Bullock and Repatriation Commission

[2005] AATA 78

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/102

VETERANS' APPEALS  DIVISION		)
Re		PAUL JOHN BULLOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date24 January 2005

PlaceHobart

Decision The decision appealed against is set aside and replaced with the decision that the applicant is entitled to the Special Rate of Pension pursuant to Section 24 of the Act with effect from 13 March 2003.

..............................................

Part-Time Member

CATCHWORDS

Veterans' Entitlements - Special Rate of Pension - inability to work more than eight hours per week without significant retraining - decision under review set aside - veteran entitled to Special Rate of Pension

REASONS FOR DECISION

24 January 2005 Ms A F Cunningham (Part-time Member)           

1. This was the review of a decision of a delegate of the Repatriation Commission made on 18 October 2003 and subsequently affirmed by a decision of the Veterans’ Review Board on 6 July 2004 continuing the applicant’s pension at the Intermediate Rate. The issue before this Tribunal is whether the applicant is entitled to an increase in the rate of his disability pension to the Special Rate as provided for in Section 24 of the Veterans’ Entitlements Act 1986 (the Act).

2.      The applicant was represented by Brian Warren, Pensions Officer and Advocate with the Naval Association of Australia.  The respondent was represented by Michael Castle.  The applicant appeared before the Tribunal and gave oral evidence.  The T Documents were tendered pursuant to Section 37 of the Administrative Appeals Act 1975.  The T Documents included medical reports from Dr Eric Ratcliff, Consultant Psychiatrist;   Dr James Markos, Respiratory Physician;  Dr Bernard Einoder, Orthopaedic Specialist;  Dr Andreas Ernst, Occupational and Musculoskeletal Specialist;  Dr G D Smith, General Practitioner and Dr C A H Bishop, Medical Officer with the Department of Social Security.  No evidence was led  by the respondent Commission which relied on the information contained in the T Documents.

3. An application for the Special Rate of pension is made pursuant to the provisions of Section 24 of the Act which states:

(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 war-caused injury or war-caused disease or both, is not taken to be suffering a loss 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 subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.

(5) The rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:

(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4) or (5) of this section, reduced in accordance with section 25A.

4.      It was not in dispute that the applicant’s circumstances satisfy the provisions of sub-sections 1(aa), (aab), (aic), what remains in dispute is whether or not the applicant’s accepted disabilities are of themselves alone (either singularly or in combination), sufficient to render him incapable of undertaking remunerative work which is within his vocation, trade or professional qualifications and experience for periods aggregating more than eight hours per week within the meaning of sub-sections 24(1b) and 28 of the Act. 

5.      The applicant’s accepted disabilities are lumbar sacral back strain, thoracic spondylosis, sleep apnoea, anxiety disorder due to a general medical condition and alcohol dependence or alcohol abuse.

6.      The applicant’s rate of pension had been increased to the Intermediate Rate of Pension from 5 February 1995 pursuant to a decision of the Administrative Appeals Tribunal dated 10 October 1997.  The Tribunal was not satisfied that the applicant was then qualified for the Special Rate of Pension, preferring the evidence of Dr Ernst who was of the opinion that the applicant was then capable of working between eight and twenty hours per week in suitable employment to that of Dr Smith, the applicant’s general practitioner.  Since that Tribunal’s decision, three further conditions have been accepted pursuant to the Act namely sleep apnoea, anxiety disorder and alcohol dependence or alcohol abuse. 

7.      It was Mr Bullock’s evidence that he joined the Royal Australian Navy as a junior recruit in July 1970.  After completing his basic training in 1971 he was posted to HMAS Cerberus where he undertook nine months training as a sick-berth attendant.  In 1973 he was posted to the naval hospital at HMAS Cerberus.  Mr Bullock said that he injured his back whilst working in the medical stores section of the hospital at HMAS Cerberus in 1973.  He was discharged from the navy in March 1974.

8.      After leaving school at the end of 1969, Mr Bullock first worked as a general hand in a bakery for approximately six months where his duties included cleaning, basic handling of ingredients, kitchen duties and assisting with deliveries.  Following his discharge from the navy, Mr Bullock first worked as a labourer in a foundry in Launceston, then as a process worker with Comalco Aluminium at Bell Bay, followed by a train driver’s assistant with Tasmanian Government Railways.  Mr Bullock then left Tasmania to work as a trades assistant with Hammersley Iron Ore in Western Australia and then as an observer on the company’s rail system for approximately six years.  He later worked as a labourer and process worker with Queensland Aluminium, commencing as a general hand/labourer on the shop floor and progressing to plant operator.  After returning to Tasmania Mr Bullock worked as a taxi driver in Launceston for approximately three months, as a process worker with Repco Bearings for approximately nine months, then as an attendant at a ten bowling alley for approximately twelve months.  Mr Bullock then worked on a casual part-time basis as a uniformed security officer at Launceston TAFE followed by a docking saw hand with Tiffany Furniture for approximately two months.  Mr Bullock subsequently commenced duties as a hospital attendant/orderly at the St Lukes Private Hospital in Launceston where his duties included general physical work, for example, patient transport, moving furniture etc.  He worked there for approximately seven years until injuring his back whilst handling a mattress.  Despite taking sick leave and undergoing an intensive physiotherapy program, he was unable to return to work and resigned in February 1995.  Mr Bullock had until that time apart from very short periods, always been in paid employment since leaving school.  All of this work has been of a physical, labouring type.  He has never undertaken any administrative or clerical work of any kind.  Nor has he been involved in any service type industry such as sales or hospitality involving direct client contact.

9.      It was argued by Mr Warren on behalf of the applicant that the provisions of s.28 of the Act require the Tribunal to only consider the kinds of remunerative work that a person with the applicant’s skills, qualifications and experience might reasonably undertake. 

Capacity to undertake remunerative work

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).

10.     In support of the applicant’s contention that his accepted disabilities prevent him from working for periods aggregating more than eight hours per week, Mr Warren referred the Tribunal to the following medical evidence contained in the T Documents.

11.     The earliest report was that of Dr C Bishop who prepared a medical officer’s report for the Department of Social Security on 21 January 1997.

12.     Dr Bishop noted:

“This 42 year old labourer has a history of back pain, which has been investigated and fully treated.  However he has not been able to return to work, and rehabilitation was unsuccessful.  It would seem unlikely that his pain will settle quickly with continuing conservative treatment.  At present he has no capacity for work because of the limitations of movement due to back pain and because of his constant pain which is easily aggravated.  At home he spends a lot of time resting and lying down and thus would not be able to cope with any job.  It is expected that there will be no significant change in the next two years”.

13.     There were three reports from Dr Ratcliff, Consultant Psychiatrist in the T Documents.  The earliest report dated 3 December 1999 was made pursuant to a referral from Dr Henry Brigden, medical officer with the Department of Veterans’ Affairs.  In his report Dr Ratcliff commented:

“Mr Bullock would appear to be unfit for any work involving standing up for an extended period of time, lifting any significant weight, sitting or driving for extended periods of time.  However, he would be capable to undertaking a sedentary occupation if there was freedom to move when discomfort dictated it”.

14.      On 3 October 2003 Dr Ratcliff noted:

“I would view his psychological condition now as resulting from a web of chronic pain, medication and intermittent alcohol use, contributing to sleep disturbance associated with obstructive sleep apnoea of some severity, which has proved not remediable by all three of the standard treatments.  

His work since 1994 has been voluntary and therefore to a certain extent sheltered.

It is now in the highest degree unlikely that he will return to remunerative work and his employability in most unskilled activities and indeed in most employment in the open market would be prevented by his long history of spinal problems.  Any work involving physical activity would be time-limited and he would have to be free to move when necessary by reason of pain.  Any work involving other people would be limited by his irritability.  Factors in his psychological state include reluctant but largely successful alcohol abstinence (the ‘dry drunk’ phenomenon) but much more markedly, the impact of inadequately controlled obstructive sleep apnoea”.

15.      On 29 March 2004 Dr Ratcliff stated that in his opinion Mr Bullock

“…. is currently incapable of undertaking remunerative work for periods aggregating more than eight hours per week”.

Dr Ratcliff so concluded after referring to the fact that Mr Bullock had given up his voluntary work predominantly due to irritability and consequent difficulty with interpersonal relationships.  Dr Ratcliff noted that Mr Bullock’s work activity over the last decade had been voluntary and consequently sheltered which does not indicate a capacity to undertake remunerative part-time work.

16.      In Dr Markos’ report dated 12 January 2001 he noted that it may be possible for Mr Bullock to work part-time but that he would require vocational guidance and training to determine this.  Further that if Mr Bullock is able to tolerate nasal CPAP with an alternative mask his symptoms may improve which would enable him to cope better with a return to work.  

The evidence was however that there has been no improvement in Mr Bullock’s sleep apnoea which causes him to be overwhelmingly tired during the day resulting in irritability, mood swings and difficulty in concentrating.

17.      On 19 March 2001 Dr Einoder stated that in his opinion it is highly unlikely that Mr Bullock would be able to return to work “to perform chores that require the activities that I mentioned as they would predictably aggravate his symptoms”.  Dr Einoder commented that given the applicant’s age it would be wise for him to attend TAFE to try and obtain some new skills to enable him to obtain “a lighter job”.

18.      Mr Bullock’s general practitioner stated on 7 March 2004:

“I believe that having knowledge of Mr Bullock’s clinical history, that his accepted disabilities of themselves render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

He is not suffering from other conditions, apart from his accepted disabilities, which could prevent him from working more than eight hours per week.

The accepted disabilities will prevent him from undertaking paid work of the type which he would be capable of undertaking by reason of his training or education”.

19. The respondent relied on the medical opinion of Dr Andreas Ernst in support of its contention that the applicant did not meet the criteria in sub-section 24 1(b) of being unable to undertake remunerative work for more than eight hours per week. Dr Ernst remarked in his report of 23 July 2003 that after assessing Mr Bullock’s musculoskeletal system:

“In summary, I feel that Mr Bullock has the capacity to work longer than twenty hours, although with restrictions as far as his musculoskeletal system and sleep apnoea is concerned.  I advise to seek specialist advice from a Psychiatrist and or Psychologist to assess his work capacity from the perspective of his psychiatric/psychological disorders”.

20.      In was Dr Ernst’s opinion that Mr Bullock is able to work for more than twenty hours per week given his current disabilities so far as his muscoskeletal system is concerned.  Dr Ernst also made reference to Mr Bullock’s sleep apnoea condition and noted that previous procedural treatment had not been effective which meant that he had ongoing difficulties with sleep resulting in him falling asleep frequently during the day.  Dr Ernst also commented that he is not a specialist in psychiatry or psychology and could not comment on Mr Bullock’s psychiatric and psychological conditions, for example, alcohol dependency, anxiety, memory etc.

21.      The Tribunal has regard to the medical evidence from Dr Ratcliff Consultant Psychiatrist who has opined that on the basis of Mr Bullock’s current psychiatric limitations, he is incapable of undertaking remunerative work for periods aggregating more than eight hours per week.

22.      Dr Ernst does not refer to the type of work that he believes Mr Bullock would be capable of undertaking except to say that he would recommend precautionary measures and that the type of work be restricted to “to mild to moderate manual work”.

23.      Dr Einoder,  Orthopaedic Specialist suggested that Mr Bullock attend TAFE to obtain some new skills which may enable him to obtain “a lighter job”.

24.      The provisions of Section 28 of the Act however do not envisage that a veteran undertake or seek further training in order to obtain an alternative type of employment to that which he had formally been undertaking or is within capacity given his current level of skills, qualifications and experience.

25.      Mr Castle urged the Tribunal to consider whether the applicant is actually incapable or alternatively simply believes that he is unable to work more than eight hours per week.  Mr Castle suggested that the Tribunal should not place much weight on Dr Smith’s report where there was evidence from more highly qualified specialists.

26.      Dr Smith’s opinion however that the applicant is incapable of working more than eight hours per week is not inconsistent with the other medical reports apart from that of Dr Ernst.  It is noted however that Dr Ernst was not able to comment on any restrictions in the applicant’s ability to work arising from his psychiatric conditions.

27.      There is no evidence to support the respondent’s contention that he was not undertaking remunerative work simply because he did not believe that he was capable of working.  Mr Bullock’s work history supports the view that he has consistently sought employment and when unable to obtain remunerative work undertook voluntary employment with the RSL.  Mr Bullock informed the Tribunal that he had volunteered for a rehabilitation program which was unsuccessful after three months because by the end of the day he said he that he was barely able to walk.  He also undertook some computer training through the Vietnam Veterans’ Counselling Service and TAFE with DVA.  Mr Bullock ceased his voluntary work as a welfare officer with the RSL because he found it too stressful and physically demanding.  He said that he was unable to get on with people, was often angry for no reason, his back pain was worse and he was constantly tired and exhausted.  In January 1997 he was declared unfit for work and awarded a disability pension.

28.      In accordance with the provisions of Section 120(4) of the Act the Tribunal must decide all issues to its reasonable satisfaction.  The Tribunal is reasonably satisfied on the basis of the evidence before it that Mr Bullock is as a result of his accepted disabilities prevented from continuing to undertake remunerative work of the kind that he might reasonably be expected to undertake within the meaning of Section 28 for more than eight hours per week.  There was little evidence upon which the Tribunal could conclude otherwise.  The medical evidence referred to above supports this conclusion apart from that of Dr Ernst who was unable to comment on any restrictions in the applicant’s work capacity due to his psychiatric or psychological disabilities.

29.      The meaning of Section 28 of the Act was discussed at some length by the Federal Court in the decision Chambers v Repatriation Commission (1995) 129 ALR 219. It is clear from that decision that the veteran would not be required to undertake significant retraining in order to render him capable of undertaking other remunerative work. The type of work which the veteran would be expected to undertake must be reasonably available given the veteran’s current training, qualifications and skills.

30.      It is noted that the Chameleon Consulting report of 30 January 2002 stated:

“Our research has indicated that while there are some occupational categories that could be looked at for Mr Bullock, using medical restrictions, education and experience indicated, that in reality we do not see any great capacity for him to gain any suitable employment in the open market.

We would take the view that Mr Bullock would have to be totally reskilled/trained …… probably in elementary clerical work, to be able to be expected to compete for part time employment in the few areas to which he may be suited”.

31.      There was no evidence to persuade the Tribunal that there were any kinds of remunerative work which Mr Bullock could reasonably be expected to undertake given his accepted disabilities without him undergoing a significant program in retraining and or reskilling.

32. The Tribunal is satisfied that the applicant also meets the provisions of sub-section 24(1c) of the Act in that he is suffering a loss of salary of wages or earnings that he would not be suffering if he was free of the incapacity and able to undertake remunerative work that he was previously undertaking. The applicant is not currently in employment and has no reasonable employment prospects.

33. For the above reasons the decision appealed against is set aside and replaced with the decision that the applicant is entitled to the Special Rate of Pension pursuant to Section 24 of the Act with effect from 13 March 2003.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing  2 December 2004
Date of Decision  24 January 2005
Counsel for the Applicant          
Pensions Officer and Advocate
for the Applicant  Mr B Warren, Naval Association of Australia  
Counsel for the Respondent      
Solicitor for the Respondent     Mr M Castle, Department of Veterans' Affairs