Coleman and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 552

Coleman and Repatriation Commission (Veterans’ entitlements) [2015] AATA 552 (30 July 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2013/0357
Re	Dennis Coleman
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	30 July 2015
Place	Sydney

The Tribunal sets aside the decision under review, and substitutes a decision that the Applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 27 April 2012, the day after the Applicant ceased work.

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

Ms N Isenberg, Senior Member

CATCHWORDS

Veterans Affairs - veterans' entitlements — pension — special rate – whether Applicant satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 – whether Applicant is prevented from undertaking remunerative work by reason of incapacity from war-caused injuries alone – whether Applicant is suffering a loss of wages or earnings which he would not be suffering if he were free of that incapacity – decision under review set aside and substituted – Applicant entitled to pension at the special rate

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) s24

CASES

Banovich v Repatriation Commission (1986) 69 ALR 395

Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy [2002] FCAFC 424

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

Ms N Isenberg, Senior Member

30 July 2015

BACKGROUND TO THE APPLICATION

1. The Applicant lodged a claim pursuant to the Veterans’ Entitlement Act 1986 ("VE Act") for ‘heart disease’ and lumbar spondylosis on 2 March 2012. The Respondent accepted the claim for ischaemic heart disease but did not accept the claim for lumbar spondylosis. The Applicant's disability pension was continued at the Intermediate Rate of pension.

2. On 22 May 2012, the Applicant applied to the Veterans Review Board (VRB) for a review of the Respondent’s decision. The VRB set aside the decision in relation to lumbar spondylosis and substituted its decision that the condition is war-caused. The VRB however affirmed the decision in relation to the Applicant's rate of pension, and the Applicant remained entitled to pension at the Intermediate Rate.

3. On 23 January 2013 the Applicant sought review by this Tribunal, claiming that he is entitled to the Special Rate of pension.

   ISSUE FOR DETERMINATION

4. The issue before the Tribunal is whether Mr Coleman satisfies s 24(1)(c) of the VE Act, that is:

   ·whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and

   ·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.

   BACKGROUND

5. The Applicant was born on 14 July 1949 and is 66 years of age. He served in the Australian Army from 7 November 1967 to 6 November 1973. His eligible war service was from 8 February 1969 to 5 March 1970 in Vietnam. He also rendered eligible service from 7 December 1972 until 6 November 1973. Subsequently the Applicant served for more than a year in the Army Reserve.

6. In addition to ischaemic heart disease and lumbar spondylosis, the Applicant has the following accepted conditions:

   ·Malaria

   ·Shrapnel Wounds of thighs, back, left forearm and left buttock

   ·Right Sensorineural Deafness

   ·Tinea

   ·Generalised Anxiety Disorder/Post Traumatic Stress Disorder

   ·Tension headaches

   ·Tinnitus

   LEGISLATION

7. Sub-sections 24(1)(c) and 24(2)(a) of the VE Act relevantly provide as follows:

   (1) This section applies to a veteran if:

   …

   (c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

   …

   (2) For the purpose of paragraph (1)(c):

   (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

   (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

   (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; …”

8. If s 24(1) of the VE Act applies to Mr Coleman, he will be entitled under s 24(4) to a pension at the special rate.

   MR COLEMAN’S EVIDENCE

9. The Applicant gave evidence that he had been doing security work but had to leave ‘mainly to do with [his] PTSD problems’. He referred to stress, anxiety, mood swings, depression, flashbacks, anger and guilt. About 10 years ago he ‘had a breakdown’ and was hospitalised for 3 weeks. Since that time he has been under psychiatric care, but self-medicated with drugs and alcohol.

10. He said he finished work completely about 2 years ago, but his evidence, somewhat confusingly, was that he had worked 8-10 years ago, and only casually – an average of about 6 hours per week. He said he last worked fulltime about 15 years ago. He found the work stressful, and was not able to work at night because of flashbacks and anxiety.

11. He described an episode at work when he had chest pains and flashbacks, which turned out to be a heart attack, he said, from stress.

12. He said his employment ‘just got too much for [him], workload wise’. He had to find a replacement, which he did, and trained him to take over. Then there was no work for the Applicant.

13. He said his PTSD seems to be getting worse as he gets older.

14. He said he also suffers sleep apnoea but this is managed by use of a CPAP machine and did not interfere with his work ability. Neither, he said, does his (non-insulin dependent) diabetes mellitus, for which he takes medication.

15. He also gave evidence about his feet, which he said are numb and supersensitive, and ‘like a piece of cardboard on the bottom of [his] feet’. However he said that his feet and calf pulses had been tested and were found to be ‘100%’. He said he had no problems walking because of his feet. In any event his work involved driving from site to site in a patrol car.

16. He was cross-examined extensively about his evidence before the VRB, where, in referring to the numbness in his feet, said his work was affected because of his inability to stand. He did, however, say his feet did not really affect his decision to leave work, and had done so mainly because of his back. Before me, he said that he has pain running down his legs which he understood to be due to his lumbar spondylosis and his shrapnel wounds.

17. In reference to the evidence given before the VRB, the Applicant did not think he had intentionally overstated the condition of his feet, but rather was trying to ‘cover all the points’, and had ‘bundled’ all his physical problems into one.

    MEDICAL EVIDENCE

18. The Applicant relied on the report of Dr Alexander Murray, Consultant Psychiatrist, dated 15 October 2009, who had first treated the Applicant in mid-2007. He wrote:

    … Mr. Coleman suffers Post Traumatic Stress Disorder as a result of military service... Mr. Coleman tells me that he is incapable of working regular hours (either part-or full time) as he cannot predict from one day to the next how his mental state might be. Mr. Coleman finds that intervening events, including events well within the normal range of domestic experience, can provoke an upsurge of irritability, anxiety, aggression or rumination...

19. On 1 February 2012 Dr Murray reported:

    [The applicant] presented today for review. He has been feeling progressively less well over the last eighteen months and describes growing difficulties with irritability, intolerance, startle and pervasive apprehension, anxiety at work, nightmares and insomnia. Alcohol consumption has been consistent...

    Dennis has been sufficiently unwell to have had to cut back work.

20. Dr Murray reported on 6 September 2012:

    Dennis ceased work as a result of how symptoms of PTSD, worse at night, limited his ability to work as his employer preferred. This led to a disagreement and "a parting of the ways ".

    Dennis tells me that he is now marked in the local security industry as having “a problem with anxiety”. Dennis secured the job described on the strength of word of mouth endorsement- this he now does not have.

    Dennis was able to work in that capacity only out of how the job allowed flexible hours that he was able to manage around his mental state.

    Dennis having been in employment only out of how that employment accommodated his mental state, that employment having ceased because of how his mental state has deteriorated beyond what his employer was willing to accommodate and his reputation now being that he is mentally impaired, I have the view that Dennis is totally and permanently disabled in regards to employment as a result of his PTSD.

21. The Applicant also relied on the medical report of Dr Thomas Rosenthal, Occupational Physician, dated 1 October 2013. Dr Rosenthal also gave evidence. Dr Rosenthal wrote:

    In terms of physical restrictions he is now unable to stand and walk for long periods. He can't sit for long periods and he can't drive for more than 30 minutes. His mobility is clearly affected and appears this is due to his accepted disabilities.

22. Dr Rosenthal provided an employment history in his medical report and reports:

    It appears that he was still able to do up to 10 hours a week of security work in 2012. His physical condition may or may not have changed around that time but he has slowly been getting worse in terms of his chronic pain and back pain over several years. His psychological condition may have had more of an impact in determining the reasons for him stopping work.

23. The Applicant was examined at the request of the Respondent by Dr R Chase, Occupational Physician, who provided a report dated 7 June 2013. Dr Chase considered the Applicant’s malaria, shrapnel wounds hearing loss and tinnitus had no impact on his ability to undertake employment. He regarded the Applicant’s ischaemic heart disease, lumbar spondylosis and psychiatric disorder as partly affecting his ability to work. He considered the Applicant’s sleep apnoea and diabetes mellitus would affect his work as a driver and his knees and heart disease would affect any sort of manual role. None would prevent him working in a sedentary administrative or clerical role.

24. In summary, Dr Chase regarded the Applicant as capable of full time work if there were appropriate duties. He considered he had a partial work capacity – affected by his lumbar spondylosis, PTSD, ischaemic heart disease, diabetes mellitus and peripheral neuropathy and osteoarthritis of the knees. He considered the Applicant capable of working 8-20 hours per week. In particular he considered the Applicant would be able to work as a security guard performing static or roving duties. He could work in a security control room seated at a computer full time.

25. In his response to Dr Chase’s report Dr Rosenthal commented:

    I have also reviewed the report of Dr Chase dated 07/06/2013. I note Dr Chase diagnosed peripheral neuropathy due to his diabetes, however, I saw no documents to support this diagnosis nor was there anything in Dr Chase's examination to support a diagnosis of peripheral neuropathy. His numbness in his lower limbs may be from a radiculopathy due to his lumbar condition... I thus do not accept Dr. Chase's assertion that he has peripheral neuropathy due to diabetes and that this is impacting on his ability to work.

    In terms of the other medical conditions it appears that Dr Chase indicated that his anxiety disorder, post-traumatic stress disorder and tension headaches have improved since he ceased work. Mr Coleman denied that this had a factual basis and in fact there is no documentation to support these statements.

26. Dr Rosenthal considered the Applicant's accepted conditions are the only reason that the Applicant is prevented from continuing to undertake the kind of work that he had previously undertaken. Dr Rosenthal was of the opinion:

    It appears that he is precluded from working more than 8 hours per week when his psychological condition is included, based on the report of Dr. Murray. He appears to be unfit to work more than 8 hours per week due to his PTSD. Physically he still could manage to perform work between 8 and 20 hours per week of security work. He could not be able to work in any other job with any significant physical requirements.

27. Dr Rosenthal also reported:

    Dr Chase also mentioned jobs such as truck driver, courier driver and bus driver which would be impacted by sleep apnoea. Mr Coleman has not performed any of these jobs in the past so these jobs would not commensurate with his skills and qualifications. Thus sleep apnoea is not a consideration in terms of finding appropriate work.

    I also understand that his diabetes is under control. There is no indication from the available information to conclude that his diabetes has any impact on his ability to work.

28. As to the Applicant’s numbness in this feet Dr Rosenthal said in his evidence that, on examination, there was no neurological deficit in respect of the Applicant’s feet and he had relied on the Applicant’s self–report about the numbness; he thought he would have done some testing that would have involved passing cotton wool over the foot with the Applicant reporting that was unable to feel it. Dr Rosenthal was referred to the Applicant’s GP’s notes that recorded numbness to the Applicant’s feet but he noted that this recorded there was reduced blood supply to the feet. He did not think this was related to the Applicant’s diabetes mellitus. He thought the problem may be associated with the Applicant’s back.

29. Dr Chase’s evidence was that he had referred to peripheral neuropathy because the Applicant had told him he’d been diagnosed with that condition, but, on examination he could find no abnormality in sensation. He was not now convinced that the Applicant had peripheral neuropathy, although the Applicant had told him he’s had numbness in his feet for 15 years. If the Applicant did have peripheral neuropathy – and this is very common with diabetes - this would be a factor in his ability to work. He concluded that, in any event, he did not consider the Applicant‘s feet to be particularly relevant in regards to his capacity to work.

30. In view of the conflicting evidence about peripheral neuropathy and the effect that condition might have on the Applicant’s work ability, the parties, at the Tribunal’s suggestion jointly briefed a consultant neurologist, Dr Paul Darveniza, who provided a report dated 29 September 2014 and gave evidence.

31. Dr Darveniza reported that the Applicant suffered peripheral neuropathy, almost certainly diabetic in origin and had done so for the past 2 or more years. He regarded the peripheral neuropathy as ‘quite mild’. His only significant symptom was ‘perhaps a slight loss of balance’ which would preclude working at heights.

    CONSIDERATION

32. The Applicant contended that he has satisfied the legislative criteria with respect to having a combined impairment that, when assessed in accordance with the GARP, would produce a disability pension rate in excess of 70%, thereby entitling him for an assessment at the Special Rate pension. There was no dispute that Mr Coleman met the first criterion under s 24 namely, an entitlement to a pension at a rate higher than 70% of the general rate: s 24(1)(a)(i).

33. Further, the Applicant contended that had he not been suffering from his war-caused conditions he would have continued to work and would not be suffering from a loss of salary, wages or earnings.

34. Entitlement to the Special Rate of pension is properly considered in accordance with Flentjar v Repatriation Commission (1997) 48 ALD 1 (‘Flentjar’). Flentjar determined that proper consideration of s 24(1)(c) required responses to the following four questions:

    1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?

    2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

    3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

    4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?

35. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.

    1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?

36. This is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395.

37. In the present matter, I find that the type of work which the veteran had previously undertaken was as a security guard.

    2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

38. The second question in Flentjar is whether the Applicant, by reason of his war-caused conditions, is prevented from continuing to undertake that type of work.

39. The Respondent conceded that s 24(1)(b) is satisfied. I agree that the Applicant’s accepted disabilities, especially his PTSD and his lumbar spondylosis, prevented him from continuing to undertake security work.

    3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

40. The third question in Flentjar refers to the "alone" test in s 24(1)(c), which requires a practical decision as to whether the Applicant's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well: Cavell v Repatriation Commission (1988) 9 AAR 534. Any factor which plays a part in the veteran's inability to work or to obtain and hold remunerative employment is sufficient to displace the Applicant's case for pension at the Special Rate: Forbes v Repatriation Commission (2000) 101 FCR 50.

41. In Repatriation Commission v Hendy [2002] FCAFC 424 at [37] the Full Federal Court said:

    The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act.

42. There was no issue that the Applicant’s work ability was affected by his sleep apnoea. The only real issue was the effect of the Applicant’s foot problem, ultimately diagnosed as peripheral neuropathy, on his ability to work as a security guard.

43. The Respondent referred extensively in its submissions to the Applicant’s evidence before the VRB, especially his evidence that his feet had affected his ability to do static (security) work, that is, standing in one place. The Applicant emphatically denied that his feet had played any part in his decision to leave work and said that it was his back that was the main reason. He had completed a questionnaire in which he said his feet affected his mobility ‘all the time’ and that his ability to work was affected by foot pain. In contrast, he had told the VRB he had no problems exiting the patrol car to check locks and windows, and that his ability to stand was affected, mostly by his back.

1. The neurological evidence was that the Applicant’s peripheral neuropathy is, according to Dr Darveniza, ‘quite mild’.

2. The Applicant, in his evidence before me, said his feet did not really affect his decision to leave work. It was his back, and the ‘pain running down his legs’, apparently associated with either his lumbar spondylosis or shrapnel wounds, or both, which informed his decision to leave work, and continue to undertake work. I find that the Applicant overstated the effect of his feet, and had conflated his physical problems in relation to his back (including the referred pain into his hips and knees which he described) and the shrapnel wounds to his thighs and buttock, into one.

3. Even if the symptom of peripheral neuropathy of ‘perhaps a slight loss of balance’, would preclude working at heights, as described by Dr Darveniza, I note that there was no evidence that this was a requirement of work as a security guard.

4. I find that the Applicant’s foot condition – peripheral neuropathy - is not a factor having employment consequences which plays a part in the veteran's inability to work. Therefore the Applicant meets the "alone" test in s 24(1)(c).

   4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?

5. The fourth question in Flentjar is whether, if the veteran has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered. This question must be considered by reference to s 24(2)(a)(i), which provides, in effect, that in order to suffer a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work for some reason other than his incapacity from war-caused conditions.

6. This entails consideration of whether the veteran is suffering a loss of income that he would not have been suffering if not affected by the war-caused disability. In Repatriation v Smith (supra) at 337, Beaumont J, with whom Northrop and Spender JJ agreed said:

   The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities.

7. From about the 1980s the Applicant had worked in the security industry. There was no direct evidence as to his pay history, although at the VRB he was recorded as having been paid a minimum of $20 per hour, and since ceasing work on 26 April 2012, had earned nothing. From his evidence it appears that, over a number of years, because of his conditions, he gradually reduced his work availability and modified the hours he worked and the type of security work he undertook. I accept that, had he been free of those conditions, he would have continued work as a security guard.

8. I find that the Applicant, by reason of being prevented from continuing to undertake work as a security guard is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his accepted disabilities.

   DECISION

9. The Tribunal sets aside the decision under review, and substitutes a decision that the Applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect from 27 April 2012, the day after the Applicant ceased work.

53.     I certify that the preceding 52 (fifty - two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

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

Associate

Dated 30 July 2015

Date(s) of hearing	20 June 2014, 13 March 2015
Counsel for the Applicant	Ms Clare Mudge
Solicitor for the Applicant	Mr Greg Isolani, KCI Lawyers
Solicitor for the Respondent	Mr Adrian Crowe, Repatriation Commission