Cobb and Repatriation Commission
[2003] AATA 618
•30 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 618
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/572
VETERANS’ APPEALS DIVISION ) Re RUSSELL CHARLES COBB Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Date30 June 2003
PlaceMelbourne
Decision The Tribunal varies the decision under review to provide:
1. Lumbar spondylosis and early nuclear cataracts are conceded by the respondent to be war-caused diseases under the Veterans' Entitlements Act 1986 (“the Act”). The date of effect is 22 November 2000.
2. The rate of pension payable to Mr Cobb from 22 November 2000 is as follows:
(i) 80% of the general rate until 30 September 2002;
(ii) 90% of the general rate from 1 October 2002; and
(iii) the intermediate rate under s 23 of the Act from 1 February 2003.
(Sgd) Joan Dwyer
Senior Member
VETERANS’ AFFAIRS – disability pension – assessment of general rate pension – whether entitled to pension at intermediate rate – whether incapacity from PTSD and lumbar spondylosis is, alone, of such a nature as to render veteran incapable of undertaking remunerative work otherwise than on a part-time basis – whether veteran undertaking or capable of undertaking work as a self-employed plumber for 20 or more hours per week – no records as to precise hours worked – evidence that hours reduced to less than 20 hours per week – whether travel time to be included in calculation of hours undertaking remunerative work – whether veteran capable of working 20 or more hours per week – whether veteran prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from war-caused disease alone – whether veteran suffering a loss of earnings that he would not be suffering if free of incapacity from war-caused disease – decision varied to provide entitlement to intermediate rate of pension from 1 February 2003
Veterans' Entitlements Act 1986 s 23(1) and (2)
Re Bonner and Repatriation Commission (1989) 17 ALD 680
REASONS FOR DECISION
30 June 2003 Mrs Joan Dwyer, Senior Member 1. This is an application for review of a decision of the Veterans’ Review Board (“the VRB”) made 29 May 2000, which amended a diagnosis of back problems to lumbar spondylosis, and affirmed a decision of the Repatriation Commission made 7 July 1999 which accepted Post-Traumatic Stress Disorder (“PTSD”) and sensori-neural loss of hearing of the right ear with tinnitus, as war-caused diseases under the Veterans' Entitlements Act 1986 (“the Act”), and rejected claims in respect of sensori-neural hearing loss of the left ear, tinea, macular degeneration and lumbar spondylosis. Subsequently tinnitus was also accepted as a war-caused disease. The application to this Tribunal was made on 21 May 2001.
2. At the hearing Mr De Marchi, a solicitor, appeared for Mr Cobb. Mr Purcell of Counsel, appeared for the respondent. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing. The Tribunal was informed that by a decision of a delegate of the Repatriation Commission made 5 July 2001, the rate of pension payable to Mr Cobb, in respect of his PTSD, hearing loss in the right ear and tinnitus, had been increased from 40% to 70% with effect from 19 January 1999. A copy of that decision was added to the T documents as T16 p94-98. Mr Cobb gave evidence. The respondent called Dr Sillcock who is a physician specialising in Occupational Medicine.
3. The matters in issue changed significantly during the period of preparation for hearing. The applicant’s first Statement of Facts and Contentions lodged on 22 April 2002, submitted that Mr Cobb was entitled to have the conditions of lumbar spondylosis, macular degeneration and sensori-neural hearing loss of the left ear accepted as war-caused and that pension should be increased to 100% of the general rate. At a directions hearing the applicant’s solicitor stated that Mr Cobb would be claiming pension at the intermediate or special rate. The Tribunal directed that an Amended Statement of Facts and Contentions be lodged. The Amended Statement of Facts and Contentions lodged on 8 July 2002 stated that Mr Cobb had been forced to reduce his hours of employment to less than 20 hours per week and that he sought pension at 100% of the general rate from the date of effect of the application, and at the intermediate or special rate from the time of the reduction in the number of hours to less than 20 hours per week in the aggregate. That document gave no dates as to the reduction of hours. In a Second Amended Statement of Facts and Contentions lodged on 12 November 2002 it was submitted that the intermediate or special rate of pension was payable from approximately 1 November 2001.
4. The respondent’s first Statement of Facts and Contentions lodged on 4 July 2002 submitted that pension should remain at 70% of the general rate and that the decision rejecting sensori-neural hearing loss of the left ear should be affirmed, as the diagnostic criteria could not be met. The respondent did not make a submission as to lumbar spondylosis but referred to a recently gazetted Statement of Principles (“SoP”) for that condition, Instrument No. 46 of 2002. The respondent submitted that there was insufficient diagnostic information to determine whether the eye condition which had been diagnosed as macular degeneration was covered by a SoP.
5. In an amended Statement of Facts and Contentions delivered on 27 February 2003, the respondent conceded that lumbar spondylosis was war-caused on the basis that factor 5(j) in SoP No. 46 of 2002 as amended by No. 77 of 2002, relating to the carrying of weights, was met. The respondent also stated that the condition of macular degeneration was more appropriately diagnosed as early nuclear cataracts, and that the SoP for acquired cataracts, Instrument No. 37 of 2001, as amended by Instrument No. 32 of 2002, was met. The respondent stated in paragraph 1.6 of its Statement of Facts and Contentions that as the time prescribed in s 177 of the Act was exceeded, the date of effect was 29 November 2000.
6. Mr Cobb did not make application for review of the VRB decision of 29 May 2000 until 21 May 2001. That is outside the three months prescribed in s 177(2)(a) of the Act. In that situation, under s 177(2)(b)(i), the decision of this Tribunal may operate “from a date not more than six months before the date on which the application under s 175(1) was made”.. That application was made on 21 May 2001. Thus the date of effect of this decision can not be earlier than 22 November 2000, (not 29 November 2000 as stated by the respondent).
7. The respondent submitted that the combined appropriate GARP impairment ratings, including ratings for lumbar spondylosis, yielded a whole person impairment rating of 42, which converts to a 70% degree of incapacity and rate of pension. That, of course, is the same as Mr Cobb has been receiving since the decision of 5 July 2001 (T16), which was made before lumbar spondylosis and nuclear cataracts were accepted as war-caused. The respondent rejected the submission of the applicant, that he was entitled to intermediate or special rate pension from 1 November 2001, and submitted that his accepted disabilities do not reduce his work capacity below 20 hours per week, and that on the evidence it was not clear that he had reduced his workload below 20 hours per week.
8. The applicant did not pursue the issue whether sensori-neural hearing loss of the left ear was a war-caused disease. Nor did the applicant seek pension at the special rate. Thus the only issues were as to the assessment of general rate pension and whether Mr Cobb was qualified for pension at the intermediate rate.
ASSESSMENT
(i) PTSD
9. Rates of pension are based on impairment assessments under the Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”). The issue of the assessment of PTSD was unusual in that the respondent did not accept the assessment of Dr Kenny, from whom it had obtained a report of 6 October 2002 (R3). In that report Dr Kenny assessed Mr Cobb’s impairment rating for PTSD as 25 points. The Repatriation Commission decision of 5 July 2001 (T16), increasing Mr Cobb’s rate of disability pension to 70% of the general rate with effect from 19 January 1999, assessed the PTSD at 22 impairment points. Dr Parkin, in a report of 18 May 1999 to the Department of Veterans’ Affairs (T7 pp41-62) had given a 21 point rating for PTSD.
10. The Tribunal had difficulty obtaining from Mr Purcell the reason for his instructions which he said were not to accept the assessment of Dr Kenny. Eventually it transpired that it was because Dr Kenny in his report of 6 October 2002 (R3), had accepted that Mr Cobb was barely coping with working 20 hours a week and had expressed the opinion that he was “capable of between 8 and 20 hours per week and no more”. That was reflected in Dr Kenny’s assessment where he gave a rating of 5 on Table 4.4 of GARP for effects of the PTSD on occupation saying (R3 p8):
I think he is having quite marked problems at work at the moment in terms of conflict with other people that he has to work with, lack of motivation, anxiety associated with coping with his employment and he appears to have markedly restricted his work as a result.
11. Although Mr De Marchi was prepared to accept Dr Kenny’s rating of 25 points for PTSD, which was only slightly higher than that of 22 accepted in the Repatriation Commission decision of 5 July 2001, when the respondent did not agree to that rating, he sought to make a case for a higher rating.
12. The practice of this Tribunal is to require parties to put their cases in Statement of Facts and Contentions. In the applicant’s second Amended Statement of Facts and Contentions the applicant had sought 33 impairment points for PTSD stating that it was consistent with Dr Parkin’s report. That is not so. Dr Parkin, as stated above, had given a rating of 21 in his report (T7).
13. Neither of the psychiatrists were called. It seems appropriate to rely on their reports as to psychiatric issues, but it is also relevant to bear in mind that there may have been some change since they saw Mr Cobb.
14. The major difference between Mr De Marchi’s suggested rating of 33 impairment points and those of Dr Parkin and Dr Kenny of 21 and 25 impairment points respectively, is that Mr De Marchi sought ratings of 10 impairment points on Tables 4.1 and 4.2 which deal with Subjective Distress and Manifest Distress, and both psychiatrists gave ratings of 6 on each of those Tables.
15. I prefer the expert psychiatric assessment on those Tables to the suggestion of Mr De Marchi.
16. The difference between Dr Parkin and Dr Kenny arises because, as already discussed, Dr Kenny, who saw Mr Cobb on 1 October 2002, gave a rating of 5 on Table 4.4 for which the criterion is:
FIVE An employed veteran will have major difficulties at work, which may be manifested by job modification or restriction of career opportunities. The disorder may contribute to the loss of a job.
17. Dr Parkin saw Mr Cobb on 18 May 1999. At that time Mr Cobb was working 30 hours a week. Dr Parkin noted (T7 p50):
He is currently engaged in less than optimal work and is being less than fully productive. This may continue and even get worse over the years.
Dr Parkin added (T7 p56):
Is losing interest in his work. He won’t chase work. Is at times so disinterested that he ignores work. Loses interest and will come home early.
18. On that history Dr Parkin gave a rating of 1 on Table 4.4, for which the criterion is:
ONE Exacerbation of symptoms may cause occasional days off work.
19. I find that in May 1999 Dr Parkin’s assessment of 21 impairment points for PTSD was appropriate, but that, as he foreshadowed, the situation in regard to occupation had deteriorated by 1 October 2002. I find that when Dr Kenny saw Mr Cobb his PTSD had deteriorated so that a rating of 5 was appropriate. That analysis is based not only on the medical evidence, but also on Mr Cobb’s evidence, and on the evidence of Mr Grollo as to the reduction in Mr Cobb’s ability to undertake work (A5). Further, it is relevant that Dr Kenny, although he was a medico-legal examiner retained by the respondent, suggested that treatment for the PTSD was appropriate, and, after he saw Mr Cobb on 1 October 2002, contacted the treating general practitioner to arrange that an anti-depressant be prescribed for Mr Cobb.
20. I find that the appropriate rating for PTSD is 21 points as assessed by Dr Parkin until 30 September 2002. From 1 October 2002, when Mr Cobb attended Dr Kenny, the appropriate rating be increased to 25 points.
(ii) lumbar spondylosis
21. This condition was conceded to be war-caused in the respondent’s Amended Statement of Facts and Contentions delivered on 27 February 2003, which contended as to assessment:
The respondent relies on Mr Hadley’s report of 14 November 2001 and submits that the following ratings are appropriate;
Table 3.3.1 and 3.6.1 – 9 points
Table 3.2.2 – 10 points.
The respondent submits that GARP does not permit sciatic pain to be assessed under Table 3.4.1, as it is already assessed under Table 3.2.2.
Table 3.3.1 covers Loss of Musculoskeletal Function: Spinal Movement. Table 3.6.1 provides for Age Adjustment of Table 3.3.1 ratings. Table 3.2.2 covers Loss of Musculoskeletal Function Lower: Limbs. Table 3.4.1 covers Resting Joint Pain.
22. It is difficult to understand how the respondent arrived at its suggested assessment, as, in respect of Table 3.2.2, it is higher than Mr Hadley’s suggested rating of 5 in his report (A2). Mr De Marchi conceded that the rating on Table 3.3.1 should be reduced to 9 points, because of age, as required by Table 3.6.1.
23. Mr De Marchi accepted the respondent’s suggested ratings of 10 points on Table 3.2.2 and 10 points reduced to 9 on Tables 3.3.1 and 3.6.1. However it is necessary to consider the evidence to see whether there is support on the evidence for a rating of 10 on Table 3.2.2, rather than the 5 actually given by Mr Hadley. I note that Mr Hadley reported (A2 p2):
He states he can now sit for about half an hour when he needs to stand up, can stand in the one place for about half an hour when he needs to move about and walks with intermittent difficulty. He states he needs to be careful on steps, uneven ground and going up ladders which he does with difficulty. He states he is able to get up out of a chair without the assistance of a hand. He states when he attempts to run he can only run for about ten metres when he needs to stop. He states before his back injury he was a good long distance runner.
24. The criteria for ratings of 5 and 10 on Table 3.2.2 are as follows:
FIVE
· Walks with intermittent difficulty, such as locking or giving way, without falling. Caution needed on steps and uneven ground, or when running.
· Has intermittent pain from weight-bearing, ie, not all the time, or only after weight-bearing for some time.
· Sciatic pain occurring frequently: present some of the time when walking.
TEN
· Walks at normal pace on level ground, but has constant difficulty up and down steps and over uneven ground. Need for a walking stick may be manifested:
- Pain and/or slowness; or
- constant pain from weight-bearing.· Pain restricts walking to 500 m or less, at a slow to moderate pace (4 km/h). Can walk further after resting.
· Sciatic pain daily - present most of the time during walking.
25. I find that on the history obtained by Mr Hadley, a rating of 10 on Table 3.2.2, as conceded by the respondent, is appropriate.
26. An issue which Mr De Marchi raised in the applicant’s Statement of Facts and Contentions, and at the commencement of the hearing, was whether there should also be a rating for resting joint pain under Table 3.4.1. As is pointed out in the respondent’s Statement of Facts and Contentions, such a rating cannot be made in respect of sciatica, as sciatica is already assessed under Table 3.2.2, and the instructions under the heading “Part 3.4 Resting Joint Pain”, expressly state that the Table is not to be applied to rate sciatic pain, which is to be rated by applying Table 3.2.2.
27. Mr De Marchi submitted that a rating of 5 was appropriate on Table 3.4.1 which applies in the following circumstances:
FIVE
· Pain in any joint, or combination of joints, that is often present at rest but which improves after several hours rest or responds to medication or to therapeutic measures.
· Pain in the back that limits comfortable sitting to less than 10 minutes at a time.
28. The evidence given by Mr Cobb on this issue was that he sometimes has to get up in the morning earlier than his wife, because he has pain in his back lying in bed. Low back pain which continues at night and disturbs his rest was mentioned as a current complaint in the report of Mr McArthur, an orthopaedic surgeon dated 19 January 2000. He wrote (T13 p85):
The low back pain continues at night and disturbs his rest whereas the right sciatica is eased by rest. The low back is stiff in the morning but tends to free up during the day. Currently Mr Cobb is not under treatment for his back ache.
29. I find that the description of back pain given by Mr Cobb in his evidence and reported by Mr McArthur satisfies the criteria for a rating of 5 on Table 3.4.
ASSESSMENT OF GENERAL RATE OF PENSION
30. The findings I have made mean that it is necessary to do two assessments of general rate of pension. The first is the rate payable to Mr Cobb up to 30 September 2002; the second from that period onwards.
(i) up to 30 September 2002
31. During this period the ratings and impairment ratings are as follows:
PTSD
lumbar spondylosis
Table 3.2.2
Table 3.3.1
Table 3.4.121
10
9
5tinnitus (as agreed by the parties) 5 tinea (as agreed by the parties) 5 bilateral early lens sclerosis (as agreed by the parties) 2
32. Applying Table 18 of GARP, those ratings combine to give a whole person impairment rating of 45 which converts, according to Table 23.1 to pension at 80% of the general rate, taking, as is the practice, the higher value in the shaded area.
33. The decision under review will be varied to provide that from 20 November 2000 to 30 September 2002 Mr Cobb was entitled to pension at 80% of the general rate.
(ii) from 1 October 2002
34. During this period I find that the following impairment ratings apply:
PTSD
lumbar spondylosis
Table 3.2.2
Table 3.3.1
Table 3.4.125
10
9
5tinnitus (as agreed by the parties) 5 tinea (as agreed by the parties) 5 bilateral early lens sclerosis (as agreed by the parties) 2
35. Applying Table 18 of GARP, those ratings combine to give a whole person impairment rating of 49, which is rounded up to 50. A rating of 50 converts, according to Table 23.1, to pension at 90% of the general rate, again taking the higher of the values in the shaded area.
36. The decision under review will be varied to provide that from 1 October 2002 Mr Cobb has been entitled to pension at 90% of the general rate.
ENTITLEMENT TO INTERMEDIATE RATE PENSION
RELEVANT LEGISLATION
37. It is necessary to set out the provisions of s 23(1) and (2) of the Act.
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from 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 from that incapacity; and
(d)section 24 or 25 does not apply to the veteran.
(2)Paragraph (1) (b) shall not be taken to be fulfilled in respect of a 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.
38. The case was put on the basis that Mr Cobb satisfies s 23(1)(b) and that paragraph 23(2)(b) does not apply to him. That is the aspect of this case which creates some difficulty for Mr Cobb. There is already a decision (T16) that he has a degree of incapacity from war-caused injury or war-caused disease, of at least 70%, so section 23(1)(a) is satisfied.
39. As to paragraph 23(1)(b) there is psychiatric evidence as set out in paragraphs 10-17 of these reasons, to the effect that Mr Cobb’s PTSD has resulted in incapacity which has rendered him incapable of undertaking remunerative work otherwise than on a part-time basis.
40. Dr Kenny, in his report of 6 October 2002 (R3), which is the most recent psychiatric report before the Tribunal, as set out in para 9 of these reasons, wrote as to occupation:
I think he is having quite marked problems at work at the moment in terms of conflict with other people that he has to work with, lack of motivation, anxiety associated with coping with his employment and he appears to have markedly restricted his work as a result.
41. In answer to question 2 on p8,asking whether Mr Cobb’s PTSD prevented him working more than 8-20 hours per week, Dr Kenny replied:
I think at this stage this man is only capable of an absolute maximum of about 20 hours a week and is just barely coping with that. So I say he is capable of between 8 and 20 hours per week and no more.
42. In answer to question 4, Dr Kenny wrote:
In my understanding it is in the last few years that there has been this progressive reduction in his involvement with work, but I would think one would have to accept that for a period of at least 12 months he has really not been capable of working more than 20 hours a week.
43. The respondent called Dr Sillcock. She is a physician specialising in occupational health. She wrote a report dated 30 October 2002 (R2). She wrote that Mr Cobb told her the pain in his back had never settled down completely and he had had a few visits to a chiropractor in the 1970’s, but did not have many symptoms when she saw him. He told her that he avoided heavy lifting. Dr Sillcock gave very little consideration in her report to the accepted war-caused PTSD. She wrote:
Mr Cobb said that he does not handle stress well. He has reduced his working hours because of the difficulty handling the pressure of work. He said that he tends to be antisocial and [does] not go out much. When he does go out, he often comes home early.
44. Dr Sillcock had not seen Dr Kenny’s report. She wrote that Mr Cobb did not seem to her to be depressed or anxious. She agreed in evidence that she would defer to a psychiatrist as to diagnosis, and as to whether medication was required for the psychiatric condition. Dr Sillcock wrote in answer to questions 1 and 4 (R2 p4):
I do not believe that Mr Cobb’s accepted disabilities prevent him from working more than 8 or 20 hours per week. He now works around 20 hours per week.
. . .
Mr Cobb has not ceased work. He works around 20 hours per week. He said that he works these hours rather than full-time because he cannot cope with the stress of it.
45. In evidence Dr Sillcock said that it was her opinion that Mr Cobb was fit to work at least 20 hours a week (trans. p88).
46. It was Mr Cobb’s evidence that he has reduced his hours of work to 15 or 16 hours a week this year, since he saw Dr Kenny. He explained “I have felt worse this year” (trans. p100). Mr Cobb also explained the position in more detail, earlier in his evidence:
It has been going for quite a while but more lately because some of the jobs I just suffer from anxiety just thinking about them, you know. There is even jobs I said I would do and then I have pulled out of, you know. I said I can't do it, you know, because I just can't handle the pressure of it, you know, to do them.
. . .
I don't just go and work two hours a day. On a good day I might stay there for four or five hours and other days I won't go at all. If I don't feel good I won't go, you know, and then I might go and work an hour. It varies.
And in the aggregate what do you think you are doing a week? --- Probably since Christmas maybe 15 or 16 hours a week, something like that.
. . .
MR DE MARCHI: All right. Now, a little bit before that, are you able to tell us how many hours you were working? --- I have just been on a gradual taper I would say, you know, with the hours over the last few years. (trans. p34)
47. Grollo Homes provided two letters (A5 and A6) supporting Mr Cobb’s application, stating that he has substantially reduced his hours of work, and that he has incapacity from his lumbar spondylosis. They state as follows:
We employ Russell Cobb as a sub contract plumber and have done so for over twenty-eight years. In the last twelve months, Russell has not been able to undertake as much work as we would like.
We usually provide him with six plans per month for our homes, which are typically around forty – fifty square homes worth around $3000,000 plus. In the past he has been able to undertake four out of the six homes. Currently, Russell has only been able to undertake at best one out of the six and then only once we have literally begged him. (A5)
In the time Russell Cobb has worked as a sub-contract plumber for our company (26 years), he has been unable to lift heavy items. When he does Hot Water Unit installations we always provide someone on site to lift the unit into place for him. The same thing applies for any other heavy item that he may need to install. (A6)
48. I accept Mr Cobb’s evidence that he has found that he cannot handle any pressure at work and that he can no longer juggle work on more than one house at a time. He also said he does not like to work on a house at the same time as any other tradesman. I find that Mr Cobb can only work-part-time.
49. I find that Mr Cobb’s incapacity from war-caused disease is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise that on a part-time basis. However s 23(1)(b) does not stand alone. Section 23(2) also requires consideration, as it provides circumstances when s 23(1)(b), “shall not be taken to be fulfilled”, even if the evidence does establish that a veteran is “incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently”.
50. It is necessary to look very carefully at the precise words of s 23(1)(b) and s 23(2)(b). I have already found that Mr Cobb would have satisfied s 23(1)(b), if it stood alone, but s 23(2) provides circumstances in which paragraph 1(b) “shall not be taken to be fulfilled”. There are two such circumstances set out in paragraphs 23(2)(a) and (b). Only (b) is relevant, as there was no evidence as to the hours ordinarily worked by persons engaged in plumbing on a full-time basis. Paragraph 23(2)(b) provides that paragraph 23(1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking work of a particular kind, “if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week”.
51. As to the issue of the hours for which Mr Cobb is undertaking his work as a self-employed plumber, the Tribunal only has his own evidence on that issue. Mr Cobb said that since Christmas 2002, he has reduced his hours to less than 20 hours a week. He estimated that he was working only 15-16 hours a week.
52. I found Mr Cobb to be an honest witness who was trying his best to give accurate answers, however it must be acknowledged that his evidence was imprecise. I do not regard the fact that he failed to mention in cross-examination that he had given up water skiing in about 1999 as raising a significant issue of credit. Mr Cobb had mentioned water skiing to Dr Hanslow, and it was shown in the T documents (T8 p33). I accept that, as he said to Mr Purcell, “Well, it just probably didn’t come into my head you know” (trans. p49). I accept his evidence that he does not keep records of the hours he works as a self-employed plumber, but in order to accept his estimate of the hours he works there must be evidence as to how he has reached that estimate.
53. In view of the fact that Mr Cobb must have known, at least from 7 November 2002, when he made his statement, (A7), that his hours of work would be very relevant in the hearing, his failure to keep records of the precise hours he worked is a problem. It could be interpreted in one of two ways. It could be said that he knew such records would not help him, as they would show he could work 20 hours a week. On the other hand, it could mean that Mr Cobb is simply not the sort of person who is interested in keeping such records, and that he did not change his way of doing things in order to improve his chances in this matter. He said that his wife does all the paper work for the business. I accept that evidence. I also accept his evidence that the nature of the plumbing work he does is such that there is no requirement for him to keep records of hours worked.
54. Mr Cobb explained that he does not work on an hourly charge out rate (trans. pp97 and 99):
Everything I do on the house there is a basic price and any extras and gas and water tappings and suspended drains is all individually priced and you have got a fair idea of what you make on that. If you rung up any plumber and asked them for a quote on a house that you were building and you asked them to separate the labour from the material they would just hang up on you. Unless you wanted them to work cost plus and then they would say 60 bucks an hour and plus material and plus 10 per cent or whatever, or 15 per cent. You either want it one way or another. There is no in betweens.
Well, I just put a quotation in on every job they ask me to quote, if I am interested in doing it, and it is like all quotes, you try to get the highest number you can, you know, and if you know they are having trouble with other plumbers you can go a bit higher and you have got a good chance of still getting the job. If they are not having trouble, well, they will knock you back.
55. While I accept Mr Cobb as an honest witness, it would be helpful to know how he estimates his hours of work to be 15-16 hours a week. He said, at trans. p104, that he had not worked more than 20 hours a week since Christmas, but he also said (trans. p104) that the hours he had worked the day before the hearing were “roughly” typical, although he added that some days he does not go to work at all, or comes home after a very short time. The job Mr Cobb was currently working on at the time of the hearing was at Taylors Lakes. He lives in Greensborough. He said it took him 50 minutes to get there in the morning and about 30 minutes, to get home, leaving the site at 1.00pm. Mr Cobb explained that, on the day before the hearing he left home at about 8.30am, and got to his work site 50 minutes later and started work at about 9.30am. He then said he left the work site at 1.00pm, getting home at about 1.30pm. He said he regarded that as about three hours work, because he does not count travel time or lunch time or morning tea as hours of work. He said: “No of course not. You don’t get paid for it. If you are anybody you don’t get paid for that” (trans. p94).
56. Mr Purcell submitted that the evidence that, on a typical day Mr Cobb left home at 8.30 am and returned from work at about 1.30pm, should be taken as showing that Mr Cobb worked for up to five hours on a typical day.
57. Mr Purcell submitted that the Tribunal should find that Mr Cobb’s "typical” hours would be “20 or more hours per week”, rather than 15 or 16 hours. That would mean that s 23(2)(b) applied and Mr Cobb could not satisfy s 23(1)(b) of the Act.
58. There are a number of problems with the evidence on the issue. First, it does not address Mr Cobb's evidence that some days he does not go to work at all or stays there only a very short time. He gave no indication as to how frequently those situations arise. Nor was there any evidence as to how frequently, if ever, Mr Cobb might feel better and work longer hours.
59. There is also the question whether travel time and lunch time should be regarded as time when Mr Cobb is "undertaking,…that work ". The reference to “that work” is a reference to "work of a particular kind", namely work as a self-employed plumber. If travel time is not a part of the time Mr Cobb is engaged in work as a self-employed plumber, then even on the day Mr Purcell asked me to accept as a typical day, Mr Cobb would only have worked three and a half hours. That would indicate that he worked a total of 17.5 hours a week, even if he worked those hours every day. A separate question is of course whether lunch time and morning tea count as hours worked.
60. The issue as to how travel time should be treated was raised during submissions. Mr Purcell referred the Tribunal to Creyke and Sutherland on Veterans’ Entitlements Law, where the learned authors stated, at p225:
The expression “remunerative work” does not refer only to those periods of time when a person is actually in the workplace. As the Tribunal found in Re Bonner and Repatriation Commission (1989), it is an incident of employment that an employee is entitled to time off on weekends, in the evenings, during annual leave, or other periods. Hence, an employee would still be regarded as undertaking remunerative work during those periods, even though the person was not actually productive at the time.
61. A reference to the report of that decision, Re Bonner and Repatriation Commission (1989) 17 ALD 680, shows that the context in which those remarks were made was that a veteran was submitting that he was not continuing to undertake remunerative work while he was on sick leave. The Tribunal rejected that submission. The comments do not shed any light on the issue of whether or not travel time to and from work counts as hours of work.
62. During the hearing I pointed out that, at least for an employee, travel time does not count as remunerative work. I questioned whether the position is different for a self-employed plumber. There is a distinction in that, as the partnership Profit and Loss accounts show, vehicle expenses are deductable as being necessarily incurred in gaining assessable income for self-employed people, but they are not deductable for employees. However there is also a question whether travel to work is actually undertaking work as a self-employed plumber, or is better described as travelling to work.
63. A further issue is whether the Act requires a distinction to be made, in respect of s 23(2)(b) between employees and self-employed persons. If travel time counts as hours of work for self-employed persons that places them at a disadvantage in qualifying for intermediate rate pension. In view of the beneficial nature of the legislation that would be an unexpected approach. I consider it would require a clear statement in the Act to persuade me that such an approach was required.
64. So far as my research reveals, the matter has not arisen before in respect of s 23(2)(b) of the Act. It is an issue of some significance. I would have been assisted by detailed submissions addressing the specific issue of travel time before expressing a concluded view on it. On the material before me I am not satisfied that travel time should be counted as part of the hours per week that Mr Cobb undertakes his work as a self-employed plumber.
65. I accept Mr Cobb's evidence that he has reduced his weekly hours of work this year from the 20 hours he was working when he saw Dr Kenny in 2002. There was a lack of precision about Mr Cobb’s evidence, so that his actual hours of work may be 15 or 16 a week, as he estimated, or perhaps 17.5 hours a week or maybe even close to 20 hours. However the evidence does not satisfy me that Mr Cobb undertakes his work as a self-employed plumber on a part-time basis for “20 or more hours per week”.
66. The next issue is whether I am satisfied that Mr Cobb “is capable of undertaking that work for 20 or more hours per week”.
67. Dr Kenny’s opinion as at October 2002 was that Mr Cobb was capable of undertaking his work for 20 hours per week. He stated that about 20 hours was “an absolute maximum” and that Mr Cobb was “barely coping with that”, and was not capable of working more than 20 hours, but he did not state that Mr Cobb could not work 20 hours a week. However Mr Cobb’s evidence, that he is now worse than in October 2002 and no longer capable of working 20 hours a week, is perfectly consistent with Dr Kenny’s evidence.
68. Dr Sillcock said Mr Cobb was fit to work “at least 20 hours a week”. I find that Dr Sillcock in her report focussed much more on Mr Cobb’s lumbar spondylosis than on the PTSD. I find that she underestimated the impact of Mr Cobb’s PTSD on his capacity for work. I prefer Dr Kenny’s evidence on that issue.
69. The applicant lodged a report dated 19 February 2003 (A1) from Dr Hofland, who is a general practitioner working as a consultant in rehabilitation medicine. She was not called, but she wrote in her report (A1):
Work is limited by low back pain and symptoms due to post-traumatic stress disorder. His wife manages all the business related activities and telephone contacts. Without her he could not have managed working at all. His wife now makes sure that he only has casual and light work. He used to manage working seven to eight hours per day, but over the last four or five years has significantly decreased from six hours to only two hours or so now per day. He has been working approximately 15-16 hours per week for the last few years. He has only been earning about $12,000 per year after tax.
70. I have decided not to place any weight on Dr Hofland’s report. The fact that I was asked at the commencement of the hearing to disregard an earlier report because it had Mr Cobb’s age wrong, and because it had incorrectly stated that Mrs Cobb was suffering from diseases from which she does not suffer raised concern as to the reliability of Dr Hofland’s history. The passage set out in the preceding paragraph raises further concerns because it conflicts with Mr Cobb’s evidence at the hearing. His evidence was that he only cut back his working hours to 15 or 16 hours a week this year.
71. I find on the basis of Dr Kenny’s evidence and Mr Cobb’s evidence, that he has become worse in 2003 than he was in 2002, and thus works less than 20 hours a week, and that, as from the beginning of 2003, he has not been capable of undertaking remunerative work for “20 or more hours per week”. I find that s 23(1)(b) is fulfilled in respect of Mr Cobb.
72. The remaining issues arise under s 23(1)(c) of the Act. The paragraph requires that Mr Cobb, by reason of incapacity from war-caused disease, alone, be prevented from continuing to undertake remunerative work that he was undertaking.
73. I find on the evidence of Dr Parkin and Dr Kenny, taken together with the evidence from Mr Cobb and from Grollo Homes, that Mr Cobb, by reason of incapacity from his war-caused lumbar spondylosis and PTSD, alone, has been prevented from continuing to undertake some of the remunerative work as a plumber that he was undertaking. As to the “alone” requirement it is clear from the letter from Grollo Homes as well as from Mr Cobb’s evidence that far more work would be available for him if he was fit to undertake it.
74. There is also a requirement in s 23(1)(c) of the Act that Mr Cobb be suffering a loss of earnings that he would not be suffering if he were free of incapacity from war-caused disease.
75. Mr Cobb and his wife are partners in his plumbing business. His tax returns and the partnership profit and loss statements show a significant reduction in gross earnings and in net profit in the tax year ended 30 June 2002 (A4). The partnership net profit figures are significant. They are as follows:
1998 $38,778.88 1999 $50,258.92 2000 $54,364.53 2001 $37,351.53 2002
$21,939.30
76. Those figures are consistent with Mr Cobb’s evidence that due to incapacity from war-caused disease, he has been reducing his hours of work over the last few years. He said that he used to work 50 hours a week, but that he can now only work 15-16 hours a week. The evidence satisfies me that by reason of incapacity from war-caused disease alone Mr Cobb is prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of earnings that he would not be suffering if he were free from that incapacity. I find that paragraph 23(1)(c) is satisfied.
77. I find that Mr Cobb is entitled to the intermediate rate of pension under s 23 of the Act from his return to work at the start of 2003. Mr Cobb was not precise about the length of his holidays at Lake Eildon over the Christmas and January period. He said it was usually 3 or 4 weeks. I find that from 1 February 2003, s23 of the Act has applied to Mr Cobb, so that he is entitled to intermediate rate of pension from that date.
78. The decision under review will be varied to provide:
1.Lumbar spondylosis and early nuclear cataracts are conceded by the respondent to be war-caused diseases under the Veterans' Entitlements Act 1986 (“the Act”). The date of effect is 22 November 2000.
2.The rate of pension payable to Mr Cobb from 22 November 2000 is as follows:
(i)80% of the general rate until 30 September 2002;
(ii)90% of the general rate from 1 October 2002; and
(iii)the intermediate rate under s 23 of the Act from 1 February 2003.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Signed: Grace Carney
Personal Assistant
Date of Hearing 6 March 2003
Date of Decision 30 June 2003
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Mr G Purcell
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