CLIFFORD MAGOR and REPATRIATION COMMISSION
[2009] AATA 736
•25 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 736
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/4762, 2008/5210
VETERANS' APPEALS DIVISION ) Re CLIFFORD MAGOR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date25 September 2009
PlaceMelbourne
Decision The Tribunal affirms the decisions under review. (sgd) Egon Fice
Member
VETERANS’ AFFAIRS – entitlement ‑ whether cervical spondylosis war-caused as a result of war-caused lumbar spondylosis – clinical onset ‑ assessment – whether entitled to Intermediate or Special Rate – whether totally and permanently incapacitated – alone test
Veterans’ Entitlement Act 1986 ss 7, 9, 13(1), 15(1), 15(2), 19(5C), 19(6), 21(2), 23, 24, 24A, 28, 101(1), 120(1), 120(3), 120(4), 120A, 120A(3), 196B(2) or (11)
Statement of Principles concerning cervical spondylosis No 33 of 2005
Statement of Principles concerning cervical spondylosis No 76 of 2008Statement of Principles concerning posttraumatic stress disorder No 6 of 2008
Byrnes v Repatriation Commission (1993) 177 CLR 564
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (1999) 58 ALD 394
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Law v Repatriation Commission (1980) 29 ALR 64
Lees v Repatriation Commission (2002) 125 FCR 331
Peacock v Repatriation Commission (2004) 40 AAR 143
Re Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
Walsh v Rother District Council [1978] 1 ALL ER 510
Wright v Repatriation Commission [2005] FCA 7
Taber’s Cyclopedic Medical Dictionary
REASONS FOR DECISION
25 September 2009 Mr Egon Fice, Member 1. Mr Clifford Magor served with the Australian Army between July 1966 and October 1971. He had operational service in South Vietnam between April 1969 and April 1970. Mr Magor suffers from a number of medical conditions. The Repatriation Commission (the Commission) has accepted the following disabilities as having been war-caused:
(a)lumbar spondylosis;
(b)chronic solar skin damage;
(c)bilateral sensorineural hearing loss;
(d)post traumatic stress disorder;
(e)hypertension; and
(f)oedema.
For those accepted disabilities, Mr Magor receives a disability pension at 100 per cent of the General Rate.
2. Mr Magor made a claim for the Special Rate of pension. On 26 April 2006 the Commission refused to increase Mr Magor’s disability pension beyond 100 per cent of the General Rate. The Veterans’ Review Board (VRB) affirmed the decision on 14 August 2007.
3. Mr Magor made a further claim for the disability pension on 19 March 2008 in respect of incapacity caused by cervical spondylosis. On 9 April 2008 the Commission refused this claim on the ground that this condition was not war‑caused. The VRB affirmed this decision on 19 September 2008. Mr Magor now seeks a review of both decisions.
4. Given that a finding in Mr Magor’s favour regarding his claim for incapacity due to cervical spondylosis may affect the outcome of his claim for a pension at the Special Rate, it is appropriate that I first deal with the cervical spondylosis claim.
5. The issues which I must decide are:
(a)whether Mr Magor’s cervical spondylosis is war-caused as that term is defined in the Veterans’ Entitlements Act 1986 (VE Act); and
(b)whether Mr Magor satisfies the requirements under Part II Division 4 of the VE Act regarding the Intermediate Rate or Special Rate of pension.
CERVICAL SPONDYLOSIS
Clinical Onset
6. Although diagnosis of this claimed condition does not appear to be in dispute, there was some controversy about the clinical onset of the disease. In an x-ray report dated 30 November 2004 regarding Mr Magor’s cervical spine, Dr M Petrucco said:
Facet joint degenerative changes seen throughout the cervical spine. At the C4/5 level bilaterally some foraminal narrowing is noted. Also at the C5/6 level. Disc spaces are preserved. No destructive process or cervical rib identified. Alignment is maintained.
7.The word clinical is defined in Taber’s Cyclopedic Medical Dictionary as being:
Founded on actual observation and treatment of patients as distinguished from data or facts obtained by experimentational pathology.
8. The Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 referred to the evidence of two medical professionals, Professor Pitt and Dr King, regarding the meaning of clinical onset. Professor Pitt said, at [20]:
Its general use in medicine is to indicate the ability to diagnose an abnormality using basic clinical tools which mean tools that are readily available to the medical practitioner. This would for instance include a history and examination, an electrocardiogram and also straightforward investigations such as a chest X-ray and even including more high technological procedures such as coronary angiography, CT scanning or magnetic resonance imaging.
9. Dr King said that the use of clinical together with onset implies something that a doctor can identify as the start of signs or symptoms of the disease process. He explained, at [22]:
Clinical onset I think is a medical concept of when a doctor or a patient becomes aware that they have a problem so the clinical onset, as I have said here, may be the symptoms or it may be that we have found that the patient has an abnormality on a cardiograph. I think perhaps a good example is the patient who is perfectly well and comes in and you find that they have high blood pressure, even though they have got no symptoms of it, the clinical onset of their high blood pressure is when the doctor discovers it, although they may have had it for years and years and years before.
10. The Tribunal summed up the evidence and said, at [23]:
On that evidence we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
11. The meaning of clinical onset given by the Tribunal in Robertson’s case seems to have been accepted by Branson J in Repatriation Commission v Cornelius [2002] FCA 750. Weinberg J also referred to it in ReRepatriation Commission v Gosewinckel (1999) 59 ALD 690. In that case, his Honour referred to the expression clinical onset in the context of the Statement of Principles (SoP) dealing with generalised anxiety disorder (GAD). The SoP for GAD required the presence of a number of distinct symptoms of which at least three were all present.
12. The Full Court of the Federal Court (Heerey, Moore and Kiefel JJ) in Lees v Repatriation Commission (2002) 125 FCR 331 referred to Gosewinckel’s case. The Court was dealing with counsel’s submission that, in relation to a disease of gradual onset, one should approach the question of clinical onset within the required period on the footing that it would be sufficient if only one of the prescribed symptoms may have manifested itself. The Court said, at 337:
However this approach overlooks the clear words of the applicable Statements of Principles and the function they perform in the legislative scheme. In relation to SoP1, the definition of "generalised anxiety disorder" does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest.
The Court explained that while SoPs are directed towards causation, the means of establishing the necessarily link in the relevant SoP between the disease and war service for the purpose of establishing a reasonable hypothesis is to require that the symptoms or features of the disease are revealed within the timeframe expressed in the SoP. As the Court said, this is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.
13. The relevant SoP concerning cervical spondylosis is Instrument Nº 33 of 2005 as amended by Instrument Nº 76 of 2008. The 2008 amendment deals only with the operation of high performance aircraft and is not relevant to this case. For the purposes of Instrument Nº 33 of 2005, cervical spondylosis means:
Degenerative changes affecting the cervical vertebrae or vertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis
14. Therefore, in my view, the correct approach to determining the clinical onset of Mr Magor’s cervical spondylosis requires an examination of the evidence to determine the point in time when he experienced local pain and stiffness as a result of degenerative changes affecting the cervical vertebrae or vertebral discs, or when he experienced symptoms or signs of cervical cord or cervical nerve root compression.
15. The fact that radiography revealed the presence of cervical spondylosis some eight months after Mr Magor first experienced symptoms does not alter the date of clinical onset. In fact, use of the word onset in the expression may tend to mislead. Although onset is generally used to describe the beginning or commencement of an event, that is not the way it is used in the context of the expression in question. In effect, the expression deems the onset to have occurred either when a person becomes aware of some feature or symptom which enables a doctor to say a disease is present, or when a finding is made on investigation which would enable a doctor to find the presence of a disease. The actual onset, particularly where the person is asymptomatic for a period of time, most likely would have occurred some time before clinical onset.
16. Mr G Purcell, who appeared on behalf of the Commission, submitted that the clinical onset of Mr Magor’s cervical spondylosis occurred prior to March 2004, when Mr Magor said he suffered a back spasm and fell, hitting his head. Mr Purcell submitted that the medical evidence disclosed Mr Magor’s condition was long‑standing and his fall merely triggered the symptoms.
17. Mr Purcell was also critical of Mr Magor’s evidence regarding the trauma he said he suffered to his neck. In his written statement, Mr Magor said he injured his neck about one or two years after he ceased work in 2001. However, prior to that written statement being tendered in evidence, Mr Magor corrected the reference to one or two years and said the injury occurred in 2004, some three years after he ceased work. Although Mr Purcell invited me to find that Mr Magor’s evidence was unreliable about this event, to do so would require me to ignore substantial supporting evidence.
18. Mr W Garrett gave evidence which supported Mr Magor’s account of the injury he suffered to his neck. Mr Garrett’s evidence was that in March 2004, Mr Magor and his wife were staying with Mr Garrett and his wife at Hamilton. On returning from a Legacy dinner, which was the purpose of the visit, Mr Magor stumbled headfirst into a hallway wall at Mr Garrett’s house. Mr Garret recalled the approximate date because it was the time of his changeover as President of Legacy. That was the reason for the dinner. Mr Garrett said he believed it occurred on the second Sunday of March 2004. Mrs Magor also gave evidence to that effect and her memory was it happened somewhere between 14 and 20 March 2004. She was of the view that it was the third weekend in March 2004.
19. In addition, Dr D Hartley, Mr Magor’s general practitioner (GP), wrote a letter dated 13 May 2005 addressed to the Department of Veterans’ Affairs (DVA). In that letter he said Mr Magor attended his rooms in December 2004 complaining of a painful neck and he gave a history of having suffered a severe spasm in his neck (Mr Magor said this was an error and was intended to be a reference to his back) which caused him to fall forward. The fall was observed by several people. Dr Hartley did not refer to a date on which the event was said to have taken place. Dr Hartley’s clinical notes of 29 November 2004 describe a consultation on that day regarding painful cervical spine and spasm in lat doisi.
20. In his cervical spondylosis claim, which is dated 20 April 2005, Mr Magor said the fall caused him massive pain in the neck area. He said at first he took pain relief tablets as he considered the injury was a strain. However, after some time the pain reached the stage where he could no longer cope and he visited his GP. In fact, in his written statement dated 26 September 2007, Mr Magor said he consulted his doctor a few days after the incident, when he returned home from Hamilton. When Mr Purcell put this to Mr Magor in cross-examination, Mr Magor said he thought it might be likely to have been a few months rather than a few days. He said he did not have a clear recollection. When Mr Purcell put to Mr Magor that it was not until November of that year when he consulted his GP, Mr Magor said it was possible. In his evidence to the VRB on 19 September 2008, Mr Magor said he went to see the doctor when we got back to Mildura. When asked whether that was the next day, Mr Magor said no, it was a couple of days later.
21. Mr Purcell also referred to Dr Hartley’s clinical notes, which recorded Mr Magor’s consultations with Dr Hartley between March 2004 and November 2004. Mr Purcell submitted the clinical notes did not indicate that Mr Magor was seeking additional medication for the pain in his neck following his claimed injury. Dr Hartley’s clinical notes indicate that Mr Magor was prescribed Vioxx, a non-steroidal anti-inflammatory agent, on 10 July 2002 for his lumbar pain. A letter from Dr C Mills, an orthopaedic surgeon, dated 31 October 2003 states that Mr Magor was having some difficulties with Vioxx but was continuing to use Celebrex, which he had previously ceased in June 2003. Dr Hartley’s clinical notes of a consultation on 4 March 2004 disclose that he ceased to prescribe Celebrex for Mr Magor. Dr Mills reported on 20 February 2004 that Mr Magor was good on Voltaren and he was urged to continue the use of that anti-inflammatory agent due to the degenerative changes in his lumbar spine. However, the consultation report recorded by Dr Hartley on 21 June 2004 indicates that he stopped prescribing Voltaren for Mr Magor. The clinical records disclose Mr Magor recommenced Voltaren on 8 November 2004. On 29 November 2004 Mr Magor was also prescribed Zydol, which is an analgesic used for acute pain where aspirin and/or paracetamol alone are inappropriate or have failed. Furthermore, there was no evidence of any medical intervention for pain until November 2004; some eight months after Mr Magor said he fell. On 1 November 2004 Mr Magor consulted Dr Hartley, requesting that he provide a report for DVA regarding his inability to work. It was not until March 2005, almost a year after the fall, that Dr Hartley referred Mr Magor to Dr Mills who then examined him.
22. Dr Mills reported to Dr Hartley in a letter which is undated, but which he believed was sent on 18 March 2005. In that letter he said:
Many thanks for asking me to see Cliff Magor with his new problem of much more severe symptoms from his osteoarthritis of his cervical spine. He has multi-level severe degenerative disease from the atlanto-occipital joint down but with some levels of foraminal compromise. He fell recently, banging his head, and has had increased neck pain since that time.
In his letter of 13 May 2005 to the DVA, Dr Hartley said Mr Magor had been receiving treatment and investigations for his neck pain on and off for some time.
23. Under cross-examination Dr Mills was asked whether he had cases where people had a back spasm and then fell over. He said he was aware of persons with leg weakness who had fallen over, but he could not recall them describing back spasms causing them to fall over. When asked if it was likely that a person who had a back spasm but not leg problems would fall over, he said it was possible but he had not seen it. He said it was not common to have people falling over from back spasms. Dr Mills confirmed that degenerative joints generally are symptomatic. He said what brings on the pain is an unusual loading or a particular movement. Therefore, Dr Mills said, if Mr Magor had a fall as he described, the fact that he developed neck pain would make sense.
24. In making a determination about the clinical onset of Mr Magor’s cervical spondylosis, the standard of proof is that set out in s 120(4) of the VE Act. Because it is not a determination about whether Mr Magor’s cervical spine injury is war‑caused, I must decide this issue to my reasonable satisfaction. That was dealt with by the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. Beaumont J, with whom Northrop and Spencer JJ agreed, said at 335:
Even if the tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the tribunal that it must be reasonably satisfied before it makes any decision. in [sic] my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. ...
This means I am required to decide the question of the clinical onset of Mr Magor’s cervical spondylosis on the balance of probability.
25. I have mentioned discrepancies in Mr Magor’s written statement regarding the date on which the trauma to his neck occurred. Those discrepancies and his delay in consulting Dr Hartley have compounded the problem of arriving at a decision regarding the clinical onset of his cervical spondylosis.
26. The fact that Mr Magor did not seek medical intervention for the injury until some eight months after he said he fell in March 2004 does raise some doubts about the significance and severity of the injury. Nevertheless, the evidence given by Mr Magor regarding the back spasm which caused him to fall when he was visiting Hamilton in March 2004 was corroborated by three witnesses, two of whom gave evidence in this proceeding. That evidence was consistent with Mr Magor’s account of the fall. Mrs Magor observed him grab the back of his leg when he lost balance, fall forward and strike his head on a wall. Mr Garrett’s evidence was that on returning from a Legacy dinner, as the party was walking into Mr Garrett’s house, he felt Mr Magor brush past him and when he turned around he saw Mr Magor lying on the carpet inside the hallway of his house. While he did not observe the actual fall, his evidence was that Mr Magor’s head hit the wall leaving an impression. He said that his wife and Mrs Magor suggested Mr Magor seek medical treatment but Mr Magor refused. Mr Garrett said that on the day after the accident Mr Magor complained that he was suffering a headache and pains in his back and neck. Mrs Magor said her husband complained of neck pain at the time and that he has head and neck pain ever since. That was also Mr Magor’s evidence.
27. Mr Purcell referred Dr Mills to his brief letter of 18 March 2005 and asked if he kept notes of that consultation. Dr Mills said he did; and according to his notes, Mr Magor complained of a spasm in his lower back radiating to his legs. Mr Magor told him that he had crashed into a wall and had headaches for about a week after that. Then it settled down. Mr Magor told Dr Mills that he had pain across the back of his head (the sub-occipital region). He was suffering from what Dr Mills believed was very severe cervical spondylosis without any neurological loss. Mr Magor had not worn a soft collar since the fall but he had been given some traction by a physiotherapist and had been prescribed some oral anti‑inflammatory medication. In his letter, Dr Mills referred to the symptoms becoming much more severe which, it is reasonable to infer, led Mr Magor to seek the consultation. In fact, Mr Magor said in evidence that the pain was becoming so bad he could not sleep at night. That prompted him to see Dr Hartley in November 2004.
28. Mr Purcell also directed my attention to the fact that Mr Magor was not taking non-steroidal anti‑inflammatory medication continuously between March and November 2004. I understood that Mr Purcell sought to draw inferences from that behaviour, regarding the pain Mr Magor said he experienced after the fall. In my view, it would be speculative to do so. Mr Magor’s evidence was he continued to take over the counter analgesics as well as some anti‑inflammatory medication during that eight-month period and he had physiotherapy treatment. The Commission did not dispute that evidence. Therefore, I find Mr Magor did experience pain in his neck following his fall in Hamilton in March 2004 and the pain persisted, although varying in degree, becoming sufficiently intense in November 2004 for him to seek further medical intervention. Therefore, on balance, I find that the clinical onset of Mr Magor’s cervical spondylosis occurred in March 2004 when he first experienced low-grade pain in his neck as a consequence of the degenerative changes which had already taken place in his cervical vertebrae.
Was Mr Magor’s Cervical Spondylosis War-Caused
29. Where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension to the veteran by way of compensation (s 13(1)).
30. Section 9 of the VE Act relevantly provides that, subject to s 9A (which does not apply in this case):
… an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(a)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …
31. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service (s 7 VE Act).
32. Mr Magor’s lumbar spondylosis has been accepted by the Commission as having been war-caused because it arose out of Mr Magor’s operational service in Vietnam. Mr Magor contended that he suffered a back spasm, which caused him to fall and strike his head against a wall, which in turn caused his cervical spondylosis to become symptomatic. In other words, his war-caused lumbar spondylosis contributed to his cervical spondylosis becoming symptomatic, thereby resulting in his incapacity for work.
33. As Toohey J explained in Law v Repatriation Commission (1980) 29 ALR 64, while the expression has risen out of or is attributable to requires some causal relationship between the injury and operational service, the relationship is not as direct as the expression caused by might require. He referred to the decision of the High Court of Australia in Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437, where Barwick CJ said, at 443:
Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". …
Toohey J also referred to the decision of Donaldson J in Walsh v Rother District Council [1978] 1 ALL ER 510 regarding the expression attributable to, where his Honour said, at 514:
… these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.
34. Toohey J said, in relation to the 1920 Repatriation Act, at 72:
In my view, para (b) of s 101(1) requires no more than that the death of a member of the forces have some causal connection with his war service.
35. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where the veteran rendered operational service, that the injury, death or disease of the veteran was war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given Mr Magor rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war service and his cervical spondylosis.
36. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP, determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply to a claim for incapacity resulting from injury or a disease or the death of a person where the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2), nor declared that it does not propose to make a SoP.
37. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. There Beaumont, Hill and O’Connor JJ said:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
hypothesis
38. Mr Magor’s hypothesis connecting his cervical spondylosis with his Vietnam service is that he suffered a trauma to his cervical spine because of a back spasm caused by his lumbar spondylosis, which the Commission had already accepted as war-caused. That spasm caused him to fall and strike his head against a wall which resulted in his cervical spine becoming symptomatic. There appears to be no issue that the material before me, including the evidence of Mr and Mrs Magor and Mr Garrett, and the evidence of various medical practitioners, does point to a hypothesis connecting Mr Magor’s cervical spondylosis with his operational service.
SoP in force
39. The RMA has made a SoP concerning cervical spondylosis. The current SoP is Instrument Nº 33 of 2005 as amended by Instrument Nº 76 of 2008. The amendment set out in Instrument Nº 76 of 2008 is not relevant to this proceeding as that SoP simply alters the definition of high performance aircraft.
Is the Hypothesis reasonable
40. The hypothesis raised will be reasonable if it is consistent with the template found in the SoP. In other words, the hypothesis must contain one or more of the factors which the RMA has determined must exist and be related to the person’s service. The factors set out in Clause 6 of the SoP relied on by Mr Magor initially were:
(g)Having a trauma to the cervical spine before the clinical onset of cervical spondylosis; or …
(q)Having a trauma to the cervical spine before the clinical worsening of cervical spondylosis, or …
41. The expression trauma to the cervical spine is defined at Clause 9 of the SoP in the following way:
“trauma to the cervical spine” means a discrete injury, including G force-induced injury to the cervical spine that causes the development within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.
42. The material before me discloses that Mr Magor suffered a discrete injury when he fell and struck his head against the wall, while visiting Mr and Mrs Garrett at Hamilton in March 2004. Immediately upon suffering that injury, the material discloses that Mr Magor suffered pain and tenderness in the cervical spine. He said that the pain had persisted from March 2004 to the present. There was no medical intervention for the trauma until November 2004; and the pain persisted even after that intervention.
43. As stated in Clause 7 of the SoP, paragraphs 6(l) to 6(v) apply only to a material contribution to, or aggravation of, cervical spondylosis where the person’s cervical spondylosis was suffered or contracted before or during (but not arising out of) the person’s relevant service. Although I have found the clinical onset of Mr Magor’s cervical spondylosis occurred in March 2004, clause 7 of the SoP uses different language. It requires the disease to be present before completion of the veteran’s relevant service. Mr Magor’s operational service ended in April 1970. Although a number of medical practitioners agreed that Mr Magor’s cervical spondylosis was long-standing, there was no evidence as to the likely date of onset of the disease. The evidence was he was free of that condition after the completion of his operational service. Therefore, I find that Mr Magor’s claim does not satisfy factor 6(q). However, Mr Magor’s hypothesis would satisfy factor 6(g), as he claims to have suffered a trauma to his cervical spine before the clinical onset of cervical spondylosis. Accordingly, I find Mr Magor’s hypothesis is a reasonable one.
Was the cervical spondylosis war-caused?
44. It is at this point in the analysis that I am required to make findings of fact from the material before me in support of Mr Magor’s claim. I am required to find in favour of Mr Magor unless I am satisfied beyond reasonable doubt that the factual foundation of the hypothesis is disproved, either by proof beyond reasonable doubt that a fact, or a fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact inconsistent with the hypothesis (see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 567).
45. Mr Purcell called into question a number of facts which supported Mr Magor’s claim. The first of these was whether Mr Magor’s fall when he was at Mr Garrett’s residence in Hamilton was due to a back spasm. Under cross-examination, Mr Magor agreed that he had been falling regularly as result of back spasms. He was asked whether he suffered from a knee condition. Mr Magor agreed that he did have an accident injuring his knee, which was recorded in his medical documents. However, he denied that the knee condition ever caused him to fall.
46. Mr Magor was asked to describe his back spasm and the effect it had on him. He explained that it was like a stabbing pain, very sharp which would last for a couple of seconds, subside, and then be repeated. He said that it resulted in him losing control and that he would fall straight to the ground. The pain was so bad that he could not support himself.
47. In her written statement, Mrs Magor said that she had no doubt that the cause of her husband loosing his balance and striking his head against the wall when they were in Hamilton was a sudden acute pain in his back. She said that she observed her husband suffer back spasms frequently and that she recognised the symptoms. In the course of her examination‑in‑chief, Mrs Magor said that she observed that her husband’s knees would bend, that he would grab the back of his leg and he would then fall to the ground. She said she had seen this happen dozens of times. In cross examination, Mrs Magor said sometimes her husband would stumble but would not fall down completely. At other times, he did fall to the ground. When asked whether she was aware that Mr Magor had any problems with his knees, she said that he had trouble with his legs and back. She claimed that he had fallen on his knees injuring them.
48. Under cross-examination, Dr Mills said Mr Magor told him in March 2005 that his fall had been caused by a spasm in his lower back, radiating to his legs with his lower back locking up. Dr Mills agreed that a back spasm would cause locking of the back muscles and was frequently accompanied by severe pain. When asked to describe the features of a spasm, he said that such an event occurs when the joints in the lower back are irritated. They send out a message to the local muscles to protect them and they induce a spasm in the muscles, which produces a feedback causing more muscle activation. When asked if it was likely to cause somebody to fall over, Dr Mills said: I guess it’s possible. He was asked whether he had experience with cases where people described to him that they had a back spasm and fell over. He responded by saying that he has had people with that condition that have had leg weakness that have fallen over as a result. He did not recall patients describing back spasm causing them to fall over. Asked if it would be unlikely that a person would fall over if they had a back spasm and two healthy knees, he responded that it was possible but he had not come across such an event. He said it was not a common condition to have people falling over from back spasms. Dr Mills said he had no record of examining Mr Magor’s knees.
49. In my opinion, the evidence supports Mr Magor’s claim that he frequently suffered back spasms which caused him to fall. Whether the risk of falling was increased because Mr Magor suffered from knee problems, particularly as a consequence of having a left meniscal tear, does not alter the fact that falls were precipitated by back spasms caused by his lumbar spondylosis. Although Dr Mills, an experienced orthopaedic surgeon, said he could not recall patients describing back spasms causing them to fall over, his evidence was that he had seen patients who suffered back spasms and had leg weakness who had fallen over. Dr Mills said it was not a common condition to have people falling over from back spasms but agreed that it was a possibility. Therefore, I am not able to find beyond reasonable doubt that Mr Magor’s lumbar spondylosis did not trigger his back spasms resulting in his fall at Hamilton in March 2004.
50. Mr Purcell also submitted that Mr Magor’s fall in Hamilton in March 2004 did not satisfy the definition of trauma to the cervical spine as set out in the SoP dealing with cervical spondylosis. Mr Purcell submitted that the x-rays of Mr Magor’s cervical spine disclosed a generalised degenerative condition which was not consistent with the discrete injury to the neck. This was the evidence given by Mr R Westh, an orthopaedic surgeon. In cross-examination, Mr Purcell asked Mr Westh whether Mr Magor’s cervical spine condition was long-standing and Mr Westh said: yes. He agreed with Mr Purcell’s suggestion that the claimed injury which Mr Magor said occurred in March 2004 simply caused his condition to become symptomatic. Mr Westh said the x-rays of Mr Magor’s cervical spine showed degenerative changes indicating it was a long-standing condition. Dr Mills was also of the view that Mr Magor’s cervical spondylosis was a long-standing condition. Dr Hartley’s evidence was that Mr Magor’s cervical spondylosis had been there for quite some time and it became symptomatic following his fall. There was no dispute that by November 2004, x-rays of Mr Magor’s neck disclosed degenerative changes affecting his cervical vertebrae or vertebral discs.
51. On this evidence, I find, beyond reasonable doubt, that Mr Magor’s cervical spondylosis was present before he experienced the fall in March 2004. I am also satisfied beyond reasonable doubt that Mr Magor did not experience the onset of cervical spondylosis until after he had completed his service with the army. In my opinion, these findings of fact are inconsistent with Mr Magor’s hypothesis. They establish that his cervical spondylosis does not have any causal connection with his operational service. The disease simply became symptomatic following his fall in Hamilton in March 2004.
52. It necessarily follows that I am satisfied beyond reasonable doubt that Mr Magor’s cervical spondylosis was not war-caused. The decision of the VRB made on 19 September 2008 was correct and I affirm that decision.
INTERMEDIATE OR SPECIAL RATE OF PENSION
53. Prior to his application to the Commission in January 2006 seeking an increase in his disability pension rate, Mr Magor had been assessed at 100 per cent of the general rate. Mr Magor claimed that he was entitled to the intermediate rate or the special rate pension under Part II Division 4 of the VE Act.
54. An application for an increase in pension may be made by a veteran who is receiving a pension under Part II of the VE Act (s 15(1)). The basis for such an application must be that the incapacity of the veteran has increased since the rate of pension was assessed or last assessed.
55. Where an application is submitted to the Commission, s 19(5C) of the VE Act provides that the Commission must assess:
(a)the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b)subject to subsection (6), the rate at which the pension is payable.
56. Section 19(6) of the VE Act provides that where a pension is payable at sometime during the assessment period at the rate provided by s 23 or s 24, then, subject to s 24A (which is not applicable in this case), the rate at which the pension is payable must not be lower than the rate provided by whichever of the sections applied, or applied most recently, during the assessment period.
57.The assessment period is defined in s 19(9) of the VE Act and:
in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
The application day is also defined in s 19(9) and it means:
(a)the day on which the claim or application was received at an office of the Department in Australia; or
(b)if subsection 20(2), 20(2B) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a), 20(2B)(a) or 21(2)(a) was so received.
58.Section 21(2) relevantly provides:
(2) Where:
(a)a person makes an application in writing of a kind referred to in subsection 15(1) or (2), but otherwise than in accordance with a form approved for the purposes of paragraph 15(3)(a);
(b)the person subsequently makes an application of a kind so referred to in accordance with a form so approved:
(i)at a time when the person had not been notified by the Department, in writing, that it would be necessary to make the application in accordance with a form so approved; or
(ii)within 3 months after the person had been so notified; and
(c)an increased pension, or a pension, is granted to the person upon consideration of that application in accordance with a form so approved;
the Commission may, subject to this Act, specify as a date that a determination of an application made under section 15 takes effect, the date on which the application referred to in paragraph (a) was received at an office of the Department in Australia.
59. Because Mr Magor lodged an application in the approved form on 27 January 2006 for an increase in his disability pension regarding previously accepted disabilities, that is the earliest date from which the special rate pension can be paid to Mr Magor. Also, the assessment period as far as Mr Magor’s claim is concerned is 27 January 2006 – to the present date (see Peacock v Repatriation Commission (2004) 40 AAR 143).
60. Mr Magor’s principal claim is that he is entitled to the special rate of disability pension. Alternatively, Mr Magor claims he is entitled to the intermediate rate of pension. The relevant sections of the VE Act are ss 23 and 24.
61.Sections 23 and 24 of the VE Act may apply to a veteran if:
(a)the veteran has made a claim under s 15 for an increase in the rate of pension that he or she is receiving;
(b)the veteran has not yet turned 65 when the claim or application was made; and
(c)the degree of incapacity of the veteran from war-caused injury or war‑caused disease or both has been determined to be at least 70 per cent.
62. To qualify for a pension under s 23 of the VE Act, a veteran’s incapacity from war-caused injury or war‑caused disease, or both, must by itself render the veteran incapable of undertaking remunerative work otherwise than on a part time basis or intermittently (s 23(b)). Section 24(b), which applies to the special rate of pension, requires that the veteran be totally and permanently incapacitated. That means 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 eight hours per week.
63. Sections 23(1)(c) and 24(1)(c) are in identical terms. They provide:
(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;
64. If a veteran is entitled to special rate of pension then that person is not entitled to the intermediate rate (s 23(1)(d)).
65. In determining, for the purposes of ss 23(1)(b) or 24(1)(b) of the VE Act, whether the veteran is incapable of undertaking remunerative work, I am required to have regard to only the following matters:
(a)the vocational, trade and professional skills, qualifications and experience of the veterans;
(b)the kinds of remunerative work which the person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b) (s 28).
remunerative work
66. Mr Magor left secondary school about half way through the equivalent of Year 10. He was then 15 years old. He commenced an apprenticeship as a motor mechanic in his father’s business but was called up for National Service before completing the apprenticeship.
67. In the course of his military service Mr Magor completed the equivalent of an apprenticeship in cooking. He was employed by the army as a cook.
68. Following his discharge from the army, Mr Magor worked initially as a self‑employed caterer. Subsequently, in 1979, he was employed as a catering officer at a club before securing a private catering contract with another club in Mildura. In 1989 Mr Magor and his wife purchased a business known as Sunraysia Chickens (Gourmet Products) (Sunraysia Chickens). It was operated as a wholesale and retail outlet. Mr Magor’s principal duties at Sunraysia Chickens were boning dressed chickens and making deliveries of product.
69. According to Mr Magor, he stopped working at Sunraysia Chickens in 1994; although his wife continued to operate that business in partnership with him until 2001
70. In 1994 Mr and Mrs Magor also acquired a lease of the café at Mildura airport. Mr Magor ran the café. He said his duties included making cakes, slices, sandwiches and drinks/coffee, and serving customers. By about 2000, Mr Magor said he employed five casual workers at the café. In that year, he also employed his daughter, Ms Lyndall Dommersnes, to manage the café. He continued to work at the café until about mid-2001.
71. The meaning of the expression remunerative work was dealt with by the Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36]. The Court said:
… 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. …
72. The evidence indicates that Mr Magor was self-employed and employed in what can generally be described as the catering industry. The substantive nature of the work was the preparation of food for wholesale or retail sale. The fact that he has conducted catering on his own and as an employee does not, in my opinion, alter the nature of the work he was undertaking. There was evidence that when he was self-employed Mr Magor also performed, to some degree, the minor clerical tasks associated with operating a business.
cause and extent of work incapacity
73. To qualify for the disability pension at the intermediate rate, Mr Magor must satisfy ss 23(1)(b) and 23(1)(c). To qualify for the disability pension at the special rate, Mr Magor must satisfy ss 24(1)(b) and 24(1)(c) of the VE Act. That is, Mr Magor’s incapacity from a war-caused injury or war-caused disease must, of itself alone, render him incapable of undertaking remunerative work other than on a part‑time basis or intermittently (for the intermediate rate); or for periods aggregating no more than eight hours per week (for the special rate). The war-caused injury or war‑caused disease alone must prevent him from continuing to undertake the remunerative work that he was previously undertaking; and, as a result, he must be suffering a loss of salary or wages, or of earnings on his own account that he would not be suffering if he were free from his incapacity.
74. If there are any other reasons which limit or prevent Mr Magor from continuing to engage in remunerative work, he cannot satisfy the requirements of s 23(1)(b) or (c) or s 24(1)(b) or (c).
75. The Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, said that not only must the veteran be prevented by reason of a war-caused injury or war‑caused disease from continuing to undertake remunerative work, but the war‑caused injury or war‑caused disease must be the only factor preventing him from continuing him from continuing to undertake that work.
76. As Nicholson J explained in Forbes v Repatriation Commission (1999) 58 ALD 394, when referring to the test in Flentjar:
[39] … The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. …
[40] As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. …
77. It should therefore be apparent that if any factors other than Mr Magor’s accepted medical conditions prevent him from continuing to undertake the remunerative work that he was undertaking, he will not be eligible for a pension at either the intermediate or special rate. The assessment of Mr Magor’s capacity to undertake remunerative work must relate to the assessment period in accordance with s 19(6) of the VE Act. That is, between 27 January 2006 and the present date.
78. I must also bear in mind s 23(2) of the VE Act in respect of the claim for the intermediate pension. It provides that s 23(1)(b) will not be taken to be fulfilled in respect of the veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
79. As for Mr Magor’s claim for the special rate of pension, I must bear in mind the provisions set out in s 24(2) of the VE Act. For the purpose of s 24(1)(c), a veteran who is incapacitated from a war-caused injury or war-caused disease shall not to 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:
24(2)(a) …
(i)if 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)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; …
80. Essentially, Mr Magor claimed that his lumbar spondylosis and post traumatic stress disorder (PTSD) were the reasons why he stopped doing the work he had been doing prior to his retirement from the Mildura café business in mid-2001. Mr A Larkin of counsel, who appeared on behalf of Mr Magor, submitted that Mr Magor did not cease work in 2001 because of his cervical spondylosis. That was also Mr Magor’s evidence.
81. It seems to me that the first issue with which I must deal is that raised by s 23(1)(b) and/or s 24(1)(b), regarding the level and nature of Mr Magor’s war‑caused incapacity. A finding in favour of Mr Magor under these subsections of the VE Act is only the first step in a three-step process. As Tamberlin J said in Wright v Repatriation Commission [2005] FCA 7 at [15]:
… This is because a finding that an applicant satisfies subsection s 24(1)(b) of the Act goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then condition 24(1)(b) is satisfied. The next and distinct step is to proceed to consider the requirements of ss 24(1)(c) which is concerned with the causation of the veteran’s inability to continue with the remunerative work that he or she was previously undertaking. The two findings are separate and complementary. They pose different hurdles which the veteran must surmount. …
82. The third step is that posed by the second limb of the subsections referred to above: that is, the evidence must disclose that Mr Magor was suffering a loss of salary or wages or of earnings on his own account, which he would not be suffering if he were free from his war‑caused incapacity.
Nature and Level of Mr Magor’s Incapacity
83. There were numerous medical reports in evidence regarding the nature and level of Mr Magor’s incapacity. The earliest report was from Dr D Hartley, Mr Magor’s general practitioner, dated 3 October 2003. Dr Hartley referred only to two diagnoses: lumbar spondylosis and hypertension. He did not take account of Mr Magor’s PTSD. Dr Hartley reported that Mr Magor had very limited capacity for work due to an inability to sit or stand for lengthy periods. He estimated that Mr Magor would be able to perform 10 hours of work per week.
84. In his examination‑in‑chief, Dr Hartley was referred to Dr Mills’ report dated 31 October 2003. Contrary to his opinion, Dr Mills’ opinion was that Mr Magor was unfit to do paid work for even a minimum number of hours. Dr Hartley said he was guided by Dr Mills. Dr Hartley confirmed his clinical notes dated 1 November 2004: namely, that it was Mr Magor’s request that he write to DVA, stating that Mr Magor was unable to perform his normal work duties because of back pain and that he could work for 2 hours per day spread throughout the day but for only a total of 4 hours per week. Despite the fact that Mr Magor had asked him to prepare the report for DVA, Dr Hartley said his clinical notes reflected his independent opinion.
85. Dr C Mills, an orthopaedic surgeon, provided a brief report to DVA dated 31 October 2003. Dr Mills said that he had seen Mr Magor for consultations and advice regarding his back and lower leg pain. In his opinion, Mr Magor’s orthopaedic problems prevented him from being able to perform his work completely. He said that Mr Magor was unfit to do paid work for even a minimum number of hours.
86. Dr J Krishnan, an orthopaedic surgeon, reviewed Mr Magor on 23 June 2004. He provided a report of the same date. Dr Krishnan reported that Mr Magor generally had a restricted range of motion of his lumbar spine and that he had lost his normal lumbar lordsis (convexity of the spine). Dr Krishnan also said Mr Magor had generalised para-spinal muscle spasm and tenderness. In his opinion, Mr Magor had a 25 per cent loss of the full and efficient use of his lumbar spine secondary to his lumbar spondylosis. He said that the extent of Mr Magor’s incapacity was mainly related to degenerative changes at this level and also the facet joints. However, Dr Krishnan did not offer an opinion regarding Mr Magor’s degree of work incapacity resulting from his back injury.
87. Dr A Caracatsanis, a psychiatrist, examined Mr Magor on 6 October 2004. Mr Magor told him that he had quite severe pain in his back, legs and feet (particularly after prolonged standing), as well as difficulties with walking and standing up. Mr Magor told Dr Caracatsanis that he could not stand up for long periods and had to sit down frequently. As for his mental state, Mr Magor told Dr Caracatsanis that he was significantly affected by personal symptoms. Dr Caracatsanis found Mr Magor did not show any signs of mental disorder. He concluded that, on the history elicited from Mr Magor, his PTSD did not currently limit his capacity to work. In his opinion, if Mr Magor claimed he could not work more than 8 hours per week, it was not because of his PTSD.
88. Dr R Hunter, a rehabilitation physician, assessed Mr Magor on 13 November 2006. Dr Hunter reported that Mr Magor told her he had an onset of back pain in 1969 when he was in the army, lifting heavy trays in and out of the field ovens. Dr Hunter concluded that Mr Magor’s accepted disabilities of bilateral sensorineural hearing loss, chronic solar skin damage, hypertension; and oedema have minimal impact on his work capacity. She acknowledged that Mr Magor’s lumbar spondylosis was the major impairment to his return to work.
89. As for Mr Magor’s PTSD, Dr Hunter was of the opinion that this limited his ability to perform clerical work due to short-term memory loss and reduced concentration and attention. However, she based her opinion solely on the history given to her by Mr Magor. Dr Hunter did not conduct any testing to determine whether Mr Magor in fact suffered short-term memory loss or that he had any other neurological impairment.
90. According to Dr Hunter, a stressful work environment would exacerbate Mr Magor’s PTSD symptoms, which would limit his ability to do clerical work. Dr Hunter was also of the opinion that Mr Magor’s cervical spondylosis would limit his capacity to perform moderate to heavy manual work. This is contrary to Mr Magor’s own opinion. Dr Hunter concluded that Mr Magor was unable to work more than eight hours per week due to a combination of lumbar spondylosis and PTSD. Although Mr Magor gave Dr Hunter a history of having pain in his hands which resulted in difficulty with lifting heavy objects and maintaining grip strength, which caused him to often drop things, Dr Hunter was of the opinion that this disability did not further impede his work capacity.
91. Dr A Sheehan, a psychiatrist, assessed Mr Magor on 18 May 2007. Dr Sheehan prepared a report dated 23 May 2007. According to the history taken by Dr Sheehan, Mr Magor said he continued to suffer from anxiety and panic attacks, although there had been some improvement since commencing antidepressant medication. He told Dr Sheehan he had difficulty concentrating and that he was forgetful. Dr Sheehan said that on examination, Mr Magor presented with mild anxiety and a mildly depressed mood. He said Mr Magor’s insight and judgement were adequate and there was no evidence of perceptual disorder. There was also no evidence of a neurological disorder. He said Mr Magor demonstrated limited concentration at interview but there were no other positive findings on his mental state.
92. Dr Sheehan diagnosed Mr Magor as suffering from PTSD and major depression. He disagreed with the opinion expressed by Dr Caracatsanis and, relying on what Mr Magor told him, considered that Mr Magor had a reduced ability to perform remunerative work. Dr Sheehan said he supported the opinion expressed by Dr Hunter, which he understood to be that Mr Magor was unable to work for more than 8 hours per week primarily due to a combination of lumbar spondylosis preventing manual work and PTSD limiting clerical work.
93. Dr D Macintosh, an orthopaedic surgeon, examined Mr Magor on 18 May 2007. In a report dated 23 May 2007 Dr Macintosh said that on examination, Mr Magor had a restriction of lumbar movement with generalised tenderness. He was of the view that Mr Magor’s long period of work activities after he left the army, which involved prolonged standing, significantly contributed to his continuing pain. He said the development of bilateral leg pain, particular brought on by standing and walking, was probably due to a degree of spinal stenosis, secondary to degenerative changes in Mr Magor’s lower spine. There was no evidence of any acute traumatic event clinically or radiologically which would lead to his severe leg pain with standing and walking.
94. Dr Macintosh offered the opinion that Mr Magor’s lower lumbar disc lesion would have some effect on his ability to perform remunerative work. He would have had some difficulty with heavy work or work involving repetitive bending or lifting, or sitting or standing for extended periods. In his opinion, Mr Magor was nevertheless able to undertake a moderate range of activities, particularly if he could sit or stand as required and avoid heavier lifting. Dr Macintosh did not venture an opinion about the number of hours per week Mr Magor might be capable of working.
95. Dr G Ramage, an occupational physician, examined Mr Magor on 18 June 2007 and prepared a report dated 29 June 2007. Dr Ramage records Mr Magor as having said he injured his back in Vietnam when working with a low to the ground field oven from which he pulled out an extremely large boiler full of liquid. According to Dr Ramage, Mr Magor said he was not involved in any significant military action nor did he directly witness any injured soldiers while in Vietnam. Apparently, he said that he was uncertain about whether he had any flashbacks in relation to his Vietnam service. This statement contradicts what Mr Magor told Dr Hunter, namely that he had flashbacks approximately once a week. In addition, Mr Magor’s statement about not being involved in any significant military action directly contradicts what he told Dr Caracatsanis. He told Dr Caracatsanis that he was a patrol commander, that he was scared all the time and that his fear was compounded when he was the target of mortar attacks.
96. In the course of examining Mr Magor’s lower limbs, Dr Ramage performed light tapping over the lumbar spine and upper sacrum while he was sitting with legs outstretched at 80 degrees to his torso. Because Mr Magor complained that this caused pain, Dr Ramage said it indicated a degree of exaggeration of pain by Mr Magor.
97. Dr Ramage concluded that Mr Magor was capable of performing duties which allowed him to sit and stand as he required, and which did not require him to bend forward from the waist repeatedly or lift heavy items. He was of the view that Mr Magor had the physical capacity to work in the Mildura café for more than 8 hours per week but less than 20 hours per week. He declined to comment on the degree to which Mr Magor’s PTSD impacted on his physical ability. Nevertheless, he said that he doubted whether Mr Magor’s PTSD was a significant factor contributing to his incapacity to work.
98. Mr R N Westh, an orthopaedic surgeon, examined Mr Magor on 15 April 2008. In the history he gave to Mr Westh, Mr Magor again referred to injuring his back while lifting a heavy boiler in Vietnam. As for his then current problems, Mr Magor told Mr Westh he was unable to do anything physical. He said he could not do any lifting and complained of constant pain in his back, made worse by activity. He was unable to sit or stand for long periods and frequently had to change positions. He said that pain radiated to his legs if he was standing for too long. Mr Westh reported that Mr Magor’s lumbar spine had a normal alignment with tenderness in the midline at the L4/L5 level. Mr Magor had a restricted range of movement and he experienced pain with forward flexion. An examination of his hips and knee was normal.
99. On examination of Mr Magor’s x-rays and CT scans, Mr Westh reported mild generative changes at facet joints. He also saw evidence of a small central disc protrusion. In his opinion, Mr Magor would be unable to do any regular work as:
the accepted war-caused injuries are themselves alone preventing him from undertaking remunerative work for periods aggregating for more than 8 hours per week.
In his written statement Mr Westh did not explain what he understood to be Mr Magor’s accepted war-caused injuries.
100. In his evidence-in-chief, Mr Westh explained that the reference to accepted war-caused injuries in his report was a reference to Mr Magor’s lumbar spondylosis alone. When Mr Purcell suggested to Mr Westh in cross-examination that his reference to Mr Magor being unable to undertake remunerative work for periods of more than eight hours per week did not take into consideration his capacity to undertake supervisory non-physical work, Mr Westh agreed he was referring to work of a physical nature only. Mr Purcell also referred Mr Westh to Dr Ramage’s statement that on his examination of Mr Magor, light tapping of the lumbar spine and upper sacrum caused Mr Magor to complain of pain, indicating there was a degree of exaggeration of his pain during the formal examination. Mr Westh declined to comment on that statement but did indicate that it may be possible.
101. Mr Purcell also asked Mr Westh if he took into consideration the neck pain of which Mr Magor complained, when assessing his capacity for work. He said he did not and that he was simply referring to Mr Magor’s lumbar spondylosis and PTSD. In his opinion, Mr Magor’s cervical spondylosis only had a very minimal impact on his work capacity. Mr Purcell asked whether he was given any history by Mr Magor of problems with his hands or knees. Mr Westh said he had not. Mr Purcell also asked whether he took a history of Mr Magor having right shoulder movement problems and he said that he had not. However, on examination, there was slight restriction of movement.
102. Mr Purcell asked Mr Westh whether Mr Magor indicated he had problems with his hands, knees or shoulders which would affect his capacity to work. Mr Westh said that Mr Magor’s hands had no major impact. He accepted that Mr Magor had what appeared to be a rotator cuff injury and that overhead lifting would be restricted. He agreed that Mr Magor’s knees could possibly have some impact on his work capacity. Mr Westh also agreed that as far as Mr Magor’s work in the Mildura café was concerned, with regard to holding cups and the like, his grip strength would be limited but that restrictions of that kind were common in people in Mr Magor’s age group.
103. Mr Magor was examined by Dr M Epstein, a psychiatrist, on 1 April 2008. According to Dr Epstein, Mr Magor told him that his work in Vietnam was mainly as a cook and his duties involved repetitive lifting of heavy trays in and out of field ovens. He said Mr Magor developed acute low back pain while lifting a 20 gallon boiler from the ground. Dr Epstein also recorded that Mr Magor told him he went on ambush patrols. In giving that history, Mr Magor apparently said that on one occasion, while on patrol, his section came under mortar fire from the enemy, the mortar shells landing about 100 metres away. The attack continued for about 10 minutes.
104. Mr Magor told Dr Epstein that on his return from Vietnam, he was drinking up to 12 stubbies of beer per night to help him sleep. He also said he began seeing a chiropractor for continuing back and leg pain from 1975 onwards. He explained to Dr Epstein that prolonged standing while working at Sunraysia Chickens, and particularly driving, loading and unloading deliveries, exacerbated his back pain. He also said he developed weakness in his hands due to osteoarthritis.
105. Mr Magor told Dr Epstein that he ceased working at Sunraysia Chickens in 1994 and obtained a lease to operate the café at Mildura airport because he thought the work would be much lighter. However, he found that he was working alone, up to 14 hours a day seven days a week, until the business began to pay its way. As the café became more successful, he employed casual staff and had less contact with customers. He was then able to cut back his work hours.
106. Mr Magor told Dr Epstein that he began attending Dr Hartley in 1997 for his back problems. He also said he told Dr Hartley about his heavy drinking and that he was diagnosed as suffering from PTSD. He had cut back his excessive drinking and his home life improved and he became less irritable. Mr Magor told Dr Epstein that by 2000 his back pain had returned to its 1994 level and he eventually appointed his daughter, Lyndall, manager of the Mildura café and cut back his hours to about 20 hours per week. He had difficulty coping physically and remained irritable and depressed.
107. Mr Magor told Dr Epstein that following acceptance of his claim for PTSD in December 2000, he attended a 12-week PTSD course at the Redcliffe Hospital in Mildura. In 2001 he was employing five casual workers, including his daughter, at the Mildura café and he cut back his working hours to about 15 hours per week. He continued to be in significant pain and discomfort. He said his alcohol consumption increased again and he was having problems with memory, concentration and attention.
108. Mr Magor told Dr Epstein that he sold the Mildura café business to his daughter in July 2001 and resigned as a partner in the chicken business. He said he was drinking about 36 small cans of full strength beer and 12 bottles of wine per week, as well as one half bottle of bourbon occasionally. Mr Magor gave the same evidence about his alcohol consumption in his written statement dated 26 September 2007. Mr Magor told Dr Epstein that he occasionally assisted his daughter in the café on a voluntary basis for a maximum of five hours a week doing banking and purchasing supplies two or three times per week.
109. According to Dr Epstein, Mr Magor also told him about the accident he had when he fell and struck his head on a wall. Mr Magor told Dr Epstein that he consulted his general practitioner when he returned home a few days later. He also told Dr Epstein that his back pain was exacerbated by walking or standing and that he was only able to walk up to one kilometre with several breaks and to perform light domestic duties such as washing dishes, light cooking and gardening for about 10 minutes. He said he felt pain at the base of both thumbs and had difficulty maintaining grip strength and often dropped things. He continued to suffer from neck pain radiating to his occiput (the back of the skull) and shoulders. He was diagnosed as suffering from depression in mid-2006.
110. On examination, Dr Epstein said that Mr Magor’s affect was restricted and he appeared depressed and mildly anxious. His intellectual functioning appeared normal. He had no obvious problems with memory or concentration. There was no evidence of thought disorder and no evidence of delusions or hallucinations.
111. Dr Epstein said Mr Magor appeared to have mild chronic PTSD and chronic GAD. He also had a chronic back injury and had subsequently injured his neck, which resulted in continuing neck and head pain. The combination of Mr Magor’s physical and psychological problems had led to the development of chronic adjustment disorder with depressed mood. He had also developed a substance abuse disorder with alcohol, probably as a form of self- medication, although he had cut back on his alcohol consumption very considerably.
112. In Dr Epstein’s opinion, Mr Magor’s current work capacity appeared to be primarily limited by his physical conditions and to a lesser extent by his psychiatric state. Dr Epstein thought it likely that Mr Magor’s physical disabilities, being those accepted as war-caused, prevented him from undertaking remunerative work for periods aggregating more than eight hours per week. He was of the opinion that Mr Magor’s PTSD and depressive disorder would only restrict his work capacity by preventing him from undertaking remunerative work for periods aggregating more than 50 per cent of the time ordinarily worked or 20 hours per week. Dr Epstein was not cross-examined on his report.
113. Dr W F Glaser, a psychiatrist, examined Mr Magor on 22 July 2008. Dr Glaser relied on the histories Mr Magor had given to Drs Caracatsanis, Sheehan and Epstein. He elected not to take another history from Mr Magor. Nevertheless, Dr Glaser asked Mr Magor about his work in the Mildura café. Mr Magor told Dr Glaser that his daughter took over the café in 2001 and that after that, he would spend two hours a day assisting his daughter and delivering groceries, which happened three days per week. He also told Dr Glaser that he spent about one hour per week doing the banking and bookwork (or at least part of it) for the café. He mentioned he could not concentrate sufficiently to do it.
114. Mr Magor told Dr Glaser that he started seeing a psychologist 11 years previously. He had monthly consultations over a period of seven years. He also did a PTSD course, conducted in Mildura by health professionals from the Department of Veterans’ Affairs towards the end of the 1990s. About two years before seeing Dr Glaser, he had sought further mental health assistance from the psychiatric unit at the Heidelberg Repatriation Hospital in Melbourne. He said that he was starting to stress out and had panic attacks. It was as a result of the visits to the Heidelberg Repatriation Hospital that he was diagnosed with depression. He believed medication had stabilised that condition, although he continued to attend the Heidelberg Repatriation Hospital once every six weeks. Mr Magor also reported that he regularly had pains in the neck as a result of his neck injury. He said that rotation of his neck was limited and he had occasional referred pain over the shoulders.
115. When Dr Glaser asked about his current psychiatric state, Mr Magor described it as fair. He said he continued to experience concentration difficulties and some problems with short term memory. Mr Magor said that he slept badly because he suffered from sleep apnoea. He also said that he used to drink excessively but does so very rarely now.
116. According to Dr Glaser, Mr Magor displayed no clinically detectable concentration or memory difficulties on interview. While he noted that Mr Magor had been diagnosed as suffering from PTSD, he thought that it was relatively mild. He could find no evidence to support a diagnosis of chronic GAD. He said if Mr Magor ever suffered from GAD, it most certainly would not have been severe enough to be clinically significant. According to Dr Glaser, the fact that Mr Magor was able to work in a café for many years and seemingly got on well with his customers, some of whom he still made a point of seeing, indicated that he was not a person with significant symptoms of GAD.
117. Dr Glaser referred to Dr Epstein’s diagnoses of chronic adjustment disorder with depressed mood and substance abuse disorder. He disagreed with Dr Epstein and said those diagnoses were not currently applicable. He said Mr Magor’s depressive symptoms were of negligible severity and he had reduced his dependence on alcohol considerably. He also disagreed with Dr Sheehan’s diagnosis of major depressive disorder.
118. As far as Mr Magor’s work capacity from a psychiatric point of view was concerned, Dr Glaser agreed with Dr Epstein’s assessment that Mr Magor’s work capacity would be limited to no more than 50 per cent of time ordinarily worked or 20 hours per week. He said that despite Mr Magor’s mild complaints, he was able to function well in terms of daily activities. He was of the opinion that Mr Magor’s psychiatric problems did not prevent him carrying out part-time duties, which he had indicated he was undertaking and that they have not interfered in his relationships with his family and close friends. He was of the opinion that Mr Magor’s sleep disturbance could be accounted for, in part, by sleep apnoea. Dr Glaser was not cross-examined on his written report.
119. Dr R Horsley, an occupational physician, examined Mr Magor on 4 June 2008. She provided a report dated 4 June 2008 and Mr Purcell cross‑examined her on her evidence. Dr Horsley recorded Mr Magor’s occupational history and in particular his work at the Mildura café between 1994 and July 2001. Mr Magor told Dr Horsley that he was working long hours until 2000, when he began to experience increasing problems in his lumbar spine and increasing issues with his hands. He decreased his workload for about 12 months prior to finally ceasing work in July 2001.
120. Mr Magor also told Dr Horsley that he ceased work at Sunraysia Chickens in 1994 because of increasing pain in his bilateral hands when working as a boner, and his ongoing back condition. He said he was finding it difficult to cope with 8 to 10 hours of standing and the repetitive nature of the boning. According to Dr Horsley, Mr Magor said he had considerable difficulties with his hands and that his doctor diagnosed him with rheumatism. She said that on general inspection, Mr Magor had evidence of arthritic change. She said he was having great difficulty picking up a pencil and even holding a glass of water until he began attending a gymnasium about 12 months ago, which provided him with considerable relief.
121. Mr Magor gave Dr Horsley an account of how he sustained his lumbar spine injury. He said he was using a fuel burning stove. He explained he had to lift a large pot of 20 litres and as he went to pick the pot up out of its cradle and put it on the ground, he experienced pressure in the lumbar spine and a pop and then pain. He continued to have intermittent back pain from that time.
122. Mr Magor also told Dr Horsley that he had pain in the soles of his feet, which he described as sounding more like plantar fasciitis. He was prescribed orthotics which stabilised the discomfort to his feet. About two and a half years previously he said that he was told he had the start of calcaneal spurs. He also described discomfort localised in the metatarsophalangeal joint of the great toe of the left foot, which Dr Horsley said might be osteoarthritis. Mr Magor explained his standing, sitting and walking tolerance as considerably reduced.
123. Mr Magor told Dr Horsley that climbing stairs and hills exacerbated his knee and back symptoms. On an x-ray slide dated 30 August 2005, Dr Horsley noted degenerative changes at L4/L5 and L5/S1 facet joints. Dr Horsley also referred to a physiotherapy report from Mr James Huckson dated 9 April 2007. That report was not in evidence before me. Dr Horsley said that Mr Magor initially attended physiotherapy on 30 November 2006 and his treatment consisted of passive mobilisation of lumbar facet joints, traction, massage and exercise.
124. Dr Horsley recorded that Dr S Howard had diagnosed Mr Magor with PTSD in about 2000. She also noted Mr Magor had difficulty falling sleep and staying asleep. Dr Horsley said Mr Magor suffered from oedema in both legs in 2003. That was thought to be a side affect of his anti‑hypertensive medication.
125. Mr Magor told Dr Horsley that he was diagnosed with cervical spondylosis in 2004. He referred to neck pain which comes and goes. He said that the discomfort from his neck could radiate into both shoulder girdles. He said he experienced paraesthesiae in the dorsum of the right hand and into the index finger. His power was reduced and he could develop a tremor.
126. Dr Horsley referred to Mr Magor’s work boning chickens up until 1994. This involved prolonged standing and repetitive use of his hands. He was also manually handling tubs of chicken that weighed 20 kilograms. She said that Mr Magor had taken occasional Mobic (a non-steroidal anti-inflammatory) for his bilateral hand condition.
127. Dr Horsley also said that Mr Magor suffered from bilateral knee osteoarthrosis. His treating doctor had never investigated this, although she observed Mr Magor rubbing his right knee repetitively throughout the interview. According to Dr Horsley, Mr Magor said that his bilateral knee discomfort gives him hell. He said the pain was constant and exacerbated by walking or driving to far. He occasionally experienced swelling and intermittent locking. He said locking occurred infrequently, approximately once per week. Dr Horsley also recorded that Mr Magor told her he nearly fell over in front of his wife when he came down some steps at his home. Mr Magor was uncertain as to whether that was due to his lack of judgement or the giving way of his knees.
128. Mr Magor also told Dr Horsley of his sleeping problems and the fact that he had taken part in sleep studies in September/October 2007. He was awaiting Dr Hartley’s advice about the purchase of a CPAP machine (CPAP is an acronym for Continuous Positive Airway Pressure. Doctors prescribe CPAP machines to assist patients who suffer from sleep apnoea). Dr Horsley was provided with materials regarding the Mildura sleep study dated 15 November 2007 but these where not in evidence before me. She said the comment on the report from the study was that he suffered moderate to severe obstructive sleep apnoea.
129. Dr Horsley said a clinical examination of Mr Magor’s lumbar spine revealed loss of lumbar lordosis with no para spinal muscle spasm and no touch sensitivity to light touch palpation. She observed that his left thigh circumference was one and a half centimetres smaller than his right thigh. She noted that straight leg raising of the left leg was 70 degrees before producing discomfort, while on the right side it was 85 degrees, which was normal. Dr Horsley noted a significant reduction of lumbar movement.
130. On examining Mr Magor’s knees, Dr Horsley reported that his right knee revealed mild crepitus on flexion and extension and there was a reduction in range of motion. There was tenderness on palpation over the suprapatella area. The examination of his left knee also revealed tenderness and crepitus on flexion and extension. There was a significant reduction in range of motion from 0 to 90 degrees. There was a clicking on flexion and extension and there appeared to be a positive McMurray’s test, suggestive of a meniscal tear or osteoarthritis.
131. Dr Horsley said her examination of Mr Magor’s cervical spine disclosed some trigger points on light touch palpation. There was no discomfort on palpation of the central spinous processes or left articular pillars. However, she said, Mr Magor’s cervical range of motion was greatly reduced and there was audible crepitus.
132. Dr Horsley reported, on examination of Mr Magor’s shoulders, that there was a significant reduction in right shoulder movement, tenderness on palpation and stiffness and soreness of movement. Her examination of the left shoulder revealed an even greater reduction of motion. The supraspinatus test bilaterally was positive. Dr Horsley noted that there had been an increase in pain in his left shoulder over the last four weeks and he had been told by his local doctor that he probably had a tear.
133. Dr Horsley examined Mr Magor’s hands and noted that there were heberdens nodes, stiffness of movement and evidence of osteoarthritis.
134. Having regard to Mr Magor’s physical problems, Dr Horsley suggested that the following work restrictions would apply to him:
(a)sitting for periods greater than one to one and a half hours without changing posture;
(b)static standing for greater than 20 minutes without changing posture;
(c)walking for more than one kilometre to one and half kilometres without taking rest breaks;
(d)driving for greater than one hour in an automatic vehicle with power steering without taking a rest break;
(e)driving a manual vehicle;
(f)repetitive stair climbing; and
(g)repetitive bending and lifting.
135. Dr Horsley was of the opinion that Mr Magor’s back condition in combination with the degenerative changes in both hands (for which the Commission had not accepted liability) contributed to him ceasing work at Sunraysia Chickens. As for the work he conducted at the café, Dr Horsley was of the opinion that Mr Magor would have great difficulty with customer service and the preparation of food because of the prolonged standing involved and the repetitive manual handling of stock. She believed this was beyond his capacity.
136. Overall, Dr Horsley was of the opinion that taking into account the physical conditions (for which the commission had accepted liability) alone, Mr Magor had no capacity to return to his pre‑injury duties in customer service, stocking shelves and general food preparation. She was of the view that he did have physical capacity to work in the general area of bookkeeping and bookwork on a part-time basis. She qualified this opinion by stating that it depended upon Mr Magor maintaining good concentration and attention span.
137. Dr Horsley was also of the opinion that Mr Magor’s cervical spondylosis, osteoarthritis of both hands and bilateral osteoarthritis further reduced his physical capacity; and that those conditions had increased in severity over recent times. She accepted that Mr Magor’s bilateral osteoarthritis in his hands had improved considerably with recent involvement in hand exercise programs through his local gymnasium. She also mentioned that Mr Magor had significant disability in his left shoulder with gross restriction of range of motion that she believed had occurred in the four weeks preceding her examination.
138. In her examination-in-chief, Dr Horsley said that all of the conditions she observed Mr Magor to be suffering contributed individually or collectively to his loss of work capacity.
139. In cross-examination, Mr Larkin asked Dr Horsley whether Mr Magor’s bilateral knee condition would render him incapable of working at the café. Dr Horsley said that Mr Magor told her he had grating in his knees for about 10 to 15 years although he had never had it investigated. She noted him to be rubbing his knee throughout the interview and he described his bilateral knee condition as giving him hell. On a visual analogue scale, she said he had a discomfort of between 5 and 6 out of 10. His pain was constant and it exacerbated with walking and driving. He experienced occasional swelling and intermittent locking. She said on clinical examination Mr Magor definitely had a knee problem. Dr Horsley said that in her opinion Mr Magor had partial capacity for work based on his accepted conditions alone. She said that was probably 8 to 20 hours per week. However, when she took into account the conditions for which the Commission had not accepted liability, Dr Horsley said she did not think Mr Magor had any capacity for work at all.
Findings on the Nature and Level of Mr Magor’s Incapacity
140. I have described the medical evidence in detail in the preceding 13 pages. The evidence deals with the degree of incapacity suffered by Mr Magor and the reasons which prevent him from continuing to undertake the remunerative work that he was previously undertaking. I will deal first with the degree of incapacity (s 23(1)(b), and s 24(1)(b)). My findings regarding Mr Magor’s degree of incapacity will determine his eligibility for the intermediate rate or special rate of pension. If Mr Magor’s incapacity qualifies him for the special rate of pension, I need not concern myself with the intermediate rate claim.
141. Therefore, the first question is whether Mr Magor’s incapacity arising from his lumbar spondylosis and PTSD is, of itself alone, such that it renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. In determining Mr Magor’s degree of incapacity, I must only have regard to the matters set out in s 28 of the VE Act.
142. Prior to examining and analysing the large number of medical reports and medical evidence, I need to say something about Mr Magor’s evidence and the history he has given to various medical practitioners. That is because there are many inconsistencies in what Mr Magor has said about his injuries and their effect on his capacity to conduct remunerative work. In my opinion, the inconsistent histories given by Mr Magor contribute, in no small degree, to the differences of opinion expressed by the various medical practitioners.
143. In his written statement Mr Magor stated that his neck injury occurred one or two years after he ceased work in 2001. However, by the time Mr Purcell put Mr Magor’s statement to him in his evidence-in-chief, he had changed the date of injury to 20 March 2004. In his written statement Mr Magor said [I] consulted my doctor a few days after the incident when I returned home. When Mr Magor was confronted with Dr Hartley’s clinical notes setting out his consultations in 2004, he then said he did not go and see Dr Hartley until later in 2004. In fact, it was some eight months after the fall.
144. After Mr Magor was referred to Dr Mills, Dr Mills wrote a brief report on 18 March 2005 in which he said, referring to Mr Magor; he fell recently, banging his head …. In fact, at that time it was some twelve months after he fell and hit his head. In his evidence to the VRB, referring to the fall he had in Hamilton, Mr Magor said … and when we got back to Mildura we – I went to see the doctor. When asked if it was the next day or that day, Mr Magor said no, it would’ve been a couple of days later. In the history taken by Dr Epstein, Mr Magor said that he consulted his general practitioner when he returned home a few days later.
145. The historical accounts given by Mr Magor about how he injured his lumbar spine in Vietnam also vary. According to Dr Hunter, he told her that his lumbar spine injury occurred when he was working in the army using field ovens and lifting heavy trays in and out of the oven. In his written statement, he said he injured his back when lifting a boiler during his service in Vietnam. In his evidence to the VRB he said his injury was caused by lifting pots. He told Dr Ramage that he injured his back in Vietnam when working with a low to the ground field oven and he pulled out an extremely large boiler full of liquid. He told Mr Westh that he injured his back by lifting a heavy boiler in Vietnam. He told Dr Epstein that his work in Vietnam involved repetitive lifting of heavy trays in and out of field ovens. He said he developed acute low back pain while lifting a 20 gallon boiler from the ground. He told Dr Horsley he first injured his back when lifting a 20 litre pot out of its cradle and put it on the ground.
146. In his written statement Mr Magor said that he began suffering emotional problems in Vietnam and that he drank alcohol to excess because it helped him relax and sleep. He said his drinking continued after his discharge from the army. He said he was subsequently diagnosed with PTSD. In the history recorded by Dr Epstein, Mr Magor said he was required, on a number of occasions, to lead what he described as ambush patrols. On one occasion while on such a patrol, his section came under mortar fire from the enemy, with mortar shells landing about 100 metres away. The attack continued for about 10 minutes.
147. However, Mr Magor is recorded as having told Dr Ramage that, while in Vietnam, he was not involved in any significant military action nor did he see any injury directly. He told Dr Ramage he was uncertain as to whether he had flash- backs in relation to his Vietnam service. However, when he was examined by Dr Hunter, she recorded that Mr Magor told her he had flashbacks approximately once a week.
148. Dr Caracatsanis recorded Mr Magor as having told him that he attributed his PTSD to the fact that for a 12 month period, he fulfilled the role of patrol commander during which he was put in charge of six men who conducted ambush patrols. He told Dr Caracatsanis that he found this role extremely stressful because he was never trained for it and felt responsible for the soldiers’ lives. He apparently said he was scared all the time and his fear was compounded when he was the target of mortar attacks during which he could do nothing but lie down and hope that he would not be hit. He also told Dr Caracatsanis that every now and then he experienced reminders of scenes from the war but that they were not to difficult to handle. He said he suffered from insomnia and that he frequently awoke from sleep thinking about ambushes and other experiences from Vietnam.
149. In his written statement, Mr Magor said that when he ceased work in 2001 he was consuming one and a half slabs (36 small cans) of full strength beer plus about 12 bottles (750 mls) of wine per week on average. He also said that on occasions he was consuming approximately one-half bottle of bourbon a week. He said his heavy drinking seemed to relieve his pain and helped him sleep. In his evidence-in-chief, Mr Magor said he had reduced his consumption of alcohol in the past four or five years to about four or five light beers per week and one bottle of red wine. When asked if he consumed the bottle of red wine on his own he said no, I share the bottle.
150. Mr Purcell then took Mr Magor to his written statement and asked whether the quantity of alcohol he described he was consuming, was consumed on his own. He answered no. He then explained that he was sharing that alcohol with a neighbour and also occasionally with his wife. When Mr Purcell asked him in cross‑examination to explain why he said that he was consuming that quantity of alcohol when he agreed he was sharing it with others, he said it was never put to me to put it down as a personal consumption. Despite using the words I was consuming, Mr Magor insisted that he was not misleading the Tribunal when he made that statement, because he did not realise he was required to put down the amount he consumed personally. I found that explanation unconvincing.
151. In the history given to Dr Glaser, Mr Magor said he used to drink excessively but did so very rarely now. He said on Friday nights he might consume three glasses of red wine. He also said he might drink two or three nips of bourbon once per month. He made no mention at all about beer. When Mr Purcell put to Mr Magor in cross-examination that he said in his evidence-in-chief he might drink four to five light beers per week and one bottle of red wine, which he shared with friends, he repeated that evidence was correct. He was asked why he didn’t tell Dr Glaser that he drank any beer at all, and he responded I wasn’t asked. Again, that response was unconvincing.
152. In his report Dr Epstein said Mr Magor told him that while he was working at Sunraysia Chickens, he developed a weakness in his hands due to osteoarthritis and he ceased working in that business in 1994. Dr Horsley also recorded Mr Magor telling her that in 2000 he began to experience increasing problems in the lumbar spine and increasing issues with his hands. This was as a result of his work at the Mildura café. Dr Horsley said Mr Magor ceased work in 1994 because of an increase in pain in his hands working as a boner, and his ongoing back condition. When Mr Purcell put this to Mr Magor in cross-examination, he denied that to be the case. He denied having told Dr Horsley that one of the reasons he ceased work at the Mildura café was an increasing problem with his hands in 2000.
153. Dr Horsley also recorded Mr Magor as having said that his general practitioner had diagnosed him as having rheumatism. She said Mr Magor had evidence of arthritic change on general inspection. She also said Mr Magor was having great difficulty picking up a pencil and even holding a glass of water until he began attending a gymnasium about 12 months earlier. He told Dr Horsley he gained considerable benefit from that activity. Mr Magor agreed he said those things to Dr Horsley. He nevertheless insisted it was not enough to stop him working.
154. It also appears that Mr Magor told Dr Horsley that he was suffering from bilateral knee osteoarthrosis. She recorded Mr Magor experiencing grating in both knees for the last 10 to 15 years, a condition which his GP had never investigated. She said Mr Magor was rubbing his right knee repetitively throughout the interview. She recorded that Mr Magor told her the condition of his knees gives him hell. He said he occasionally experienced swelling and intermittent locking, although he had not experienced any giving way for the last six months. Under cross-examination, Mr Magor attempted to play down the severity of his knee problems. He said they gave him a problem every now and then but not very often. When Mr Purcell put to Mr Magor in cross-examination that he had osteoarthritis or some other problem with both knees, he responded not any more.
155. When Mr Purcell asked Mr Magor in cross-examination whether he had problems with his shoulders, he said he had referred pain from his neck down to the shoulders. When it was put to him that he had a reduction of movement in the left shoulder, he responded not any more. He agreed that he did have a reduction of movement when he saw Dr Horsley. Dr Horsley noted a significant reduction in right shoulder movement and an even greater reduction of range of motion in the left shoulder. Her examination of Mr Magor’s hands revealed heberdens nodes, stiffness of movement and evidence of osteoarthritis.
156. I have set out at some length a number of significant inconsistencies in Mr Magor’s evidence because of my view that the history he has given a number of medical practitioners has significantly influenced their conclusions about his work capacity. Mr Magor’s accepted war-caused injuries which have affected his work capacity are lumbar spondylosis and PTSD. Although Mr Magor rejected the suggestion that his cervical spondylosis affected his work capacity, I suspect that was Mr Magor’s evidence because cervical spondylosis had been rejected as being war-caused. Some of the medical practitioners who examined Mr Magor did form the view that it played a part in reducing his work capacity. Again, it demonstrates that Mr Magor set out to emphasise in his evidence aspects of his medical conditions which would favourably influence his application for the special or intermediate rate of pension, while downplaying those aspects which he viewed as unfavourable.
157. In my opinion, the weight of evidence discloses that Mr Magor’s war-caused injuries did not result in him being totally and permanently incapacitated, such that they rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Of the orthopaedic surgeons who examined Mr Magor, only Dr Mills and Mr Westh were of the view that Mr Magor was incapable of performing remunerative work for periods aggregating less than eight hours per week.
158. Dr Hartley, Mr Magor’s general practitioner, although initially of the view that Mr Magor had the capacity to work for 10 hours per week, subsequently changed his mind and said he agreed with Dr Mills. Dr Mills was of the view that Mr Magor was unable to perform any work and he was unfit to do paid work for even a minimum number of hours. Mr Westh was of the opinion that Mr Magor was unable to undertake remunerative work for periods of more than eight hours per week, although he also said that Mr Magor might be able to undertake supervisory, non‑physical work. In fact, Mr Westh was referring only to work of a physical nature. Mr Westh was also of the opinion that Mr Magor’s cervical spondylosis only had a very minimal impact on his work capacity. Therefore, although Mr Westh was of the view that Mr Magor was not capable of working for periods of more than eight hours per week, this opinion was qualified by the reference to physical work. He did not take into account the fact that Mr Magor did have the capacity for supervisory non‑physical work.
159. Dr Hunter, a rehabilitation physician, was of the opinion that Mr Magor was unable to work more than eight hours per week due to a combination of lumbar spondylosis, which prevented manual work and PTSD, which limited clerical work. The difficulty I have with this assessment is that Dr Hunter’s opinion is primarily directed towards Mr Magor’s capacity to perform manual work. Clearly, she is not qualified to provide an opinion regarding the affect of PTSD on Mr Magor’s work capacity. In fact, it appears Dr Hunter has simply accepted Mr Magor’s statement that he suffered short term memory loss and reduced concentration and attention. Dr Hunter’s opinion regarding Mr Magor’s PTSD is also contrary to the majority of psychiatrists, who reported on Mr Magor’s PTSD. Dr Epstein said he thought it likely that Mr Magor’s physical limitations would prevent him from undertaking remunerative work for periods aggregating more than eight hours per week. However, he was clearly not qualified to offer that opinion about Mr Magor’s physical capacity.
160. Of the remaining orthopaedic surgeons who examined Mr Magor, Dr Krishnan found Mr Magor had a 25 per cent loss of full and efficient use of his lumbar spine. He did not offer an opinion regarding Mr Magor’s degree of incapacity from his back injury. Dr Macintosh was of the view that Mr Magor’s lower lumbar disc lesion would have some effect on his ability to perform remunerative work. He reported that Mr Magor would have some difficulty with heavy work or work involving repetitive bending of lifting, or sitting or standing for extended periods. He was nevertheless of the opinion that Mr Magor was capable of performing a moderate range of activities provided he could sit or stand as required and avoid heavy lifting. He did not give an opinion about the number of hours he believed Mr Magor could work per week.
161. Dr Ramage and Dr Horsley, who are occupational physicians, were of the view that Mr Magor did have the capacity to perform remunerative work in excess of eight hours per week. Neither offered an opinion about the effect of Mr Magor’s PTSD on his capacity to perform remunerative work; although Dr Ramage said he doubted Mr Magor’s PTSD was a significant factor contributing to his incapacity to work. Dr Ramage was also of the view that in his testing of Mr Magor’s lumbar spine, Mr Magor was exaggerating the degree of pain he experienced. Given Mr Magor’s unsatisfactory evidence, which I have described in detail above, I find Mr Magor has exaggerated the degree of pain resulting from his lumbar spine injury.
162. Dr Ramage also concluded that Mr Magor was capable of performing duties where he had the ability to sit or stand as required and did not have to repeatedly bend forward from the waist or lift heavy items. Finally, Dr Horsley’s opinion was that although Mr Magor had no capacity to return to his pre-injury duties, due to his physical conditions alone, he did have the capacity to work in other areas not involving physical work. She was of the view that Mr Magor had the capacity to undertake remunerative work for between eight to 20 hours per week.
163. The weight of evidence from the psychiatrists regarding Mr Magor’s PTSD was that it would not prevent him from undertaking remunerative work in excess of eight hours per week. Dr Caracatsanis was of the view that his PTSD did not limit his capacity to work in any way. Dr Sheehan said there was no evidence of neurological disorder. He said Mr Magor told him he had impaired short-term memory. Dr Sheehan said Mr Magor demonstrated limited concentration at interview but there were no other positive findings on mental state assessment.
164. Dr Sheehan also said that Mr Magor’s depression would not impact significantly on his ability to perform remunerative work. Dr Sheehan disagreed with Dr Caracatsanis about Mr Magor’s capacity to work and said that because Mr Magor reported continuing symptoms of PTSD, reduced short-term memory and reduced concentration, he was of the view that those symptoms would reduce his ability to perform remunerative work. He supported Dr Hunter’s opinion that Mr Magor was unable to work more than eight hours per week but primarily due to lumbar spondylosis preventing manual work and PTSD limiting clerical work.
165. Dr Epstein was of the opinion that Mr Magor appeared to have mild, chronic PTSD. He also thought that Mr Magor had chronic GAD, which he believed might have predated Mr Magor’s army service. He was of the opinion that Mr Magor’s work capacity was limited by his physical condition and to a lesser extent by his psychiatric condition. He was of the view that Mr Magor’s PTSD and depressive disorder might restrict his work capacity and prevent him from undertaking remunerative work for 20 hours per week. In other words, his PTSD did not prevent him from engaging in remunerative work for periods in excess of eight hours per week.
166. According to Dr Glaser, Mr Magor exhibited no clinically detectable concentration or memory difficulties. He was of the opinion that Mr Magor’s PTSD was relatively mild. He found no evidence to support a diagnosis of chronic GAD. In his opinion, if Mr Magor ever suffered from GAD, it would not have been of any clinical severity. He agreed with Dr Epstein’s assessment that from a psychiatric point of view, Mr Magor’s work capacity was limited to no more than 50 per cent of the time ordinarily worked or 20 hours per week. He added that despite Mr Magor’s mild complaints, he was able to function well in terms of his daily activities. He was also of the opinion that Mr Magor’s psychiatric problems did not prevent him from carrying out part time duties which he indicated he was undertaking. That, I believe, was a reference to work he said he did when assisting his daughter at the Mildura café for about one hour per week.
167. For the reasons I have set out above, I find that Mr Magor is capable of undertaking remunerative work for periods aggregating more than eight hours per week and is therefore not permanently incapacitated. It follows I must find that Mr Magor does not qualify for the special rate of pension, as he cannot satisfy the qualifying criteria set out in s 24(1)(b) of the VE Act.
168. However, my analysis of the medical opinions does, on the balance of probability, establish that Mr Magor’s incapacity from his lumbar spondylosis and PTSD, alone, render him incapable of undertaking remunerative work otherwise and on a part-time basis or intermittently. There was no evidence to suggest that Mr Magor could continue to work in excess of 20 hours per week, or for more than 50 per cent for the time ordinarily worked by persons engaged in the form of remunerative work that Mr Magor was undertaking prior to ceasing work altogether. Therefore, I find the Mr Magor does satisfy the qualifying criteria set out in s 23(1)(b) of the VE Act.
Cause of Mr Magor’s inability to continue remunerative work
169. Even though I have found that Mr Magor satisfies the requirements of s 23(1)(b) of the VE Act, that finding only goes to the nature and level of Mr Magor’s incapacity to undertake remunerative work (see Wright’s case).
170. The second hurdle which Mr Magor must overcome is that his war‑caused injuries (lumbar spondylosis and PTSD) by themselves alone must prevent him from continuing to undertake remunerative work that he was undertaking and he is therefore suffering a loss of salary or wages or earnings on his own account that he would not be suffering if he were free from his incapacity.
171. The major difficulty for Mr Magor in attempting to satisfy the requirements of s 23(1)(c) of the VE Act are the findings made by Dr Horsley regarding a number of conditions which are not accepted as having been war-caused. Dr Horsley described these as:
(a)osteoarthritis of his bilateral hands;
(b)bilateral knee osteoarthritis;
(c)bilateral shoulder disability/rotator cuff dysfunction;
(d)obstructive sleep apnoea; and
(e)cervical spondylosis
172. Although Dr Horsley accepted that Mr Magor’s hands had improved following his recent involvement in a hand exercise program, she was nevertheless of the view that these additional medical problems played a part in preventing Mr Magor from continuing to undertake the remunerative work that he was previously undertaking. He ceased work at Sunraysia Chickens because of increasing pain in both of his hands and his ongoing back condition. He found it difficult to cope with the hours of standing and the repetitive nature of boning chickens. As for work in the Mildura café, Dr Horsley was of the opinion that Mr Magor would have great difficulty with customer service and the preparation of food, because of prolonged standing involved and repetitive manual handling of stock.
173. Dr Horsley also described Mr Magor’s difficulty in picking up a pencil and holding a glass of water prior to his attending a gymnasium and exercising his hands, which has provided him with considerable relief. Dr Hartley was asked whether he had ever treated Mr Magor for arthritis in his hands. He said he had and that he had prescribed anti-inflammatory agents for that condition. When asked whether they were effective, Dr Hartley said that the anti-inflammatories only helped the inflammation but they were not really good for the pain. He said: So he’s still an invalid as far as holding knives and so forth.
174. Mr Magor also described problems with his hands to Dr Hunter. He said he had pain at the base of his thumb and difficulty in lifting heavy objects. He said he had difficulty in maintaining grip strength and often dropped things.
175. Under cross-examination, Mr Westh was asked whether problems with his hands would affect Mr Magor’s capacity for work. He said the impact would only be slight. Mr Westh did not make any mention of Mr Magor’s hands in his written opinion.
176. Dr Horsley reported that Mr Magor’s right knee revealed mild crepitus and there was a reduction in the range of motion. There was also tenderness on palpation. His left knee also revealed tenderness and crepitus and there was a significant reduction in its range of motion. Dr Horsley also said that there was a clicking on flexion and extension and there appeared to be a positive McMurray’s test, suggestive of a meniscal tear or osteoarthritis. Mr Magor’s army medical records support that observation by Dr Horsley.
177. Dr Horsley also observed Mr Magor rubbing his knee throughout the interview and he described both his knees as giving him hell. Nevertheless, Mr Westh said that on examination, Mr Magor’s hips and knee were normal. He did not indicate which knee he meant. Although it is difficult to reconcile Mr Westh’s report with the evidence of Dr Horsley, from his written report it appears Mr Westh focused essentially on Mr Magor’s spine. Nevertheless, under cross-examination, he agreed that Mr Magor’s knees might possibly have some impact on his work capacity.
178. Dr Horsley also found problems with Mr Magor’s shoulders, the left shoulder problem being more severe. Mr Magor told Dr Horsley that he had experienced an increase in pain in his left shoulder in the previous four weeks; and that Dr Hartley had told him that he probably had a tear. According to Dr Horsley, on presentation on 4 June 2008, Mr Magor’s shoulder condition rendered him unfit for work and she listed a series of additional restrictions which would apply should he undertake physical work. Under cross-examination, Dr Hartley was asked whether he agreed that Mr Magor suffered bilateral shoulder disability with bilateral rotator cuff dysfunction. Dr Hartley said Mr Magor did have shoulder problems.
179. In her examination-in-chief, Dr Horsley was asked whether Mr Magor’s non‑accepted disabilities affected his capacity for employment. She said she was asked to look at other factors and so combined cervical spondylosis, osteoarthrosis of his hands, his bilateral knee osteoarthrosis and the condition of his shoulders and identified the additional restrictions (beyond those for his back condition) that would be needed to be put in place for him to return to work. When asked whether all of those conditions either individually or collectively contributed to his loss of work capacity, Dr Horsley replied definitely.
180. Under cross-examination, Dr Hartley was taken to Dr Horsley’s report, and in particular what she had to say about Mr Magor’s knees, shoulders and osteoarthritis of both hands. Mr Purcell put to Dr Hartley that all of those conditions would contribute to Mr Magor’s lack of work capacity and he responded: certainly.
181. Given the evidence of Dr Horsley and Dr Hartley, I find that Mr Magor’s non war-caused injuries, in addition to his war-caused injuries, prevent him from continuing to undertake the remunerative work that he was undertaking. Therefore, I find that Mr Magor does not satisfy the requirements of s 23(1)(c) of the VE Act. In other words, he does not meet the so called alone test and therefore he does not qualify for a pension at the intermediate rate. Accordingly, it is unnecessary for me to proceed to examine whether Mr Magor was suffering a loss of salary or wages or of earnings on his own account.
CONCLUSION
182. Although Mr Magor established a reasonable hypothesis connecting his cervical spondylosis with his operational service, I have found that this degenerative condition had no causal connection with his service. The trauma which Mr Magor suffered in March 2004 did not cause him to develop cervical spondylosis; it merely caused it to become symptomatic. That fact is inconsistent with the hypothesis. I am satisfied beyond reasonable doubt that Mr Magor’s cervical spondylosis is not war-caused. Therefore, in my opinion, the decision of the VRB made on 19 September 2008, the subject of the application in matter Nº 2008/5210, was correct and I affirm that decision.
183. I am not satisfied that Mr Magor meets the qualifying level of incapacity for the grant of a pension at the special rate. I have found that he is not totally and permanently incapacitated, as he is capable of undertaking remunerative work for periods aggregating more that 8 hours per week.
184. However, I have found that Mr Magor does meet the level of incapacity to qualify for a pension at the intermediate rate. But that finding by itself does not result in Mr Magor being eligible to receive the intermediate rate of pension. He is also required to meet the so-called alone test in s 23(1)(c). I have found that Mr Magor does not satisfy that test because he ceased the remunerative work which he was undertaking partially due to injuries which were not war-caused. I therefore find that the decision made by the VRB on 14 August 2007 was correct. I affirm the reviewable decision in matter Nº 2007/4762.
DECISION
185. The Tribunal affirms the decisions under review.
I certify that the one hundred and eighty-five [185] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
[sgd]: Olympia Sarrinikolaou
Clerk
Dates of Hearing 21-22 May 2009 and 22 July 2009
Date of Decision 25 September 2009
Counsel for the Applicant Mr A. Larkin
Solicitor for the Applicant Williams Winter Solicitors
Counsel for the Respondent Mr G. Purcell
Solicitor for the Respondent Department of Veterans’ Affairs
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