 because his doctor and physiotherapist had concluded that it was no longer safe for him to continue work. He agreed with their position and he did not resign earlier because of additional termination payment of $40,000 if he waited for age 60 retirement.
18. That was made more difficult by an accident at work where the applicant injured the left side of his lower back (T4/15-16). That injury was said to have occurred on 23 June 1999. Dr Bond certified the applicant as unfit for work from 25 June 1999 to 9 July 1999 (T4/18-20).
19. I am satisfied, based on the applicant’s evidence, that he was no longer able to perform duties as an ambulance officer because of his back, knee and hearing conditions by the time he retired from the Ambulance Service. I am also satisfied that his work experience is confined to the Army and the Ambulance Service and the attempt to get employment after leaving the Ambulance Service was unsuccessful because of his accepted disabilities.
The Medical Evidence
20. Dr Knight is a specialist in occupational medicine. In a report dated 26 November 2002 (Exhibit C), Dr Knight was clearly of the view that the accepted medical conditions prevent the applicant working more than eight hours per week, that he was barely coping with activities of daily living and those conditions so impair him that he is prevented from continuing in his employment as an ambulance driver. Dr Knight opined that the temporary intercurrent condition of the applicant’s right shoulder could affect his ability to work.
21. In Dr Knight’s view the applicant should not have been working to March 2001 and was toughing it out. He thought it was a marvellous achievement that he had been able to stay at work as long as he did.
22. In Dr Knight’s opinion the applicant was not suitable for employment as a car park attendant. It was not suggested he was suitable for any other employment.
23. Dr Bond confirmed his brief report which is Exhibit D. He noted that the applicant had presented with intermittent painful back for many years going back to at least 1983. It did not commence with his workplace injury in 1999. In his oral evidence he said it would have been dangerous for the applicant to have continued as an ambulance officer. He confirmed his statement at page 11 of the T documents to the effect that the applicant had continued to work whilst suffering considerable pain and discomfort.
Consideration
24. In relation to paragraph 24(1)(b), Dr Knight was of the opinion that the service-accepted conditions alone (including lumbar spondylosis) prevent the applicant working more than eight hours per week (Exhibit C). However, in his oral evidence he was ambivalent about whether the applicant could work as a car park attendant.
25. Applying the criteria in section 28 of the Act, I am satisfied that the applicant’s lumbar spondylosis and his knee condition prevent the applicant undertaking the kinds of remunerative work which an experienced ambulance officer might reasonably undertake. In particular he would not be able to undertake work as a wardsman, safety officer or first aid attendant. His back and knee conditions would prevent him being able to properly assist an injured person. It follows that he is incapable of undertaking remunerative work for periods aggregating more than eight hours per week. His attempts to obtain work were futile and unlikely to succeed in his circumstances.
26. While it is clear, on the material, that the applicant retired from the Ambulance Service at age 60, because his retirement benefits were better than he would have got at an earlier retirement, I am satisfied that he retired because of his accepted disabilities. I accept his evidence that it was his intention to remain with the Ambulance Service until age 65. He did not do so because of his accepted disabilities.
27. The applicant is suffering a loss of remuneration that he would not have suffered except for his retirement from the Ambulance Service. I am satisfied that it was accepted disabilities alone which caused his retirement at age 60. I also accept that the applicant would have avoided the loss of remuneration if he had been physically capable of doing so and this physical incapacity is caused by accepted disabilities. That he planned to retire on his 60th birthday reflected a desire to hang on in his employment rather than a planned early retirement.
28. It follows that I am satisfied that section 24 of the Act applies to the applicant.
29. The date of claim is 20 April 2000. The applicant did not cease employment until 23 March 2001. The date of effect should therefore be 24 March 2001.
30. The decision under review will be set aside. The Tribunal substitutes a decision that the applicant qualified for assessment of pension in terms of section 24 of the Act with effect from 24 March 2001.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe
Signed: .......................................................................................
AssociateDate of Hearing 27 June 2003
Date of Decision 4 December 2003
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr M Smith, Departmental Advocate
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