Callander and Repatriation Commission (Veterans' entitlements)

Callander and Repatriation Commission (Veterans' entitlements) [2023] AATA 2919 (7 September 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2021/4193
Re:Kevin Callander
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member O'Donovan
Date:7 September 2023
Place:Canberra

The decision under review is affirmed.
……………………[sgd]……………………
Senior Member Damien O’Donovan
CATCHWORDS
COMPENSATION - veterans' and military compensation - section 24 of the Veterans' Entitlements Act 1986 - whether the applicant meets the requirements for the special rate of pension - where the applicant has war-caused injuries - where the applicant ceased work - whether the applicant ceased to engage in remunerative work for reasons other than his incapacity caused by war-caused injuries - decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 s 24
CASES
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
SECONDARY MATERIALS
Second Reading Speech to the Veteran's Entitlements Bill
REASONS FOR DECISION
Senior Member O'Donovan
7 September 2023

The applicant is seeking a special rate pension under the Veterans’ Entitlements Act 1986 (VE Act). He has been awarded a pension at the Extreme Disablement Adjustment rate since 20 January 2018. The applicant however contends that he meets the requirements of section 24 of the VE Act and is entitled to a higher pension at the special rate. In a decision made on 14 May 2021 the Veterans’ Review Board affirmed the applicant’s entitlement to a disability pension at 100% of the general rate with an Extreme Disablement Adjustment from 20 January 2018 but it did not accept that he was entitled to a pension at the special rate. That is the decision under review.
The applicant served in the Royal Australian Air Force (the Air Force) between 14 March 1972 and 23 March 1992. After he left the Air Force, he was self-employed, running a business which fixed up and traded second-hand cars. The business began to struggle financially and in October 2014 the business was sold. The applicant stopped working in his business in September 2014 and has not worked since. When he ceased work the applicant was 61 years of age.
A person with the applicant’s work and health history would not normally be regarded as a likely candidate for entitlement to a special rate pension. When the VE Act was introduced in 1986, it was made clear that entitlement to the special rate pension required more than establishing adverse medical consequences from a relevant injury or disease. The special rate pension was designed to compensate for a veteran’s loss of earning capacity. So much is manifest from both the terms of section 24 and the second reading speech delivered to Parliament after the bill was introduced to the Parliament in 1985. The second reading speech relevantly provides:
Part II of the [Veterans’ Entitlement Bill] will also continue the effect of the recent legislative amendments to clarify eligibility for payment of pension at the intermediate or special-TPI-rate. The TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retired from work, possibly with whatever superannuation and other retirement benefits are available to the Australian work force.
Under the TPI criteria in the VEB, a pension is not payable at that rate unless at the time of determination that veteran is receiving a 100 per cent general rate pension, is totally and permanently incapacitated, and would be continuing in remunerative work but for a war-caused disability and thereby suffers an economic loss. I would not expect many veterans over the normal retirement age to qualify for payment of pension at this rate as there would usually be reasons other than the effect of a war-caused incapacity which precluded continuing in employment. If a person has had the usual span of working life or has retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable.
The applicant contends that this quote has no relevance to his circumstances. Critical to that contention is the proposition that the applicant was forced to retire by his various conditions, that he stopped work on medical advice and his business was ruined because of his diminished work capacity resulting from his injuries and diseases. As will become clear from what follows, I do not accept that that characterises accurately the applicant’s working life and how it came to an end. The applicant enjoyed a long working life after his service ended. He retired from work when aged over 60 and there were reasons other than the effect of a war caused incapacity which precluded him from continuing in employment. When the highly technical provisions of section 24 are applied to his circumstances, he does not qualify for a pension at the special rate.
Turning then to the relevant provisions of section 24. The applicant concedes that section 24(2A) does not apply to this application because he had not turned 65 when the application was made. Subsections 24(1) and (2) are the relevant provisions for analysing the applicant’s entitlement.
The terms of section 24(1) are set out at Annexure A to these reasons.
In broad terms, to qualify for the special rate, a veteran in the applicant’s circumstancesmust meet the following criteria:
(a)The veteran must make a claim for a pension (paragraph 24(1)(aa)); and
(b)When the claim is made the veteran must not have turned 65 (paragraph 24(1)(aab)); and
(c)The degree of incapacity of the veteran from war-caused injury or war-caused disease, or both (the Qualifying Injuries), must be at least 70% (sub-paragraph 24(1)(a)(i)); and
(d)The veteran’s incapacity from the Qualifying Injuries must be 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 (paragraph 24(1)(b)); and
(e)The veteran must be, by reason of incapacity from the Qualifying Injuries alone, prevented from continuing to undertake remunerative work that the veteran was undertaking (the Alone Test) (paragraph 24(1)(c)); and
(f)by reason of being prevented by his Qualifying Injuries from continuing to undertake remunerative work that the veteran had been undertaking, the veteran must be suffering a loss of salary or wages that the veteran would not be suffering if the veteran were free of that incapacity (paragraph 24(1)(c)).
A veteran will not meet the requirement in (f) if the veteran ceased to engage in remunerative work for reasons other than his incapacity from the Qualifying Injuries (paragraph 24(2)(a)(i)).
Further a veteran will not meet the requirement in (f) if the veteran is incapacitated or prevented from engaging in remunerative work for some other reason (paragraph 24(2)(a)(ii)).
In relation to the Alone Test, if a veteran is under 65 and has not been engaged in remunerative work and satisfies the Tribunal that (i) he has been genuinely seeking to engage in remunerative work, (ii) but for his incapacity from the Qualifying Injuries that he would be continuing to seek to engage in remunerative work, and (iii) the incapacity is the substantial cause of his inability to obtain remunerative work, then the veteran will be treated as meeting the requirement in paragraph 7(e) above (paragraph 24(2)(b)) (the Ameliorating Provision).
There is no question between the parties that the applicant satisfies criteria (a), (b) and (c) set out above. All of the other criteria are in dispute.
It is however unnecessary for me to resolve all of the questions thrown up by the statutory provisions. The applicant concedes that:
…unless the Applicant can satisfy the Tribunal that the nature of his war-caused conditions alone prevents him from doing office work more than 8 hours per week, his appeal must fail without need for further consideration. The immediate questions are:
Is major depressive disorder (MDD) ‘war-caused’ for the purposes of this review? And if so,
Does MDD prevent Mr Callander from doing office work for more than 8 hours per week?
Although it is contentious, for reasons which I explain below, I am satisfied that the applicant’s major depressive disorder should be treated as ‘war caused’ for the purposes of this review. The application fails though because I am not satisfied that the applicant’s major depressive disorder prevents him from doing office work for more than 8 hours per week. I accept the respondent’s contention that, even now, the applicant is capable of undertaking remunerative work for periods aggregating more than 8 hours per week and therefore does not meet the test outlined in paragraph (d) above.
The relevant period for assessing whether or not the applicant meets the statutory tests is called the ‘assessment period’. That term is defined in section 19 of the VE Act as follows:
"assessment period", in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
In relation to the applicant, the assessment period commences on 27 July 2017 and runs to the date of this decision. If the applicant meets all of the criteria at any point within the assessment period then he is entitled to the special rate.
Which war caused injuries should be assessed?
The first issue to be addressed though is which war caused injuries and war caused diseases which the applicant suffers from should be included in the assessment of this claim for the period commencing on 27 July 2017. The applicant has multiple injuries and diseases – some of which were accepted as war caused following his 27 July 2017 application, some of which were accepted later when a further application was made. The applicant’s 27 July 2017 claim included a claim for depression. However, depression was rejected as a war-caused disease early on in the claim process and that aspect of the decision was never subsequently reviewed. The respondent contends that because the applicant’s major depressive disorder was not pursued as part of the review of his original application and was only later accepted as a war-caused disease (as part of a fresh application which was lodged later), the disease should not be included in the Qualifying Injuries for the purposes of assessing this application.
I am sceptical about the position taken by the respondent. It would appear from the wording of section 14 that claims are made for a pension in respect of incapacity from a particular injury or disease (see subsection 14(5)). The applicant submitted a claim for a pension for incapacity from a number of injuries and diseases including his depression. Early on in its consideration of the application, the Repatriation Commission dismissed depression as a war-caused disease. However, the claim for the pension of which depression was originally a part, continued to be the subject of consideration and is the claim which is the subject of these review proceedings. In the circumstances I am attracted to the view that the incapacity arising from major depressive disorder (which has, in the context of another application been accepted as a war-caused disease)[1] was part of the claim for a pension made on 27 July 2017 and should be considered part of the Qualifying Injuries for the purposes of determining this claim.
[1] Page 360 T48 contains the applicant’s accepted claim for Major Depressive Disorder as war-caused
It is not necessary to finally resolve this issue because whether the applicant’s major depressive disorder is considered as part of his claim submitted on 27 July 2017 or not, he does not meet the thresholds for payment of the special rate pension. Accordingly, all of the analysis which follows proceeds on the basis that the applicant’s major depressive disorder can and should be included among the applicant’s Qualifying Injuries in relation to his claim for a pension submitted on 27 July 2017.
For the reasons which follow, I am not satisfied that the applicant, since finishing work, is or has been incapable of undertaking remunerative work for periods of more than 8 hours a week. The expert evidence is that he has residual capacity greater than the statutory minimum despite the range and number of medical conditions from which he suffers.
This finding is sufficient to dispose of the matter and it is not necessary to go any further. My reasons for the conclusion are set out below.
Evidence
The evidence before the Tribunal in this matter is as follows:
(a)The Tribunal Documents filed on 6 August 2021 under section 37, pages 1-441 (T-Docs);
(b)A statement of the applicant dated 29 March 2022 (Exhibit A1), on which he was cross-examined at the hearing;
(c)An email submission from the applicant, 2 pages dated 18 November 2021 (Exhibit A2);
(d)An email submission from the applicant, 4 pages dated 24 August 2021 (Exhibit A3);
(e)A Medical Report of Dr Mpho Banda dated 19 April 2022 (Exhibit A4);
(f)A Medical Report of Dr Mpho Banda dated 21 November 2022 (Exhibit A5);
(g)A Medical Report of Dr Adesina Adesanya dated 8 November 2022 (Exhibit A6);
(h)A Medical Report of Dr Adesina Adesanya dated 18 October 2022 (Exhibit A7);
(i)A Letter of Dr Adesina Adesanya enclosing the Medical Report of 8 November 2022 (Exhibit A8);
(j)A Medical Report of Dr Reza Sabetghadam dated 5 August 2022 (Exhibit R1);
(k)A Medical Report of Dr Inglis (Howe) Synnott dated 22 February 2023 (Exhibit R2); and
(l)A tender bundle of documents filed by the respondent, consisting of 29 documents, pages 3-254 (Exhibit R3).
Facts
Claim History
The applicant served in the Royal Australian Air Force (the Air Force) between 14 March 1972 and 23 March 1992. After he left the Air Force he was self-employed, running a business which fixed up and traded second-hand cars. In 2014 the applicant stopped working in his business and has not worked since. On 27 July 2017 the applicant applied for a pension under the Veterans’ Entitlements Act 1986 (VE Act). He applied for a disability pension in relation to a number of disabilities which had at that point in time not been accepted as service related. They were:
(a)Right shoulder calcification;
(b)Left shoulder calcification;
(c)Neck pain;
(d)Obesity;
(e)Depression;
(f)Broken left leg;
(g)Sciatica and lower back pain;
(h)Hearing loss; and
(i)Limp.
Only the applicant’s claim for sensorineural hearing loss and tinnitus was accepted initially. He was awarded a disability pension at 30% of the general rate of pension with effect from 27 April 2017. The delegate was satisfied in relation to the claim for ‘depression’ that there was no diagnosable medical condition present to answer this part of the claim. In relation to the other conditions the delegate decided:
I do not have sufficient information at this time to determine osteoarthritis affecting both shoulders, neck pain, obesity, fracture of the left leg, sciatica & lower back pain and limp.
Consideration of those claims was deferred pending further investigations.
On 12 February 2018 the applicant’s claim for lumbar spondylosis was accepted with effect from 27 April 2017. The remaining conditions were found to be not related to service. The applicant’s pension was increased to 100% of the General Rate.
The applicant requested review of that decision by an application to the Veterans’ Review Board (VRB) dated 15 March 2018 and received a favourable decision on 29 April 2019. The VRB found that:
(a)Osteoarthritis of acromioclavicular joints in both shoulders;
(b)Rotator cuff syndrome of both shoulders; and
(c)Fracture of left tibia and fibula,
were defence-caused as defined in section 70 of the VE Act and that the Commonwealth was liable to pay pension for any incapacity arising from those conditions from and including 27 April 2017. The matter was remitted to the respondent to consider the claim in relation to the rate (if any) at which the pension should be paid.
On 30 September 2019 a delegate of the respondent reconsidered the matter in light of the VRB’s decision of 29 April 2019. The applicant was granted a disability pension at 100% of the general rate with effect from 27 April 2017. He was granted the Extreme Disablement Adjustment with effect from 20 January 2018.
On 29 October 2019 the applicant requested reconsideration of the 30 September 2019 decision. By decision dated 14 May 2021 the VRB affirmed the determination of 30 September 2019. That is the decision under review.
Running in parallel to this decision-making process, the applicant made additional claims.
On 25 June 2019 the applicant made claims in relation to the following conditions:
(a)Cervical spondylosis;
(b)Right knee osteoarthritis;
(c)Depression;
(d)Acute pulmonary embolism; and
(e)Obesity.
By determination dated 10 March 2020, liability was accepted for major depressive disorder, morbid obesity, right knee osteoarthritis and pulmonary embolism, with effect from 25 March 2019. The applicant’s pension was continued at 100% of the general rate with the Extreme Disablement Adjustment. The applicant’s claim for cervical spondylosis was rejected and it has not been considered by the VRB.
That decision is not the subject of the review application before the Tribunal.
It is worth emphasising that the applicant’s depression was part of his original claim for a pension but the condition was initially not accepted as service related. Now, as part of a separate decision-making process it has been accepted as service related. Consequently, the only issue is whether it should be included in the category of Qualifying Injuries for this claim in light of its later acceptance as part of a separate claim. As noted at paragraph 18 above, for present purposes I will treat it as a Qualifying Injury. Whether it is or not does not alter the outcome.
Injuries and work capacity
The applicant prepared a statutory declaration dated 29 March 2022 for the purposes of these proceedings. It sets out his work history and the impact of his injuries. I do not have much confidence that it accurately states the impact of the applicant’s injuries or the reasons for the failure of his business. My uncertainty arises for two reasons. First, the contemporaneous medical notes convey a very different impression of events when compared with the statutory declaration. Second, the applicant’s oral evidence sought to significantly downplay many of the statements in the statutory declaration. For example, at paragraph 4 of the statutory declaration the applicant indicates that when he was working in his business, 20% of his time was spent ‘assisting with enquiries on the reconditioned vehicles and office work’. In his oral evidence the applicant sought to give the impression that he had no significant involvement in the office side of the business and left it up to his ex-wife and ultimately his daughter to manage.
The inconsistency between the applicant’s oral evidence and his statutory declaration undermines the weight I am prepared to give to his evidence overall.
Further, the applicant’s history given to his doctors, Centrelink and the Veterans’ Review Board changed over time. For example, in February 2016 the applicant’s psychologist recorded that the applicant was ‘forced to sell-up his used car yard after financial difficulties were encountered’.[2]
[2] Tender bundle p 115

In 2023 the applicant reported to a psychiatrist engaged by the respondent that:[3]
When he stopped work in 2014 – 60% was due his physical injuries and 40% to his psychological symptoms.
[3] Report of Dr Synnott p 4
There is no mention of financial difficulties at all.
In 2018 the applicant attributed his closure of the business entirely to physical injuries:
I believe there is confusion with the delegate over the reason I ceased work and which doctor advised me to cease work. My treating doctor at the time I ceased work due to lumbar spondylosis was Dr Habib of whom I had been a patient of for several years…I persevered with the lower back pain for 5 months doing less and less each day eventually ceasing work and closing my business in October 2014 due to back pain after the failure of the injections as a suggestion from Dr Habib.
This account is doubtful even if one ignores the differing reasons given for the closure of the business over time. The medical reports available from 2014 indicate that the applicant got good relief from back pain from the first set of injections and in fact declined the second set of injections as unnecessary.[4] Further, he did not see Dr Habib between May 2014 and November 2014 which makes it difficult to sequence the receipt of any advice from Dr Habib about closing the business.[5] In these circumstances, there are multiple reasons to approach the applicant’s evidence with caution.
[4] Tender bundle p 215
[5] Tender bundle p 57
Consequently, I have only been willing to find facts based on his claims if the applicant’s statements are corroborated or are against his interests. On contentious issues, the relevant doctors’ notes prepared at the relevant time provide a more accurate picture than the applicant’s recollection of events. In my assessment, the applicant has taken a particular view about the relative significance of his injuries and succumbed to a tendency to describe his Qualifying Injuries as having a very significant impact while minimising the impact of other injuries which have not been accepted as service related or which clearly do not relate to his service in the RAAF. The applicant’s views are not consistent with his medical history as revealed in the notes of his treating doctors.
Set out below are my findings of fact. To the extent that they are contentious I have referenced the material on which the findings are based.
The applicant enlisted in the RAAF on 14 March 1972. He worked as a motor transport fitter in various parts of Australia and overseas. In 1977 the applicant suffered a fracture of his tibia and fibula. He was hospitalised for a lengthy period and there were several complications with the healing of the bones. Depression and morbid obesity arose from that experience, but the applicant completed a further 15 years of service.
The applicant was discharged from the RAAF on 16 March 1992. On leaving he commenced a business buying and reconditioning motor vehicles and selling them for a profit. The business was profitable while the applicant was doing mechanical work and his wife completed the paperwork and assisted with the sales of the vehicles. The applicant estimated that he did mechanical work for 80% of the time and the remainder of his time was spent assisting with enquiries on the reconditioned vehicles and office work.[6] His wife died in tragic circumstances in 2008. After his wife’s death, the applicant’s daughter helped out with the business.
[6] Applicant’s statutory declaration paragraph 4
At the start of 2013 the applicant fell and fractured a bone in his left leg. The injury was caused by residual symptoms from his earlier service-related injuries. The applicant was placed in a moon boot for about three months.[7]
[7] Tender bundle page 55
In his oral evidence and in his statutory declaration, this injury is identified as a major event which began the downward spiral for the business, leading to it being sold in financial distress in October 2014. The applicant claims that following his leg fracture, his involvement in the business was meagre. As far as mechanical work went, he attended on only a couple of occasions to do some specific mechanical work. This scaling back was possible because in the 2013 and 2014 period, the applicant kept the business going by hiring a casual mechanic for 2 days per week. That continued for 12 months before the casual mechanic departed in early 2014.[8]
[8] Applicant’s statutory declaration paragraph [7], [9]
The impression that the applicant gives is that this injury was a watershed event for his physical capacity which adversely affected his ability to continue to engage in manual work.
The contemporaneous evidence however conveys a very different impression. When the applicant went and saw orthopaedic surgeon Dr Angela Hatfield in April 2013, she described his presentation as follows:
Kevin’s background is that he had a nasty distal tibial fracture requiring an open reduction internal fixation and he has since had the plate removed. He managed very well with occasional ankle aches and pain until he had this injury back in January 2013 but this appears to have partly settled down. His main pain is posterolateral and posteromedial of the ankle joint. It appears to be slightly worse in plantar flexion. He does not get pain every day. He is able to maintain his activities of daily living and the biggest issue is he cannot walk around the lake as he used to.
This summary is certainly not consistent with a man presenting with a life changing injury that prevents him from pursuing his livelihood as a mechanic which is how the applicant now presents the injury.
The medical notes over the next 18 months document some one-off injuries and are not consistent with a dramatic decline in function arising from the January 2013 injury. Soon after that attendance with Dr Hatfield the applicant fell over and hurt his shoulder while pushing a caravan off his car lot.
In September 2013 the applicant attended a wedding. When he went to kneel down in the church he felt a sudden onset of pain in his right knee. Following the incident he had regular pain in the medial aspect of his knee along with some swelling. MRI scans showed a degenerate meniscal tear. The applicant’s orthopaedic surgeon was satisfied that:
…he clearly had an event where he knelt down and it is most likely that the meniscal tear has changed the mechanics within the knee.[9]
[9] Tender bundle p 172
Arthroscopic surgery was performed which was a success.
On 11 March 2014 his surgeon Matthew Howard reported:
I saw Mr Callander again on 10^th March 2014. He is going really well following his knee surgery. He is very happy. He went back to work the next day his knee swelling has settled and I have explained the operative findings.[10]
[10] Tender bundle p 169
In May 2014 Dr Howard reported:
I saw Mr Callander again 8^th May 2014. He is going pretty well following his knee arthroscopy but he still has had some pain. He has trouble kneeling at work although he can perform his normal work duties. (emphasis added)
The applicant in his evidence paints a very different picture of his health around that time. He describes suffering a serious injury to his back in in April 2014 which brought on lower back pain. He claims this incident was a one off effort by him to fix unsatisfactory mechanical work which his casual mechanic had failed to do properly. The incident involved him lifting an extremely heavy cylinder head and caused immediate and significant pain. As a result, he stopped mechanical work immediately and following advice from a surgeon and his GP he ceased work, sold the business and applied for the disability support pension.
That sequence of events is not reflected in the medical notes taken by his doctors at the time.
Clinical notes record that in April 2014 the applicant attended his GP reporting low back pain and sciatica. On examination his spine was not tender, and he had full range of movement.[11]
[11] Tender bundle p 57
Dr Ow Yang, a surgeon who treated the applicant’s back pain in May 2014 wrote to the applicant’s GP and recorded the following history:
I reviewed Mr Kevin Francis Callander in my Canberra rooms on the 26^th May 2014. Thank you for referring this 61 year old man who has chronic low back pain. His main problem seems to be when he tries to get out of bed in a morning and when he stands he has low back pain radiating to the bilateral buttocks and posterior thighs. The pain does not radiate past the knees After getting out of bed however, if he can get into a hot shower the pain is relieved. During the day he continues to work as a mechanic and only has occasional episodes of pain. He denies any weakness or paraesthesia. He has been taking non-steroidal anti-inflammatories to manage the pain.
Dr Ow-Yang treated the applicant’s back pain with facet joint injections.
On 18 August 2014 he reported:
Kevin presents for follow up now two months after having had bilateral L4/5 facet injections. I am pleased to see that the injections have had a significant improvement in his pain management. He gets some pain towards the bilateral buttock region but he is managing relatively well. Kevin has declined a second set of steroid injections. He feels that he can manage the pain for the time being with non-steroidal anti-inflammatory medications.
There are no contemporaneous reports to doctors of the serious debilitating conditions which the applicant now claims he suffered in 2013 and 2014 such that he was forced to stop undertaking mechanical work. There is no doubt that the applicant did suffer injuries which restricted him in some ways and he certainly required treatment in relation to those conditions. But the treatments appear to have been largely successful and did not result in the applicant having to cease doing work as a mechanic with the consequence that the applicant’s business was adversely affected by restrictions on his ability to undertake mechanical work.
It is however clear that in or around September or October 2014 the applicant sold his business. The applicant’s evidence is that the business was under financial stress and was not profitable and I accept that.[12] This conclusion is consistent with the description recorded in a psychologists report prepared in February 2016 which states:
Since the RAAF Mr Callander has been a long-term local business person. He was forced to sell-up his used car yard after financial difficulties were encountered.[13]
[12] Statutory declaration paragraph 14
[13] Tender bundle page 115
What I do not accept is that the financial difficulties which the applicant was facing were the result of physical injuries or ailments which were preventing him from working productively in the business. The medical notes from that period do not identify any injury which prevents him from performing the physical mechanical work and I am satisfied that he continued to do it for the better part of 2014. The earliest record that I can find of the applicant indicating that he ceased work on the advice of his GP is in a medical report from 2017, some three years after closing the business.[14]
[14] T21 p 150
After the applicant sold his business his health deteriorated. He applied for the Disability Support Pension in June 2015 and was diagnosed with depression in 2016. In addition, he developed severe cervical spine pain.[15] That pain was described in the following terms by Dr Ow-Yang[16]:
His main complaint is one of significant neck pain originating from the lower cervical region and radiating to bilateral shoulders. He describes a crunching sensation when he turns his neck. This symptom is most significant in the morning as well as at the end of the day. Non-steroidal anti-inflammatories have not given much relief. He also describes bilateral hand paraesthesia which is most likely a carpal tunnel syndrome.
[15] Report of Dr Banda p 3
[16] T11 p 46
The applicant’s cervical spine issues have never been accepted as a war-caused injury or disease. The condition was however identified by the applicant as a contributor to his inability to do manual labour in his application for a disability support pension.[17]
[17] T12 p 62
His cervical spine remains troublesome. It was treated with steroid injections in 2018, and in 2019 he underwent a facet radiofrequency denervation and steroid injections.[18] He underwent scans on his cervical spine as recently as 2021.
[18] Tender bundle p 227
The applicant has also had a right knee replacement in 2018 and a Right Hip replacement in 2020 which brought with it multiple complications including a staph infection.
Psychiatric conditions
Leaving aside the applicant’s physical complaints, because he had experience on the business and sales side of his car yard his mental fitness for non-physical work is relevant to assessing his work capacity.
The applicant had psychiatric symptoms over many decades. Depressive symptoms became prominent following his leg fracture and associated complications in 1977 and again in 2008 following his wife’s death in distressing circumstances.[19]
[19] T21 p 150
The applicant has been prescribed Valium over the years. He dates his earliest prescription to 2006,[20] however the earliest recorded prescription is 2010.
[20] Tender bundle p 36
The applicant did not report symptoms of depression or anxiety to his GP in 2014 – the year he was forced to sell his business. However, in June 2015 he reported symptoms which resulted in a Mental Health Treatment Plan being drawn up[21] and a referral to a psychologist being made by his then GP Dr Habib.[22]
[21] Tender bundle p 71
[22] Tender bundle p 72
After the applicant changed his GP to Dr Knowles, he was referred to Wagga Private Psychological Services on 4 February 2016. The psychologist there saw the applicant on two occasions. There is only a partial report from that psychologist available which gets a number of details wrong so not much weight can be placed on it. [23] It is however useful to note that until mid-2015 there is no record of psychological symptoms being reported by the applicant to his GP. In March 2016 Endep (a branded version of amitriptyline hydrochloride) was prescribed for the first time.
[23] Tender bundle p 115
The circumstances in which this anti-depressant was prescribed are explained in the report of psychiatrist Dr Scott Clark who reported on the applicant for the Department of Veterans Affairs in October 2017. He recorded the circumstances concerning the prescribing of Endep as follows:[24]
He told me he has had limited contact with general practitioners or other doctors regarding his psychological problems. Approximately 18 months ago he complained to his GP of poor sleep and frequently interrupted sleep and was placed on the sedating medication Endep 50 mg, the first time he had taken antidepressant medication. He stated that his sleep improved, and he felt calmer, less stressed and less depressed. He said he saw a psychologist last year for two sessions but this was not helpful so he ceased going.
[24] T21 p 149
This version of events accords with all of the other records of the applicant’s treatment. Accordingly I am satisfied that his accurately describes the development and control of the applicant’s depression.
I note however that Dr Clark’s report is the first place where a claim by the applicant that he stopped work due to his physical ailments and applied for the DSP on the advice of his general practitioner is recorded. As I have previously said, there are no contemporaneous records which support that version of events. When the applicant applied for the DSP, roughly 9 months after the closure of his business, he had stopped seeing Dr Habib so there is no evidence either in Dr Habib’s notes or the application for the DSP of Dr Habib showing any support, or even knowledge of, the applicant’s decision to apply for the DSP.
Dr Clark noted:[25]
Currently, Mr Callander reported no significant disturbance of his mood or significant anxiety…He has normal energy and no thoughts of self-harm. He reported feeling hopeless about his physical condition and its effect on daily activities such as being able to walk for any significant distance, and ongoing pain…Mr Callander told me his mood is good. He denied any significant anxiety, but said that prior to starting medication over a year ago he would have cold sweats in the bed occasionally…He can find it difficult to concentrate on things on the television but enjoys watching sports…On the history available and presentation today in my opinion there is insufficient evidence of a psychiatric condition. Mr Callander reports experiencing psychological distress at various times during a long career in the Air Force, and then subsequently whilst he ran a business, however, it is not clear that this distress was beyond that that would be present in the wider community in response to life events. Unless further medical information is available I am not inclined to give a psychiatric diagnosis…Mr Callander does not have a psychiatric disorder at this time.
[25] T21
Dr Clark also concluded that:[26]
Mr Callander’ capacity to undertake employment is not affected by a psychiatric diagnosis at this time.
[26] T21 p 157
In May 2018 his then GP, Dr Knowles, referred the applicant to psychiatrist Dr Johnson. He prescribed an increased dose of Endep.[27]
[27] Tender bundle p 116
In August 2018 the applicant was referred to psychiatrist Dr Adesanya.
He noted the following history:[28]
Kevin is a former ADF employee and widower who developed recurring depression since he sustained factures to his left leg at a RAAF Social Club in 1977. His depression became complicated by PTSD after he found his wife hanging in 2008. Kevin continues to experience residual symptoms of both conditions including anhedonia, amotivation, lethargy and poor concentration and memory, and unresolved grief but is otherwise currently doing well.
[28] T36 p 253
Dr Adesanya continued the applicant’s Endep and referred the applicant for counselling for his ‘ongoing depression, PTSD and unresolved grief’.
The continuing use of Endep appears to have kept the applicant’s depression well controlled.
Dr Adesanya prepared a report for the Department of Veterans’ Affairs dated 1 October 2019. He relevantly noted:
Kevin is a 66yr old widower and grandfather who discharged from the ADF (RAAF) in 1992. He reported a history of depression that started from after he sustained a number of fractures on his left leg while playing sports at the RAAF Social Club in Sale, Victoria in 1997.
Kevin was referred by his GP for the management of chronic depression, and saw this author for an initial consultation on 7^th August 2018. He also saw a DVA Psychiatrist at Wagga Wagga in 2017 in relation to a claim for depression which was declined.
Kevin’s initial depressive symptoms following the fractures in 1977 included depressed mood, tiredness…He later experienced recurring depressive episodes including…strong thoughts of suicide on three subsequent occasions before his discharge from the ADF in 1992.
After his wife committed suicide through hanging in 2008 and Kevin found her in the hanging position, Kevin’s depression worsened and became associated with PTSD symptoms…
Kevin was a well built, fit-for-age looking elderly man who was wearing a pair of glasses. He was a bit anxious but not clinically depressed or cognitively impaired.
Both the depressive and PTSD symptoms have reduced significantly since Kevin was commenced on medication (Endep) by his GP about two years ago.
Kevin is currently reasonably stable but still intermittently anxious and depressed. He also presented as anxious and depressed in his mood/affect during his consultations with this author.
Kevin’s final diagnosis is Major Depressive Disorder (recurrent, but currently stable).
For the purposes of these proceedings Dr Adesanya prepared two further reports in close succession in October and November 2022.
In the October 2022 report the applicant gave a history of significant worsening of his depression in 2013 which contributed to the sale/disposal of the applicant’s business in 2014. As previously noted, that history is not supported by any contemporaneous documents and the contribution of depression to the sale of his business was not a feature of his history given to any GP, psychiatrist or psychologist before 2018.

Dr Adesanya recorded:
…Kevin was noted to be still depressed with symptoms including anhedonia, amotivation, lethargy and poor concentration + memory at the time of the initial consultation…
Dr Adesanya diagnosed the applicant with Major depressive disorder and PTSD. He provided the following opinion:
I estimate that the Major Depressive Disorder (MDD) is about 70% to 80% of Kevin’s overall psychiatric conditions.
He concluded that the applicant was unable to work for more than 8 hours per week.
The key questions asked and answered by Dr Adesanya were:
8. Does incapacity from Mr Callander’s Major Depressive Disorder, or itself alone, prevent him from undertaking paid employment: at all; or for more than 8 hours per week; or for more than 20 hours per week, as the case may be? If so please go to question 11.
Yes, I am of the opinion that the incapacity from Kevin’s MDD of itself alone prevents him from undertaking employment for more than 8 or 20 hours per week.
10. What is the proportion of his incapacity to work: at all; or for more than 8 hours per week; or for more than 20 hours per week, as the case may be, do you attribute to his Major Depressive Disorder or itself alone? [sic]
I estimate the proportion of Kevin’s MDD that can be attributed to his incapacity to work as following:
At all – 50%
More than 8 hours per week – 70%
More than 20hrs per week – 80%
11. Considering psychiatric, physical and labour market factors and your knowledge of his work history and motivation, what is the substantial cause of Mr Callander’s inability to obtain remunerative work?
I am of the opinion that the substantial cause of Kevin’s inability to obtain remunerative work are his physical injuries/pain issues, psychiatric condition/MDD, and age.
On 31 October 2022 the applicant’s representative wrote to Dr Adesanya in the following terms:
There are questions where I think some clarification or extra detail would assist the Tribunal, and I should be grateful if you would reconsider them:
Question 8
I could have worded my question better; the intention was to select:
At all; or
For more than 8 hours per week; or
More than 20 hours per week.
I read your answer to be that MDD, of itself alone, prevents Kevin from undertaking employment for more than 8 hours per week. If that is correct I ask you to remove ‘or 20’ from the answer.
Question 9 and 10
I could also have worded this question better. The intent was that question 10 would only be answered if the answer to question 8 was ‘no’. As you answered ‘yes’ to question 8, question 10 was not applicable. If you agree, please delete the answer to question 10, as the answer to question 8 covers this.
Question 11
The term ‘substantial cause’ is an important factor in claims for the Special Rate of pension, where there are a number of factors that might make it difficult to obtain a job. Factors inhibiting Kevin’s ability to obtain paid work include his age, time out of the workforce, labour market factors, his location, and his physical and psychiatric conditions. The itent of this question was to ask: of all of the factors affecting kevin’s inability to obtain remunerative work is there one factr that stands out above the rest, so much that it is the substantial cause of his inability to obtain remunerative work?
To put it another way, the combination of the above factors makes it very difficult to find paid work, but is there one factor that is stronger than the others?
The factor need not be by itself the full cause of the inability to obtain work.
Examples of what the courts have found ‘substantial cause’ to mean include:
The greater or more dominant cause [amon a number of other possible causes];
The operative factor which, more than any otherm, explains the inability to obtain paid work.
Another approach to the ‘substantial cause’ of inability to obtain paid work is:
‘In order to judge the effect of [Mr Callander’s incapacity from major depressive disorder] it is necessary to compare the position of [Mr Callander] as he is with the position he would be in without [major depressive disorder]’.
On 8 November 2022 Dr Adesanya issued a new report. His answers to the relevant questions and answers were as follows:
8. Does incapacity from Mr Callander’s Major Depressive disorder, or itself alone, prevent him from undertaking paid employment: at all; or for more than 8 hours per week; or for more than 20 hours per week, as the case may be? If so please go to question 11.
Yes, I am of the opinion that the incapacity from Kevin’s MDD of itself alone prevents him from undertaking employment for more than 8 hours per week.
10. What is the proportion of his incapacity to work: at all; or for more than 8 hours per week; or for more than 20 hours per week, as the case may be, do you attribute to his Major Depressive Disorder or itself alone? [sic]
Not applicable
11. Considering psychiatric, physical and labour market factors and your knowledge of his work history and motivation, what is the substantial cause of Mr Callander’s inability to obtain remunerative work?
From a psychiatric perspective, I am of the opinion that the substantial cause of Kevin’s inability to obtain remunerative work is his Major Depressive Disorder (MDD).
Dr Adesanya provided no elaboration as to the reasons why his opinions had changed between the two reports.
At the request of the respondent, psychiatrist Dr Synnott assessed the applicant on 20 February 2023.
The applicant was interviewed by Dr Synnott by video link. The applicant gave a history which was broadly consistent with the history given to other psychiatrists but on matters of detail was not always correct. For example, the applicant did not start the anti-depressant amitriptyline in 2013 as claimed to Dr Synnott. That was not prescribed until 2017. It is also unlikely that the applicant was prescribed Valium in 2006. If he was, there is no evidence that he used it consistently until 2010. As I have previously noted I do not accept the claim that the applicant’s physical injuries resulted in him stopping work in 2014, yet that claim was repeated to Dr Synnott. As noted earlier the applicant claimed that he stopped work in 2014 ‘60% due to his physical injuries and 40% to his psychological symptoms’. That claim was new and is entirely unsupported by any contemporaneous documents and not consistent with earlier reports to other medical service providers. The aspects of the history given by the applicant that are more consistent with the contemporaneous records are:
(a)he said ‘his psychiatric symptoms impact on his work capacity – but do not render him totally incapable of participating in employment’.[29]
(b)After stopping work in 2014, for a while the symptoms were more severe – then lessened and settled after he started the antidepressant amitriptyline; currently, the symptoms are well controlled. The prominent current symptoms are social isolation and withdrawal.
(c)Employment – he said he is physically incapable of employment. He said his psychiatric symptoms impact on his work capacity but did not render him totally incapable of working.[30]
(d)Dr Synnott noted:
In my opinion, if his presentation at the assessment is an indication of his current functioning – noting he spends up to eight hours a day on the computer and he manages his finances – he is psychiatrically capable of working four hours a day five days a week.
In my opinion he describes sufficient psychiatric symptoms to meet the diagnostic criteria of a Major Depressive Disorder with prominent anxiety – now in partial remission. Regarding the (2008) death of his previous partner/wife, he currently does not have (i) PTSD (and never has had PTSD) or (ii) bereavement/grief (that has now resolved).
[29] Tender bundle p 37
[30] Exhibit R2 p 5
Dr Synnott disagreed with Dr Adesanya’s assessment that the applicant suffered PTSD. In his view the applicant had ‘a normal bereavement/grief – that has now resolved.’ He also disagreed with Dr Adesanya’s assessment of the applicant’s employment capacity.
CONSIDERATION
The veteran’s incapacity from the Qualifying Injuries 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
As the applicant concedes, unless he can satisfy the Tribunal that the nature of his war-caused conditions alone prevents him from doing office work more than 8 hours per week, this appeal must fail without need for further consideration of the other issues.[31] In particular, the applicant must establish that his major depressive disorder has and is preventing him from doing office work for more than 8 hours per week.[32] I am not satisfied that this is the case.
[31] Applicant’s final submission 2 June 2023 p 5
[32] ibid
To support a favourable conclusion on this question the applicant contends:
(a)Dr Adesanya has consistently opined that Mr Callander’s psychiatric conditions MDD and PTSD contribute to his incapacity for any work at all;
(b)Dr Adesanya due to cost and availability reasons has not been called to explain the changes in his report; and
(c)The changes in Dr Adesanya’s latest report are explicable on the basis that ‘the changes were requested in order to gain clarity and to explain the meaning of ‘substantial cause’, and Dr Adesanya’s latest report does nothing more than that. Reduction in the contribution of PTSD could be expected with the passage of time since the suicide of Mr Callander’s wife in 2008.
In view of these explanations the applicant submits that the opinion of Dr Adesanya should be preferred because:
(a)He is the treating psychiatrist, having seen Mr Callander regularly since August 2018, and had confirmed his initial observation many times;
(b)His opinion on Mr Callander’s work capacity has been consistent since his original assessment in 2019, albeit the influence of PTSD has decreased over time;
(c)Normally the Commission will give greater weight to the opinion of the treating psychiatrist in the absence of significant deficiencies in their report;
(d)Mr Callander pointed out that his major depressive disorder could hardly have been in remission when he saw Dr Synnott as, just one week before seeing Dr Synnott, his medication had been increased by 50% to help him cope with major depressive disorder;
(e)Dr Synnott saw Mr Callander on only one occasion, at a time when his symptoms were being successfully managed; at the hearing Dr Synnott agreed that Mr Callander’s presentation on the day, having received recent successful treatment, may well have masked the effects of his underlying condition; and
(f)Dr Synnott’s report contained caveats:
‘…repeated assessments of someone over a period of time may bring different opinions…’
‘It is not uncommon for different psychiatrists to assess a claimant on different days and to arrive at different conclusions regarding diagnosis, impairment and work capacity.’
The applicant’s concession in his submissions[33] that he must establish that his psychiatric condition prevents him from undertaking office work is understandable when the evidence on physical injuries is looked at. The evidence is clear from both Dr Sabetghadam and Dr Banda that the applicant’s physical conditions do not prevent the applicant from doing office work for more than 8 hours per week. Consequently the applicant has to make good the proposition that his major depressive disorder prevents him from doing office work for more than 8 hours a week.
[33] Applicant’s Final Submissions para [9.1]
In my assessment, the proposition has not been made out. The observations and conclusions of all of the doctors, with the exception of Dr Adesanya, are consistent with the conclusion that the applicant has significant residual work capacity for office work. For the reasons outlined below I do not regard the opinions of Dr Adesanya as reliable.
Dr Adesanya has consistently opined that Mr Callander’s psychiatric conditions, major depressive disorder and PTSD contribute to his incapacity. According to Dr Adesanya the applicant has no capacity to undertake work at all. However, the foundation for such a pessimistic assessment of the applicant’s work capacity is unclear.
No-one doubts that the applicant has an underlying major depressive disorder, but views vary as to whether or not the applicant’s earning capacity has been affected by it. The applicant is taking Endep (amitriptalyne). He has done so since 2017. The dosage has increased over time but the psychiatric reports indicate that the medication provides good control of the applicant’s condition. No-one engaged by the respondent has observed significant symptoms of a depressive illness when they have seen the applicant. It is unclear whether even Dr Adesanya has personally observed significant depressive symptoms rather than just taken a history which is consistent with major depressive disorder. Accordingly, even taking Dr Adesanya’s reports at face value, it is difficult to accept that Dr Adesanya has seen a presentation from the applicant that explains how it is that the applicant is unable to do any office work at all as a result of what seems to be a well-controlled disorder.
This deficiency in the reports is aggravated by the fact that in his latest reports Dr Adesanya changed his view without explanation after a prompted reconsideration by the applicant’s representative. In civil courts it is a legal requirement for admissibility that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded".[34] In the Tribunal this is not a requirement for admissibility, but it remains a useful starting point for considering whether a report has any value. When one reads the reports of Dr Adesanya, there is very little by way of explanation as to why the applicant cannot work at all, even in sedentary occupations for which he is qualified.
[34] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 as cited in Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [37].
The reports relied upon by the respondent on the other hand do provide reasoned bases for determining that the applicant has significant residual capacity to perform office work and sales work within his areas of expertise.
Dr Sabetghadam, an occupational physician who saw the applicant on 5 August 2022, was satisfied that the applicant could work as a salesperson in car sales or auto galleries on part time hours. In his assessment he could work at least 20 hours per week. He was primarily interested in the applicant’s residual physical capacities but he did note that when he saw the applicant he did not appear to have low mood or blunt affect. That assessment was consistent with how the applicant presented to the respondent’s psychiatrists and, for the most part, to Dr Adesanya.
Dr Adesanya’s reports however reach very different conclusions. He reports the applicant as being depressed with anhedonia, amotivation, lethargy, and poor concentration and memory when initially seen, and more recently as having ongoing depressive symptoms, fleeting thoughts of suicide in context of the ongoing pain and DVA issues. That assessment was not consistent with the observations of other psychiatrists who had seen the applicant.
Dr Clark and Dr Synnott on the other hand did not observe debilitating symptoms. Their observations were consistent with the applicant’s depressive symptoms being well controlled.
I accept Dr Synnott’s conclusion that although the applicant has a major depressive disorder, it is being effectively treated and so the applicant has a residual work capacity of at least 20 hours a week for office work. The applicant does not have any physical conditions which would prevent him from performing office work.
I do not accept that Dr Adesanya’s views should be preferred to Dr Synnott’s on the basis that he is the applicant’s treating doctor. Dr Adesanya’s willingness to alter his reports with prompting from the applicant’s representative and without any explanation suggests that in this case the therapeutic relationship has not contributed to the reliability of the reports and may in fact have detracted from it. Dr Adesanya’s views about the applicant’s work capacity have over time have not been well justified. Dr Adesanya takes no account of the extended periods where the applicant’s condition has been well controlled. I accept that the steady increase in the applicant’s Endep dosage suggests his condition is becoming more difficult to control but that is not the same as demonstrating it produces very significantly reduced work capacity. If Dr Synnott’s view were the only observations of the applicant which suggested that his major depressive disorder was well-controlled then I may have been less willing to accept his assessment. However, Dr Synnott’s assessment is much more in line with the observations of the applicant made by other doctors than Dr Adesanya’s opinion is. I do not regard Dr Synnott’s view as an isolated one.
Accordingly, I am not satisfied that the applicant’s incapacity from his Qualifying Injuries is of such a nature that of themselves alone they render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
I accept Dr Synnott’s opinion that the applicant is psychiatrically capable of undertaking office work four hours a day five days a week. There are no other Qualifying Injuries which would prevent the applicant undertaking work of that kind.
The decision under review should be affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan

.................................[sgd].......................................
Associate
Dated: 7 September 2023

Date(s) of hearing: 17-18 May 2023

Date final submissions received: 10 July 2023

Advocate for the Applicant: Ross Dunn

Solicitors for the Applicant: Veterans Support Centre

Counsel for the Respondent: Luke Woolley

Solicitors for the Respondent: Sparke Helmore Lawyers
Annexure A
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.

[2023] AATA 2919

7 September 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Causation

Date(s) of hearing:	17-18 May 2023
Date final submissions received:	10 July 2023
Advocate for the Applicant:	Ross Dunn
Solicitors for the Applicant:	Veterans Support Centre
Counsel for the Respondent:	Luke Woolley
Solicitors for the Respondent:	Sparke Helmore Lawyers