Brownlie and Repatriation Commission (Veterans' entitlements)
[2017] AATA 2292
•17 November 2017
Brownlie and Repatriation Commission (Veterans' entitlements) [2017] AATA 2292 (17 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/4126
Re:Alexander Brownlie
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:17 November 2017
Place:Brisbane
The decision under review is affirmed.
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Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – whether veteran is entitled to payment of disability pension at the Special Rate – where veteran’s degree of incapacity from war-caused injury or war-caused disease has been accepted to be 70% or more – alone test – whether veteran’s incapacity is of such a nature as, of itself alone, renders the veteran incapable of undertaking remunerative work – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 14, 19, 21, 22, 23, 24, 25, 27, 28, 30, 120
CASES
Flentjar v Repatriation Commission (1997) 26 AAR 93
Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625
Re MacRae and Repatriation Commission (1990) 21 ALD 612
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Smith v Repatriation Commission (2014) 220 FCR 452
Starcevich v Repatriation Commission (1987) 18 FCR 221
Watkins v Repatriation Commission [2014] FCA 787SECONDARY MATERIALS
Guide to the Assessment of Rates of Veteran’s Pensions
REASONS FOR DECISION
Deputy President J Sosso
17 November 2017
INTRODUCTION
The key issue before the Tribunal is whether Mr Alexander Brownlie (the veteran) is entitled to payment of his disability pension at the Special Rate, as opposed to the General Rate, pursuant to the Veterans’ Entitlements Act 1986 (the Act).
The veteran was born in 1959 and, at the time of the hearing, was 57 years of age. After leaving High School at Grade 10 level, the veteran worked for Australia Post as a postal worker, in a saw mill and then in an aluminium fabrication plant – Exhibit 1 T73 p. 285.
The veteran served in the Royal Australian Army from 26 March 1991 until his medical discharge on 18 December 1998.
The Repatriation Commission (the Respondent) concedes that the veteran rendered eligible service for the purposes of the Act during the period 26 March 1991 to 6 April 1994 – Respondent’s Statement of Facts, Issues and Contentions (RSFIC) p. 1 para 2.
The Respondent has accepted the following conditions as related to the veteran’s service under the Act – Exhibit 1 T2 p. 9 para 8, RSFIC pp. 1- 2 para 3:
·Lumbar spondylosis with disc lesion;
·Osteoarthritis of the right knee;
·Osteoarthritis of the left knee; and
·Bilateral pterygium.
The veteran served in the Army as a heavy vehicle operator and an air dispatch operator. His Army service ended because his medical conditions prevented him from fulfilling his service requirements. Since leaving the Army the veteran has been unemployed – Exhibit 1 T2 p. 9 para 13.
In December 1997, the veteran applied for the disability pension under the Act. At the time the claim was made the veteran was still serving in the Army. The veteran listed four disabilities together with the claimed causes – Exhibit 1 T5 p. 69:
·Lower back injury: caused by physical training and parachute jumping;
·Knee injury: caused by the physical training program in the Army;
·Shin splints: caused by physical training and parachute jumping; and
·Left shoulder: caused by parachute jumping.
In response to the Question “Have the disabilities you are claiming affected your employment at any time?”, the veteran ticked the “Yes” box and provided the following information – Exhibit 1 T5 p. 70:
“I can no longer parachute jump & have been medically downgraded & reduced pay due to medical downgrading – possible loss of employment.”
In a Lifestyle Questionnaire completed by the veteran on 18 December 1997, he described how his disabilities were impacting on his life.
In response to the Question relating to his family life, he answered – Exhibit 1 T6 p. 75:
“Can’t play with the children… Unable to help my wife around the house as much as I would like to.”
The impact on his social life and interrelationship with other people was described as follows – p. 75:
“Don’t go out dancing any more. Can’t stand for long time. Need to sit… Don’t go out anymore. Get tired easily and irritable.”
The Questionnaire asked a series of questions on the impact of the veteran’s disabilities on his employment. Outlined below are the Questions and his answers – pp 78 – 79:
“25. Have you changed jobs in the last 5 years?
Yes – Because I am unable to parachute anymore. Medically downgraded.
26. Are there things you can’t do at work that you used to do?
Yes – Parachute Heavy lifting (changing truck tyres etc). Carry a heavy back pack.
Why are you unable to do them?
Because of 3 damaged discs lower spine. Arthritis and damaged cartilage in my knees.
27. Have you changed your workplace or the way you work to make it easier for you?
Yes – I get other people to help me as much as possible. Do my job as slowly and carefully as possible.
Why did you make these changes?
To avoid having a repete (sic) episode of severe back pain that usually requires hospitalisation or at least bed rest for a week…
30. In your opinion, have your disabilities affected your future or career?
Yes – Unable to be an Air Dispatcher due to medical downgrade and not being able to parachute. Limited chance of promotion. Possible loss of employment due to my medical condition…
Use this space if you would like to tell us further details about the effect your disabilities have on your lifestyle.
Limited in what I can and cannot do around the house. Reduced social life. Extra burdens placed on my wife as she tries to do the things I can’t. Living in constant pain often makes me short tempered. Unable to play any active sports due to all of my injuries causes loss of fitness which in turn affects my employment as a soldier.”
On 16 March 1998 the Respondent accepted the veteran’s claim for lumbar spondylosis with disc lesion and granted a disability pension at 40% of the General Rate with effect from 23 September 1997. However, the Respondent refused claims for osteoarthritis of the right knee with medial femoral plica, internal derangement of the left knee, rotator cuff syndrome of the left shoulder, shin splints of both legs on the basis that the conditions were not service related – Exhibit 1 T11 pp. 86 – 93.
The veteran’s final Medical Board Examination Record is dated 8 October 1998 – Exhibit 1 T4 p. 47.
The examining Medical Officer, Dr Immara, noted abnormalities in the veteran’s eyes, abdomen, upper and lower extremities and his back.
Dr Immara opined that the veteran suffered from pterygium in both eyes, together with ongoing left shoulder pain “initial rx 1993 with physio, injection to AC joint”. With respect to his back condition, Dr Immara noted:
“LBP with L sciatica, CT L3/4 bulge, increase with lifting, standing, load carrying, running… able to drive, but not greater than 100kms; unable to change tyres, unable to do military tasks”.
Dr Immara opined that the veteran was “medically unfit for service” and could not lift any objects heavier than 15 kg.
On 15 March 2007 the veteran lodged a claim for chronic gastritis, gastro-oesophageal reflux and rotator cuff syndrome. On 23 May 2007 the Respondent decided that each of the claimed conditions were unrelated to the veteran’s service, but increased the disability pension to 70% of the General Rate from 15 March 2007 – Exhibit 1 T42 pp. 191 – 199.
On 7 September 2007 the veteran was examined by Dr David Shepherd, Orthopaedic Surgeon. Dr Shepherd had seen the veteran for a number of years prior to this. In his report, Dr Shepherd made the following comments – Exhibit 1 T54 pp. 235 – 236:
“Mr Brownlie describes problems with his lower back and both knees.
Mr Brownlie gets pain across the lower part of his lumbar spine. He gets radiation into his buttocks and the proximal part of both thighs. He gets some pain into his left buttock and thigh and occasional pain in his right buttock and thigh. This pain is worse with all sorts of activity and he restricts his activity greatly because of it.
Mr Brownlie also describes pain around his knees. The pain seems fairly symmetrical, it is diffuse and deep within both knees. This pain is also generally worse with activity, he will get some sudden severe episodes of pain which will stop him in his tracks though he doesn’t seem to have true mechanical locking. He gets some unsteadiness but doesn’t seem to have frank ACL type giving way. He also reports some swelling…
Mr Brownlie tells me that he was medically discharged from the Army. After he left the Army he went on to the disability support pension, this was in 1998. He remains on that pension today. He has not performed any work outside the Army. He feels that if he did work, it would be in something like truck driving. He feels that the activity required to work would provoke his pain particularly in his back.
I note you have asked me to provide an opinion regarding Mr Brownlie’s capacity to work. I note that this man has been on the disability support pension since 1998. He has not undertaken any paid work since being medically discharged from the army. This is now an established pattern of behaviour for this man and I think it most unlikely that it will change in the future. If he were to get his core muscles strong I think his back would function much better and in that situation he might be capable of some sort of work. I believe that Mr Brownlie’s professed inability to work is primarily due to his back. I believe his back is 85% responsible. His left knee is 10% responsible and his right knee 5%. I believe it is unlikely that this man will ever return to paid employment.”
The Respondent determined on 5 February 2008 to accept the Applicant’s osteoarthritis of both knees and bilateral pterygium as service related conditions – Exhibit 1 T63 pp. 261 – 269. Further, on 9 March 2009 the Veterans’ Review Board increased the veteran’s disability pension to 80% of the General Rate – Exhibit 1 T76 pp. 294 – 304.
On 8 September 2015, the veteran lodged an application for an increase in his disability pension – Exhibit 1 T78 pp. 307 – 316. In that part of the claim outlining reasons for increasing the rate of pension, the veteran made the following statement – p. 311:
“Spinal injury has worsened and has effected my employment right from my discharge from the Army. My approach to Centrelink led to a disability pension as they informed me that I was unemployable.”
Following receipt of this application, medical impairment assessments were conducted with respect to the veteran’s lower limb condition, thoraco-lumbar spine condition, eye condition, disfigurement and social impairment, activities of daily living, and lower limb (ranges of movement) – Exhibit 1 T82-87 pp. 320 – 326.
A Work Ability Report was completed on 12 November 2015 by Dr Catriona Arnold-Nott of the Malanda Medical Centre – Exhibit 1 T88 pp. 327 – 334. Dr Arnold-Nott gave the following responses to the questions posed in the Work Ability Report – pp. 328, 329, 331:
“Major Diagnosis/es and Duration
Degenerative disc disease, lumbar spine 20 yrsBilateral osteoarthrosis of knee 20yrs
Minor Diagnosis/es and duration
Bilateral pterygium 20 yrs…
Cardiovascular System – impact
Coronary artery spasm. Symptoms well controlled with Verapamil. Stress management strategies. Minimal impact…
Mental State
Psychosocial impact of chronic pain, uses healthy pain management psychological strategies.
Impact –
Moderately significant impact…
In my professional opinion Mr Brownlie is permanently incapacitated for any kind of work.
I understand this has been the case since the time of his discharge from the army in 1998.
I do not believe that he is a candidate for rehabilitation to work, due to the nature and duration of his incapacity.”
On 12 January 2016, the Respondent determined that the veteran was eligible for payment of his disability pension at 100% of the General Rate – Exhibit 1 T92 pp. 360 – 369.
The veteran sought a review of this decision. On 31 May 2016, the Veterans’ Review Board affirmed the Respondent’s decision – Exhibit 1 T2 pp. 6 – 11. In that part of the decision which outlines the veteran’s case, the Board stated – Exhibit 1 T2 pp. 8 – 9 para 7:
“7. Mr Chalk lodged a submission prior to the hearing that explains Mr Brownlie’s reasons for seeking review of the Commission’s decision (f107). He reiterated at the hearing his view that Mr Brownlie has been disadvantaged in that he was awarded an incorrect class of Military Superannuation and Benefit Scheme pension on leaving the Army on medical grounds and then a Centrelink disability pension rather than a disability pension under the Act. Mr Chalk stated that the purpose of this current application was to correct that situation. Mr Brownlie added that he did not attempt to find a job on leaving the Army as on receipt of his Centrelink pension he was told that he would lose the pension were he to gain employment.”
The matter was heard in Brisbane on 16 October 2017. The veteran was represented by Mr David Chalk of the Edmonton RSL who participated in hearing by telephone. The veteran did not give evidence. The Respondent was represented by Ms Rachel Blake of Moray & Agnew Lawyers.
THE LAW
Section 14 of the Act permits a claim for a pension.
A veteran who is in receipt of a pension can apply for an increase in the rate of payment on the ground that the incapacity has increased since the rate of pension was last assessed – s 15(1).
Section 19 prescribes the way in which, inter alia, applications for an increase in pension are determined. Subsection 19(5B) directs that an assessment of such an application must be made in accordance with whichever of s 22 (general rate of pension), s 23 (intermediate rate of pension) or s 24 (special rate of pension) applies. While s 19(5B) also directs attention to ss 25, 27 and 30, these provisions are not relevant to this matter.
In determining eligibility, a veteran’s entitlement is assessed in respect of any circumstance within the “assessment period”. This period runs from the date of application for an increase in the pension until the decision of the Tribunal – s 19(9). In this matter, then, the assessment period commenced on 11 September 2015 and concludes when the Tribunal makes its determination.
In Smith v Repatriation Commission (2014) 220 FCR 452 (Smith), Buchanan J made the following observations about the assessment period ([40]/462):
“The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or special rate, whichever is applicable, or in the case that both are applicable, whichever is most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.”
The central concept for determining the amount of pension payable is the degree of incapacity. Section 21A of the Act provides for the determination of the degree of incapacity by reference to the relevant provisions of the Guide to the Assessment of Rates of Veteran’s Pensions (GARP).
The general rate of pension and the extreme disablement adjustment are prescribed by
s 22. In this matter the veteran is not eligible for the extreme disablement adjustment as he is not 65 years of age or older – s 22(4).
There are two other rates of pension apart from the general rate of relevance in this matter: the intermediate rate and the special rate.
The intermediate rate is prescribed by s 23 and, as its nomenclature indicates, is mid-way between the general and special rates. It is payable when a veteran, from service-related causes, is unable to engage in remunerative work except on a part-time basis or intermittently.
Consistent with s 23 being focused on veterans who are not totally and permanently incapacitated, but capable of performing part-time or intermittent work, s 23(2) excludes a veteran who is capable of, or is actually undertaking, remunerative work for more than 50% of the ordinary time for that type of work or 20 or more hours per week.
Normally, a decision-maker must consider s 24 before turning to s 23. This follows because s 23(1)(d) provides that s 23(1) applies to a veteran only if s 24 does not – see Rares J in Smith at [8]/455.
However, in this matter the Respondent accepts (RSFIC para 12) the diagnosis of
Dr Arnold-Nott (Exhibit 1 T88 p. 331) that the veteran is “permanently incapacitated for any kind of work.” Accordingly, the Tribunal finds that the veteran is prevented from working 8 hours or more a week by reason of his disability arising from his accepted conditions and, consequently, s 23 does not apply.
The special rate pension was formerly, and more helpfully, referred to as the Totally and Permanently Incapacitated Pension. It is a pension that has been paid since 1920 and was designed for the those returned soldiers from the First World War who, though still young, were severely disabled, unable to work and incapable of supporting themselves or their families.
Section 24 prescribes the criteria which must be met before a special rate pension is paid. Apart from the requirement of lodging an application under s 15, which the veteran clearly has, s 24 mandates a series of tests.
First, s 24(1)(aab) requires that a veteran must not have turned 65 when the claim or application is made. In this matter the veteran satisfies this requirement.
Second, the veteran’s degree of incapacity from war-caused injury or war-caused disease must have been determined to be at least 70% – s 24(1)(a). Again, the veteran meets this requirement as his pension has been assessed at 100% of the general rate.
Third, the veteran must be totally and permanently incapacitated, that is, the veteran’s incapacity must be of such a nature as, of itself alone, renders the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. – s 24(1)(b).
It is necessary, when addressing s 24(1)(b), to have regard to s 28. When determining what remunerative work a veteran is capable of doing, the decision-maker is required to 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 (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 capacity to undertake the kinds of remunerative work referred to in (b).
Fourth, s 24(1)(c) requires, inter alia, that the veteran is, by reason of incapacity of war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking.
The Tribunal has the benefit of the recent Full Federal Court decision of Smith where Buchanan J made the following observations about this subsection in the context of s 24 as a whole ([47] – [49]/465-466):
“47 Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (ie not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
48 The operation of s 24(1)(c) is capable of being informed by the provisions of
s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of
s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in
s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (‘a veteran who is incapacitated…’). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
49 Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (ie loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.
The Respondent submits, and the Tribunal agrees, that in reaching its decision, the Tribunal must decide all relevant matters to its reasonable satisfaction pursuant to
s 120(4) of the Act – RSFIC p. 17 para 4.
CONSIDERATION
Introduction
The Veterans’ Review Board was not satisfied that the veteran met the requirements of s24(1)(c). In reaching this conclusion the Board provided the following reasons – Exhibit 1 T2 pp. 10 – 11:“
·A medical impairment assessment conducted by Dr Carmel Hickey in April 2007 indicates that Mr Brownlie’s rotor cuff syndrome of the left shoulder contributes to his incapacity for work…While Mr Brownlie informed the Board that his shoulder condition is ‘getting better’ and is ‘pretty good’, the Board noted Dr Hickey’s assessment that the shoulder condition is permanent and has a ‘severe or disabling effect on many functions’. The Board is not satisfied that Mr Brownlie’s rotor cuff syndrome of the left shoulder is not a contributing factor to his incapacity.
·Mr Brownlie has a history of coronary artery spasms… Mr Brownlie informed the Board that his last attack was 12-18 months ago (he stated that prior to that attack he was suffering 3-4 attacks a year) and that he has been admitted to hospital following attacks on at least six occasions. Mr Brownlie played down the significance of his condition and stated he controls it through medication and stress management strategies. The Board notes Dr Arnold-Nott’s assessment that Mr Brownlie’s condition has ‘minimal impact’ but it requires adoption of ‘stress management strategies’. That suggests, that the condition would affect the kind of work, and possibly hours of work, he could undertake.
·Mr Brownlie stated that his treating general practitioner has concerns that Mr Brownlie may be suffering some depression due to his conditions, and has prescribed medication and suggested that Mr Brownlie seek medical advice on management strategies. The Board notes Dr Arnold-Nott’s assessment that the psychological impact of Mr Brownlie’s pain has a ‘moderately significant impact’ on his employability…
·Mr Brownlie’s employability. He is 56 years old and has been out of the workforce for 17 years.”
Central to the disposition of this matter is the correct application of s 24(1)(c). It is helpful in this context to refer to the methodology outlined by Branson J in Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96:
“1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If 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?
4. If 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?”
It is important to note that while the approach outlined by Branson J provides a useful guide to ensuring a decision-maker does not stray into error, they are not the words of a statute and are just a guide. As Middleton, Murphy and Rangiah JJ cautioned in Repatriation Commission v Richmond (Richmond) [2014] FCAFC 124; 226 FCR 21 at [50]/34:
“We do not approach the task of interpreting s 24(1)(c) by reference to the
Flentjar questions. While the appeal requires close attention to what was said in Flentjar and other authorities the application of s 24(1)(c) is not be ascertained by construing the words in the authorities as if they were the words of the statute…”
What was the veteran’s earlier remunerative work?
The correct approach to answering this threshold issue was explained by Whitlam, Emmett and Stone JJ in Repatriation Commission v Hendy (2002) 76 ALD 47 (Hendy) at [36]/54 as follows:
“The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past…The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.”
The reference to “remunerative work” in s 24(1)(c) includes the main or chosen field of endeavour and not necessarily the last remunerative work undertaken by a veteran – Starcevich v Repatriation Commission (1987) 18 FCR 221.
Although after leaving high school the veteran was employed in a few unskilled positions, during his Army service he was mostly engaged as a heavy vehicle operator and air dispatch operator. In these circumstances, the Applicant’s skills and experience suggest the possibility of future employment in the transport industry, particularly as a driver or machine operator.
Is the veteran, by reason of war-caused injuries, prevented from continuing to undertake that work?
It is not contested that the accepted conditions, cumulatively, have prevented the veteran from undertaking that work.
Are the war-caused injuries the only factors preventing the veteran from continuing to undertake that work?
As Mr Brownlie did not give oral evidence, answering this question is dependent on the written material admitted into evidence and the submissions of Mr Chalk.
A useful starting point in answering this question is to refer to the guidance given by the Full Court in Hendy. Their Honours said (at [37]/54-55:
“The language of s 24(1)(c) of the Act directs attention to the question whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to the veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.”
As the Full Court explained in Richmond, s 24(1)(c) has two limbs. The first limb ([52]/34):
“requires a causal connection between the veteran’s war-caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in.”
The Full Court then explained the “alone” element of the first limb – [57]/35:
“57…The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
58 The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate”
The Court took a different view to that of Bromberg J in Watkins v Repatriation Commission [2014] FCA 787 where he found that non-war caused factors will only disqualify a veteran if they, of themselves, and independently of the war-caused conditions, also act to prevent a veteran from continuing to engage in remunerative work. In contradistinction, the Full Court held that if non war-caused factors play a part in preventing a veteran from engaging in remunerative work ([69]/37) “even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the ‘alone’ requirement will not be satisfied.”
Finally, the Full Court dealt with the policy underpinning the granting of the special rate pension – [65]/36:
“While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.”
The Respondent (RSFIC paras 24 – 27) drew the Tribunal’s attention to the passage in Hendy where the Full Court observed that no recent work experience, time out of the work force and increasing age are relevant considerations when weighing the alone test.
The Respondent contended that the evidence discloses that the veteran has not engaged in remunerative employment since his medical discharge from the Army in December 1998. This contention is supported by the evidence admitted.
The Respondent then contended that the veteran’s length of time out of the workforce (18 years) and lack of recent work experience would have an impact on his attractiveness to potential employers (para 30).
The Tribunal accepts this contention from the evidence admitted.
It is important, nonetheless, not to over-emphasise this factor or to apply it in a non-contextual manner. If it were otherwise then a Catch-22 situation would inevitably arise. The very service-related incapacities that form the basis of the claim would be the trigger for defeating it.
In Hendy v Repatriation Commission [2002] FCA 602, Madgwick J (at first instance) said (at [40]):
“It seems clear however that it is not within the intendment of the legislation that decision-makers might resort, under the rubric of labour market factors, to the mere consequences of a veteran’s service-related disability for the purpose of defeating the veteran’s claim. Among other things, if a service-related condition incapacitates a veteran for particular work, it will be more or less true in every case that, as time goes by, the veteran’s ability to re-enter the workforce will tend to be impaired on account of lack of recent experienced of that work, absence from the workplace generally and, for older veterans, their increasing age. There would have been little point in providing for a work incapacity pension if the direct consequences of the incapacity could defeat the right to the pension.”
The correct question which must be asked is not if the veteran’s absence from the workforce for a prolonged period is an incapacitating factor, but why was the veteran absent from the workforce for so long. If the answer to that question is that war-caused disabilities were the sole cause, then the veteran’s absence from the workforce and age are not disqualifying factors – Re MacRae and Repatriation Commission (1990) 21 ALD 612.
The evidence in this matter does not support, on the balance, the contention that the veteran’s war-caused disabilities were the sole cause of his absence from the workforce. Consequently, it is open, and appropriate, for the Tribunal to factor in his absence from the workforce as a valid factor, albeit not, of itself, a determining one for the “alone” test.
In any event, the Respondent was careful not to limit its submissions on the “alone” element to simply length of time out of the workforce, lack of recent work experience and age. Instead, the Respondent submitted, that, in addition to these factors, the veteran was suffering at the commencement of the assessment period, and continues to suffer, from a number of non-service related conditions. These conditions were said to include gastro-oesophageal reflux disease and coronary artery spasms causing chest pain – RSFIC para 28.
The Respondent contended (RSFIC para 78) that the veteran had presented at the Cairns and Atherton Hospitals on numerous occasions between 2001 and 2016 with cardiac problems. The summonsed documents, which were not contested, indicate that the veteran presented at those hospitals on the following occasions – Exhibit 6 pp 1-27:
·21 October 2001;
·26 October 2001;
·9 January 2002;
·22 May 2006;
·27 May 2006;
·26 September 2010;
·27 September 2010;
·4 October 2010;
·23 May 2011;
·10 May 2014;
·5 October 2016;
·11 October 2016;
·26 October 2016;
·3 December 2016.
Further, summonsed records from the Malanda Medical Centre record the veteran attending on numerous occasions with reported cardiac/chest symptoms – RSFIC para 95; Exhibit 7 pp. 1-17:
·25 May 2006;
·6 June 2006;
·13 June 2006;
·3 August 2006;
·29 March 2010;
·9 April 2010;
·24 September 2010;
·22 March 2016.
Clearly the history and frequency of presentations with chest related symptoms over an extended period indicates an underlying condition(s). The “label” used over the years to describe the condition, and thereby suitably treat it, has generally been coronary artery spasm, although the veteran has also been diagnosed with gastro-oesophageal reflux disease. However, as will be seen from the most recent diagnosis, the coronary artery spasm label may not be correct.
The Tribunal was referred (RSFIC para 81) to a report of Dr Mason of the Atherton Hospital who made the following observations in a report dated 5 December 2001:
“Mr Brownlie was admitted to hospital on the 21st October following a three hour history of severe tight central chest pain, this was relieved on admission by Anginine within 5 minutes. Subsequent investigation with ECG’s proved negative also troponin was negative and cardiac enzymes were negative. My diagnosis was oesophageal spasm. Mr. Brownlie has experienced many similar previous episodes and has returned negative cardiac investigations on every occasion. He’s had an exercise stress test in 1997 which he says was negative. He’s had an endoscopy around the same time which apparently showed no abnormality.
Mr Brownlie certainly has risk factors for cardiac disease, he has hypercholesteremia, he has a strong family history with brothers and cousins and also his father who succumbed to infarcts at an early age. Mr Brownlie smoked for six years. He uses a walking stick and is on a disability pension from the army. He was a paratrooper, he has low back pain and trouble with his shoulder and knee following paratrooping incidents. He takes Celebrex and Lipitor only.
I started Mr Brownlie on Amlodipine 5mgs daily, Ranitidine 150mgs b.d. and ½ an aspirin daily. I have referred him to Steven Sawyers’ clinic here for consideration of further cardiac investigations.
On reviewing him in clinic on 30th November, he was very much happier, describes no further episodes of chest pain and indeed is finding his indigestion and flatulence less of a problem.”
The Respondent also drew the Tribunal’s attention to a report of Dr Brigden of 9 January 2002 – RSFIC para 82 – Exhibit 6 pp. 47-48:
“I saw this patient in my medical clinic recently. He has a long history of intermittent chest pain, he states going back some ten years. During this period he has had a number of admissions to hospital with suspected cardiac pain, but previously a negative stress test and also a normal endoscopy.
He describes episodic central chest pain which bears no relation to exertion or to meals. Often he wakes in the early hours of the morning with this pain.
He does have a strong family history of cardiac disease, his father died of myocardial infarction at 75 and four of his uncles have heart disease. He’s known to have hyperlipidemia with a pre-treatment cholesterol of 6.8, but on recent testing was 4.6. He previously smoked for a short period of time but he is non smoker.
He was a previous paratrooper and has sustained significant back, shoulder and knee injuries and walks with a walking stick.
He was commenced on Rani 2 150mgs twice daily, for acid suppression together with Amlodipine 5mgs daily for management of presumed oesophageal spasm. He tells me that since then he has been symptom free.
Clinically his weight was 69kgs, ward test urine was negative, resting ECG was normal, he was in sinus rhythm, B.P. 120/80, heart sounds were normal chest was clear, abdomen was soft and non-tender.
I would agree that his symptoms are suggestive of gastro-oesophageal reflux disease possibly associated with some oesophageal spasm. He has had a very good response to acid suppression and specific treatment of his oesophageal spasm with a calcium antagonist.
I would continue with current empiric treatment, I do not think stress testing or other more invasive cardiac investigations are required and would be confident that he has non-cardiac chest pain. Certainly upper GI endoscopy could be considered but a negative endoscopy does not exclude the diagnosis and in practical terms it is unlikely to be useful with previous negative endoscopies. His oesophageal motility and PH studies will give us a definitive diagnosis but there are significant problems in trying to access these investigations and I would be inclined to continue with empiric treatment as it appears to be effective. I have strongly reassured Mr Brownlie that I do not think his pains are cardiac in nature and are probably oesophageal. I have suggested regular follow-up with his LMO Dr Ben DeChermont with review here again if required.”
On 11 October 2010 the veteran was examined by Dr Sophia Lam at the Cairns Base Hospital after he complained of chest pains. Dr Lam made the following diagnosis – Exhibit 4:
“I reviewed Mr Brownlie in the Cardiology Clinic today following his exercise stress test. His initial referral was for atypical chest pains which have been unrelated to exertion. These are worrying on a background of strong family history of ischaemic heart disease…
Mr Brownlie’s symptoms seem to have resolved since commencing Verapamil, so I have suggested that he continue on this. I will put the symptoms down to chronic artery vasospasm given his negative stress test…”
The summonsed records from the Malanda Medical Centre include a report from Dr David Mackintosh, cardiology registrar for Dr Preston, consultant cardiologist. In this report of
15 December 2016, the following diagnosis was provided – RSFIC para 96:
“He was referred following an episode of cardiac sounding chest pain which occurred several months ago. Alex has a long history of coronary artery spasm which was originally diagnosed in 2006 on angiogram by Dr Challa…He was placed on verapamil 180 mg after demonstrating an allergy to diltiazem and his symptoms have remained fairly stable since then…
Alex continues to get chest tightness at rest around twice a month. These never occur on exertion. Usually these resolve with GTN within several minutes however occasionally has an episode that is severe enough to prompt presentation to hospital…
Impression & plan: This likely represents ongoing coronary artery spasm and the features are not typical of coronary artery disease. However, given his risk factors it is prudent to rule this out definitely…”
Mr Chalk provided the Tribunal with a report of Dr Shane Preston, Consultant Cardiologist of the Cairns Hospital dated 6 April 2017. – Exhibit 9. Dr Preston’s diagnosis rejects a cardiac related cause for his chest pains. The bulk of his report is set out below:
“I met Alex for the first time today. He’s been labelled as suffering from coronary artery spasm following an Angiogram in 2006 by Dr Challa. His chest pain is very atypical and is felt in his left lateral chest. He’s had multiple hospital presentations with discomfort and from what I can see, there is no objective evidence that this has anything to do with his heart. Alex has consistently normal ECG’s with the pain and normal cardiac enzymes following episodes. He’s done several Stress Tests in the past. He does however feel the Verapamil may have helped somewhat.
BP and resting ECG are normal again today. The CT Coronary Angiogram showed only minor proximal LAD and proximal RCA atheroma, not associated with significant stenoses. His coronary calcium score was calculated at 16.4 which is below average for his age and places Alex between the 25th and 50th centiles.
I think a cardiac cause including coronary artery spasm is extremely unlikely. Coronary artery spasm is seen regularly at angiography and it is very hard to attribute recurrent symptomatology to this. Alex has only minor coronary artery atheroma so I’ve reassured him his prognosis is actually very good.
It’s therefore very reasonable to for him to continue on the low dose of Pravastatin. I’d suggest that the Verapamil is probably not necessary and Alex should consider a trail of ceasing this.
I understand that Alex is going through a process with the Veterans Affairs Department at the moment. His CT result is not consistent with ischaemic heart disease and the minor coronary artery atheroma visualised shouldn’t impact on his life in any way in the medium term…”
The medical records before the Tribunal also include a report by Dr Carmel Hickey dated 23 April 2007 in the form of a Medical Impairment Assessment. Under the heading “Chronic gastritis and gastro-oesophageal reflux disease”, Dr Hickey describes the symptoms as “severe central chest pain, heartburn/indigestion”. She noted a frequency of 2-3 times weekly lasting between 30 minutes and 12 hours and as being severe at times – Exhibit 1 T35 p. 176.
The veteran was examined by Dr Simon Journeaux on 3 December 2008. Listed in the body of his report as other conditions, included gastroesophageal reflux disease and coronary artery spasm – Exhibit 1 T73 p. 285.
As will be seen from this chronology, there appears to have been some difference of opinion between the various physicians as to the correct diagnosis of the veteran’s persistent chest pains and associated pain and discomfort. The Tribunal prefers, on the balance, the diagnosis of Dr Preston as he is a Cardiologist and neither his expertise or diagnosis was challenged by the Respondent. It is possible to proceed on the basis that the veteran did have cardiac issues but they resolved themselves by 2017, however, such a conclusion is not supported by any independent medical evidence. Consequently, the Tribunal does not accept the Respondent’s contention that the veteran “no longer suffers from a cardiac condition” – RSFIC para 29(b), p. 21.
While Dr Preston’s diagnosis discounts a cardiac cause for his persistent chest pain symptoms, it does not provide an alternative answer. In these circumstances, the other diagnosis given by Drs Mason, Brigden and Hickey of oesophageal spasm is, on the balance, the accepted condition.
It will be recalled that the veteran lodged a claim in respect of gastro-oesophageal reflux on 13 March 2007 – Exhibit 1 T25 pp. 142-151. The Respondent determined that the veteran’s gastro-oesophageal reflux was not service-related – Exhibit 1 T41 pp. 191-199.
As previously noted, Dr Arnold-Nott in the Work Ability Report she completed on
12 December 2015 opined that the veteran’s coronary artery spasm has “minimal impact” and that the symptoms were well controlled with Verapamil and stress management strategies – Exhibit 1 T88 p. 329. For the purposes of this determination, the Tribunal proceeds on the assumption that her diagnosis was incorrect, and that the assumed coronary artery spasm was in fact oesophageal spasm.
Dr Arnold-Nott’s report assessment of “minimal impact” is somewhat at odds with the medical history of the veteran outlined above. The summonsed material discloses that over the past 15 years the veteran has been regularly presented for medical intervention for this condition. Whilst the various diagnoses do not disclose coronary artery disease, they, nonetheless, disclose a disabling condition which has caused the veteran pain, discomfort and ongoing problems over an extended period of time. Moreover, the records do not indicate that this condition has resolved itself. Rather, they suggest that while, apparently, not life threatening, or totally disabling, this condition is ongoing and existed throughout the assessment period.
Dr Arnold-Nott also noted that apart from the ingestion of Verapamil, this condition was being treated with stress management strategies. The Tribunal agrees with the conclusion reached by the Board (Exhibit 1 T2 para 17 p. 11), that this suggests this condition would affect the kind of work, and possibly hours of work, that the veteran could undertake.
The Tribunal accepts the Respondent’s contention that, in these circumstances, the combination of time out of the workforce, lack of recent work experience, age and the impact of his non-service gastro-oesophageal condition preclude the veteran satisfying the “alone” test in s 24(1)(c).
The Act, however, contains ameliorative provisions in subsection 24(2). Of importance in this matter is s 24(2)(b) which creates a beneficial easing of the “alone” test. This provision applies where a veteran has not been engaged in remunerative work and satisfies the relevant decision-maker that:
·He/she has been genuinely seeking remunerative work;
·He/she would, but for the incapacity, be continuing so to seek to engage in remunerative work; and
·The incapacity is the substantial cause of his/her inability to obtain remunerative work.
Where a veteran satisfies the decision-maker, he/she is treated as having been prevented, by reason of that capacity, from continuing to undertake remunerative work that the veteran was undertaking.
The correct approach to applying s 24(2)(b) was comprehensively explained in Smith by Rares J at [21]/458 and Buchannan J at [49]-[51]/466.
The Respondent contends (RSFIC paras 37 – 38) that the evidence fails to support a finding that the veteran has been genuinely seeking to engage in remunerative work since his service discharge in December 1998.
The Respondent drew the Tribunal’s attention to two Lifestyle Questionnaires completed by the veteran in November 2007 and December 2015.
In the Questionnaire completed on 20 November 2007, the veteran ticked the “No” box in response to Question 34, “Have you sought or do you intend to seek employment?” – Exhibit 1 T60 p. 250. Similarly, the veteran answered in the same manner in the Lifestyle Questionnaire on 8 December 2015 – Exhibit 1 T90 p. 352.
In the Questionnaires, the veteran claimed he was “unable to work” (Exhibit 1 T60 p. 250) and was “unemployable” (Exhibit 1 T90 pp. 351 – 352). In the 2007 Questionnaire he stated (p. 250):
“Unable to work due to back pain, spasms, unable to bend. Both knee(s) causing constant pain, loss of flexibility, swelling. Medication can cause loss of driving ability if needed. Sitting causes constant pain. All my condition(s) cause constant pain to myself & emotional pain to my family.”
Further, in the 2015 Questionnaire, the veteran claimed that he had been “unemployable” since his discharge – Exhibit 1 T90 p. 352:
“My accepted disabilities have made me unemployable since my discharge on medical grounds from the Army in 1998.”
There is considerable Federal Court jurisprudence and guidance on what is meant by the requirement to genuinely seek remunerative work. For present purposes, reference can be made to the decision of the Full Federal Court in Leane v Repatriation Commission (Leane) [2004] FCAFC 83; 81 ALD 625. As Emmett, Conti and Selway JJ said ([29]/632-633):
“It may be accepted that, in the ordinary course, a person in the position of the veteran would have difficulty establishing that he or she was honestly trying to engage in remunerative work unless there were some ‘objective signs of active pursuit of remunerative work’. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the tribunal that:
· he or she honestly wished to engage in remunerative work;
· he or she made a reasonable assessment of his or her disabilities;
· he or she had reasonably concluded that he or she could only be employed in a particular type of work;
· he or she was checking employment advertisements on the look-out for such employment; but
· he or she had not yet identified any such employment prospects.
Counsel for the commission properly conceded that, on these facts, the tribunal might be satisfied that the claimant was ‘genuinely seeking to engage in remunerative work’…The proper course was for the tribunal to ask itself whether, on the evidence before it, it was satisfied that the veteran was ‘genuinely seeking to engage in remunerative work’ or not…”
Time and again, the Federal Court has emphasised a common-sense and practical approach to determining whether a particular veteran, in his or her particular health and broader environmental circumstances, has on the particular evidence adduced, evinced an intention manifest in the circumstances of the case, to seek remunerative work.
In this matter the Applicant, through Mr Chalk, submitted that when the veteran left the Army he genuinely sought employment through Centrelink. Mr Chalk submitted that the relevant female Centrelink officer informed the veteran that he was unemployable. In the Applicant’s Issues, Facts and Contentions, which was prepared by Mr Chalk, and which was received by the Tribunal on 27 June 2017, the following statement is made:
“Alex was discharged from the Military on the 18/12/98. On discharge, he was granted a DFRBDF Medical Class B Pension for his Spinal Disability. Alex sought assistance from Centrelink to seek Employment and assistance as his Medical Pension was unable to sustain him and his Family. Centrelink assessed him and informed that he was UNEMPLOYABLE due to his Disability and he would be assessed for Pension at a suitable rate. He was granted a Disability Pension and did not consider the matter any further.”
Whatever may have been the situation in 1998 when the veteran approached Centrelink, the medical evidence suggests he was able to perform suitable restricted duties.
Dr Thomas, Orthopaedic Surgeon, opined his medical report of 15 December 1998 that the veteran would “be limited to work of a light to moderate nature on any consistent basis” – Exhibit 1 T15 p. 101. This diagnosis was also independently reached by Dr Delaney and Dr Towne in January 1999 – Exhibit 1 T16 and 17 pp. 102 – 132.
The medical evidence at the time the veteran departed from the Army indicates that although he was suffering from a number of serious and painful ailments, he was still capable of performing some work, albeit of a light to moderate nature.
The gravamen of the veteran’s case is that he received bad advice from Centrelink, and accepted it. It is not contested that the veteran was suffering from ill-health on his discharge from the Army. It is also not contested that he was in pain and has had, since his discharge, a series of very difficult and painful episodes. In short, the veteran has not been in good health for at least 20 years.
However, that is not determinative of the question before the Tribunal. Having found that the veteran cannot meet the “alone” test in s 24(1)(c), in order to obtain the benefit of the ameliorative operation of s 24(2), there must, at the outset, be evidence that he was genuinely seeking to engage in remunerative work. For the purposes of this determination, that test is answered at any time during the assessment period – Leane at [31]/633.
The evidence before the Tribunal conclusively demonstrates that the veteran was not seeking to engage in remunerative work at any time during the assessment period. To put it simply, the veteran’s case is that he abstained from seeking remunerative employment because he was unwell and because he relied on Centrelink advice in 1998.
The medical evidence suggests that the veteran was capable of some remunerative work and that if he accepted over the counter Centrelink advice in 1998, that is not a sound foundation for continuing on a course of conduct for the following two decades particularly having regard to the numerous further interactions he had with Centrelink and medical professionals in the interim.
Australia’s social security system in general, and its veteran’s entitlement scheme in particular, is one of the most generous in the western world. The beneficial nature, and interpretation, of veterans’ entitlements, has been a hallmark of this area of the law since 1920. Every layer of decision making is designed to provide a veteran, or their dependants, with the care and consideration which they deserve. However, it cannot be the case that because a particular veteran has not obtained the full measure of this generous scheme at a particular juncture, that years thereafter a claim is made based on perceived misfortune in the past.
The Tribunal therefore finds, on the basis of the evidence presented, and on the balance of probabilities, that the veteran is not entitled to payment of his disability pension at the Special Rate.
DECISION
The decision under review is affirmed.
I certify that the preceding 107 (one hundred and
seven) paragraphs are a
true copy of the reasons
for the decision herein of
Deputy President J Sosso...................................[Sgd].....................................
Associate
Dated: 17 November 2017
Date of hearing: 16 October 2017 Advocate for the Applicant: Mr David Chalk
Far North-Queensland Veterans and Ex-Services Support CentreSolicitors for the Respondent: Ms Rachel Blake
Moray & Agnew Lawyers
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