Butcher and Repatriation Commission
[2005] AATA 1151
•18 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1151
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/286
VETERANS' APPEALS DIVISION ) Re GREGORY MICHAEL BUTCHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Senior Member L HastwellDate18 November 2005
PlaceAdelaide
Decision The tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect on and from 1 August 2004.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – special rate – accepted conditions of personality disorder, conversion reaction, psycho-somatic illness, psoriasis, anxiety disorder, alcohol dependence or alcohol abuse, and hypertension – non-accepted degenerative condition of cervical spine – alone test – loss test – decision set aside.
Veterans’ Entitlements Act 1986 s 24(1)(c)
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1REASONS FOR DECISION
18 November 2005 Deputy President D G Jarvis
Senior Member L Hastwell1. The applicant, Gregory Michael Butcher, served in the Australian Army from 8 January 1974 to 13 April 1981. He currently receives a service pension from the respondent (the Commission) at 100 percent of the general rate. He has the following accepted disabilities, namely personality disorder, conversion reaction, psycho-somatic illness, psoriasis, anxiety disorder, alcohol dependence or alcohol abuse, and hypertension.
2. On 31 March 2003 the applicant lodged a claim for an increase in pension and for the condition of hypertension to be included as being defence caused. A delegate of the Commission decided on 20 February 2004 to pay the applicant’s pension at 100 percent of the general rate with effect from 31 December 2002, and to include hypertension as a defence-caused condition.
3. The applicant sought a review of this decision by the Veterans’ Review Board (the VRB). On 17 August 2004 the VRB affirmed the decision under review. The applicant has applied to this tribunal for a review of the Commission’s decision.
4. The applicant asserts that he is prevented from continuing to undertake remunerative work by reason of incapacity from his defence-caused conditions alone, and that he is entitled to the special rate of pension.
statutory framework
5. The applicant’s entitlement to the special rate of pension is to be determined under s 24 of the Veterans’ Entitlements Act 1986 (the VE Act), which provides as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
…”
6. The standard of proof is that of “reasonable satisfaction” in accordance with s 120(4) of the VE Act, which provides:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
7. It was common ground that the first two criteria as set out in ss 24(1)(a) and (b) of the VE Act are satisfied in this case. The applicant already has an entitlement to a pension at a rate higher than 70 percent of the general rate (s 24(1)(a)), and he suffers incapacity from war-caused conditions of such a nature as, of themselves alone, prevent him from working for periods aggregating more than 8 hours per week (s 24)(1)(b)).
issues for determination
8. The issue for the tribunal to determine in this case is whether the applicant satisfies s 24(1)(c) of the VE Act, that is:
·whether he is, by reason of incapacity from war-caused conditions alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering were he free of that incapacity.
9. In considering these issues the tribunal must consider s 24(2)(a) of the VE Act and look to his reasons for ceasing to engage in remunerative work and to any other factors that may be impacting on his ability to engage in such work during the assessment period. The assessment period commences on the day of his application.
10. In this case the tribunal must determine whether a non-accepted disability, namely a degenerative condition of the cervical spine, was a contributing factor to his being prevented from undertaking remunerative work.
11. It was common ground that the applicant had not sought to engage in remunerative work since leaving work, and so the ameliorating provisions of s 24(2)(b) of the VE Act are not relied on in this case.
12. We have reached the conclusion that as at 1 August 2004 the applicant had satisfied the requirements of s 24(1)(c) of the VE Act, and so is entitled to a pension at the special rate with effect from that date.
the hearing and discussion of the evidence
13. The applicant was not a particularly articulate witness, and he found it difficult to find the words to describe the emotional aspects of his decision to leave his last job. He also appeared to have a poor memory for dates and for the detail of some events, and tended to down-play the upper arm and shoulder problems he has experienced intermittently since about 1999/2000. However, the tribunal was satisfied that his evidence was truthful, and accepts his evidence.
14. The applicant gave evidence that his last employment was at Comit Farm Produce Pty Ltd (Comit Farm) as a general hand in 1998. He worked there for four to five months. He said that he left that job because of an aggravation of his skin disorder, and because of the ongoing effects of his anxiety disorder. He described “things building up”, and said that he would have to leave the job because he was not able to handle it.
15. The applicant gave a detailed description of the sort of work he did at Comit Farm. Comit Farm was in the business of growing and exporting vegetables, including potatoes and onions in particular. The applicant worked both in the field and in the processing sheds. It was manual work, and sometimes quite dirty work. It involved his having skin contact with vegetables when they were being sorted, and prior to their being washed. He was inevitably exposed to pesticides that were still on unwashed vegetables. He said that he did not have to use his shoulder very much in that work. He worked long hours, sometimes 14 to 15 hours a day.
16. The applicant’s evidence was that his skin irritation became worse and worse. It was itchy and uncomfortable. He would get up an hour early to treat his skin with ointments and creams in an attempt to reduce the irritation. He became depressed, and eventually he left the job because of the skin irritation and the pressure of the situation he found himself in. The applicant recounted that one night he told his brother to tell his boss that he was not going to return. His brother was, and remained, a permanent worker at Comit Farm. The applicant did not speak to management directly about his difficulties. He said he just reached a point where he could not remain in that employment any longer. His employment at Comit Farm ceased in June 1998.
17. The applicant confirmed the contents of exhibit A3, which is a schedule of his prior employment history. He agreed that he has had long periods of unemployment since leaving the Army, and said that his reason for leaving at least one other job was his psychological problems and his psoriasis. This was his job with Adelaide Steel, which he left in 1996.
18. When questioned about an old shoulder injury that he suffered in 1978 in a motor bike accident, the applicant recounted having problems with his shoulder in 2003. He said he was helping a friend build a house and he described having annoying pain around his left shoulder. He assumed it was the old shoulder injury, but an orthopaedic surgeon, Mr Angel, said it was a spinal problem. He said it settled with rest.
19. Mr Angel and the applicant’s former general practitioner, Dr Lettberg, gave evidence. There was a considerable focus by the Commission on the left shoulder problems that the applicant has suffered. The Commission contended that the problems with his left shoulder and/or the symptoms associated with degeneration of his cervical spine impacted on his ability to continue in the work force and constituted one of the reasons that he elected to leave his last employment at Comit Farm.
20. Mr Angel provided a report dated 9 September 2004, which was received as exhibit A2. He described having seen the applicant on two occasions, the first occasion being in June 2003 on referral from Dr Lettberg. On that first occasion Mr Angel concluded that the problems that the applicant was suffering in 2003, being the pain around his shoulder and his elbow, were caused by degeneration of the cervical spine, rather than by his left shoulder joint. Mr Angel was of the view that any left shoulder joint pathology which arose from a motor bike accident in 1978 would not prevent him working. Mr Angel considered that the applicant did not appear to suffer from psoriatic arthropathy. The second occasion when Mr Angel saw the applicant was on 6 September 2004. Exhibit A2 records that he obtained a history that “for the past month” the applicant had “felt normal and had shifted two truckloads of furniture with no significant increase in pain in the left shoulder”. He reported also that the applicant “did get a bit of discomfort in both shoulders because of his psoriasis”. In evidence, Mr Angel said that the sort of work that would involve the cervical spine, and was likely to bring on an exacerbation of his symptoms, was work that involved moving the cervical spine, that is, looking from side to side, prolonged looking down, and prolonged looking up, such as (in the context of building work) fixing ceilings and cornices, and painting. However, he went on to refer to his findings on examination, and said that from the point of view of his left shoulder, the applicant “would be able to perform most duties”.
21. Dr Lettberg was called to give evidence for the Commission. She spent some time going through her medical notes to describe the various presentations of the applicant over time. She last saw him in June 2004, and wrote a note for him to the Out-patients Department of the Royal Adelaide Hospital to enable him to have an MRI scan, but apparently otherwise she had no note of the condition of his shoulder at that time. She said that she was familiar with the medical problems that the applicant had suffered over the years. She confirmed that he had complained of left shoulder and upper arm problems in 2002 as a result of which she had referred him to Dr Sheppeard, a rheumatologist, who had determined that the applicant did not suffer from psoriatic arthropathy. She also later referred him to Mr Angel. The earliest that she could find any note of a complaint of upper arm or shoulder problems was in 2000.
22. Dr Lettberg understood that the applicant’s last job had been working on a roof, and that had exacerbated the shoulder problems. The applicant explained to the tribunal that over a period prior to seeing Dr Lettberg, he had been helping a friend to build a house, and said that that had produced pain and discomfort in his left shoulder. The applicant had a series of consultations with Dr Lettberg relating to the shoulder between February 2002 and June 2003.
23. Dr Lettberg confirmed that the applicant had many other problems, both physical and psychological, for which he saw her. She referred to psoriasis, depression, acute anxiety, alcohol dependence and hiatus hernia. She also pointed out that his low educational level limited his work force options.
24. Dr Lettberg expressed the opinion that the applicant’s psoriasis was extremely severe, and that he was totally unsuitable for many occupations because of that condition alone. She pointed out that he could not work with sprays, and that contact with unwashed potatoes and onions would be completely inappropriate for him. She said that there is scarcely a portion of his anatomy that remains free of this skin condition, which precludes him from working in dusty and confined environments.
25. Dr Lettberg was of the view that the applicant’s anxiety was also a significant problem. He was prone to becoming upset if people teased him, and she described him as having a very poor self image. She said he tends to walk out rather than face up to any confrontational situations.
26. The tribunal also had regard to the other evidence, and in particular noted the report of Dr Les Ding, Consultant Psychiatrist, dated 11 December 2003 and received as exhibit A5. It was apparent to the tribunal that the combination of the applicant’s various accepted conditions was very disabling.
findings of fact
27. The tribunal accepts the evidence already narrated, and having considered all the evidence before it, makes the following further findings.
·The applicant was educated to third year at high school, and prior to entry into the defence force he was employed as a block hand which was essentially an unskilled position.
·Since being discharged from the Army in 1981 he has held six positions for relatively short periods of time. He worked as a truck driver, a fork lift driver, a storeman, a process worker and a labourer and general hand.
·He has had considerable periods of unemployment since leaving the Army, and he has left various positions because of what he referred to as his “nerves”, his nervous disorder, and his skin disorder. These appear to be the predominant conditions that he has suffered for many years.
·The applicant sustained a left shoulder injury in a motor bike accident in 1978. He had surgery on the dislocated shoulder, and thereafter had no significant problems with that shoulder until around 1999/2000. The shoulder and left arm problems that he experienced intermittently from around 2000 onwards do not relate to the motor cycle accident but are attributable to natural degenerative changes in his cervical spine.
·When the applicant was working for Comit Farm he was not having any problems with his arm or problems that could have been associated with symptoms of degeneration in his cervical spine, or with his old shoulder injury.
·From the reports of Dr Ding (exhibit A5) and Dr Ewer (T17), it appears that the applicant has long-standing psychiatric problems which in themselves have a significant impact on his ability to cope in any working environment. He suffers from excessive anxiety, panic attacks and an almost constant feeling of “edginess”. He has had to take medication for his condition for many years.
·The applicant’s skin condition has also been a persistent and significant problem, and as pointed out by Dr Lettberg, it affects almost every part of his body. It precludes him from working in dirty or dusty environments. It precludes him from working in environments where he would be exposed to chemicals or where his skin would be exposed to dirt, or in hot or closed environments. That condition in itself has affected his ability to maintain previous employment, combined with his psychological state. Medical evidence shows that his condition is quite intolerable at times, and becomes worse when he becomes stressed and is under pressure. The interaction between his psychiatric disorders and psoriasis results in a very significant level of disability for any employment.
consideration
28. Sections 24(1)(a) and (b) of the VE Act are satisfied in this case. The sole issue for the tribunal to determine is whether the applicant satisfies s 24(1)(c) of the VE Act. In making that determination the tribunal must have regard to s 24(2)(a) of the VE Act.
29. In considering the application of s 24(1)(c) of the VE Act, the tribunal refers first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
“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?”
30. The tribunal has referred in paragraph 27 above to the type of remunerative work that the applicant was previously undertaking.
31. As mentioned above, the Commission has conceded that the applicant meets the criteria in s 24(1)(b) of the VE Act, namely that the applicant’s incapacity from his accepted conditions is of such a nature as, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
32. The tribunal now turns to the “alone” test in s 24(1)(c) of the VE Act. In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, Burchett J referred to the true task of the decision-maker as being:
“... to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.”
33. The tribunal has referred above to the evidence of Mr Angel and Dr Lettberg regarding the applicant’s shoulder. The tribunal accepts the views of Mr Angel that the problems that the applicant has experienced with his left shoulder are the results of degenerative changes in his cervical spine, and that that condition is not war-caused.
34. The advocate for the respondent, Mr Crowe, contended that the applicant’s shoulder/neck condition was such that it was likely to flair up if he engaged in remunerative work, and accordingly the applicant’s accepted conditions alone did not prevent him from continuing to undertake remunerative work.
35. The tribunal accepts that the degenerative condition of the cervical spine would be a factor in preventing the applicant from undertaking certain of the types of remunerative work which he had undertaken in the past. For example, the tribunal finds that the applicant would not be able to undertake work as a labourer in tasks that entailed working above his head and looking up, such as fixing ceilings or cornices, or painting, or in tasks such as concrete laying or flooring work, where he would be looking down for long periods of time. Further, from the applicant’s description of work as a fork-lift driver, the tribunal finds that his cervical condition would be a factor preventing him from doing that work, because that work frequently entails stacking shelving at heights that would involve a fork-lift operator looking upwards for significant periods.
36. However, the tribunal accepts the applicant’s evidence that he was not troubled by his shoulder problems whilst he was working at Comit Farm. The tribunal finds that his cervical condition would not be a factor that would prevent him from undertaking work as a storeman or general farm labourer. Further, the tribunal finds that his cervical spine condition would not be a factor that would prevent him from working as a truck driver, bearing in mind that many trucks are equipped with lifting devices, and if necessary, the applicant could also use a fork lift as an incident to truck driving, if it were necessary to load heavy objects when receiving or delivering loads. The tribunal accordingly finds that the applicant has been prevented, by his war-caused injuries alone, from carrying out remunerative work that he had previously undertaken.
37. The tribunal is further satisfied that as a result of his war-caused conditions, the applicant is suffering a loss of wages or earnings on his own account that he would not have suffered if he were free of that incapacity. In reaching this decision, the tribunal has also had regard to s 24(2)(a) of the VE Act. The applicant ceased to engage in remunerative work when he gave up his work with Comit Farm. As mentioned above, the tribunal is satisfied that he gave up this work because of the exacerbation of his severe psoriasis and because of his psychiatric problems. The tribunal finds that there were no other factors which led him to give up that work.
38. It is clear from the evidence of Dr Lettberg, however, that the applicant had experienced problems with his left shoulder in the period from and after he lodged his application for an increase in pension, and that these problems had persisted. Further, it appears further from Mr Angel’s report (exhibit A2) that as at the date of his second examination, that is on 6 September 2004, the applicant when referring to his shoulder said that he had felt normal for the preceding month. The tribunal finds that in the period from when the application for an increase in pension was lodged until say 31 July 2004 his non-accepted degenerative condition of the cervical spine would have been a factor in his having been prevented from undertaking any of the kinds of remunerative work which he had undertaken in the past. However, as from 1 August 2004 onwards, the non-accepted cervical spine condition would not have been a factor that would have prevented him from undertaking work as a farmhand or a truck driver. His entitlement to pension at the special rate should therefor commence on and from 1 August 2004.
decision
39. The tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect on and from 1 August 2004.
I certify that the 39 preceding paragraphs are a
true copy of the reasons for the decision herein of
Deputy President DG Jarvis and Senior Member L HastwellSigned: .....................................................................................
J MacIntyre AssociateDate/s of Hearing 11 and 12 July 2005
Date of Decision 18 November 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr A Crowe
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