Clayton and Repatriation Commission
[2005] AATA 512
•2 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 512
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1146
VETERANS' APPEALS DIVISION
Re: ALLAN GEORGE CLAYTON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 2 June 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
VETERANS' AFFAIRS - disability pension – special rate – remunerative work – “alone” test
Veterans' Entitlements Act 1986 (Cth)
Accident Compensation Act 1985 (Vic)
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
REASONS FOR DECISION
2 June 2005 Mr E. Fice, Member
1. On 5 September 2003, the Veterans’ Review Board (“VRB”) affirmed a decision of the Repatriation Commission made on 15 October 2002 to continue Mr Clayton’s disability pension at 100 per cent of the general rate and disallowed his application for an increased disability pension. Mr Clayton seeks review of that decision claiming that he is entitled to a pension above the general rate, and that he, in fact, qualifies for the special rate pension pursuant to s 24 of the Veterans' Entitlements Act 1986 (Cth) ("the Act").
2. Mr G. Moore of counsel appeared on behalf on Mr Clayton and Ms T. Chant, an advocate with the Department of Veterans' Affairs, appeared on behalf of the Repatriation Commission. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, four exhibits tendered on behalf of the applicant (Exhibits A1 to A4) and five exhibits tendered on behalf of the respondent (Exhibits R1 to R5).
BACKGROUND
3. Mr Clayton was born on 7 January 1947, making him 55 years of age at the date of his application to the Repatriation Commission for an increase in the rate of disability pension.
4. Mr Clayton was called up for National Service in 1969 with the Australian Army (“the Army”). He had operational service in South Vietnam between 26 November 1970 and 16 September 1971. He was a small arms fitter and gunsmith and apparently he also conducted some infantry duties while in Vietnam.
5. Upon discharge from the army Mr Clayton returned to his former employment as a fitter and turner. Shortly thereafter, on 6 April 1972, he obtained employment with BF Goodrich, a tyre manufacturer. Apparently BF Goodrich underwent a number of name changes and, at the time Mr Clayton left the company, it was called South Pacific Tyres. He took a voluntary redundancy from South Pacific Tyres on 22 December 2000. Although Mr Clayton made an initial effort to search for other employment, he was unable to find any suitable employment and he now survives on a pension only.
6. Mr Clayton suffers from a number of medical conditions. The Repatriation Commission has accepted the following conditions as war‑caused:
(a)infected tinea;
(b)strained back muscles;
(c)dyspepsia due to gastro-esophageal reflux;
(d)anxiety state;
(e)tension headache;
(f)duodenal and oesophageal ulcers;
(g)diarrhoea
(h)chronic conjunctivitis; and
(i)diabetes mellitus
Mr Moore submitted that, together with anxiety state, Mr Clayton suffers from features of post traumatic stress disorder (“PTSD”).
PARTIES CONTENTIONS
7. Mr Clayton contends that he is entitled to an increase in his disability pension above the general rate, to a special rate of pension pursuant to s 24 of the Act. Insofar as it is relevant, s 24 provides:
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)…
8. The Repatriation Commission contends that Mr Clayton’s cessation of work was multifactorial and not solely due to the effect of his accepted disabilities. Further, the Repatriation Commission contends that Mr Clayton is not prevented from undertaking remunerative work by reason of incapacity from war-caused disabilities alone. The Repatriation Commission contends that Mr Clayton's non‑accepted disabilities, particularly the problems he has with his knees, as well as restructuring at his workplace, contributed to his decision to accept a voluntary redundancy package. These non‑accepted disabilities, it is contended, also prevent him from continuing to undertake remunerative work. Accordingly, the Repatriation Commission contends that Mr Clayton cannot satisfy s 24(1)(b), s 24(1)(c) and s 24(2)(a) of the Act.
CONSIDERATIONS
9. Section 15(1) of the Act provides that a veteran who is in receipt of a pension under Part II of the Act may apply for an increase in the rate of pension on the ground that the incapacity of the veteran has increased since the rate of pension was assessed or last assessed. Under s 19(4A) of the Act, the Repatriation Commission must deal with an application under s 15(1) by assessing the rate or rates at which the pension would have been payable from time to time during the assessment period and, subject to s 19(6), the rate at which the pension is payable. Under s 19(9), "assessment period" is defined as the "period starting on the application day and ending when the claim or application is determined". The term "application day" means "the day on which the claim or application was received at an office of Department [of Veteran’s Affairs] in Australia". In this matter, the application day is 4 October 2002.
10. Section 19(5B), insofar as it is relevant, provides that the Repatriation Commission must assess the matters set out in s 19(5C) in accordance with s 24 of the Act.
11. The first thing to note about s 24(1) is that all of the requirements set out under that section must be met in order for a veteran to qualify for the pension at a special rate.
12. That Mr Clayton meets the requirements of s 24(1) (aa), s 24(1)(aab) and s 24(1)(a) is not in dispute. Section 24(b) addresses the extent of a veteran’s war‑caused incapacity while s 24(1)(c) is directed at a different question, namely, causation (Repatriation Commission v Alexander (2003) 75 ALD 329).
13. The Repatriation Commission argues that Mr Clayton’s incapacity from his accepted war-caused diseases is not, of itself, sufficient to render Mr Clayton incapable of undertaking remunerative work for periods aggregating more then eight hours per week. Although the term "remunerative work" is not defined and the term has only been considered by the courts under S 24(1)(c) of the Act, in my opinion, the same meaning should be given to the term under s 24(1)(b). The Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47 said (at 54):
…The requirement to consider "remunerative work that the veteran was undertaking" does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past.”
Also, Finn J said in Repatriation Commission v Van Heteren (2003) 75 ALD 703 (at 708):
First, the "remunerative work" to which the paragraph [24(1)(c)] refers is the remunerative work undertaken by the veteran before he or she was prevented from continuing to undertake that work. The term, though, does not refer simply to a particular job with a particular employer (Banovich v Repatriation Commission (1986) 69 ALR 395 at 402); nor merely to the last remunerative work undertaken before the veteran’s inability to work became complete: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225; 14 ALD 160; 76 ALR 449 at 454. It signifies the type of work which the veteran previously undertook but which because of war-caused incapacity alone he or she can no longer undertake: Banovich at 402. The Act requires identification of that type of work as part of the veteran’s demonstration that he or she has suffered a real and substantial loss consequent alone upon war‑caused incapacity: see Starcevich’s case, at FCR 225; ALR 454. It is that remunerative work and not remunerative work at large with which s 24(1)(c) is concerned.
14. Mr Clayton’s evidence was that he was employed as a fitter and turner for South Pacific Tyres at the time he accepted a redundancy package on 22 September 2000. He was a leading hand with that firm at the time of his redundancy. He was responsible for the maintenance and operation of a number of manufacturing machines and his work involved climbing in, under and over machines in an environment which he described “was like a warren”. He said he was required to work in cramped and awkward spaces. Although he suffered from a number of other accepted service‑related disabilities in addition to his anxiety state, they did not interfere in any significant way with his duties, other than that they caused him to have some time off from his work. However, it was his anxiety state which Mr Clayton said caused him to accept the redundancy package offered and which, presumably, now prevents him from undertaking remunerative work.
15. Mr Clayton said that his anxiety state impaired his ability to work as he had trouble communicating with staff, especially Vietnamese staff employed by South Pacific Tyres. He said he did not trust Vietnamese employees because he thought they were talking about him in their own language behind his back. The number of Vietnamese employed by the company had increased and this eventually led to what he described as a "showdown" with one of the Vietnamese workers. Apparently, he came across a Vietnamese employee in the workshop using a bench grinder without safety goggles. He told the worker to get out and not to return without goggles. He left the workshop and approximately 30 to 40 minutes later, he came back to catch the same employee working at the bench grinder without safety goggles. He said that he had pushed the worker out of the workshop and told him to "piss off". The worker made a racial vilification claim against him and he wanted an apology. He said that there was no way that he would apologise to a "nog". He said that the incident pushed him over the edge and that he has suffered from resentment ever since that incident and had difficulty coping.
16. In addition to the stress Mr Clayton suffered when working with Vietnamese employees, he was told that he would have to be retrained to learn how to operate computers. That, apparently, was the final straw as he found the thought of having to retrain to use computers to be extremely stressful. He said that he had enough stress in his life without adding the prospect of further education to his workload.
17. Although Mr Clayton acknowledged that he had problems with both knees, which required a number of arthroscopies of his left knee, he said those problems did not stop him from working. He thought he first injured his left knee at the factory, in the 1970s. He agreed that he continued to suffer from problems with his knees as his work involved climbing under machines and conveyers and kneeling on concrete. He said that those activities took up about 15 per cent of his working day. However, he was adamant that the problem was not sufficient to stop him from working. He agreed that he had time off work as a consequence of his knee problems and that he had been allocated light duties for a few weeks. He said that involved no kneeling, squatting, climbing on machines or lifting heavy weights. Mr Clayton said that, although he had knee problems, they did not affect his work capacity. He continues to have physiotherapy for his knees.
18. The main issue regarding s 24(1)(b) of the Act is whether Mr Clayton’s accepted disabilities, alone, prevent him from undertaking remunerative work for periods aggregating more then eight hours per week. On his own evidence, Mr Clayton claims that the only disability which prevents him from working for periods aggregating more than eight hours per week is his anxiety state.
19. Dr W. Kemp, a consultant rheumatologist who also practises in the area of occupational medicine, examined Mr Clayton on 27 April 2004. In his opinion, there is no reason to doubt Mr Clayton’s statement that he stopped work on 22 December 2000 due entirely to his increasing nervous symptoms. Dr Kemp agreed, under cross‑examination, that he did not ask Mr. Clayton about each of his accepted disabilities and the effect they had on his capacity to work. Dr Kemp said that, in his opinion, Mr Clayton was unfit to resume his normal work as a maintenance fitter or any other suitable light work for eight hours or more per week, due to his accepted disabilities; and due to the cardiovascular disease and cigarette smoking from the time of his operational service. Dr Kemp was also of the opinion that Mr Clayton did not have any other significant physical impairment or disability, including the degenerative changes in both knee joints, which would cause any more than a minor affect on his work capacity. He concluded that Mr Clayton’s major disability is caused by his nervous symptoms and difficulty with personal relationships which probably preclude any work in the future.
20. Dr J. Bott, a psychiatrist, from October 2003, treated Mr Clayton for depression, irritability, outbursts of anger and anxiety. These problems, according to Dr Bott, were the “prime reason” for Mr Clayton leaving work. In Dr Bott’s opinion, Mr Clayton was unfit to resume his normal work as a maintenance/machine fitter or to do any other suitable light work for eight hours or more per week.
21. Dr L. Walton, a consultant psychiatrist, examined Mr Clayton on 22 September 2004. According to Dr Walton, subsequent to Mr Clayton ceasing his duties with South Pacific Tyres, he has been established on mood stabilising medication with benefit. He stated that Mr Clayton is actively involved in voluntary work, assisting fellow veterans with personal and administrative tasks, which, in his opinion, carry the implication of transferable work skills which could be remunerated if a suitable opportunity arose. However, he accepts that realistically, that is most unlikely. Nevertheless, in his opinion, Mr Clayton remains capable of performing more than eight hours work per week in relation to his psychiatric problems alone. Dr Walton noted Dr Bott’s opinion, but disagreed, stating that he could not describe Mr Clayton as totally and permanently incapacitated for all work purely on psychiatric grounds.
22. Dr B. Kenny, a consultant psychiatrist, examined Mr Clayton on 21 March 2001. This of course was very shortly after Mr Clayton stopped working. Accordingly to Dr Kenny, Mr Clayton told him that he retired from his work at South Pacific Tyres because of his knee problem, his diabetes, his anxiety about starting again and learning about computers and his anxiety about working with Asians whom he did not trust. He also told Dr Kenny that his main problems were his diabetes and ulcers. He also said that since leaving work his stress had settled down. Dr Kenny concluded that Mr Clayton’s anxiety disorder made a minimal contribution to his inability to cope with employment. He also said that Mr Clayton’s psychiatric condition did not limit his ability to work to any significant extent. His view was that his general health restricted his ability to work effectively or at all. He said that the reasons for Mr Clayton leaving his work appeared to him to be very complex. In his view, Mr Clayton’s inability to continue with work depended on his general health, his knee problem, his diabetes and his peptic ulcerations. As a result of all of his problems, Dr Kenny said that Mr Clayton was not fit for any effective employment. From that I infer that Mr Clayton is incapable of undertaking remunerated work for more than eight hours per week
23. Dr R. Horsley, an occupational physician, examined Mr Clayton on 27 April 2004. She found him to be unfit to work more than eight hours per week. However, she said that if certain work restrictions were applied to the work Mr Clayton conducted, particularly restrictions which took into account the problems he has had with his knees, then she was of the view that he could work for more than eight hours per week. She made no comment on Mr Clayton’s psychological problems, other than to say that his capacity for work from a psychiatric perspective would need to be obtained from his treating psychiatrist.
24. In light of the various opinions expressed above, it would seem that the weight of evidence is that during the assessment period Mr Clayton was totally and permanently incapacitated and was not capable of undertaking remunerative work for periods aggregating more than eight hours per week. However, that does not necessarily mean Mr Clayton has satisfied the requirements of s 24(1)(b) of the Act. He must also meet the “alone” test set out in that section. The same test is required to be satisfied under s 24(1)(c).
25. The Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 45 ALD1 set out four steps which should be followed when identifying the issues under s 24(1)(c). Branson J, with whom Beaumont and Merkel JJ agreed, said (at 4‑5):
In my view the issues before the tribunal in this case were as follows:-
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?”
26. The Full Court in Hendy said:
The language of s 24(1)(c) of the Act [the Veterans' Entitlements Act] directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision‑maker is required to take into account any factor that plays a part or contributes to the veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period…
27. The principal reason why the Repatriation Commission had rejected Mr Clayton’s claim for a disability pension at the special rate was that it has formed the view that the problem Mr Clayton had with both of his knees contributed significantly to him being prevented from continuing to undertake remunerative work. Numerous reports were obtained regarding the reasons why Mr Clayton was no longer able to engage in remunerative work.
28. Dr R. Miller, an orthopaedic surgeon, who had treated Mr Clayton for his bi-lateral knee problems for several years (T15), provided a report for the purposes of Mr Clayton’s compensation claim under the Accident Compensation Act 1986 (Vic), in about April 2001. Mr Clayton’s accident compensation claim was in respect of an injury sustained to both of his knees in the course of his employment.
29. Dr Miller said that he had first seen Mr Clayton on 25 September 1996 and that he was told by Mr Clayton that he had suffered knee pain for approximately 20 years. Mr Clayton told Dr Miller that his left knee problem was more severe than his right knee problem and that he suffered frequent "giving way" which occurred on a daily basis. At that time, Mr Clayton had been treated with three arthroscopic debridements of the left knee, which were only partially affective in reducing his symptoms.
30. Dr Miller diagnosed Mr Clayton as suffering from patello-femoral disease which affected both knees, but particularly the left knee. Mr Clayton had significant loss of the articular cartilage on the back of the patella and he noted that that had been documented on a CT scan. Mr Clayton also had significant underlying patellar mal‑tracking. Dr Miller said that he last reviewed Mr Clayton on 11 December 1997, and at that time he was making a reasonable recovery, although he continued to have significant symptoms which were likely to remain for some time. Eventually the symptoms were likely to become more severe, leading to a possible and indeed probable requirement for a knee replacement. He also noted that Mr Clayton had a similar, but less severe, disease in the right knee and he suggested that Mr Clayton was likely to undergo a similar operative sequence and have a similar prognosis in respect of that knee. He said that Mr Clayton’s condition, when last seen, had substantially stabilised, although there was a definite risk of deterioration in later life. He also noted that Mr Clayton would have had significant pain and suffering as a result of the disease.
31. Dr A. Miller, an occupational health consultant, examined Mr Clayton on 4 October 2000, in respect of Mr Clayton’s WorkCover claim. He had previously examined Mr Clayton on 22 November 1996. Dr Miller said that his clinical examination revealed a mild to moderate disability of his knees due to local discomfort and reduced power. He also said he believed that Mr Clayton’s condition had stabilised and that no further improvement could be expected. He said that a possible deterioration of his knees might occur, particularly if they were subjected to undue physical stresses. For that reason, he said that Mr Clayton was capable of continuing to work provided that he:
(a)avoided lifting in excess of 15 kilograms;
(b)avoided frequent kneeling or squatting;
(c)avoided frequent climbing of ladders or stairs; and
(d)avoided prolonged standing.
Dr Miller concluded that, based on Mr Clayton’s description of his current duties as a machine fitter, there was a possibility of further aggravation of the knees, unless the duties were modified to incorporate the restrictions which he recommended. He also suggested a number of alternative work roles for Mr Clayton including assembling, packing, machine operator, forklift driver, crane operator, trade assistant, quality controller and sale representative’s assistant.
32. Mr Clayton also provided an affidavit in support of his workers compensation claim made on 28 March 2001. In that affidavit, which he swore was true and correct, he said that he sustained an injury to his left and right knees throughout the course of his employment, but particularly in or around mid 1996. He said that as a result of his injuries, he experienced continuous and severe pain. He also said that prior to the accident he enjoyed participating in activities such as fishing, gardening, walking the dog and general home maintenance. He said that as a result of his injuries his enjoyment of such activities had been severely compromised. He found that he was unable to drive for long periods and that he had a lot of difficulty and pain if he drove a manual vehicle. Mr Clayton said in evidence that what he swore to in his affidavit was not entirely correct and that he had “gilded the lily”. This was in an attempt to make his WorkCover claim appear stronger. In essence, he now resiled from much of the material that was in that affidavit.
33. Mr C. Ferrari, physiotherapist, commenced treating Mr Clayton for his knee problems on 14 June 1992. He continues to treat Mr Clayton.
34. According to Mr Ferrari, Mr Clayton’s problems were the result of left patello‑femoral tracking syndrome. He had problems predisposing him to tracking syndrome including “an excessive Q angle, internal tibial and femoral torsion, and pronation of his feet”. Mr Ferrari considered that Mr Clayton had made slow but steady progress after surgery to his left knee. However, he said that, as Mr Clayton continued to work as a maintenance fitter, with repeated squatting, long periods of kneeling and walking on concrete, his problems redeveloped. He said that Mr Clayton also gradually developed left knee pain and the knee tested positive to medial patella palpation.
35. As to Mr Clayton’s prognosis, Mr Ferrari said that he is likely to continue to experience a problem with both knees as a result of his bi-lateral patello‑femoral tracking syndrome. He said that Mr Clayton is most likely in need of different work. This of course supports what Dr A. Miller said following his examination. He said that more bench work would be advantageous for Mr Clayton but, as it is likely to be on concrete floors, he will probably experience ongoing problems with both knees.
36. In a letter dated 10 September 2002, Mr Ferrari said that at the time Mr Clayton ceased working, he was conducting his normal duties with South Pacific Tyres and that "He did not cease work due to his knee injury as this was not stopping him from working". I presume that statement was made on the basis of comments made to him by Mr Clayton. In his oral evidence Mr Ferrari said that Mr Clayton’s knee problems were not degenerative. He said that they had developed as a consequence of wear and tear. Mr Ferrari also said that at the time he gave evidence, Mr Clayton’s right knee had developed more swelling than the left knee. Under cross examination, he agreed that Mr Clayton continued to suffer pain from his knees. He said that it did, to a certain extent, affect his duties and that Mr Clayton had to change the tasks that he was performing. He maintained that Mr Clayton’s knee problem did not stop him from working. He also agreed that Mr Clayton would have ongoing problems with his knees.
37. Dr Kemp, who examined Mr Clayton on 27 April 2004, observed that Mr Clayton’s knee joints were not deformed or swollen and that there was no effusion on either side. He said that the left tibial tubercle was prominent but the patella tracking was normal on each side. The cruciate ligaments were intact and each knee joint was stable. In his oral evidence, he said that Mr Clayton’s knee joints were both normal. There was some grating sensation, which he considered to be normal for a man his age. Dr Kemp noted that Mr Clayton said to him that he had some recurrent pain in both knees, but he was able to carry out his normal maintenance work while avoiding kneeling and squatting. He strongly disagreed with the opinions that Mr Clayton’s knees prevented him from working. He agreed that Mr Clayton had symptoms from time to time and some degenerative change but, in his opinion, that would not stop him from working. He did not consider Mr Clayton’s knees to be a major disability but agreed that they were a minor disability. Under cross‑examination, Dr Kemp agreed that he did not ask Mr Clayton about each of his physical or mental problems and the effect they had on his capacity to work. He nevertheless concluded that, in his opinion, Mr Clayton stopped work due to problems with his nervous system and that it was unlikely that any of his other problems had an impact on his ability to work.
38. Upon clinical examination, Dr Horsley noted that there was a 5 cm x 4 cm bony prominence over the tibial tubercle on the left side with a previous grafting to realign the patella which had previously occurred. She said there was crepitus on flexion and extension but no significant pain on palpation. There was a good range of movement in the joint, with full flexion and extension and the joint appeared stable. The anterior cruciate, posterior cruciate, medial and lateral co-lateral ligaments were intact and there was no fusion. Her examination of Mr Clayton’s right knee revealed clicking but no specific crepitus. There was no specific tenderness on palpation and the joint was stable. The anterior cruciate, posterial cruciate, medial and lateral co-lateral ligaments were intact. She noted that Mr Clayton was able to kneel, fully squat and rise from a fully squat position and able to walk on his toes and heel.
39. In Dr Horsley’s opinion, Mr Clayton clearly suffers from an anxiety state and the symptoms suggest mild PTSD. However, she was not prepared to comment about Mr Clayton’s capacity to work as a consequence of his psychiatric problems. As far as his physical disabilities were concerned, she noted that his primary problem was the secondary cardiovascular symptoms related to his diabetes mellitus. Mr Clayton was suffering from considerable shortness of breath and angina which required further medical management. It was on that basis that she assessed him unfit for work as of that time.
40. Dr Horsley considered Mr Clayton’s problems with his knees to be degenerative. In her opinion, because of Mr Clayton’s problem with his knees, considerable work restrictions would need to be applied, including:
(a)avoidance of squatting;
(b)avoidance of kneeling;
(c)avoidance of working in awkward and confined spaces;
(d)avoidance of prolonged standing for greater than 15 to 20 minutes;
(e)avoidance of prolonged walking for greater than 30 to 40 minutes without taking a rest break;
(f)avoidance of repetitive stair climbing;
(g)avoidance of lifting items greater than 12 kgs to 15 kgs on a permanent basis; and
(h)avoidance of lifting items up to 15 kgs on a permanent basis.
41. In Dr Horsley’s opinion, the restrictions which would need to be placed on Mr Clayton in his work as a fitter and turner would impact on his capacity to do such work. Mr Clayton was unlikely to be able to find maintenance fitting work with another employer. It was her opinion that Mr Clayton’s transferable skills were unlikely to be taken up by a prospective employer in an open and competitive market place. She said that if there were duties that were consistent with the restrictions which would need to be placed on Mr Clayton in his employment as a fitter and turner, and if an employer were prepared to accept those restrictions, it was possible that Mr Clayton could work for more than eight hours per week on the basis of his knee conditions. However, she did not believe that his services would realistically be taken up by an employer.
42. Dr Horsley also noted that as Mr Clayton was 57 years old and had no computer skills, she believed that age would be a barrier to gaining any further employment.
43. It was Dr Horsley’s opinion that Mr Clayton ceased work and accepted the voluntary redundancy package due to a multitude of factors. She noted that there were issues regarding restructuring, operations in his workplace, his inability to cope with change, his alteration in mood and the fact that shift work affected his diabetes. She also considered Mr Clayton’s knees were a factor. She concluded that, on balance, at 57 years of age and with his lack of computer skills, his manual working history as a maintenance fitter and the physical restrictions which would need to be imposed on his manual work, his transferable skills would not be taken up by prospective employers in an open and competitive market place.
44. Dr Kenny examined Mr Clayton on 21 March 2001. Dr Kenny’s opinion is significant because his examination took place prior to Mr Clayton lodging his application for an increased disability pension, on 4 October 2002.
45. Dr Kenny recorded in his report that Mr Clayton said to him that, for some 18 months prior to him ceasing work on 22 December 2000, his doctor had been telling him to get out of the workforce for physical reasons. Mr Clayton also told Dr Kenny that he had a major knee problem with several operative procedures to his left knee and that was the reason why he left work. He also told Dr Kenny that he was a diabetic, had ulcers, tinea, dermatitis and a back problem and also that his blood sugar was “going erratic in the last 12 months”. He also said he was expected to learn computers for his work, his ulcers were playing up, his sugar levels were all over the place and he was drinking a lot more. He mentioned that he was suffering from mental stress but he had not, at that time, had psychiatric treatment. He told Dr Kenny that he did not trust Asians as a consequence of his experiences in Vietnam.
46. Mr Clayton told Dr Kenny that he retired from South Pacific Tyres "…because of his knee, his diabetes, his anxiety about starting again and learning about computers and his anxieties about working with Asians whom he didn’t trust". He told Dr Kenny about his knee injury and that he had four arthroscopies and one linea realignment. He told Dr Kenny that this was accepted as a worker's compensation claim. He said he had a continuing problem with his knees, that he could not kneel or stand for long and that he did not like walking distances. He said "His knees occasionally go from under him".
47. In Dr Kenny’s opinion, Mr Clayton was attempting to give a good account of himself at the examination. In his opinion, the reasons for Mr Clayton leaving work appeared to be very complex, and his inability to continue with work depended upon his general health, his knee problem, his diabetes and his peptic ulceration. He was of the view that Mr Clayton’s anxiety disorder made a minimal contribution to his ability to cope with employment. He concluded that Mr Clayton was not fit for any effective employment as a consequence of all of his disabilities.
48. Mr. Clayton, in his evidence, denied emphatically that he told Dr Kenny that he had a major knee problem and that was the reason why he left work. However, Dr Kenny said that he made notes at the time of the examination and that his report was written by reference to those notes. Under cross examination, it was put to Dr Kenny that he may have made errors in his notes. He said that was possible, but he did not think it likely, as his notes were clear, particularly as this was at the very beginning of his examination. It was then suggested that he may have recorded conclusions as history. Dr Kenny indicated that that while that may have been possible, he believed that he factually recorded what Mr Clayton told him. He said that he could not be 100 per cent certain but he did not think he made any error in his report or in his notes.
49. It is of some interest to note that, when examined by Dr J. Gelb on 15 October 2002, shortly after he had lodged his claim for an increase in the rate of disability pension, Dr Gelb recorded that Mr Clayton denied that he told Dr Kenny that he had a major knee problem and that was why he left his work as a fitter and turner. However, in a letter dated 30 August 2000 to Slater and Gordon, Solicitors, Dr R. Audehm, who was then Mr Clayton’s treating doctor said:
…
I am aware that Allan [Clayton] is having increasing problems with his knee and is now also having many other significant problems that are also impacting on his health and ability to work. We have discussed at times how long he will be able to continue working with the knee problem as a maintenance fitter but these talks were general and not specific.
50. Dr Audehm also wrote a referral letter to Dr Gelb on 26 January 2002. In that letter he asked Dr Gelb to help Mr Clayton with the emotional aspects relating to his work as a result of his experience in Vietnam. He also said:
…
Allan is also going through retiring from work related around his knees and his diabetes. He was involved in shift work and it played havoc with his diet and diabetes. Mood wise he improved greatly after stopping work. Prior to him leaving there were huge changes in his work place and he found it difficult coping with these changes.
51. In his report dated 26 May 2004, Dr Bott said that Mr Clayton had been suffering for some time with problems of depression, irritability, outbursts of anger and anxiety. He said that his psychiatric problems had a significant effect on family relationships and that it had also been a prime reason for him leaving work three and a half years previously. Dr Bott also said that, in addition to his psychological problems, Mr Clayton had multiple ongoing physical health problems including peptic ulcers, gastro‑oesophageal reflux, diabetes, a knee condition and that more recently he had been diagnosed with coronary artery disease. According to Dr Bott, Mr Clayton told him that he had consulted with his general practitioner and decided to take the termination package offered by South Pacific Tyres when it became available due to restructuring in that firm. Apparently, he said that he saw this as an attempt to “jump before I was pushed”. According to Dr Bott he did not feel that Mr Clayton was then or ever likely to be able to return to paid employment because of his psychological difficulties. He also said that Mr Clayton’s general health problems certainly added to his occupational difficulties but he considered Mr Clayton’s psychological state as the primary problem.
52. In Dr Walton’s opinion, Mr Clayton’s account of having psychiatric problems with Asian co-workers, in particular, was convincing. He agreed that Mr Clayton’s psychiatric condition made a significant contribution to his cessation of duties at South Pacific Tyres. While he agreed that that was a principal factor, in his opinion, it was probable that Mr Clayton’s multiple physical health problems also made a contribution. He disagreed with Dr Kenny’s conclusion that Mr Clayton is not suffering from significant incapacity for work specifically on psychiatric grounds. Although he agreed with Dr Bott that Mr Clayton was unfit for all work, he said that he could not describe Mr Clayton as totally and permanently incapacitated for all work purely on psychiatric grounds.
53. Clearly, there is a wide diversity of expert opinion regarding Mr Clayton’s reasons for being prevented from continuing to undertake remunerative work. It is also clear from the evidence that Mr Clayton, when making a worker's compensation claim, was readily prepared to emphasise the problems his knees caused him in respect of his work. In fact, prior to Mr Clayton lodging an application for increased disability pension on 4 October 2002, he did not hesitate to tell his treating doctor and Dr Kenny that his knees were the major reason for him being unable to continue with remunerated work as a fitter and turner. I accept Dr Kenny’s account of what Mr Clayton said to him about ceasing work, as accurate. It is supported by what was said by Dr Audehm. It appears more likely than not, that after lodging a claim for increased pension, Mr Clayton was told about the “alone” test which he had to meet, and that caused him to completely change his story and deny that he told Dr Kenny that his knees were a factor in his decision not to continue working at South Pacific Tyres. Quite clearly, his knees were a problem and they did restrict, to some extent, his ability to continue with the type of work that he was conducting as a fitter and turner which involved him squatting, kneeling, climbing into awkward places to work on machinery and climbing up and down ladders. It may not have been the sole reason why he ceased employment as a fitter and turner although, in my opinion, it most certainly was a contributing factor. The opinions of Mr Ferrari and those of Dr Kemp, that Mr Clayton’s knees did not stop him from working, do not assist. The question which must be addressed is not whether Mr Clayton’s knee problems alone prevent him from continuing with his remunerative work, but rather whether his knee problems were a contributing factor which prevented such work. Neither Mr Ferrari nor Dr Kemp addresses that issue.
54. I have no doubt that his anxiety condition also played a significant part in causing Mr Clayton to accept the redundancy package when it was offered. However, I also have no doubt that Mr Clayton “jumped before he was pushed”, as the nature of his work was about to change significantly. It was clear from his evidence that he could not cope with having to learn how to operate computers. If he were to continue to work as a fitter and turner on restricted duties, it seems to me that it was inevitable that he would at some stage need to be able to perform basic functions on a computer. His unwillingness to learn to use a computer is, in my opinion, also a significant reason why Mr Clayton will be prevented from continuing to engage in remunerative work.
55. In summary, I agree with Dr Horsley when she said that the reasons why Mr Clayton was prevented from continuing to undertake remunerative work are multifactorial.
CONCLUSION
56. Mr Clayton ceased working when he accepted a redundancy package from his former employer. He did so because of a number of difficulties he was having working as a fitter and turner. They include his anxiety problems, as well as the multiple physical problems from which he suffers, some of which are war‑caused and some of which are not. Section 24(1)(b) and s 24(1)(c) of the Act do not contemplate that factors other than accepted disabilities are only to be taken into account if they, of themselves, prevent the veteran from working. As the Federal Court said in Hendy’s case, the decision‑maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work.
57. There are a number of factors which prevent Mr Clayton from continuing to engage in remunerative work of the type which he performed prior to taking the redundancy package – i.e. as a fitter and turner. As well as his psychiatric and physical problems, he did not have any computer skills and was not willing or able to learn those skills. In addition, given that a period of time has elapsed between Mr Clayton ceasing his remunerative work and the commencement of the assessment period, his lack of recent work experience, time out of the work force and his increasing age are also contributing factors. Therefore, it is not possible to say that Mr Clayton’s accepted disabilities alone prevent him from continuing to undertake remunerative work as a fitter and turner. Accordingly, the decision of the Repatriation Commission to continue Mr Clayton’s disability pension at 100 per cent of the general rate should be affirmed.
I certify that the fifty‑seven [57] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
(sgd) Catherine Thomas
Clerk
Dates of Hearing: 14 December 2004
22 February 2005
Date of Decision: 02 June 2005
Counsel for the applicant: Mr G. Moore
Solicitor for the applicant: Peter J. LiefmanSolicitor for respondent: Ms T. Chant
Advocacy Section, Department of Veterans’ Affairs
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