Clearihan and Repatriation Commission (Veterans' entitlements)

[2021] AATA 2384

Clearihan and Repatriation Commission (Veterans' entitlements) [2021] AATA 2384 (20 July 2021)

Division:VETERANS' APPEALS DIVISION

File Number:          2016/6423

Re:Keith Clearihan

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:20 July 2021 

Place:Melbourne

The Tribunal VARIES the decision of the Respondent dated 26 November 2015 as affirmed by the Veterans’ Review Board on 28 September 2016 as follows:

a)The Respondent is liable to pay the Applicant a disability pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) for the period 24 April 2015 up to and including 30 September 2016 (24 April 2015 being the earliest date of effect); and

b)Save for the variation in (a), the decision of the Respondent dated 26 November 2015 is otherwise affirmed in all respects.

........[sgd]................................................................

R Cameron, Senior Member

Catchwords

VETERANS’ ENTITLEMENTS – special rate of pension – relevant period – war-caused conditions – whether applicant satisfies requirement of s 24(2A)(d) of the Veterans’ Entitlements Act 1986 (Cth) – alone test – consideration of non-war-caused spinal condition, voluntary redundancy package – whether applicant satisfies requirement of s 24(2A)(e) – loss of earnings test – consideration of age, voluntary redundancy package – eligibility criteria met – eligibility for special rate of pension in relevant period – decision varied

Legislation

Veterans’ Entitlements Act 1986 (Cth)

Cases

Repatriation Commission v Richmond (2014) 226 FCR 21

Smith v Repatriation Commission (2014) 220 FCR 452

REASONS FOR DECISION

R Cameron, Senior Member

20 July 2021

INTRODUCTION

1. On 18 June 2019, this Tribunal, differently constituted, affirmed a decision of the Veterans' Review Board ("the VRB") made on 28 September 2016.[1]

   [1] The reasons of this Tribunal of 18 June 2019 are Document 5 in the Tribunal Book agreed to by the parties.

2. The VRB had affirmed a decision previously made by the Respondent to this application increasing the Applicant's general rate of pension to the rate applicable to 80% impairment.[2] The pension is payable pursuant to the provisions of the Veterans Entitlements Act 1986 (Cth) ("the VE Act").

   [2] Tribunal Book, Document 1, p 14.

3. The Applicant appealed to the Federal Court of Australia. On 4 September 2020, Moshinsky J allowed the appeal in part.[3] He made orders setting aside the decision of this Tribunal and directed that the matter be remitted for further hearing and determination according to law in respect of the period from 24 July 2015 up to and including 30 September 2016 ("the relevant period").

   [3] The Orders of Justice Moshinsky are at Tribunal Book, Document 31, p 1651. His Honour's reasons are at Tribunal Book, Document 32, p 1653.

4. The Tribunal as reconstituted heard the matter without additional evidence in respect of the relevant period.

   OBSERVATIONS ON THE WITNESSES' EVIDENCE

5. No viva voce evidence was given before this Tribunal as constituted during the further hearing of the application. This Tribunal has had the opportunity to read the transcript of the evidence of those witnesses who did give viva voce evidence at the previous hearing. Having had that opportunity to read the transcript of their evidence the Tribunal accepts such evidence in full unless there is good reason to the contrary. In particular, it accepts the evidence of the Applicant, his wife and Mr Allan[4].

   [4] During the relevant period Mr Allan was the Manager-New Connections of Citipower, which made him the Applicant's "line manager". He gave evidence that he was personally involved with the Applicant following his cancer diagnosis. In his evidence, amongst other things, he described the Applicant as a good and very experienced employee. He described the Applicant as highly regarded by management.

6. As for the medical witnesses, some observations will be made later in these reasons where appropriate about the evidence they gave.

   ISSUES BEFORE THE TRIBUNAL

7. The legislative framework applicable to claims made by incapacitated veterans for a pension from the Commonwealth was carefully and accurately reproduced in the reasons of the Tribunal as previously constituted. That analysis is referred to and repeated.[5] The legislative framework need not be reproduced for the purposes of these reasons.

   [5] Paras 13-28 of the Tribunal’s reasons of 18 June 2019: Tribunal Book, Document 5, pp 129-34.

8. However, in applying the relevant section of the VE Act, the Tribunal is minded to recall the observations of Rares J in Smith v Repatriation Commission:[6]

   "The conditions specified in each of ss 23 and 24 are bedevilled with bewildering complexity. Regrettably the fog of the drafting style of this, like many Commonwealth Acts, has created a nearly impenetrable shroud over the meaning that the Court is expected to attribute to the intention of the Parliament. The cost to the community of this obscurity must be enormous."

   [6] (2014) 220 FCR 452 at [26].

9. The Applicant contends that he qualifies for a payment of a pension at the special rate for the relevant period. This attracts the operation of s 24 ("special rate of pension") of the VE Act. Relevantly, because the Applicant had reached the age of 65 years prior to the date of application for an increase to his rate of pension to the special rate, s 24(2A) applies.

10. Helpfully, several concessions concerning the eligibility criteria that must be satisfied under s 24 were made by counsel for the Respondent at the commencement of the hearing which have the effect of significantly limiting the issues that need to be determined by the Tribunal.

11. Those concessions may be summarised as follows:

    (a)Section 24(2A)(a): the Applicant made a claim under s 14 of the VE Act and subsequently, an application for an increase in his pension under s 15;

    (b)Section 24(2A)(b): the Applicant turned 65 before the application the subject of this proceeding was made;

    (c)Section 24(1)(a)-(which is applicable by operation of the first limb of s 24(2A)(c)): the Applicant’s incapacity from war-caused disabilities has been determined to be at least 70% (in fact, it was determined to be 80%)[7];

    (d)Section 24(2A)(f): the Applicant was undertaking his last paid work after he turned 65; and

    (e)Section 24(2A)(g) (as then drafted): the Applicant had been working as an employee for the same employer, Citipower, for a continuous period of at least 10 years and such employment commenced prior to him turning 65.

    [7] Tribunal Book, Document 1, p 19.

    DOES THE APPLICANT SATISFY THE REQUIREMENTS OF S 24(1)(b) OF THE VE ACT?

12. An additional concession was made by counsel for the Respondent that it was open to the Tribunal to make a finding that the Applicant satisfies the requirements of s 24(1)(b) of the VE Act. The basis of this concession was from the findings made by the Tribunal as previously constituted that the Applicant satisfied the requirements of s 24(1)(b) during the relevant period.

13. This Tribunal as constituted agrees with this concession and finds that during the relevant period the Applicant satisfied the requirements of s 24(1)(b). Having reviewed the evidence, it is apparent that the Applicant was totally incapacitated, physically and psychologically, for any work from the time he was diagnosed with prostate cancer in July 2013 until the end of September 2016. The Tribunal as previously constituted provided an extensive and careful review of the evidence that was adduced in the application. There is no reason to depart from those findings. Both the review of the evidence and the findings are referred to and repeated for the avoidance of any doubt.

14. The Applicant ceased work immediately following his diagnosis with prostate cancer in July 2013. At that time, he was 68 years of age. Following the receipt of specialist medical advice, he decided to undergo a prostatectomy. That procedure was performed on 17 October 2013. After stopping work, the Applicant received sick leave payments. When his sick leave entitlements were exhausted, further payments were received for an additional period of 12 months under an income protection insurance policy that his employer, Citipower, had in place.

15. The gravity of the prostate cancer suffered by the Applicant and the side-effects of its treatment was readily apparent from the evidence. As noted earlier, it has been extensively analysed by the Tribunal as previously constituted. It is appropriate to identify several examples of that evidence. For instance, on 7 November 2013, Dr Joon, the Applicant's treating radiation oncologist, in a report to the Applicant's treating urologist at Austin Health (Repat), Mr Bolton, observed that the Applicant had "very high risk prostate cancer"[8]. This report also recorded that the Applicant had undergone a radical prostatectomy which had shown him to have a "Gleason 7 cancer but with seminal vesicle invasion”. Dr Joon also noted that he had explained to the Applicant that he was at risk of having locally aggressive and metastatic disease. Treatment by way of radiotherapy and hormonal therapy was also foreshadowed.

    [8] Report of Dr Joon: Tribunal Book, Document 12, p 294.

16. Dr Joon in his viva voce evidence before the Tribunal as previously constituted emphasised that the Applicant was suffering from a very aggressive form of prostate cancer. The hormone and radiotherapy treatment would lead to significant fatigue and loss of energy. He also emphasised that such treatment accelerates age, and there will almost invariably be a psychological impact. He gave evidence that he most likely informed the Applicant, "you've got a really nasty prostate cancer" and words to the effect, "you've got a very aggressive prostate cancer, it's very highly likely that you've got spread, and therefore you could potentially die from the disease".[9]

    [9] Transcript of Dr Joon’s evidence: Tribunal Book, Document 20, p 1280.

17. In another letter of 18 March 2014,[10] Dr Joon reiterated that the Applicant was presently being treated for a very high-risk prostate cancer. The details of his diagnosis were repeated. Dr Joon also stated in that report that it was likely the Applicant would have significant fatigue from his treatments that could last for some months. His prognosis was expressed to be guarded because of the very high-risk nature of his disease. It also noted that, because of the Applicant's extensive medical treatment and associated possible side-effects together with his multiple medical appointments, his wife was then presently assisting as his carer.

    [10] Tribunal Book, Document 12, p 299.

18. In a report of 7 October 2014,[11] Dr Joon gave a comparatively detailed history of the diagnosis and treatment of the prostate cancer suffered by the Applicant. He observed that it was likely that the Applicant would have significant fatigue problems from his treatments that would last for some months. The prognosis was guarded because of the very high-risk nature of the disease. He noted, importantly, that due to the Applicant's age and the nature of his illness and disabilities, he would be unable to return to work.

    [11] Ibid, Document 1, p 20.

19. The date and content of this report are significant. The fact that Dr Joon records that the Applicant will be unable to return to work corroborates the evidence of the Applicant that he ceased work on medical advice. The Tribunal accepts that evidence from the Applicant. His wife gave evidence, which will be referred to later, that she was present when that medical advice was given. The Tribunal also accepts her evidence on this topic.

20. The Respondent, in the course of the hearing, sought to place much emphasis on what it said was the uncertainty of the advice that was given as described by various witnesses in the witness box. The Tribunal does not conclude that the evidence given by the witnesses was particularly vague and, in any event, that the Applicant was advised to cease work on medical grounds is corroborated by this portion of Dr Joon's report.

21. The other aspect of the report and its contents that is important is that this report was produced during the period that the Applicant was negotiating the termination of his employment with his employer, Citipower. He ceased work in December 2014.

22. The Applicant gave evidence from the witness box of the additional physical symptoms he experienced whilst undergoing radiotherapy and hormone treatment. They included trouble walking because he was really sore, pains in the bowel, frequent need to go to the toilet and incontinence which required him to wear a pad.[12]

    [12] Ibid, Document 20, p 1218. Dr Moffitt in his evidence described incontinence as one of the main side effects of the Applicant's treatment for prostate cancer: Tribunal Book, Document 21, p 1322. Dr Horsley also acknowledged in her evidence that the Applicant had to deal with the side-effect of incontinence: Tribunal Book, Document 21, p 1374. Dr Joon in several parts of his evidence explained that the side-effects on the bowel included incontinence, bleeding from the bowel, mucus discharge, and inflamed haemorrhoids: Tribunal Book, Document 20, pp 1276-7.

23. Additional symptoms were loss of concentration and frequent tiredness. He experienced nausea and regular hot flushes. A couple of times he almost passed out and he had to regularly lie down. He also had limited capacity to lift any weights or, as he put it, anything "that was reasonably weighty".[13]

    [13] Ibid, Document 20, p 1216.

24. In his viva voce evidence, Dr Joon amplified the various effects, both physical and cognitive, that the Applicant was likely to experience as a result of the diagnosis of prostate cancer and its treatment. For example, he stated that particularly with working patients, hormonal therapy affects their problem-solving ability.[14]

    [14] Reference is made in particular to the sections of transcript concerning these effects: Tribunal Book, Document 20, pp 1280-1..

25. Dr Moffit in the witness box described the disease as an aggressive, highly malignant type of prostate cancer which, because of its nature, was more likely to spread and give the Applicant secondary metastases elsewhere in his body.[15]

    [15] Tribunal Book, Document 21, p 1315.

26. Dr Moffitt described the Applicant as totally unfit for work and said that “there was no way in the world” he could return.[16]

    [16] Work Ability report: Tribunal Book, Document 13, p 518.

27. It should also be noted that Dr Moffitt advised the Applicant to cease work due to his symptoms.[17] The Applicant gave evidence that Dr Moffitt kept telling him that he would not be going back to work.[18] The Applicant’s wife gave evidence that both Dr Joon and Dr Moffitt advised the Applicant that he would not be returning to work. It should be noted that the Applicant’s wife gave evidence that she went to virtually every medical appointment with the Applicant and that she was present when they gave that advice to him.[19]

    [17] Tribunal Book, Document 21, p 1328.

    [18] Ibid, Document 20, p 1219.

    [19] Ibid, p 1288.

28. Dr Horsley an Occupational Physician retained by the Respondent, stated in her report that, on the basis of the history taken in 2014, Dr Moffitt justifiably recommended to the Applicant to cease work on physical grounds.[20] From the witness box, Dr Horsley said that it was the appropriate decision at the time for the Applicant's doctors to suggest that he retire. She stated that the Applicant was symptomatic and very unwell at the time he was aged 68 years.[21]

    [20] Ibid, Document 18, p 1192.

    [21] Ibid, Document 21, p 1376. She also said during cross-examination, in response to a question about whether the Applicant's doctors were quite correct to recommend he cease work in the year 2014, "Yes": Tribunal Book, Document 21, p 1381.

29. Further corroborative evidence of the symptoms experienced by the Applicant was given by his wife.[22] The Tribunal accepts her evidence as to what she observed concerning the symptoms suffered by the Applicant.

    [22] Ibid, Document 20, pp 1265-7.

30. The Applicant contends, and the Tribunal agrees, that the therapy itself also led to an exacerbation of the Applicant's psychiatric condition which made him so ill as to incapacitate him for work during the relevant period.

31. The Respondent outlined the timeline of critical events concerning the diagnosis and treatment of prostate cancer in the Applicant. The critical events are as follows:

    (a)August 2013: the Applicant was diagnosed with prostate cancer. There is no doubt that it was aggressive in character.

    (b)October 2013: the Applicant underwent a prostatectomy.

    (c)January 2014: treatment commenced with radiation and hormone therapy.

    (d)May 2014: radiation therapy was completed.

    (e)September 2016: hormonal therapy was completed. It was initially administered on a three-monthly basis, then six-monthly.

32. It is the Respondent's contention that there was a significant and clear pattern of improvement or, as it put it, the treatment was tracking upwards. In support of this contention, it relies on several letters from Dr Joon.

33. In a letter to Mr Bolton, on 29 January 2014, Dr Joon said, amongst other things, that the Applicant was tolerating the treatment quite well.[23] He also said that the Applicant remained quite well and therefore his radiotherapy treatment would continue.

    [23] Ibid, Document 12, p 296.

34. In a letter to Dr Moffitt of 5 February 2014,[24] Dr Joon recorded the Applicant as describing some mild vasomotor symptoms but said that the Applicant was not troubled by this.

    [24] Ibid, p 297.

35. Another letter from Dr Joon, addressed "To Whom it May Concern" of 18 March 2014,[25] described the Applicant’s short-to-medium-term outlook as good. This was said to be because he did not have any gross disease and was otherwise healthy, with little in terms of significant past medical history. He was said to be capable of travelling from a medical perspective.

    [25] Ibid, page 300.

36. Dr Joon, in a letter of 2 April 2014,[26] recorded that the Applicant had tolerated the treatment very well, with some minor urinary and bowel irritation which had now settled.

    [26] Ibid, page 301.

37. A further letter to Dr Moffitt from Dr Joon of 1 May 2014[27] noted that the Applicant had completed his radiotherapy, which was given as salvage treatment post-prostatectomy for very high-risk disease. The Applicant tolerated the treatment very well and reported no significant side-effects.

    [27] Ibid, page 302.

38. Dr Joon wrote to Mr Bolton on 10 December 2014 (bearing in mind that the Applicant ceased employment with Citipower in December 2014), after a consultation on that day with the Applicant. He reported that the patient remained well. This, the Respondent contends, is an indication of good prostate health and that the Applicant was doing well in terms of his prostate cancer and the treatment prescribed for it.

39. Reliance was also placed by the Respondent on a letter of 25 March 2014 from a military compensation advocate to Dr Moffitt[28] suggesting that the Applicant apply for a Temporary Special Rate of pension. This letter was relied upon to demonstrate that there was no impact considered beyond a 12-month timeline. The fact that the application was considered to be appropriate for a temporary rate indicated that the Applicant and those advising him, adopted the view that the treatment was temporary and not expected to have any impact beyond a 12-month timeline at that stage.

    [28] Ibid, Document 13, page 481.

40. There is no doubt that the Applicant responded well to the treatment that he undertook. That is evident from the several reports in evidence before the Tribunal referred to by the Respondent. However, it is a quantum leap to suggest that the Applicant in some way was able to return to work. The various reports described above and relied upon by the Respondent were not prepared for the purpose of assessing the Applicant's fitness to return to work. They were updates, predominantly to other medical practitioners, on the progress of his treatment. None of the reports suggest in any way that the Applicant was fit to return to work even on a part-time basis. No attempt was made by the Respondent to assert that the opinion expressed by Dr Joon in his report of 7 October 2014 that the Applicant was unable to return to work was in any way incorrect or otherwise superseded by intervening events or did not apply to the relevant period.

1. On the question of the Applicant's fitness to work, the definitive report of Dr Joon is that of 7 October 2014.[29] The contents of that report are referred to in their entirety for full force and effect.

   [29] Ibid, Document 1, page 20.

2. The report commences by recounting that the Applicant was being treated for a very high-risk prostate cancer. He was found to have a very high-risk disease as, notably, he had seminal vesical invasion, that is, “Pt3b”. It was said that the Applicant was at very high risk of having locally aggressive disease as well as possible metastatic disease of the bone and lymph node. His prognosis was guarded because of the very
   high-risk nature of his disease. It also recorded that, because of his extensive medical treatment and associated possible side-effects together with multiple medical appointments, his wife was presently assisting as his carer. Critically, for the purposes of this application, Dr Joon opined that, due to his age and the nature of his illness and disabilities, the Applicant would be unable to return to work. This opinion was the last and definitive word on the topic.

3. Dr Joon also prepared another report on 17 June 2015 addressed “To Whom It May concern”.[30] This is during the relevant period. Once again, he described the Applicant’s prostate cancer in this report as a “very high-risk disease”. Amongst other things, he said that the Applicant notably had a tumour invading directly into the left seminal vesical. The Applicant was described as a very high-risk prostate cancer patient who was at risk of both local and metastatic disease.

   [30] Ibid, page 21.

4. Dr Joon outlined the nature of the radiotherapy and hormonal therapy undertaken. He opined that, because of the extensive nature of his disease and treatments, the Applicant has had issues with respect to incontinence and erectile dysfunction in addition to the hot flushes and significant fatigue resulting from the hormonal therapy. Dr Joon stated that the Applicant’s impotence and incontinence were prolonged issues and were more likely than not to be permanent. He stated that the Applicant would continue on hormonal therapy for the next 1 to 2 years. There is no suggestion in this report that the Applicant had any capacity for work. Likewise, there is no suggestion that the opinion expressed in his report of 7 October 2014, that the Applicant was unable to return to work, did not still apply. The reference to incontinence by Dr Joon in that report is also consistent with the evidence that was given by the Applicant, his wife and several treating doctors that has been referred to earlier in these reasons.

5. The contents of these reports are consistent with the evidence that the Applicant gave as to the medical advice he received together with the side-effects he experienced from the treatment for his illness. Naturally, it also accords with Dr Joon's evidence on the topics both as to the nature of his disease and the side-effects of its treatment. The contents of these reports from Dr Joon are also consistent with the evidence given by Dr Moffitt that the Applicant was advised that he could not return to work because of the illness. The wisdom of that advice was reinforced by Dr Horsley in her evidence both from the witness box and in her report.

6. Therefore, the Tribunal rejects the contention that the Applicant's prostate cancer condition and its treatment were temporary and not expected to have any impact beyond a 12-month timeline. Dr Joon’s report of 7 October 2014 was written more than 12 months after the Applicant’s diagnosis, after the completion of the radiation therapy but whilst the hormonal therapy was continuing. His report of 17 June 2015 was written just short of two years after the diagnosis and whilst the Applicant continued to undergo hormonal therapy. He continued to receive hormonal therapy for the whole of the relevant period. The symptoms caused by such therapy incapacitated him for the whole of the relevant period. Further details of those symptoms have already been articulated earlier in these reasons. The contents of these reports together with Dr Joon’s evidence are not indicative of someone whose illness was improving in the way portrayed by the Respondent in submissions to the Tribunal. His illness and its treatment continued throughout the relevant period and he had no capacity for work. The Tribunal finds that the Applicant was totally incapacitated, physically and psychologically, by reason of the diagnosis and treatment of prostate cancer from the time of diagnosis in July 2013 and throughout the relevant period.

7. What this Tribunal is left to determine are the issues arising from s 24(2A)(d), the "alone test", and s 24(2A)(e), the "loss of earnings test".

8. Under s 24(2A)(d), the Tribunal must be satisfied that the Applicant is because of his more caused injuries or diseases, alone, prevented during the relevant period from continuing to undertake the remunerative work (last paid work) that he was last undertaking prior to making his application for the applicable pension.

   DOES THE APPLICANT SATISFY THE ALONE TEST UNDER S 24(2A)(d) OF THE VE ACT?

9. The Applicant contends that the prostate cancer diagnosis was the sole reason that he ceased work with Citipower. The physical and mental symptoms of this diagnosis rendered him wholly incapable of performing any remunerative work.

10. The Respondent contended, quite understandably, that the starting point is to consider the language used in the section itself. The words of the section are clear and unequivocal and exclude any other non-war-caused factor contributing to the preventative effect. Reference was made particularly to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Richmond.[31] That decision reviewed several authorities and reiterated that if other non-war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate. The Full Court observed that whilst this may be seen as a harsh result, it arises from the plain words of the section. It reflects the intention of Parliament that the special rate of pension is reserved for a limited category of veterans.

    [31] (2014) 226 FCR 21. The consideration of the Full Court at pages 35 and 36, in particular, was referred to.

11. The non-war-caused preventative factor relied upon by the Respondent as contributing to the preventative effect was the thoracic laminectomy for a T5/6 meningioma undertaken on the Applicant in September 2014. The Respondent contends that this back surgery, which was not war-caused, had a contributing role to play in the Applicant’s cessation of work. Therefore, the Respondent submits the Tribunal, as decision-maker, cannot say with confidence that there was no other preventative factor.

12. In support of its contention that the back surgery was a preventative factor, the Respondent carefully directed the Tribunal's attention to several passages of the transcript of the previous hearing.

13. It highlighted portions of the evidence of Dr Moffitt. In one passage, Dr Moffitt stated that the Applicant was likely to experience back pain as an ongoing issue and it would probably get worse as he got older. The reason for this is that he would be more susceptible to worsening osteoarthritis of the thoracic spine in the area that had been operated on.[32]

    [32] Tribunal Book, Document 21, p 1327, lines 26-33.

14. In another passage, Dr Moffitt was asked whether the laminectomy and recovery from that would have been another factor that was preventing the Applicant working at the time, to which he replied that was correct.

15. Both the Applicant and his wife gave evidence that the laminectomy was a setback for him. They also gave evidence as to the effect it had on his capacity to exercise. The capacity he had to exercise before the back surgery was explored in some detail by the Respondent when the Applicant and his wife were in the witness box. His capacity to exercise in the gym was canvassed. The fact that pre-surgery, he played doubles tennis for up to an hour per match was also explored in the witness box. The Applicant readily conceded, to his credit, that it was approximately eight or nine months after the surgery on his back before he was able to recommence exercise at the gym. This is before the commencement of the relevant period. He did, however, also give evidence that he was up and walking a few days after the surgery itself. He saw walking as a means of rehabilitation. He was able to gradually increase the distances that he walked.

16. The Respondent challenged the Applicant's account of the reasons for him seeking the redundancy. It contended that the diagnosis of the back condition largely coincided with the approaches that the Applicant made to his employer about the possibility of taking a redundancy package. It also submitted that one of the reasons the Applicant did not wish to continue employment was the impact of the surgery on his back and the outlook for recovery at that time. This was put in the context that the Respondent contends that the treatment for the Applicant's prostate cancer was going well. More will be said about this later, but the Tribunal accepts the evidence of the Applicant and his wife on this topic.

17. The Applicant said that "the back operation was neither here nor there, it was just a back operation. It had no bearing on me retiring."[33] This evidence from the Applicant is accepted by the Tribunal.

    [33] Ibid, p 1228, lines 19-21.

18. The Applicant's wife, when questioned, said that the Applicant’s back surgery had nothing to do with his decision to cease work. She also said that the back operation did not inform the decision to accept the redundancy. This evidence was tackled searchingly by the Respondent both in cross-examination and submissions. However, the Tribunal accepts this evidence from the Applicant’s wife as corroborating the Applicant’s version.

19. Additionally, the Applicant resisted the Respondent's contentions in several ways.

20. The Applicant relied upon the evidence given by Dr Joon. That evidence confirms that it was not possible for the Applicant to return to work following the diagnosis of prostate cancer. Some of the evidence of Dr Joon has been referred to previously in these reasons. The physical symptoms and side effects are apparent. There are also mental symptoms.

21. The Applicant also relied upon the evidence of Dr Horsley and in particular the contents of her report of 21 June 2017.[34] It should be recalled that Dr Horsley was retained by the Respondent. She is a vastly experienced Occupational Physician. She expressed the opinion that the Applicant ceased work in the context of physical and mental symptoms relating to his prostate cancer diagnosis. She noted that the Applicant was advised by his general practitioner not to return to work. This advice from the general practitioner, Dr Moffitt, was said by Dr Horsley to be justifiable.

    [34] Ibid, Document 18.

22. Dr Horsley also considered the question of the thoracic laminectomy for the T5/6 meningioma. She observed that the Applicant had a good response to the surgery. Nowhere in her report does she assert that it was a preventative factor that played a role in his cessation of work. It should be reiterated that she concluded that the Applicant stopped work due to the physical and mental symptoms relating to the prostate cancer diagnosis. Nowhere in her report or her evidence in the witness box did she suggest that the Applicant’s back condition and the post-operative effects of the thoracic laminectomy for the T5/6 meningioma were a preventative factor.

23. Indeed, in her evidence from the witness box Dr Horsley said that in a clerical environment the Applicant's back would not be an issue. He might need to get up periodically. However, he could cope with that. She stated the Applicant had a good response to the surgery, based upon the history that she took.[35]

    [35] Ibid, p 1380-1381.

24. Dr Horsley also readily conceded in the witness box that once the Applicant had recovered from his back surgery in September 2014 it was not a barrier to him re-entering the workforce. She also conceded that he would be able to return to clerical work after the surgery, probably within 3 to 12 months.[36]

    [36] Ibid, p 1385.

25. Much was made by both parties of Dr Joon's evidence concerning the thoracic surgery that the Applicant underwent. Whilst he conceded he had some surgical experience, he is not a back surgeon. Dr Joon observed that an operation on the spine is never a small operation, particularly something which has to be accessed in the spinal canal. It was described by him as a fairly significant operation. He also emphasised that post-operative recovery from spinal surgery takes time. He stated that he found that after an anaesthetic people after take at least 3 to 6 months to recover. However, he did say that the Applicant recovered well. This was consistent with the evidence of both the Applicant and his wife on this topic.

26. As for Dr Moffitt's evidence, the Tribunal does not consider that it went so far as to establish the thoracic surgery as being a preventative factor in the relevant sense. Also, whilst Dr Moffitt, it must be acknowledged, foreshadowed potential problems that the Applicant might experience, his evidence did not go so far as to identify those potential problems as existing at the time of the surgery or likely to occur later during the relevant period.

27. It should also be observed that the Respondent was highly critical of Dr Moffitt's evidence. It encouraged this Tribunal as currently constituted to accept what it described as "fairly compelling reasons" of the previous member as to why Dr Moffitt's evidence was "tainted".[37] Yet it did rely upon Dr Moffitt's evidence somewhat heavily to establish that the Applicant's back condition arising from the thoracic surgery was a preventative factor within the meaning of the section.

    [37] Ibid, Document 5, pp 207-9, [264]-[268].

28. This Tribunal did not have the benefit of seeing Dr Moffitt in the witness box. An examination of the transcript reveals that certainly in cross-examination his evidence was relatively robust. It is difficult for this Tribunal to conclude that he was an advocate for his patient as opposed to someone who was genuinely concerned for his welfare in a rather spirited way, as some medical practitioners can be. He readily acknowledged that he has consulted for many years for veterans making claims. It does not necessarily mean that his evidence should be discounted in totality. The passages of his evidence that were relied upon by the Respondent tend to the Tribunal to reflect that his evidence was credible even if given in a robust manner.

29. Reference should be made to the clinical notes that were in evidence from the Applicant's treating physiotherapist, Luke Davis, who, it appears, assisted with his extensive rehabilitation program post-surgery.[38] There was a clinical note from 29 April 2015 which observed that the Applicant was "medically stable" and "has no major restrictions with exercise". This note recorded that the Applicant had undergone recent surgery including the back operation for the meningioma.

    [38] Ibid, Document 13, p 663.

30. Another clinical note of 4 May 2015 recounted the exercise program that the Applicant had undertaken. It was an extensive program with which he clearly coped quite well. An entry in those clinical notes recorded that the Applicant "managed well with all exercises". These entries are indicative of the Applicant having made a full recovery in a physical sense by April and May 2015. The exercise program itself, together with the fact that he was back at the gym within eight or nine months of the surgery, leads the Tribunal to conclude that, by the commencement of the relevant period, the Applicant’s back condition was not a preventative factor.

31. The Applicant also relied upon his own evidence and that of his wife. As noted earlier in these reasons, the Tribunal finds no basis to reject that evidence and accepts it. The evidence consistently given by the Applicant was that he did not want to leave work. He enjoyed his work[39]. It should also be recalled that there was evidence from Mr Allan that there were several people working at Citipower aged well into their 70s. There was no reason why the Applicant could not have continued working there but for the diagnosed condition of prostate cancer and the side-effects caused by its treatment, namely radiotherapy and hormone therapy. There were also the psychological effects which were recounted in several medical reports before the Tribunal.

    [39] He said he loved his work and it was the best job he’d had: Tribunal Book, Document 20, p 1212.

32. On the question of age, Dr Horsley stated in cross-examination that if the Applicant had not had the prostate cancer, or any of its symptoms, and remained in the job with Citipower, she could not see why he could not have been able to continue working beyond the age of 70. She was also asked whether he could have worked beyond the age of 73, to which she responded that age was not an issue.[40]

    [40] Tribunal Book, Document 21, p 1384.

33. The Applicant and his wife, as noted earlier, gave evidence as to the effects of the diagnosis of prostate cancer and the side-effects of its treatment on the Applicant. This evidence is accepted by the Tribunal.

34. The Applicant's evidence was that he did not return to work at Citipower on medical advice. He told Mr Allan that all the medical advice was that he would not be coming back to work.[41] It should also be borne in mind that that medical advice was consistent with Applicant’s symptoms from the prostate cancer and the side-effects of its treatment which have been recounted earlier. The Applicant’s evidence on this topic was not seriously challenged. It is accepted by the Tribunal.

    [41] Ibid, Document 20, p 1220.

35. It was specifically put to the Applicant in cross-examination that the availability of a redundancy package was the reason he ceased employment with Citipower. He steadfastly denied the suggestion. As noted earlier, his evidence was that he ceased work on medical advice. After receiving such medical advice, he had a discussion with Mr Allan who raised that there was the possibility that a redundancy package might be available. The Applicant said he did not know about it, as noted earlier, when he told them he was not returning to work on medical grounds.[42]

    [42] The Applicant’s evidence at Tribunal Book, Document 20, p 1249 is referred to.

36. The Applicant’s wife gave evidence that Drs Joon and Moffitt were telling them that he would not be returning to work before the redundancy was even offered.[43] In response to a question about whether the back surgery was a factor in determining not to return to work, she responded that it had nothing to do with it. This evidence is accepted by the Tribunal.

    [43] Tribunal Book, Document 20, p 1271.

37. The Tribunal accepts that the eventual availability of a redundancy package was not the reason that the Applicant ceased work. This is mentioned because the Respondent challenged the reasons for the redundancy as advanced by the Applicant. The Tribunal rejects this contention. It should be repeated that it accepts the evidence of the Applicant and his wife and, where appropriate, Mr Allan. The Tribunal accepts that the Applicant was a valued employee of Citipower. The Applicant gave evidence, and it was corroborated by Mr Allan, that he informed Mr Allan he would not be returning to work as a result of the diagnosis of prostate cancer. It was in that context that Mr Allan mentioned to him the possibility of a redundancy arising from a foreshadowed corporate restructure at Citipower. Mr Allan at one stage in his evidence even suggested that he raised the possibility of a redundancy on compassionate grounds for a long-serving and valued employee who, due to medical complications, would no longer be able to continue working. The Applicant steadfastly maintained that he knew nothing about any potential possibility of a redundancy when he informed Mr Allan and Citipower that he would not be returning to work because of the diagnosis of prostate cancer. Mr Allan corroborated this evidence by saying he was clear that the Applicant was only informed about the restructure and potential for redundancy after he had told him that he had decided to cease work. The Tribunal accepts this evidence.

1. It should also be noted concerning Mr Allan that his evidence did not indicate that the Applicant said to him that one of the reasons he ceased work was because of his spinal surgery. It was never put to Mr Allan that this was the case. The cross-examination of Mr Allan on the Applicant’s back surgery being a factor in the Applicant’s decision to stop work was extremely limited. In response to questions put on behalf of the Respondent, Mr Allan said he didn’t have any idea about the nature of the operation in August or September 2014. All he knew was that the Applicant had to return to have his levels checked and that he believed there may have been some follow-up surgery. When pressed, Mr Allan said he couldn’t positively say what was mentioned but from his recollection of discussions he had on the phone with the Applicant things were not quite as good as he had hoped for with his surgery. The precise nature of the surgery was not identified. There was no reason not to accept Mr Allan’s evidence on this topic. It is another reason why the Tribunal rejects the contention that the spinal surgery was a preventative factor.

2. On the question of the Applicant's spinal condition and the thoracic surgery undertaken on it, the Tribunal concludes that it did not contribute to preventing him from continuing to undertake the remunerative work that he was last undertaking before he made the claim. The work he was undertaking was clerical work of the type described elsewhere in these reasons. It accepts the contention of the Applicant that on the medical evidence, particularly that of Dr Horsley, the Applicant had made a good recovery from the thoracic surgery. By the time of the commencement of the relevant period, he was not suffering from any incapacity for work as a result of the back condition or the thoracic surgery and its after-effects. The Tribunal also accepts the contention of the Applicant that, on the evidence before it concerning the thoracic surgery for meningioma, it amounts, at its highest, to a temporary setback prior to the commencement of the relevant period. It is not a preventative factor within the meaning of s 24(2A)(d) of the VE Act.

3. The Tribunal should also observe that during this hearing the Respondent did not advance any contention or argument that during the relevant period a preventative factor was that the Applicant had settled into retired life and that he was not willing to relinquish this status. This was a factor accepted by the Tribunal as previously constituted.

4. Therefore, the Tribunal finds that the Applicant has satisfied s 24(2A)(d) of the VE Act.

   DOES THE APPLICANT SATISFY THE LOSS OF EARNINGS TEST UNDER SECTION 24(2A)(e) OF THE VE ACT?

5. Section 24(2A)(e) of the VE Act requires the Tribunal to be satisfied that because the Applicant is prevented from undertaking his last paid work during the relevant period, he is suffering a loss of salary or wages or of earnings on his own account that he would not be suffering if he was free from the incapacity, which in this case was the symptoms of prostate cancer and its treatment.

6. Section 24(2B) of the VE Act provides that, for the purposes of s 24(2A)(e), the Applicant is deemed not to be suffering a loss of salary or wages because of an incapacity if he has ceased to engage in remunerative work for reasons other than his incapacity from the war caused disease or is incapacitated or prevented from engaging in remunerative work for some other reason.

7. Section 24(2B) must be addressed by answering two questions as follows:

   (a)Did the Applicant cease to engage in remunerative work for reasons other than his incapacity from war cause conditions; and/or

   (b)Is the Applicant prevented from engaging in remunerative work during the relevant period for some other reason?

8. The last paid work undertaken by the Applicant prior to the commencement of the relevant period on 24 July 2015 was clerical work. He was engaged by Citipower in the New Connections division. His duties involved customer service. Included in those duties were interaction with customers seeking new accounts and liaison with field staff. His clerical duties included data entry on the Citipower computer system.

9. The Respondent seized upon the issue of, and circumstances surrounding, the acceptance by the Applicant of a redundancy package. It contended that the Applicant was not able to establish a loss and that he ceased work as a result of his decision to accept the redundancy. Particular emphasis was also placed upon the contents of an email, or perhaps more accurately, an email exchange between the Applicant and Mr Allan that took place on 1 October 2014.[44] Mr Allan explained to the Applicant the details of the redundancies likely to be on offer as part of the corporate restructure of Citipower. He also requested that the Applicant let him know if he was “interested in a no obligations estimate or more detail about the changes”. The Applicant responded with the following words: “I’ll have to get some financial advice; not sure at this stage what to do.”

   [44] Ibid, Document 24, p 1582.

10. It was submitted by the Respondent that objectively, when one looked at the contents of this email response from the Applicant, it showed that financial matters, rather than medical, were part of the considerations in his mind. Several things should be observed about this submission. When the Applicant was in the witness box and cross-examined, the contents of the email and this proposition was not put to him. The Tribunal also finds it hard, on reading the email concerned and in light of having accepted the Applicant’s evidence that the availability of the redundancy package had nothing to do with his decision to cease work, rather the decision was based on medical advice, to construe it in the way contended by the Respondent. On any reading or consideration of the email, it does not give rise to “some other reason” within the meaning of s 24(2B)(b). At most, it means what it says; that the Applicant was uncertain and needed to obtain some financial advice. That seems perfectly understandable to the Tribunal.

11. The Applicant gave evidence that he was not planning to retire in 2014. But for the diagnosis of prostate cancer and its treatment, his evidence was that he would have continued to work for some years to come.[45] Mr Allan confirmed that the Applicant was a very good and experienced employee. He also said the Applicant would not have been forced out and could have elected to stay on for as long as he wanted. This was notwithstanding the proposed corporate restructure which has been canvassed earlier in these reasons. As noted earlier, Mr Allan’s evidence was that there were three or four employees that he knew of still working for Citipower at 70 or 80 years of age.[46] This evidence was not challenged and the Tribunal accepts it.

    [45] Ibid, Document 20, p 1226.

    [46] Ibid, p 1299.

12. The evidence from the Applicant and his wife was that he enjoyed his job and did not want to retire. Indeed, he was most unhappy about the prospect. For instance, he gave evidence that if he had not had the prostate cancer he would probably have “worked right through until whenever”. Certainly, he said, in 2015 he would still have been working.[47] Neither of them had discussed retirement before the diagnosis of prostate cancer. His wife gave evidence that, if he had not been unwell, he would have kept working beyond the age of 70.[48] This was consistent with the evidence of Mr Allan. Mr Allan said that the Applicant never mentioned retirement to him. It was never discussed prior to the Applicant coming to him when he was very ill and then mentioning it. This evidence is accepted by the Tribunal.

    [47] Ibid, p 1226.

    [48] Ibid, p 1272.

13. It should also be noted Mr Allen gave evidence that the redundancies were not compulsory; they were not targeted. He further stated that the Applicant could have elected to stay; he would not have been forced out. Those people that were employed at the time and elected to stay are still working there. The Applicant’s job would have remained open for him if he was well enough to take it.[49] This evidence was not challenged.

    [49] Ibid, p 1299.

14. Although she did not give evidence, there was a statement tendered, the contents of which were not challenged, from Miranda Toohey, a Personnel Officer employed by Citipower in November 2014.[50] Ms Toohey processed the Applicant’s application for voluntary redundancy. She corroborated Mr Allan’s evidence that Citipower introduced a voluntary redundancy program. She also corroborated that employees were not targeted and were not forced to accept a redundancy.

    [50] Ibid, p 237.

15. The contents of paragraphs 85 to 91 of these reasons concerning the termination of the Applicant’s employment with Citipower are referred to and repeated.

16. By reason of these matters, the Tribunal finds that the decision to cease work which caused the Applicant a loss of salary wages and earnings on his own account was solely due to the incapacity caused by prostate cancer and the side-effects of his treatment. He ceased work on medical advice.

17. With respect to this issue the Respondent also reprised its contentions concerning the spinal surgery. It submitted that one cannot ignore the clear evidence that the spinal surgery was significant, both in terms of its treatment and the recovery that followed. The Tribunal has found that the thoracic surgery that the Applicant underwent did not cause and was not a factor in the Applicant's decision to retire. The reasons articulated in the previous section for this finding are referred to and repeated.

18. The Tribunal concludes that the Applicant, by reason of the physical and psychological effects of the diagnosis of prostate cancer and the side-effects of its treatment outlined above, was so prevented from undertaking his last paid work during the relevant period causing him to suffer a loss of salary or wages during that period that he would not have otherwise suffered but for that accepted condition of the prostate cancer.

19. For these reasons, the Applicant satisfied the requirements of s 24(2A)(e) of the VE Act.

    CONCLUSION

20. The Tribunal finds that the Applicant satisfies all eligibility criteria under s 24 of the VE Act for payment of a special rate of pension in the relevant period.

21. The parties lodged an agreed form of the orders the Tribunal ought to make if it found in favour of the Applicant. The Tribunal has adopted the form of those orders below.

    DECISION

22. For these reasons, the Tribunal varies the decision of the Respondent dated 26 November 2015 as affirmed by the VRB on 28 September 2016 as follows:

    (a)The Respondent is liable to pay the Applicant a disability pension under s 24 of the VE Act for the period 24 April 2015 up to and including 30 September 2016 (24 April 2015 being the earliest date of effect); and

    (b)Save for the variation in (a), the decision of the Respondent dated 26 November 2015 is otherwise affirmed in all respects.

23. The Tribunal notes that the assessment of pension payable for the period 24 April 2015 up to and including 30 September 2016 should be calculated by the Respondent with a date of effect of 24 April 2015. The Tribunal also notes that from 1 October 2016, the Applicant’s disability pension reverts to 80% of the General Rate.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member.

........[sgd]...................................................

Associate

Dated: 20 July 2021

Dates of hearing:	15 April 2021
Counsel for the Applicant:	Ms Fiona Ryan
Solicitors for the Applicant:	Williams Winter Solicitors
Counsel for the Respondent:	Ms Catherine Symons
Solicitors for the Respondent:	Australian Government Solicitor