Burridge and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 887

Burridge and Repatriation Commission (Veterans’ entitlements) [2015] AATA 887 (20 November 2015)

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2014/4787
Re	Desmond Burridge
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	20 November 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – veterans’ entitlements – whether veteran entitled to special rate of pension – multiple medical conditions – accepted and non-accepted conditions – accepted condition of both knees – non-accepted condition of both knees – whether veteran prevented by reason of accepted conditions alone from engaging in remunerative employment – decision under review affirmed

Legislation

Veterans’ Entitlements Act 1986 ss 19(9), 24(1), 24(2), 120(4)

Administrative Appeals Tribunal Act 1975 s 37

Cases

Forbes v Repatriation Commission [2000] FCA 328

Repatriation Commission v Hendy [2002] FCAFC 424

Repatriation Commission v Van Heteren [2003] FCA 888

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Desmond Burridge served in the Royal Australian Navy from July 1964 to November 1971.  His eligible war service, which is also operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act) included four periods of service in Vietnam.

2. Mr Burridge suffers from pleural plaque, chronic bronchitis and emphysema, osteoarthritis affecting both knees, and septic arthritis of the right ankle, all of which the Repatriation Commission (the Commission) accepts are war caused.  He also suffers from asbestosis and internal derangement of both knees.

3. Mr Burridge receives a service pension at 100 per cent of the general rate.  He seeks review of a decision of the Veterans’ Review Board that he is not entitled to a pension at the special rate. 

   Relevant legislation

4. To qualify for the special rate of pension, Mr Burridge must satisfy the criteria in s 24(1) of the Act.  It is not in dispute, and I am satisfied, that he meets ss 24(1)(a) and (b).  His claim turns on whether he satisfies s 24(1)(c).

5. Section 24(1)(c) has two limbs, both of which must be satisfied.  The first requires that Mr Burridge be, by a reason of his incapacity from his war-caused injury alone, prevented from continuing to undertake remunerative work that he was undertaking.  

6. The second limb of s 24(1)(c) requires that Mr Burridge be, by reason of his war-caused incapacity, suffering a loss of salary or wages, or earnings on his own account, that he would not be suffering if free of that incapacity. 

7. The second limb is to be read in conjunction with s 24(2)(a) which provides that Mr Burridge will not be taken to be suffering a loss of income by reason of his accepted incapacity if he has ceased to engage in remunerative work for reasons other than the accepted incapacity, or if he is incapacitated or prevented from engaging in remunerative work for some other reason.

8. Any factor having employment consequences that plays a part in a veteran’s inability to work or to obtain and hold remunerative employment will defeat his claim: Forbes v Repatriation Commission [2000] FCA 328 and Repatriation Commission v Hendy [2002] FCAFC 424 applied in Repatriation Commission v Van Heteren [2003] FCA 888.

9. In deciding whether Mr Burridge in entitled to the special rate of pension, the standard of reasonable satisfaction applies: s 120(4).

10. The “assessment period” is from 17 October 2013, when Mr Burridge lodged his claim, to the date of this decision: s 19(9).

    Information before the Tribunal

11. Mr Burridge has provided a written statement of his evidence and medical reports.  He gave oral evidence before the Tribunal.

12. Dr Nel Wijetunga and Dr Robin Chase, occupational physicians, saw Mr Burridge for assessment on 27 November 2014 and 9 April 2015 respectively.  Each provided a written report and gave oral evidence. 

13. The Commission has provided a bundle of documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975. It has also submitted the clinical notes of Mr Burridge’s general practitioner, Dr Peter Hunt; documents from CGU Insurance concerning a workers compensation claim he made in 2007; and the transcript of the hearing before the Veterans’ Review Board on 4 September 2014.

    Is Mr Burridge, by reason of his incapacity from his war-caused injury alone, prevented from continuing to undertake remunerative work that he was undertaking?

14. Mr Burridge joined the Navy when he was 15.  After his discharge in 1971, he was employed for 28 years by Cadbury Schweppes.  He left Cadbury Schweppes in September 2003 when he was 55, and accessed his superannuation.  In 2003, he and his wife moved to Narooma on the south coast of New South Wales.  Shortly after arriving in Narooma, he started work as a groundsman at a local caravan park where he worked full time until November 2010.  He was 62 when he stopped work.

15. The respondent submits that Mr Burridge moved to Narooma in order to retire.  The respondent refers to a lifestyle questionnaire that Mr Burridge completed in February 2014 in which he said:

    I wanted to work till I was 65 years of age to get the pension bonus.  I have a small boat that I can’t use for fishing.  My wife and I were going to buy a caravan and travel around Australia on retirement.  I even got a job at a caravan park and passed several courses in park management so I could get some work while travelling.  We shifted from Melbourne to Narooma so we would be near the sea and bushland so we could bush walk fish and swim in retirement.

16. The respondent also points to the fact that Mr Burridge claimed a pension bonus at age 65 as evidence that he planned to stop working then.  Mr Burridge gave evidence that he applied for the pension bonus once he realised he could no longer work and, otherwise, he would not have claimed it until he reached 70.

17. Mr Burridge denies that he planned to retire on moving to Narooma.  He says his children had grown up and he and his wife decided to move to Narooma where they had spent family holidays, planning to retire eventually but not immediately.  He says he was too young to stop working and they could not afford for him to retire then.  Within a short time he found employment at the caravan park.  He and his wife planned to take their caravan around Australia and he did a course in park management with a view to finding employment in caravan parks along the way.

18. It seems probable, from Mr Burridge’s evidence, that he planned to “wind down” once he and his wife moved to Narooma but I accept his evidence that he planned to keep working after they moved.  I am satisfied that was his intention.  The fact that he quickly found employment, which he kept for several years, and took a course in park management, supports this conclusion. 

19. Dr Wijetunga and Dr Chase are in agreement that Mr Burridge has no capacity for work.  The Commission does not dispute that conclusion but says that Mr Burridge is not prevented by his accepted disabilities alone from continuing to undertake remunerative work.

20. Mr Burridge has, or has had, a number of medical conditions in addition to those which are accepted as war-caused.  They are considered below. 

    Shoulder pain

21. In September 2010, Mr Burridge injured his left shoulder at work while moving a heavy bin.  He was off work for approximately two weeks.  He had physiotherapy and a cortisone injection and says that, after three or four weeks, his shoulder recovered.   Dr Hunt’s notes on 17 November 2010 showed “some temporary improvement” with an injection, but the problem had recurred.  On 28 February 2011, he noted that Mr Burridge’s left shoulder was “not perfect” but he was fit for pre-injury duties.

22. In July 2013, Dr Hunt recorded that Mr Burridge had experienced right shoulder pain for four weeks.  A CT scan on 11 July 2014 showed “multi exit canal stenosis”.  It does not appear to have caused continuing problems.

23. Mr Burridge gave evidence, which I accept, that his shoulder problems played no part in him ceasing employment or in preventing him from continuing to engage in remunerative employment.

    Back and neck pain

24. Mr Burridge has experienced back pain from time to time.  An x-ray of his thoracic and lumbar spine in 2005 showed “mild spondylosis in the mid and lower thoracic spine with … no significant disc space narrowing”.  There was “slightly more advanced spondylosis in the lumbar spine… and a mild degree of spondylolisthesis”.  Mr Burridge gave evidence that his back pain was “nothing serious”; it did not worry him while he was working, he “maybe had a couple of days off work occasionally” and he has no problems with it now.  

25. A CT scan of Mr Burridge’s cervical spine on 9 July 2013 showed advanced spondylosis.  Giving evidence, he said it has caused him pain from time to time but did not interfere with his capacity for employment.  I accept his evidence.

26. I am satisfied that neither condition played any part in Mr Burridge ceasing employment or in preventing him from continuing to engage in remunerative employment.

    Fatty liver

27. Mr Burridge has annual check-ups for fatty liver which was discovered some years ago after a blood test.  He was not aware of the condition until the blood tests.  It has no noticeable effect and has not required treatment.  I am satisfied that it played no part in him ceasing employment or in preventing him from continuing to engage in remunerative employment.

    Depression

28. While he was still in the Navy, Mr Burridge saw a psychologist who recommended he rest in board for a couple of weeks before returning to sea.  Shortly after his discharge, he saw a psychologist again who diagnosed him with depression and prescribed Effexor.  Mr Burridge gave evidence that he still uses Effexor every day but has not seen a psychologist or counsellor again, and he has never had time off work on account of depression.  Given that he has worked for approximately 40 years since being diagnosed with depression, without any apparent effect on his capacity for employment, I am satisfied that this condition played no role in Mr Burridge ceasing employment and has not affected his capacity for employment since.

    Heart condition

29. In June 2011, Mr Burridge saw Dr Simon O’Connor, consultant cardiologist, after experiencing “exertional breathlessness” for six months.  On 17 October 2014, Dr O’Connor reported that investigations in 2011 showed that Mr Burridge had a “severely leaking aortic valve and an enlarged left ventricle”.  Since then, he had undergone successful cardiac surgery and, at the time of writing, his cardiac function was normal.  Dr O’Connor did not think Mr Burridge’s heart was preventing him from working “at the moment”.

30. Dr O’Connor reported that it was difficult to say whether Mr Burridge’s heart problem affected him in 2010 but, in June 2011, he had only had six months of breathlessness.  In his opinion, since October 2013, Mr Burridge’s heart condition had been stable and “should not have been a reason for him to work”.  I am satisfied that there is a typographical error in the report and that it should have read “should not have been a reason for him not to work”.

31. There being no evidence to the contrary, I am satisfied that Mr Burridge’s heart condition played no role in him ceasing employment and has not prevented him from engaging in remunerative employment since.

    Knees

32. Mr Burridge has osteoarthritis in both knees which the Commission accepts are related to his service.  Mr Burridge gave evidence that, up until late 2006, he had been able to cope with work despite the osteoarthritis in his knees.  In 2007, he injured his right knee while pushing a lawnmower at work.  His employer accepted liability for his injury. 

33. In a report dated 16 October 2007 to Dr Hunt, Dr Christoph Ahrens, orthopaedic surgeon, reported that, around Christmas 2006, Mr Burridge had to push mowers over a long period at work.  This was “the first time his right knee started to play up”.  Once he was able to use a ride on mower again, the pain settled down.  Later, when he had to use the push mower again, the pain returned and did not improve.  Dr Ahrens advised he had arranged for an MRI scan.

34. On 6 November 2008, Dr Ahrens reported to Dr Hunt that the MRI scan of Mr Burridge’s right knee showed “residual tears in the remaining meniscus material”.  Dr Chase gave evidence that the reference to meniscal tears is the same as “internal derangement”, which is a non-accepted condition.

35. Dr Wijetunga and Dr Chase both gave evidence that, when considering Mr Burridge’s knees, they took into account that he had osteoarthritis in both knees as well as the non-accepted condition of “internal derangement”, or meniscal tears, as a result of his workers compensation injury.  Dr Chase gave evidence that a meniscal tear is the result of trauma; it does not happen alone, for example as a result of degenerative change, although it can be associated with osteoarthritis.  The doctors agreed that both conditions cause pain and that it is very difficult to identify which is the source of his current symptoms.  They agreed, however, that both conditions would affect Mr Burridge’s capacity for work and contribute to his incapacity.

36. Taking into account the evidence of Dr Wijetunga and Dr Chase, I find that the internal derangement of Mr Burridge’s knees as a result of his injury at work, which is not an accepted disability for the purposes of these proceedings, has contributed to preventing him from continuing to engage in remunerative employment. 

    Conclusion

37. I have a lot of sympathy for Mr Burridge.  As a result of his service, he suffers the seriously debilitating effects of pleural plaque, chronic bronchitis and emphysema.  They have put an end to his plans for eventual retirement as well as much of his enjoyment of life.  Unfortunately, because of the contributing effect of his injury at work, he is not, by reason of his war-caused incapacity alone, prevented from continuing to undertake the remunerative work that he was engaged in.  As a result, he cannot qualify for the special rate of pension.

38. I affirm the decision under review. 

39.     I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 20 November 2015

Date(s) of hearing		13 November 2015
Representative for the Applicant		Mr Tony Latimore, Legal Aid
Representative for the Respondent	Mr Tim O’Reilly, Advocate