Briggs and Repatriation Commission
[2004] AATA 129
•11 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 129
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/287
VETERANS' APPEALS DIVISION
)
Re KENNETH WILLIAM BRIGGS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal S P Estcourt QC., (Deputy President) Date11 February 2004
PlaceHobart
Decision The decision under review is affirmed.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Veterans’ Entitlements – disability pension – eligibility for special and intermediate rates - whether veteran capable of remunerative work for periods aggregating more than 8 or more than 20 hours per week - decision affirmed.
Veterans’ Entitlements Act 1986 – ss.19, 24, 28
Chambers v Repatriation Commission (1995) 55 FCR 9
REASONS FOR DECISION
11 February 2004 S P Estcourt QC., (Deputy President) 1. This is an appeal against a decision of the Veterans’ Review Board of 7 August 2001 affirming a decision of the Repatriation Commission of 8 July 1999, which answered an application made by the applicant on 21 May 1999 for an increase in pension payable in respect of the applicant’s previously accepted disabilities under the Veterans Entitlements Act 1986 (“the Act”). The Repatriation Commission assessed the applicant’s pension at 90% of the General rate.
2. The principal question to be answered in this appeal is whether the applicant qualifies for pension under Part II of the Act at the special rate, pursuant to s24.
3. The following facts are taken from the respondent’s written submissions made in closing before the Tribunal and are largely uncontroversial:
“6. Mr Briggs was born on 29 October 1945. He was 53 years of age on the application day.
7. He has five accepted disabilities, including, more relevantly to this proceeding, low back strain and post-traumatic stress disorder (PTSD).
8. Mr Briggs worked as a motor vehicle detailer from 1968 to 1971 and as a truck driver from 1971 to 1992 (with a break in 1984/85). He was employed by TNT from 1985 to 29 May 1992. According to his employer, he ‘ceased employment … on his own request due to health reasons’ – T13/38. He may have taken leave prior to ceasing employment – T6/22.
9. Mr Briggs lodged a claim for pension for “back” and “nerves” in August 1984 (supplementary documents pages 1-3). Clinical notes from his medical practitioner recorded ‘chronic spine problems esp L4/5 and L5/S1 area’ and that Mr Briggs was ‘v depressed, deeply concerned over his future’ (supplementary documents, page 4).
10. On 15 October 1984, a neurosurgeon, Mr Cull, reported on Mr Briggs’ back condition (supplementary documents, pages 6-7). He noted that Mr Briggs’ employment ‘involves a lot of heavy lifting and bending’; noted a ‘mild disc bulge at L4-5’; and expressed the following opinions:
… Mr Briggs has probably experienced a degree of low back, strain, due to the heavy lifting nature of his job. I am not aware of any specific injury or incident … that might have injured his back.
I think it is unlikely that Mr Briggs will be able to continue in his present job as he describes it, without experiencing further low backache.
11. Dr Isles, a psychiatrist, reported on Mr Briggs on 10 January 1985, and noted a tendency to respond to domestic stress, ‘made more likely by his experiences on active service in S.V.N..’ (supplementary documents, page 9).
12. A Departmental Medical officer prepared a report under s 48 of the Repatriation Act 1920 on 16 January 1985 (supplementary documents, pages 10-17). The report made a diagnosis of low back strain and delayed post traumatic stress reaction. The medical officer could find no connection between low back strain and Mr Briggs’ war service, attributing the condition to Mr Briggs’ civilian occupation; but expressed the opinion that the delayed post traumatic stress reaction ‘may have been triggered by experiences on active service in Vietnam’.
13. On 25 March 1985, the Respondent accepted liability for low back strain and delayed post traumatic stress reaction under the Repatriation (Special Overseas Service) Act (supplementary documents, page 18).
14. According to his employer, Mr Briggs ceased his employment with TNT Seafast on 29 May 1992 ‘on his own request due to health reasons’ – T13/38.
15. After examining Mr Briggs on 28 October 1992, Dr John Isles reported that –
he has left work and spends his time helping his friend get firewood from the bush.
T11/34
Dr Isles expressed the following view:
It seems likely … treatment will control the nervous symptoms so that the mental state should not continue to present an obstacle to re-employment.
T11/35
16. On 8 February 1993, Mr Turner, orthopaedic surgeon, reported on Mr Briggs, having examined him on 15 December 1992. Mr Turner wrote:
[Mr Briggs] has perhaps minimal restriction of lumbar spine movements …
12/36
An x-ray of his lumbar spine on 16 December 1992 shows slight loss of height on the L4-5 disc with an associated minor degenerative spondylolisthesis at that level … It is not possible to say on the history … whether this is due to an incident of trauma or whether it is merely a process of wear and tear …
12/37
… on a purely physical basis one would have thought that [Mr Briggs] would be capable of undertaking some sort of light to medium work without being at any significant risk of injury.
12/37
17. On 25 March 1993, Dr Brigden examined Mr Briggs, expressed the opinion that Mr Briggs could work ‘normal hours’ and wrote:
There is no evidence that either his back condition and/or his PTSD are really making him unemployable. He also appears somewhat disinterested in help from VVCS …
T14/39-40
18. Mr Briggs was examined by Dr Hodge in May 1993 (following his informal application for service pension on 30 April 1993), to determine if he had a permanent incapacity for service pension purposes (see s.37 of the VE Act). Dr Hodge expressed the opinion that ‘light duties – unskilled’ were within Mr Briggs’ capacity (supplementary documents, page 25).
19. On 1 June 1993, Mr Briggs made a formal application for service pension on the ground that he was permanently incapacitated for work – T17/50-55.
20. After he ceased work, Mr Briggs did not register with the CES and did not apply for any employment. From 1994 he abandoned any attempt to find employment (Ts 11.5 - supplementary documents, page 36.5). He has never considered returning to employment that did not involve physical activity (Ts12.2 - supplementary documents, page 37.2).
21. On 6 July 1999, Mr Brigden expressed the following opinion:
While it is reasonably clear he does not want work and could not now cope with it, it is mainly due to the lifestyle he has adopted.
It could not reasonably be said that his PTSD and/or the back condition actually preclude any form of working.
T36/134
22. On 29 October 1999, Mr Binns (orthopaedic surgeon) wrote:
He has intermittent back pain and right sided sciatica off and on for many a long year now …
I would think that the chance of him ever getting back to any form of gainful employment is virtually nil.
T42/154
The basis on which Mr Binns expressed that view is not identified in the report, nor did Mr Binns diagnose Mr Briggs’ back condition(s).
23. On 14 December 1999, Ms Montgomery (clinical psychologist) wrote:
There is no question that he is not able to work due solely to his accepted disabilities of Post Traumatic Stress Disorder and back condition, and that this situation is permanent.
T42/156
24. About two years ago, Mr Briggs approached a former workmate, Mr Brown, about employment opportunities with West Coast Transport.. Mr Brown informed Mr Briggs that none was available but that it was not Mr Brown’s place to hire and fire. Mr Brown later told Mr Briggs that Mr Brown was not in a position to confirm that no positions were available with West Coast Transport (supplementary documents, page 52).
25. Around two or three years ago, Mr Briggs approached another former workmate, Mr McNamara, regarding employment with Toll Transport. Mr McNamara informed Mr Briggs that the firm had no jobs available at the time (supplementary documents, page 54).”
4. Pursuant to s13(1) of the Act, the Commonwealth is liable to pay a pension by way of compensation for a veteran’s incapacity from war-caused injury or disease and the determination of the rate of pension, which in this case falls to the Tribunal, is pursuant to s19(4A) and (5C) of the Act to be made “from time to time during the assessment period”. The “assessment period” by virtue of s19(9) starts on “the application day” and ends on the day of the Tribunal’s decision. As already indicated, the “application day” in this case was 21 May 1999.
5. Section 19(5B) of the Act requires the Tribunal to assess the rate of pension payable to the applicant in accordance with whichever of ss.22, 23, 24, 25, 27 and 30 are applicable. In the present case, it is agreed that s24, as affected by s28, is the applicable provision of the Act.
6. Section 24 provides as follows:
“(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.
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work ) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3)This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4)Subject to subsection (5), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.
(5)If section 115D applies to a veteran, the rate at which pension is payable to the veteran is the amount specified in subsection (4) less the pension reduction amount worked out under that section.”
7. Section 28 of the Act provides as follows:
“28.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).”
8. It is conceded by the respondent that the applicant satisfies the first three requirements of s24(1) of the Act. That is to say, he has made an application under s15 for an increase in the rate of pension that he is receiving, he has not yet turned 65, and his degree of incapacity from war caused injury or war caused disease, or both, is at least 70%.
9. The respondent’s contentions are that the applicant does not satisfy the fourth and fifth requirements for s24(1). Those contentions were articulated by Mr Hanks and Mr Morgan, counsel for the respondent in their written closing submissions as follows:
“33.1Mr Briggs is not ‘incapable of undertaking remunerative work for periods aggregating more than 8 hours per week’ within s 24(1)(b). In the alternative, if Mr Briggs is incapable of undertaking remunerative work to that extent, his lack of capacity is not the result of ‘incapacity from war-caused injury or war-caused disease … alone’ but is the result of lifestyle choices and lack of motivation.
33.2Nor is Mr Briggs, ‘by reason of incapacity from war-caused injury or disease … alone’, prevented from undertaking remunerative work that he was undertaking within s 24(1)(c) – because he has not been genuinely seeking to engage in remunerative work which he is capable of undertaking.
33.3 Mr Briggs is not ‘suffering a loss of salary or wages, or of earnings on his … own account’, that he would not be suffering if he were free of incapacity from war-caused injury or war-caused disease within s 24(1)(c) – because he ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease and he is prevented from undertaking remunerative work for some other reason, namely, lifestyle choices and lack of motivation.”
10. To the contrary, Mr Harrison, counsel for the applicant, contends that Mr Briggs is currently incapacitated solely due to his accepted conditions of lower back injury and post-traumatic stress disorder, and that he is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Mr Harrison further submits that if it cannot be demonstrated that the applicant is suffering loss of salary or wages due to incapacity from war-caused injuries, then he is nonetheless entitled to the special rate of pension, because he has been genuinely seeking to engage in remunerative work and his war-caused injuries are the substantial cause for his inability to obtain that work.
11. An alternative submission made by Mr Harrison on behalf of the applicant is that in any event if Mr Briggs is not entitled to the payment of the special rate of pension, he would be entitled to payment of pension at the intermediate rate pursuant to s23 of the Act, because his incapacity from low back strain and post-traumatic stress disorder alone render him incapable of working for more than 20 hours a week.
12. The applicant in support of his application, relied upon his own evidence and the opinion of Dr Henry Brigden contained in a report dated 28 January 2003.
13. Mr Briggs’ own evidence is set out in the form of a proof dated 9 October 2003, which was tendered before the Tribunal. That proof of evidence comprised the following statements:
“1. My date of birth is 29 October 1945.
2. I served in the Australian Army from July 1966 to July 1968;
3.I performed operational service in South Vietnam from February 1967 to February 1968;
4. I currently suffer from the following accepted disabilities:-
a) Low back strain;
b) Delayed post traumatic stress disorder;
c) Bilateral sensorineural hearing loss with tinnitus;
d) Tinea; and
e) Gastro-oesophageal reflux disease;
5.I commenced employment with Metro Motors as a truck driver after my discharge from the Army. This employment ceased in approximately 1970/1971;
6.I then commenced employment with Mayne Nickless as a truck driver. I was employed in this position for approximately 18 months to 2 years. This employment ceased in approximately 1972/1973;
7.I was then employed with Cannons Oil Services for approximately twelve and a half years. For the first 6-7 years I was employed as a driver full time. For the remaining period I was employed as a driver/supervisor;
8.I commenced employment with TNT as a truck driver in late 1985. This employment ceased in 1992. During the later years of my employment with TNT I had difficulty effectively performing my duties due to almost constant back pain and the effects of my post traumatic stress disorder;
9.I resigned from my employment with TNT in May 1992 because I was unable to continue performing my duties due to my back pain and the effects of my post traumatic stress disorder;
10.During the later years of my employment with TNT the effects of my post traumatic stress disorder resulted in me being irritable, uptight and emotional (whether angry or upset). I would often have arguments or disputes with fellow workers, supervisors or customers as a result;
11.I can recall a specific argument that I had with a male customer who I had experienced problems with previously. On this particular occasion the customer complained about the delivery being late. I lost my temper with the customer. I had a 6-foot long pipe in the truck and I nearly hit him with it. At that point I became concerned that I might actually physically assault someone. I decided that it was no longer possible for me to perform my duties. I tendered my resignation shortly after that incident.
12.At the time of my resignation I was taking panadeine forte prescribed by either Dr Hodge or Dr Graham of the O’Brien’s Bridge Medical Centre. I also sought assistance from Jane Montgomery at the Counselling Service both before and after my resignation;
13.I was not given any medical advice to resign my employment with TNT for medical reasons prior to my resignation;
14. I have not been employed since resigning my employment with TNT;
15.I did not approach the Department of Social Security to seek assistance in pursuing employment because I had previously had a dispute with the Department relating to my financial circumstances after my divorce;
16.I had worked with Steven McNamara and Hedley Brown at TNT. They both left TNT to take up positions with other employers. They were both employed in lower management or supervisory roles and they each had the authority to offer employment. I approached both Mr McNamara and Mr Brown to determine whether they were able to offer me any employment. They both indicated that there were positions available but that I was not suitable for any of the available positions due to my back injury;”.
14. The report of Dr Brigden dated 28 January 2003 which was relied upon by the applicant, was in fact a report prepared by the doctor for the respondent’s solicitors. That report provides as follows:
“I have familiarised myself with the contents of Mr Briggs’s Departmental medical file. As I believe you know I saw him on three occasions in this office, in March 1993, August 1997 and in July 1999.
His accepted conditions are low back strain and post traumatic stress disorder, both accepted in March 1985, effective from May 1984, following reports from neurosurgeon Mr David Cull and psychiatrist Dr John Isles.
When I first saw him in 1993 he had given up work of his own volition, some 10 months earlier. We obtained a further report from Dr Isles and a report from orthopaedic surgeon Mr RWL Turner and you would be aware of the contents of their reports. Neither felt he was unfit for further employment. Dr Isles appeared to feel that his back condition was really his major disability. I was, and still am, in full agreement with Mr Turner’s view and that Mr Briggs was no longer fit to continue as a truck driver or engage in heavy physical activity. By that time, it had becone (sic) evident that his condition had become more than simply low back stain (sic) and that he had some damage to his L 4-5 intervertebral disc. Correctly, his accepted condition might have been reconsidered at that time, but that was something which was not being done routinely then, although it would be done now.
It was my opinion after seeing him that neither condition made him unfit for work, that his psychiatric condition was under control, but that his back precluded heavy work and a driving occupation, but did not make him unfit for other work. Later it became apparent that the EMDR treatment at VVCS did not continue to be effective.
Within two months of my seeing him he had applied for, and was granted a Service Pension for the same two conditions, by our Income Support Section, as being no longer employable. Their legislative requirements, however, allow the ability to take age and socio-economic factors into consideration, which is not the case with Section 24 of the VEA. Clearly he was no longer seeking to re-enter the workforce.
I saw him in August 1997, and you are aware of my report, including the file note dated 7 August.
I concluded that his psychiatric condition was somewhat more symptomatic than when I had seen him earlier and as well his back condition had progressively deteriorated somewhat. It was then my opinion, realistic I believe, that although his conditions, might not necessarily prevent everyone from working, Mr Briggs was not going to either seek further work, nor would he be likely to be motivated to maintain it.
In general terms, it is difficult to rehabilitate anyone, back into the workforce after a year out of it unless that person is highly motivated. Mr Briggs had left the workforce 5 years earlier as the solution to his problems, and was therefore unlikely to be so motivated.
My opinion left it open for his claim for Special Rate to be accepted it it (sic) was found that he fully meet (sic) the requrements (sic) of Section 24 of the V E A. That was administratively determined not to be the case.
When I saw him in 1999, his condition was much the same, and my conclusions were as previously and I note that I said much as I am saying now in my file note of 12 May 2000. (I see there was a date error in the final paragraph: 1995 should have been 1997). His claim for Special Rate was again rejected, and also by the VRB in 2001.
In answer to your specific questions, and to put it in chronological context, I will address the 4th one first.
Q4.I do not believe that he was so incapacitated by either, or both, his PTSD and/or his back condition as to have been unfit to continue in remunerative work in 1992 or 1993. (Neither did Dr Isles or Mr Turner)
Q1.I do not believe he has been capable of any remunerative work since at least when I saw him in 1997. (From the point of view of Special Rate, this means incapable of undertaking remunerative work for periods aggregating more than 8 hours per week)
Q2. From Q1, obviously the answer is No.
Q3. This is somewhat complex.
(a) He does not have any other significant disabilities.
(b)Therefore it can be argued that if he is unfit for work (as he is), it must be due to his accepted conditions, however,
(c)I referred to lifestyle choices and lack of motivation, because I saw Mr Briggs as a person who had chosen to cease work. As I stated earlier he was obviously comfortable with his lifetyle (sic) and had not been considering work for several years. Had he chosen to seek more effective treatment from the first time I saw him, it is likely that he would have still been fit for some form of employment in 1997.
I do not believe there is now any need to seek further specialist review, nor do I believe I need to see clinical notes from his general practitioners.”
15. To fully understand that report, it is necessary to be aware of the form of the questions asked of the doctor and answered by him in the penultimate paragraph of his letter. Those questions were as follows:
“1. Whether Mr Briggs is capable of undertaking any remunerative work?
2.Whether Mr Briggs is capable of working for period totalling more than 8 hours per week?
3.If Mr Briggs is incapable of working for period totalling more than 8 hours per week:
(a) whether that is due solely to his accepted disabilities?
(b)Whether his accepted disabilities alone prevent him from working more than 8 hours per week, and
(c)Whether that is the result of lifestyle choices and lack of motivation or any other factors?
4.Whether in May 1992 when he ceased work Mr Briggs’ low back strain and PTSD was so incapacitating as to prevent him from continuing to engage in remunerative work?”
16. Dr Brigden was not required by the applicant for cross-examination.
17. The respondent, in addition to the various medical reports contained in the s37 documents before the Tribunal, some of which are extracted in the statement of facts set out from the respondent’s submissions at the commencement of these reasons, relied on a report from Dr Tim Stewart, a consultant occupational physician, which was prepared on 12 February 2003 after an examination of the applicant conducted on 28 January 2003. That report provides as follows:
“Thank you for your extensive and comprehensive letter of 23/12/2002 and for your subsequent letters, dated 17/01/2003 and 31/01/2003, regarding Kenneth Briggs whom I saw at my consulting rooms on 28/01/2003. Mr Briggs has had several disabilities accepted by the Department of Veterans’ Affairs including low back strain and delayed Post Traumatic Stress Disorder (PTSD).
I understand that you are acting for the Department of Veteran’s Affairs in respect to a matter due to be heard in front of the Administrative Appeals Tribunal in respect to whether Mr Briggs qualifies for the Special rate of pension. You are seeking medical advice as to whether Mr Briggs is unable to work more than eight hours per week solely because of his accepted disabilities or if he has the capacity to work for an average of 1.6 hours per day on a five-day week.
You have provided me with copies of a number of documents that include:
· T documents
· The Applicant’s Proof of Evidence, which is undated
· A transcript of an AAT Hearing on 19/07/2002
· Medical reports from General Practitioners, Dr Graham St John Hodge and Dr T Lickiss.
Mr Briggs was punctual, cooperative throughout the interview and allowed himself to be examined. I concluded that he does have the capacity to work for eight hours per week and can probably work for more than eight hours per week. I question whether Mr Briggs has the desire to work.
Report:-
Name: Kenneth (Ken) William Briggs
Address: 14 Coraki Street, Chigwell 7011
DOB: 29/10/1945, aged 57
General Practitioner: Drs Tim Lickiss and St John Hodge
Social History:-
Mr Briggs was born in Tasmania and is married with one daughter. His wife is involved with the Army Reserves. Mr Briggs is a non-smoker and drinks alcohol on a social basis.
Occupational History:-
Mr Briggs left school at the age of 15 and participated in Service Station work before going to work for a tyre company. He then worked in a car dealership.
He subsequently spent two years (1965-1967) in the Army performing his National Service. He spent 12 months in Australia and 12 months in Vietnam.
On his discharge from the Army he ran a truck dealership and drove trucks. He also spent time delivering diesel for an oil company. I understand that he had 18 months off work for personal and social reasons and on his return to work drove trucks until 1992 when he ceased work, apparently for health reasons.
Sporting Interests and Hobbies:-
Mr Briggs stated that he has enjoyed trout fishing and was a member of a Four-Wheel Drive Club in the past.
History of Current Condition:-
Mr Briggs stated that on 3 or 4 occasions whilst he was in Vietnam he had jumped with a backpack or a radio on his back from trucks and helicopters onto the ground. Mr Briggs finished his National Service in the Army in the middle of 1967.
Mr Briggs stated that he experienced the onset of back pain in the late 1970’s/early 1980’s. He had attended Dr Bowie at that time who had examined, assessed and manipulated him. There were also some x-rays and blood tests performed. Mr Briggs was found to have a ‘disc problem’.
He remained driving trucks until 1992 when he ceased work because of the back pain that he was experiencing and also the stress associated with dealing with customers. The stress that he had experienced is documented and he indicated that there had been a general buildup of ‘everything’ and that things were ‘getting to him’.
Mr Briggs has not worked since 1992 although he has attempted to find employment on some occasions. He has been in receipt of a pension.
He has consulted with different medical practitioners at different times, including Mr Bill Turner and Mr Fred Binns, Orthopaedic Surgeons. There have been no recommendations for surgical intervention.
Mr Briggs currently attends Dr Lickiss who has prescribed Dymadon Forte, analgesic medication. Dr Lickiss has ‘taken it easy’ with the medication because Mr Briggs ‘didn’t want to get hooked’.. Mr Briggs has also taken Panadeine Forte, analgesic medication, and an anti‑inflammatory medication.
Current Complaints:-
Mr Briggs reported that he experiences an ache that is located in the mid‑back region with radiation down the left leg. He experiences both ‘good’ and ‘bad’ days.
Examination:-
Mr Briggs stood 1.73 metres tall and weighted 79 kilograms giving him a Body Mass Index of 26. He sat throughout the interview and was able to undress for the purpose of an examination.
Cervical vertebrae – The range of movement of his neck was normal.
Thoracolumbar spine – Inspection of the thoracolumbar spine revealed a normal contour. Forward flexion of the lumbar spine was to the level midway between the knees and the ankles. Extension, lateral stretching and medial rotation movements were all within normal limits.
Lower limbs – Inspection of the lower limbs revealed no muscle wasting. Straight leg raising was equal on both sides at 75 degrees. Power, tone, coordination and reflexes were normal.
Investigation:-
Results of a CAT scan of the lumbosacral spine dated 06/08/1999 showed no disc protrusion at L3/4. At the L4/5 level ‘there is a moderate degree of central canal stenosis due to hypertrophy of the ligamenta flava and the facetal joints and minor generalised bulging of the disc. No bony foraminal stenosis.’ At the L5/S1 level there was ‘no disc protrusion, no foraminal stenosis nor other abnormality’.
A number of other investigations have been performed, which have all been normal.
Opinion:-
Mr Briggs served in Vietnam for 12 months during his National Service from 1965-1967. On three or four occasions during this time he jumped off trucks or helicopters onto the ground with backpacks/radios on his back.
Mr Briggs began to experience back pain in the late 1970’s/early 1980’s and sought medical attention. There is no relationship between Mr Briggs’ National Service and his back problems from the late 1970’s and early 1980’s through the present time. The onset of non‑specific (mechanical) back pain was probably due to normal degenerative changes that are part of the aging process.
Mr Briggs’ clinical examination was good and he has the capacity to participate in remunerative employment for at least eight hours per week. This could include Service Station work, Retail/store work or any form of activity that he desires to perform.
Mr Briggs is not precluded from participating in his last substantive position as a Truck Driver either on a part-time or full-time basis.
In respect to your specific questions:
1. Whether Mr Briggs is capable of undertaking any remunerative work?
Mr Briggs is most definitely capable of undertaking remunerative work.
2.Whether Mr Briggs is capable of working for period totalling more than 8 hours per week?
Mr Briggs most definitely has the capacity to work for periods totalling more than 8 hours per week.
3. If Mr Briggs is incapable of working for period totalling more than 8 hours per week:
(a) whether that is due solely to his accepted disabilities?
The fact that Mr Briggs is not working for greater than 8 hours per week is unrelated to his accepted disabilities. I could find no evidence that he is experiencing problems either in respect to his delayed PTSD or to his back condition.
(b) Whether his accepted disabilities alone prevent him from working more than 8 hours per week, and
No. His accepted disabilities do not prevent him from working more than eight hours per week.
(c) Whether that is the result of lifestyle choices and lack of motivation or any other factors?
It is probably a combination of lifestyle choices and a lack of motivation. There is no evidence that Mr Briggs has a problem with PTSD or a back condition that is impacting upon him in respect to his income generating activities.
4. Whether in May 1992 when he cased work Mr Briggs’ low back strain and PTSD was so incapacitating as to prevent him from continuing to engage in remunerative work?
Mr Briggs elected to cease his employment for health reasons. However he did not appear to be attending medical practitioners either for low back strain or for the treatment of delayed PTSD at that time. I doubt that PTSD is a relevant factor in this situation.
I am quite firm in my opinion in respect of Mr Briggs. Should you have any queries please contact me.”
18. The first question arising for determination is that posed by s24(1)(b) of the Act, namely whether the applicant’s incapacity from war-caused injury and disease is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours per week.
19. Section 28(b) which affects s24(1)(b) by identifying the relevant “remunerative work” for the purposes of that sub-section refers to categories of employment, not particular occupations, and is not confined to work undertaken by the applicant in the course of his previous occupations (see Chambers v Repatriation Commission (1995) 55 FCR 9 at 21D and 22A).
20. Whilst the Tribunal readily accepts the genuineness of the applicant’s subjective view that he was at the time he resigned his employment with TNT in May 1992, and remains, incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, that incapacity is not borne out by the medical evidence.
21. It is true that in answer to question 1 posed of him, Dr Bridgen in his report of 28 January 2003, expressed the opinion that he did not believe that the applicant had been capable of any remunerative work since when he saw him in 1997, but that answer must be read in the context of Dr Bridgen’s earlier statement set out in his report, that it was, when he saw him in August 1997 his opinion;
“That although his conditions might not necessarily prevent everyone from working, Mr Briggs was not going to either seek further work, nor would he be likely to be motivated to maintain it.”
22. If there is any ambiguity about Dr Brigden’s answer to question 1 in view of that earlier statement, such ambiguity is dispelled by a statement he made in his report after he actually examined Mr Briggs on 6 July 1999. There he said:
“He is much the same as when I law saw him. While it is reasonably clear he does not want work and could not now cope with it, it is mainly due to the lifestyle he has adopted. It could not reasonably be said that his PTSD and/or the back condition actually preclude any form of working.”
23. Were the Tribunal to be in error in so interpreting Dr Brigden’s report, it should be noted that the Tribunal in any event prefers the more clearly articulated and more clearly reasoned opinion of Dr Stewart contained in his report of 12 February 2003,namely, that Mr Briggs “ Mr Brigg’s clinical examination was good and he has the capacity to participate in remunerative employment for at least 8 hours per week”.
24. The Tribunal’s preference for Dr Stewart’s statement is primarily because he is a specialist occupational physician, and had the advantage of examining the applicant as recently as 28 January 2003,upon which clinical examination he based his opinion. Dr Brigden although having examined the applicant on three occasions in March 1993, August 1997 and July 1999, had not seen him for some 3½ years prior to his report of 28 January 2003.
25. As to the applicant’s alternative argument that if he is not entitled to payment of pension at the Special rate, he should qualify for the Intermediate rate as his accepted disabilities render him incapable of working for more than 20 hours a week, no doubt similar considerations to those expressed in the respective reports would affect the minds of Dr Brigden and Dr Stewart if the question were put to them. The simple fact is however, that before the Tribunal there is no evidence to support that contention apart from the applicant’s subjective view that he is not capable of remunerative work at all, a view which the Tribunal has not accepted on the issues before it in this appeal.
26. The standard of proof before the Tribunal in this case is one of reasonable satisfaction although there is no burden of proof. The position is that if having regard to all of the evidence the Tribunal cannot make up its mind in relation to a particular matter, then the practical result is that on a review of a decision not to grant a pension, that decision would be upheld. This is sometimes called the practical burden of proof or as Mr Hanks, senior counsel for the respondent called it, “the inertia principle”.
27. The Tribunal is not reasonably satisfied on the material before it that the applicant is incapable of remunerative work for periods aggregating more than 20 hours per week.
28. In view of the foregoing findings, it is not necessary to determine the second and third of the respondent’s submissions set out above, nor does the applicant’s submission that his position is affected by his genuine attempts to engage in remunerative work arise for consideration. It follows that the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 15 October 2003
Date of Decision 11 February 2004
Counsel for the Applicant Mr L Harrison
Solicitor for the Applicant Ogilvie Jennings
Counsel for the Respondent Mr P Hanks QC and Mr B Morgan
Solicitor for the Respondent Australian Government Solicitor
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