Boys and Repatriation Commission (Veterans' entitlements)
[2020] AATA 2116
•7 July 2020
Boys and Repatriation Commission (Veterans' entitlements) [2020] AATA 2116 (7 July 2020)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2017/7128-9
Re:DALE MICHAEL BOYS
APPLICANT
AndREPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:7 July 2020
Place:Brisbane
The decision under review is affirmed.
.............................[SGD]...........................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – cervical spondylosis – special rate – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
John Joseph Flentjar v Repatriation Commission [1997] FCA 1200
Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 39 FCR 540; (1993) 29 ALD 609
REASONS FOR DECISION
Senior Member Katter
1 July 2020
APPLICATION
This is an application for review as to a decision finding that the Applicant’s cervical spondylosis was not related to service and that the Applicant was eligible for payment of the pension at 100% of the general rate[1].
[1] Exhibit 1, T2, page 6.
BACKGROUND
The Applicant served in the Australian Army from 16 June 1979 until 30 June 1986[2].
[2] Exhibit 1, T36, page 113.
By a claim form received by the Respondent on 14 May 2014, the Applicant stated at Part E of the form as to details of the new disabilities claimed as war or defence caused[3]:
[3] Exhibit 1, T82, pages 305-316.
“List the disabilities you are now claiming and describe the signs and symptoms …
Disability 1 Neck Problems
Signs and symptoms Neck pain. Pain, limitation of movement.
How do you believe your service caused, contributed to, or aggravated this disability?
Results of MBA and MVA during service. Copies of extracts from SMR attached. Also refer statement …
Disability 2 Headaches
Signs and Symptoms As described.
How do you believe your service caused, contributed to, or aggravated this disability?
I consider that my headaches are related to my whiplash injuries suffered during service. Refer attached statement.”
The statement attached to that claim form received by the Respondent on 14 May 2014, stated relevantly[4]:
“Neck problem.
I consider that the troubles I am having with my neck have been caused by my Army service.
On 8 March 1980 I had an accident on my motor bike whilst returning to camp from weekend leave in Melbourne. On that occasion, I was treated at PANCH Hospital. The report of that treatment stated; “Whip lash injury-pain down Right side of neck, pins and needles down right arm. All movement of neck … -tender C6.”
Then, on 16 January 1982, I had a motor vehicle accident and the report of this accident states; “Whiplash injury to neck.” On this occasion I was returning to camp after a period of Annual Recreation Leave (ARL) …
Dr Daniel O’Dea has diagnosed my neck problems as Cervical Spondylosis and the Relevant Statement of Principles for this condition is Instrument No 34 of 2005. I have had almost continual pain in my neck to varying degrees since these accidents …
Enclosed are extracts from my service medical records dealing with these accidents and the treatment provided at the time.
Headaches.
Ever since these accidents, I have had headaches and Dr O’Dea considers these to be Cervicogenic Headaches and are therefore part and parcel of my neck problems.”
[4] Exhibit 1, T82, page 309.
On that claim form received by the Respondent on 14 May 2014, a medical practitioner stated, as to the details of the new disabilities now claimed[5]:
“Medial Diagnosis … Cervical spondylosis.
Basis for diagnosis Clinical history and examination.
When did the veteran first consult you for this condition? 12/5/14
…
Medical diagnosis … Cervicogenic headaches
Basis for diagnosis Clinical history and exam
When did the veteran first consult you for this condition? 12/5/14
[5] Exhibit 1, T82, pages 305-316.
On 7 May 2015 the Respondent decided as to the claim lodged on 14 May 2014[6]:
“I have decided … cervical spondylosis is not related to service. I have accepted your application for increased disability pension. Disability pension is increased to 100% of the General Rate with effect from 14 May 2014.”
[6] Exhibit 1, T99, pages 366-372.
Subsequently, the Veterans’ Review Board on 3 October 2017 affirmed the decision dated 7 May 2015[7], therefore not changing the decision as to cervical spondylosis[8].
[7] Exhibit 1, T99, pages 366-372.
[8] Exhibit 1, T124, pages 478-489.
By an application for review of decision (individual) form to this Tribunal, dated 22 November 2017, the Applicant stated[9]:
“I consider the Board made a mistake in their decision to reject my application to have Cervical Spondylosis accepted as being related to my service.
The Delegate of the Repatriation Commission determined that I had a Motor Vehicle Accident in 1982 which led to the development of my cervical spondylosis condition. Paragraph 11 of the Board’s Reasons for Decision refers.
At Paragraph 23 of the Reasons, the Board refers to a Motor Bike Accident I had in 1983 and uses this as a basis for rejecting my application.
Having decided to reject my application in respect of Cervical Spondylosis, thus meaning I failed the “Alone Test” in the Act and could not, therefore be granted pension at the Special Rate, there was no reason to mention other, non-accepted conditions, which the Board considered prevented my continuing to work. It is unfair that these conditions should be included in the Reasons for Decision when these matters were not raised during the hearing. Apart from being unfair in that I was not able to address these conditions, is the inclusion of these conditions in Reasons illegal?”
[9] Exhibit 1, T4, page 23.
ISSUES
The Applicant stated that there were two issues[10]. First, that the entitlement claim as to cervical spondylosis be accepted as being caused by incidents during the Applicant’s service in the Australian Army[11]. Second, that there be an assessment of the rate of pension payable in respect of the previously accepted conditions and the acceptance of cervical spondylosis, with that rate being the special rate[12].
[10] Transcript 27 August 2019, P-2, lines 22-27.
[11] Transcript 27 August 2019, P-2, lines 22-27.
[12] Transcript 27 August 2019, P-2, lines 22-27.
EVIDENCE
The Applicant gave oral evidence at the hearing[13].
[13] Transcript, 27 August 2019, P-32-46.
The Applicant stated that he joined the Australian Army at age 17[14]. The Applicant stated that he intended and requested to serve in transport in the Australian Army[15].
[14] Transcript, 27 August 2019, P-33, line 6.
[15] Transcript, 27 August 2019, P-33, line 12.
The Applicant stated that in March 1980 he had a motor-bike accident and suffered a ‘whiplash’ injury to his neck[16]. The Applicant referred to the accident as occurring on a journey to Puckapunyal, where he was ‘stationed’ at the time[17]. The accident occurred on a wet road, with a cat coming onto the road, changing the movement of a vehicle in front of his motor-bike[18]. The Applicant stated that he went over the top of his motor-bike handle-bars[19]. The Applicant stated that he had not been drinking alcohol prior to the accident[20].
[16] Transcript, 27 August 2019, P-33, lines 38-39.
[17] Transcript, 27 August 2019, P-33, lines 40-42.
[18] Transcript, 27 August 2019, P-33, lines 44-48.
[19] Transcript, 27 August 2019, P-34, lines 1-4.
[20] Transcript, 27 August 2019, P-34, line 12.
The Applicant referred to another motor vehicle accident in January 1982, where he also referred to suffering a ‘whiplash’ injury[21]. The Applicant was travelling from Hervey Bay in Queensland, to Puckapunyal in Victoria, when the Ford Falcon vehicle he was in aqua-planed and went backwards into a tree[22]. The Applicant stated that after some repairs to the vehicle he was able to continue on to Puckapunyal, but was noticing headaches and neck problems on the subsequent journey[23]. The Applicant stated that when he arrived at Puckapunyal he reported to the aid post there, reporting the problems, and was put in a neck collar for some time[24]. The Applicant stated that he had not been drinking alcohol prior to the accident[25].
[21] Transcript, 27 August 2019, P-34, lines 14-16.
[22] Transcript, 27 August 2019, P-34, lines 20-27.
[23] Transcript, 27 August 2019, P-34, lines 27-34.
[24] Transcript, 27 August 2019, P-34, lines 29-33.
[25] Transcript, 27 August 2019, P-34, line 34.
The Applicant referred to a third accident, where a fallen-tree smashed the windscreen of his car, showering him with glass fragments[26]. The Applicant stated that he was giving one of the members of his “troop” a lift home and was then returning to “camp”[27]. The Applicant stated that a tree had fallen on the road and he drove into it, with glass going into his eyes after the windscreen was smashed, resulting in three days in the military hospital[28]. The Applicant stated that he had no neck problems by reason of that motor vehicle accident[29]. The Applicant stated that he had not been drinking alcohol prior to that accident[30].
[26] Transcript, 27 August 2019, P-34, lines 36-37.
[27] Transcript, 27 August 2019, P-34, lines 36-38.
[28] Transcript, 27 August 2019, P-34, lines 41-44.
[29] Transcript, 27 August 2019, P-34, lines 44-45.
[30] Transcript, 27 August 2019, P-34, line 46.
The Applicant had a further motor-bike accident in September 1983[31]. The Applicant stated that he had been drinking alcohol at the Canungra Land Warfare Training Centre prior to the accident[32]. The Applicant had borrowed a motor-bike off one of his friends, while his vehicle was being repaired and was then called by that friend to return the motor-bike to him, while the Applicant was drinking alcohol at the Canungra Land Warfare Training Centre[33]. The friend of the Applicant lived at Canungra township and the Applicant, whilst still in uniform, was taking the motor-bike there when the accident occurred[34]. The accident occurred in the evening and the motor-bike with the Applicant on it hit a bank on the road, with the Applicant stating that that occurred to avoid a head-on accident with a car coming the other way[35].
[31] Transcript, 27 August 2019, P-35, line 1.
[32] Transcript, 27 August 2019, P-35, lines 5-6.
[33] Transcript, 27 August 2019, P-35, lines 9-14.
[34] Transcript, 27 August 2019, P-35, lines 14-18.
[35] Transcript, 27 August 2019, P-35, lines 15-18.
The Applicant stated that after concluding his service in the Australian Army, he returned to Hervey Bay and worked for his father and another builder, becoming a carpenter and later obtaining a sub-contractors licence[36]. In 1996 the Applicant stated that he was able to get his own builder’s licence and set up a building company, with that licence still continuing at the time of the hearing[37]. The Applicant stated that he had renewed his building licence, even though he hadn’t been able to work, in that he thought he may be able to go back to work or that his son, who was also a carpenter, may be able to work in the business[38].
[36] Transcript, 27 August 2019, P-35, lines 34-37.
[37] Transcript, 27 August 2019, P-36, lines 5-10.
[38] Transcript, 27 August 2019, P-36, lines 23-27.
The Applicant stated that from the late 1990’s and early 2000’s, he was working in an administrative role only in the building business[39]. The Applicant stated that the business was ”going along quite nicely”[40], with the Applicant doing quotations, ordering and scoping as “the boss”[41].
[39] Transcript, 27 August 2019, P-36, lines 37-41.
[40] Transcript, 27 August 2019, P-36, line 44.
[41] Transcript, 27 August 2019, P-37, lines 3-6.
The Applicant was taken to medical documents as to lumbar pain in 1981 and 2002, with there also being some reference to cervical pain[42]. The Applicant stated that he has had headaches since the first accident in Victoria[43]. The Applicant stated that his neck required a lot more manipulation from in or about 2014 and that it is progressively getting worse and “more intense”[44]. The Applicant agreed that his medical records do not refer to neck injury prior to 2014[45].
[42] Transcript, 27 August 2019, P-43, line 31; Exhibit 3, page 111.
[43] Transcript, 27 August 2019, P-45, line 16.
[44] Transcript, 27 August 2019, P-45, lines 27-34.
[45] Transcript, 27 August 2019, P-44, lines 40-48.
Professor Graeme Brazenor
Professor Graeme Brazenor gave oral evidence at the hearing.
The Professor, during oral evidence, was taken to clinical notes as to the Applicant from 14 March 1980, which referred to a neck injury from 10 days earlier[46]. The Professor stated that the documentary evidence establishes a diagnosis and presence[47] of cervical spondylosis by the medical board examination of the Applicant on 11 October 1984[48] on the balance of probabilities[49]. The Professor stated that as to the “pathology” of the chronic neck pain, he would not “necessarily expect it to continue” [50].
[46] Transcript, 27 August 2019, P-50, line 25; Exhibit 1, T10, page 46.
[47] Transcript, 27 August 2019, P-51, line 37.
[48] Transcript, 27 August 2019, P-51, lines 23-29.
[49] Transcript, 27 August 2019, P-51, lines 41 and 42.
[50] Transcript, 27 August 2019, P-53, lines 25-31.
The Professor stated that after each vehicle accident there is the potential to cause a longer and more severe exacerbation of symptoms[51]. The Professor specifically referred to the 1983 accident, in that there was a significant head injury with a loss of consciousness and “you can’t actually transfer that much energy to your head without damaging the stalk on which it sits”, the neck[52]. The Professor stated that he did not accept the condition to be progressive, but by reason of the vehicle accidents, the description of 25 October 1984 was consistent with cervical spondylosis of some degree[53]. The Professor stated that even if the radiology identified nothing, having regard to the description elicited by the medical board, there was some degree of cervical spondylosis[54]. The Professor stated that a year later, after September 1983, the Applicant might have become pain free[55].
[51] Transcript, 27 August 2019, P-53, lines 40-44.
[52] Transcript, 27 August 2019, P-54, lines 4-9.
[53] Transcript, 27 August 2019, P-54, lines 30-37.
[54] Transcript, 27 August 2019, P-55, lines 16-22.
[55] Transcript, 27 August 2019, P-55, lines 1-2.
The Professor noted that the isotope bone scan did not mention cervical symptoms, was focused on the lumbar spine and there was no intense isotope uptake anywhere in the cervical spine which would have been mentioned[56].
[56] Transcript, 27 August 2019, P-56, lines 1-5.
The Professor stated that it is possible that the correct diagnosis of the headaches of the Applicant is that they were cervicogenic in origin[57], on the balance of probabilities[58]. The Professor stated that he didn’t see any reference to a prolonged period of un-consciousness for the Applicant, particularly as to the September 1983 accident, therefore not ‘linking’ memory loss or frontal lobe damage in those circumstances[59].
[57] Transcript, 27 August 2019, P-51, lines 41-47.
[58] Transcript, 27 August 2019, P-52, line 6.
[59] Transcript, 27 August 2019, P-54, lines 11-20.
Associate Professor Peter Steadman
The Associate Professor was taken to the physiotherapist report of 18 March 1980[60] and asked whether he would consider that a diagnosis of cervical spondylosis was appropriate, to which he answered ‘no’[61].
[60] Exhibit 1, T10, page 46.
[61] Transcript, 27 August 2019, P-59, lines 1-14.
The Associate Professor stated that an x-ray will identify cervical spondylosis, in that the radiological changes that are recognised as ‘being part of that story’ and will always manifest on the plain x-ray, otherwise there can’t be a diagnosis of cervical spondylosis[62].
[62] Transcript, 27 August 2019, P-59, lines 30-36.
CERVICAL SPONDYLOSIS – APPLICATION 2017/7128
It is not in contention by the Respondent that the medical evidence supports a finding that the Applicant suffers from cervical spondylosis[63].
[63]Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions, page 18, paragraph 1; Respondent’s Submissions dated 15 October 2019, page 5, paragraph 2.
The Respondent submits that there was not a sufficient connection between the motor vehicle accidents identified as being causative of the cervical spondylosis condition and the Applicant’s eligible defence service[64].
[64]Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions, page 18, paragraphs 4 and 5;Exhibit 18, Respondent’s Submissions dated 15 October 2019, page 5, paragraph 3.
Both the Applicant and the Respondent have referred to a Statement of Principles determined under s 196B(2) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”): Statement of Principles concerning cervical spondylosis No. 66 of 2014[65] (“the Statement of Principles”).
[65]That Statement of Principles was amended by an Amendment Statement of Principles concerning cervical spondylosis No. 102 of 2019, with those amendments included in a compilation No. 1 dated 18 November 2019.
Paragraph 3 of the Statement of Principles relevantly states:
“(b) For the purposes of this Statement of Principles, “cervical spondylosis” means a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with:
(i)clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and
(ii)imaging evidence of degenerative change, including disc space narrowing or osteophytes.
Other commonly associated features include facet joint arthritis, bone hypotrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis and bulging of an intervertebral disc in the absence of other signs of disc degeneration. Cervical spondylosis includes spondylosis at the lumbrosacral junction. …
(d) In the application of this Statement of Principles, the definition of “cervical spondylosis” is that given at paragraph 3(b) above.”
The Respondent submits therefore that the Statement of Principles for cervical spondylosis requires the presence of both manifestations of pain and symptomology consistent with such a diagnosis and radiological imaging confirming such a diagnosis[66]. The Respondent submits that the date of clinical onset therefore ought to be 13 June 2014, given the radiology confirming cervical spondylosis on that date[67]. The Applicant stated that there was an X-ray examination on 13 June 2014, further to sub-paragraph 3(b)(ii)[68]. The Applicant submitted that 13 June 2014 is the date at which the diagnosis is “confirmed”, submitting that that would be the ‘norm’ as to a condition described as degenerative in nature[69]. For the purposes of the Statement of Principles there is not “cervical spondylosis” until 13 June 2014, in that there is not until that time, as stated by the Applicant[70], imaging evidence of degenerative change, including disc space narrowing or osteophytes, as required by sub-paragraph 3(b)(ii).
[66]Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions, page 20, paragraph 11; Exhibit 18, Respondent’s Submissions dated 15 October 2019, page 7, paragraph 15.
[67] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions, page 20, paragraph 12.
[68] Transcript, P-7, lines 40-45.
[69] Transcript, P-8, lines 5-10.
[70] Transcript, P-7, lines 40-45.
Paragraph 5 of the Statement of Principles states that, subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. The Applicant states that factor 6(f) in the Statement of Principles is applicable:
“6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis … with the circumstances of a person’s relevant service is: …
(f) having a dispositional joint disease in the cervical spine before the clinical onset of cervical spondylosis … ”.
It is found, having regard to the evidence of Professor Brazenor, as referred to above, as a minimum, that the Applicant did have a dispositional joint disease in the cervical spine before the clinical onset of cervical spondylosis, as stated in factor 6(f) of the Statement of Principles. The Statement of Principles does uphold the contention of the Applicant that the cervical spondylosis is, on the balance of probabilities, connected with the Applicant’s service.
As to whether it can be said on the balance of probabilities that the cervical spondylosis is connected with the circumstances of the Applicant’s relevant service, there is also to be ‘reasonable satisfaction’ that an injury suffered by a person or a disease contracted by a person was defence-caused only if, in addition to the Statement of Principles, the material raises a connection between the injury, disease or death of the person and some particular service rendered by the person: s 120B of the Act.
As stated in Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 39 FCR 540; (1993) 29 ALD 609 (18 February 1993) at [6] and [8] per Davies J:
“6. ... if an injury or disease is claimed to have arisen out of or be attributable to a service[perso]n's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates’. See Marshall v Minister of Pensions (1948) 1 KB 106 at 110; W. v Minister of Pensions (1946) 2 All ER 501 at 502; Minister of Pensions v Chennell (1947) 1 KB 250 at 256. ...
8. If the circumstances of eligible … service provide an operative cause contributing to the service[perso]n's ... disease, it matters not that the relevant circumstances … could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible … service contributed causally to the injury or disease.”
The motor vehicle accidents, on the Applicant’s evidence, as referred to above, have a temporal connection with the eligible service of the Applicant. Having regard to the Applicant’s evidence, the defence service was the setting in which the Applicant had the motor vehicle accidents and not, on the Applicant’s evidence, the cause of them. It is found that there is some connection with the Applicant’s relevant service, but the injury suffered or a disease contracted was not therefore defence-caused on the balance of probabilities.
SPECIAL RATE – APPLICATION 2017/7129
The Applicant seeks by Application 2017/7129 assessment at the special rate, in that the Applicant’s disability pension is, by the decision of 7 May 2015, 100% of the general rate.
As to the special rate, section 24 of the Act relevantly states:
“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 … ”
The Respondent submits that the Applicant satisfies sections 24(1)(aa), (aab) and (a) of the Act[71].
[71] Exhibit 4, Respondent’s submissions dated 15 October 2019.
The Respondent submits that from the “commencement of the assessment period the Applicant was suffering and continues to suffer from a number of non-service related disabilities, including cervical spondylosis, frontal lobe dysfunction, asthma, bilateral knee problems and sleep apnoea”[72], therefore in contradiction to s 24(1)(c) of the Act.
[72] Exhibit 4, Respondent’s submissions dated 15 October 2019, paragraph 25.
In John Joseph Flentjar v Repatriation Commission [1997] FCA 1200 per Branson J it was relevantly stated:
“… [T]he issues … [a]re as follows:
1What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3If 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?
4If the answers 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?”
“The relevant ‘remunerative work that the Applicant was undertaking’ within the meaning of section 24(1)(c) of the Act”[73] was as a builder, in a management and administrative sense, as referred to above. The Applicant stated that in the late 2000’s that his workload reduced to 7 to 10 hours per week in the building business[74].
[73] [1997] FCA 1200.
[74] Transcript, 27 August 2019, P-37, lines 40-43.
As stated in Cavell v Repatriation Commission[75]: “ … anything that plays a part in excluding [the Applicant] from work is sufficient to prevent applicability of s 24(1)(c)”.
[75] (1988) 9 AAR 534.
The Applicant stated that if it were not for his back, neck, alcohol abuse, alcohol induced mood disorder and adjustment disorder, he would still be operating the building business[76].
[76] Transcript, 27 August 2019, P-38, lines 6-10.
The Applicant stated that his sleep apnoea condition is controlled by a CPAP machine, so the Applicant is sleeping all night, constantly[77]. The Applicant’s asthma, he stated, was under control, in that he had used medication only once in 2019 up to the date of the hearing[78]. The Applicant stated that he does not consider that he has any issue, from his lay opinion, in terms of having any type of frontal lobe issue[79]. The Applicant stated that he has no problems with his right knee, further to the removal of a piece of cartilage a few years ago[80]. The Applicant stated that he has no problems with his left knee[81]. The Applicant referred to having severe cellulitis in his right lower leg, which required hospitalisation for 6 days, before ‘clearing up’[82].
[77] Transcript, 27 August 2019, P-38, lines 26-30.
[78] Transcript, 27 August 2019, P-38, lines 36-42.
[79] Transcript, 27 August 2019, P-39, lines 1-6.
[80] Transcript, 27 August 2019, P-39, lines 24-29.
[81] Transcript, 27 August 2019, P-40, line 4.
[82] Transcript, 27 August 2019, P-41, lines 35-40.
Both limbs of section 24(1)(c) are to be satisfied[83]. The second limb of section 24(1)(c) is to be read with section 24(2)(a) of the Act. The Applicant stated that he has not received any salary from the business for about the three years leading into the hearing, from about 2016[84]. The Applicant stated that since 2016 he has been “approached” as to new building work and has ‘knocked them back’ or ‘passed them on’ to others[85].
[83] Exhibit 5, Applicant’s Statement of Facts, Issues and Contentions dated 22 October 2019, Paragraph
30.
[84] Transcript, 27 August 2019, P-38, line 1.
[85] Transcript, 27 August 2019, P-38, lines 2-6.
As found above, the cervical spondylosis was not defence-caused on the balance of probabilities. The Applicant stated that with the exception of cervical spondylosis, he would still be operating the business[86]. It is therefore found, having regard to the evidence of the Applicant, that the Applicant during the assessment period was not, by reason of incapacity from the defence-caused injury or defence-caused disease, or both, alone, prevented from continuing to undertake the remunerative work that the Applicant was undertaking when he last worked as a builder.
[86] Transcript, 27 August 2019, P-39, lines 40-45.
Section 24 of the Act therefore does not apply, in that the Applicant states he is not able to work by reason of the cervical spondylosis, which is not an incapacity from defence-caused injury or defence-caused disease, or both, alone, preventing him from continuing to undertake remunerative work that the Applicant was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that the Applicant would not be suffering if the Applicant were free of that incapacity.
As referred to above, the Applicant specifically limited Application 2017/7129 to only the special rate[87]. As to the intermediate rate in section 23 of the Act, having regard to the Applicant’s evidence[88], it is found that the Applicant’s incapacity from defence-caused injury or defence-caused disease, or both, alone, did not prevent the Applicant from continuing to undertake remunerative work on a part-time basis or intermittently: s 23(1)(b). The extreme disablement adjustment in s 22 does not apply, having regard to the age of the Applicant: s 22(4)(b).
[87] Transcript 27 August 2019, P-2, lines 22-27.
[88] Transcript, 27 August 2019, P-39, lines 40-45.
DECISION
The decision under review is affirmed.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
..............................[SGD]..........................................
Associate
Dated: 7 July 2020
Date of hearing: 27 August 2019 Date final submissions received: 19 May 2020 Advocate for the Applicant: Mr J. Horan Advocate for the Respondent: Ms R. Blake Solicitors for the Respondent: Moray & Agnew Lawyers
0
3
0