Connell and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 653

Connell and Repatriation Commission (Veterans’ entitlements) [2015] AATA 653 (31 August 2015) 

Division	Veterans’ Appeals Division
File Number(s)	2014/3035
Re	Paul Connell
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	31 August 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – veterans entitlements – special rate of pension – whether applicant incapable by reason of accepted conditions alone from undertaking remunerative work of eight or more hours a week – whether applicant prevented from continuing in remunerative employment by reason of accepted conditions alone – whether applicant ceased remunerative employment for reasons other than accepted conditions – decision under review affirmed

Legislation

Veterans’ Entitlements Act 1986 ss 19, 24, 28, 120(4)

Cases

Repatriation Commission v Richmond [2014] FCAFC 124

Flentjar v Repatriation Commission (1997) 48 ALD

Repatriation Commission v Hendy (2002) 76 ALD 47

Starcevich v Repatriation Commission (1987) 18 FCR 221

Collins v Repatriation Commission, 33 ALD 557

Forbes v Repatriation Commission (2000) 101 FCR 50

Repatriation Commission v Richmond [2014] FCAFC 124

Repatriation Commission v Watkins [2015] FCAFC 10

Secondary Materials

Guide to the Assessment of Rates of Veterans’ Pensions

REASONS FOR DECISION

Senior Member J F Toohey

31 August 2015

Background

1. Mr Paul Connell served in the Australian Regular Army from May 1980 until his discharge in July 2000.  His service is eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).

2. After his discharge, Mr Connell transferred to the Army Reserves where he worked full-time until 2010.  He then worked for a time in Darwin as an operations manager before moving to Nowra around the end of 2011.  From July 2012 until February 2014, he worked as a store person filling orders for aircraft spare parts at HMAS Albatross.  He is now 52 years old. 

3. Mr Connell fractured his spine in a parachuting incident in 1988 as a result of which, in December 1991, he underwent a spinal fusion.  He receives a disability pension at 70 per cent of the general rate for his accepted conditions of chronic instability of both ankles, lumbar spondylosis, bilateral chondromalacia patella, bilateral muscular shoulder sprain and osteoarthritis affecting both ankles. 

4. As well as the disabilities accepted for the purposes of his disability pension, Mr Connell suffers from right acromio-clavicular joint disruption as a result of a motorcycle accident in about 1997 and a consequent shoulder reconstruction around the same time.  He has also been treated for anxiety and depression since February 2014 and has recently been diagnosed as suffering from post-traumatic stress disorder (PTSD). 

5. Mr Connell seeks review of a decision of the Veterans’ Review Board (VRB) on 2 May 2014 which affirmed a decision of the Repatriation Commission that he is entitled to a disability pension at 70 per cent of the general rate but not to the special rate of pension.

   Legislation

6. To qualify for the special rate of pension, Mr Connell must satisfy the criteria in s 24(1) of the Act.  They include that he be under 65 at the time of his claim and the degree of his war-caused incapacity be at least 70 per cent, neither of which is in dispute. 

7. Section 24(1)(b) requires that Mr Connell be totally and permanently incapacitated, meaning that his war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. 

8. In determining whether s 24(1)(b) is satisfied, the only factors that may be taken into account are: the veteran’s vocational, trade and professional skills, qualifications and experience; the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake; and the degree to which the impairment resulting from his or her disability has reduced the veteran’s capacity to undertake that kind of remunerative work: s 28.

9. Section 24(1)(c) requires that Mr Connell be, by reason of war-caused incapacity alone, prevented from continuing to undertake remunerative work that he was undertaking, and, for that reason, that he be suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering were it not for that incapacity.

10. For the purposes of s 24(1)(c), Mr Connell will not be taken to be suffering a loss of salary, wages or earning on his own account by reason of any war-caused incapacity  if he ceased to engage in remunerative work for reasons other than that war-caused incapacity, or if he is incapacitated or prevented from engaging in remunerative work for some other reason: s 24(2)(a).

11. By s 24(2)(b), Mr Connell will be treated as having been prevented from continuing to undertake the remunerative work that he was undertaking if: he has been genuinely seeking to engage in remunerative work; he would, but for his war-caused incapacity, be continuing so to seek to engage in remunerative work; and that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.  Mr Connell does not rely in these proceedings on s 24(2)(b).

12. The standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).  The rate of pension is to be determined during the “assessment period” which means the period starting on the application day, in this case 19 April 2013, and ending when the claim or application is determined: s 19.

13. The respondent Commission contends that Mr Connell does not satisfy either s 24(1)(b) or (c) during the assessment period.

    Mr Connell’s evidence

14. When he ceased work on 28 February 2014, Mr Connell had been working full-time, eight hours a day, since July 2012 as a store person for Raytheon Australia Pty Ltd in Nowra.  His position involved taking work orders for helicopter spare parts, recording the transaction on a computer, locating the part from the appropriate storage section and issuing it over the counter.  Most of the parts were small and stored in bins; if the order involved heavy parts, Mr Connell would ask a colleague for help to move them. 

15. Mr Connell has not worked since leaving Raytheon.  He gave evidence that he was unable to continue working because of a combination of the pain from his accepted conditions and the medication he was taking to manage his pain.  While the medication worked “to a degree”, he said, the pain would override it after a time and he would have to take more medication.  He could not concentrate or focus on his work, especially the computer work, and he had constantly to ask his offsider for help.  He felt under pressure because of the serious consequences if he filled an order with the wrong spare part.

16. Mr Connell gave evidence that Raytheon took him on knowing about his injuries and he felt obligated not to take sick leave; on the occasions that he did, he made up “a fictitious sickness” rather than let on the real reason.  His personnel file from Raytheon does not indicate the occasions he took sick leave but I understand his evidence to be that, in any event, he took few days off. 

17. In a letter dated 18 June 2013 addressed “To whom it may concern”, Mr Connell’s general practitioner, Dr John Thomson, certified him unfit for work on 18 and 19 June 2013 “due to a medical illness”.  Dr Thomson’s clinical notes for 18 June 2013 show that Mr Connell had been “unwell with URTI, symptoms for past week” and he prescribed antibiotics.  His notes for 9 September 2013 show he wrote a “Sick certificate” after Mr Connell presented with “ongoing right shoulder pain/reduced ROM”  The clinical records appear consistent with Mr Connell’s evidence that he took little time off work for any reason.

18. Mr Connell refutes any suggestion that he was able to do his work at Raytheon and just decided “to give it away”.  He gave evidence that he had been thinking about stopping work for five or six months but stayed because he liked the job and worked with good people, but it got to the point where he “just struggled” even to send an email. His evidence about his reasons for ceasing employment is considered further below.

19. In a written statement on 30 September 2014 in these proceedings, Mr Connell stated that he was unable to lift, sit, stand or bend for prolonged periods; on most days he struggled to get in or out of bed and sometimes had to make his bed while on his knees because he could not bend over; he struggled getting dressed and putting on his shoes because of his severe back pain; at times his (then) partner had to dry the lower half of his body and he struggled to go to the toilet.  He stated that he no longer did as much gardening as was needed to maintain his yard and, when he mowed the lawns, he had to rest for the remainder of the day.  He seldom ventured out to do the grocery shopping when in severe pain; he could no longer participate in activities he enjoyed such as riding motorcycles or his pushbike; he could no longer attend the gym, or play football or baseball, and he was “unable to interact” with his son.  He struggled to get in and out of smaller cars, and his ability to turn and look over his shoulder for traffic was restricted and he had to stop every two hours when driving or a passenger for long distances.

20. In a written statement attached to his claim for an increase in his disability pension lodged on 19 April 2013, Mr Connell described his pain and restrictions in similar terms, adding that his personal life had suffered as a result of the pain in his back and ankle.  He stated he was struggling to deal with it mentally and was “in the process of seeing a psychologist to help with my depression and anxiety when being in a social environment caused by the pain I am in”.

21. Giving evidence before the Tribunal, Mr Connell said his lower back pain has become worse over the years since the spinal fusion.  Until he moved to Nowra he had always managed it with Panadeine Forte, and a back brace when it became severe.  It did not interfere with his Army duties; he “soldiered on” and managed the pain himself because the doctors he saw always questioned why he was still in the Army; his life revolved around the Army and he did not want his career to end.  He described himself as “gun shy” of doctors who only wanted him to undergo surgery.   

22. Asked how his condition changed such that he had to cease work, Mr Connell said it got to the point where he struggled from day to day and could not deal with the side effects of the medication as well as the pain he was in.  He gave evidence that, after he moved to Nowra, a friend suggested he see Dr Thomson because “he understands pain”. Mr Connell first saw Dr Thomson on 27 February 2013.  Dr Thomson prescribed painkilling medication and referred him to Janine Lord, a clinical psychologist, for anxiety and depression, and later to Dr Craig Davenport, a pain specialist.  Dr Thomson’s clinical notes are further considered below.

23. Mr Connell gave evidence, which the medical records appear to support, that Dr Thomson and Dr Davenport have adjusted the type and dosage of his medication over time in an effort to find the most effective pain relief.  Mr Connell says he still struggles to cope with the side effects of the new medication.  He gave evidence that it makes him constantly drowsy and he struggles to focus on tasks such as computer work and shopping, his mouth is always dry and he gets mouth ulcers.  He plans activities such as shopping around his medication and does them when he is least affected.

24. Mr Connell now does voluntary work one morning a week driving elderly people to and from a retirement village.  He drives an 18-seater bus and picks them up around 9am.  He can decide whether to stay with them while they attend a group session which he likes to do because it eases the “social anxiety” he feels when isolated at home on account of his pain; he makes cups of tea and helps make lunch, then takes the elderly home in the afternoon.  By the end of the day he just wants to get home.  On the day he does the voluntary work he does not take his medication the night before, so as to be alert the next morning, but he takes it around lunchtime.

25. Mr Connell gave his evidence forthrightly and I accept what he says.  I do not understand the Commission to suggest otherwise.  However, for the reasons set out below, I am not satisfied that he qualifies for the special rate of pension

    Medical evidence

26. Dr Thomas Rosenthal and Dr Robin Chase, occupational physicians, saw Mr Connell for assessment on 29 September 2014 and 24 October 2014 respectively.  Each provided a written report and gave oral evidence before the Tribunal.

    Dr Rosenthal’s evidence

27. In his written report, Dr Rosenthal stated that Mr Connell’s ability to perform remunerative work is affected mainly by his lumbar spondylosis as well as by his symptoms in his knees and ankles.  He noted that Mr Connell reported only minimal symptoms in his shoulders. 

28. Dr Rosenthal reported that Mr Connell was precluded from working more than eight hours a week due to his accepted conditions and disabilities alone because of his lumbar condition “which is causing him chronic pain and subsequent effect by his medication in terms of his cognitive abilities, as well as his functional disabilities of sitting, standing, walking etc which are all impacted by the lumbar condition”.

29. Under the heading “Non accepted conditions”, Dr Rosenthal reported that Mr Connell “apparently… has had [PTSD] for about 18 months and has not yet put in a formal application to have this accepted as war caused”.  He noted that Mr Connell had been seeing a psychologist and was being treated with Endep but had not had a psychiatric assessment.  He recorded that Mr Connell “believes that PTSD has been affecting him for a number of years and affecting his mood and temperament”.

30. In his report, and giving oral evidence, Dr Rosenthal said he understood Mr Connell had been seeing a psychologist and been treated with Endep for his PTSD.  Giving evidence, Dr Rosenthal said he was not aware that, in February 2013, Dr Thomson discussed “chronic pain/anxiety/depression” with Mr Connell and he was not aware that he was referred to Ms Lord in February 2013 for anxiety and depression and has been seeing her since.  He said he could not say whether any psychiatric issues were a factor in Mr Connell’s “employability” because he is not a psychiatrist and he did not know how severely Mr Connell was affected by PTSD.

    Dr Chase’s evidence

31. In Dr Chase’s view, there is no reason Mr Connell could not work and, in particular, if he were provided with any form of clerical or administrative roles with modification to those duties, why he could not work full time.  At worst, he considers Mr Connell is either unable to work full time in his normal occupation, or has had to change his occupation or hours worked, or both, because of his accepted conditions.

32. Dr Chase acknowledged that Mr Connell has chronic pain.  In response to a question by the Tribunal, he agreed that his description in his report of Mr Connell’s level of pain as “minimal” was probably “a mistake” but he still saw no reason Mr Connell could not work in any form of clerical or administrative logistics role, although he would need some modification; for example he could not lift heavy items.  Given his experience in logistics and training in the Army and the Army Reserves, and that most of his job at Raytheon was at a computer, Dr Chase concluded Mr Connell could undertake any sedentary or administrative work without restrictions.

33. Mr Connell disputes Dr Chase’s findings.  He gave evidence that Dr Chase’s “questioning technique [at his appointment with him] left a lot to be desired”.  He says Dr Chase did not allow him to elaborate before going on to the next question and he did not explore any of his answers.  By way of example, Mr Connell said, when he raised at the end of the appointment that Dr Chase had not asked him about his sex life, Dr Chase was not interested; he only asked if Mr Connell could get an erection and, when he said he could, Dr Chase told him he was “fine”.

34. Asked about this last conversation, Dr Chase agreed he did not pursue the matter of Mr Connell’s sex life when he raised it but he said he told Mr Connell it was a matter he would have to take up with the Department of Veterans’ Affairs.  Given that the purpose of Dr Chase’s assessment was to assess Mr Connell’s capacity for work, that response seems reasonable, regardless of whether Mr Connell thought it an important matter for Dr Chase to ask him about. 

35. Mr Connell disputes Dr Chase’s report that his disabilities have “no or negligible effect” on his personal and social relationships, that he has an “active social life”, and that he is able to engage in a broad range of normal domestic activities and, at worst, has difficulty with some heavier tasks.  He says he has to “pretty much … sit down for the rest of the day to relax” if he mows the lawn and, whereas Dr Chase apparently placed weight on the fact that he had travelled by train to his appointment, Mr Connell said he had been able to do so because he stood up in the train.  He says his social life is restricted to going to a local club once a month or couple of months and the relationship he was in around the time he ceased work has ended.

36. It is possible that Dr Chase’s questioning was not as probing as it might have been but he produced the extensive handwritten notes he took at the time, parts of which showed that he in fact did explore these matters with Mr Connell, even if not to the extent Mr Connell thought they deserved.  I am satisfied that Dr Chase’s questioning was not so peremptory as to misrepresent Mr Connell’s difficulties.  I accept that he satisfied himself of the matters that he needed to explore for the purposes of his assessment.

    Dr Thomson’s clinical records

37. Dr Thomson’s records show that Mr Connell first saw him on 27 February 2013 complaining of “increasing distress/social phobia” and “ongoing pain/disability” on account of his “training related injury”.  They discussed “further investigation/management options for joints/back” and Dr Thomson suggested Mr Connell return for a GP mental health care plan “for assistance with anxiety/depression”.

38. When Mr Connell saw him on 8 March 2013, Dr Thomson recorded the reason for the visit as “Depression [and] Migraine”.  He noted that Mr Connell had an appointment to see Janine Lord the following Friday, that he had chronic back pain and they discussed “chronic pain/anxiety/depression”.  He noted “previous counselling helpful though no long lasting benefit”.  Mr Connell gave evidence that he believed this last note referred to a marriage counsellor he saw in Darwin around the time of his divorce.  He said Ms Lord was the first psychologist he has seen.

39. In his referral letter to Ms Lord, Dr Thomson referred to Mr Connell’s injury and his chronic back and ankle pains, and stated “He finds he becomes very anxious in group/crowd situations at times, has thoughts of self harm but has never acted upon these but is continuously troubled by his pain”.  Mr Connell saw Ms Lord regularly throughout 2013 for his chronic pain, anxiety and depression.

40. On 12 April 2013, Dr Thomson again recorded “discussion re chronic pain issues” and recommended a trial of morphine patches.  On 26 April 2013, he recorded that Mr Connell had developed an allergic reaction to the patch and prescribed diazepam 5 mg.

41. Over the course of several appointments over the following months Dr Thomson recorded episodes of back pain and ongoing right shoulder pains.  In July 2013, he prescribed Endep for neuropathic pain.  On 22 November 2013, he recorded that Endep was making Mr Connell drowsy in the morning and he would trial Lyrica.  He noted “increased pain…  struggling with work – pain, side effects from meds” and “recommend ceasing work to see if helps with symptoms”.

1. On 3 December 2013, Dr Thomson noted “nil benefit/side effects noted from Lyrica 25 mg” and increased the dose to 50 mg then 75 mg.  He also recorded “thinking about applying for TPI – physical and psychological injuries will need psychiatric review”.  On 13 December 2013, he recorded “discussion re-pain control – current strategies helping but nothing ever alleviating pains/symptoms completely (emphasis added) – considering ceasing work regardless of outcomes of reviews” (by which I understand him to mean the outcome of Mr Connell’s application to the VRB). 

2. Mr Connell gave evidence that he did not act on Dr Thomson’s suggestion that he cease work at that time because it was something he had to “sit down and think about.”

3. On 14 February 2014, Dr Thomson recorded that Mr Connell had “resigned from work – finishing soon – applying for TPI”.  Mr Connell was by that time on 25 mg of Lyrica twice a day and 75 mg at night, which was “helping to some extent”.

4. Records of consultations after 14 February 2014 show Mr Connell was on increasing dosages of Lyrica and that Dr Thomson referred him to Dr Davenport on 14 May 2014.  On 11 August 2014, Dr Thomson recorded that Mr Connell had “stress with lack of progress re DVA claim – trying to arrange for psychiatric review”.

5. On 23 February 2015, Dr Thomson noted “exacerbation of depression with side effects/chronic pain – attending mental health on Friday for assessment? psychiatric review”.  This is apparently a reference to Mr Connell’s admission to a mental health facility in February 2015 on the recommendation of Dr Davenport where Mr Connell says he was “weaned off” the medication he had been taking and on to the medication he currently takes.

6. Although he could not recall particular dates or details of his consultations, Mr Connell does not dispute that Dr Thomson’s records reflect their discussions.

   Does Mr Connell’s war-caused incapacity, of itself alone, render him incapable of undertaking remunerative work for more than eight hours per week?

7. Mr Connell’s evidence is that he was unable, when he ceased work, and remains unable, to work eight or more hours a week because of his accepted disabilities alone.  I am not satisfied that is so.

8. The history of Mr Connell’s capacity for work shows that he worked full-time in the Army and then the Army Reserves for more than 20 years after his parachuting injury, and nearly 20 years after undergoing spinal fusion.  Apart from a period of some months when he first moved to Nowra, he continued to work full-time until February 2014.  Other than for Army doctors whose advice he did not find helpful, he did not see any doctors or health care professionals and managed his pain with painkilling medication, anti-inflammatory gel and wearing his back brace when necessary. 

9. There is no evidence that Mr Connell’s performance in any position was diminished by his accepted disabilities or for any other reason.  By his own evidence, the work at Raytheon was not unduly taxing and he managed it without difficulty other than for needing help to lift heavy parts and sometimes needing help with emails.  He had little, if any, time off work due to his accepted disabilities.  He is able to do activities around the house and to do voluntary work for several hours each week, albeit with difficulty.

10. I accept that Mr Connell did not want to give up his career in the Army and that he worked with a level of chronic pain for many years.  I accept that he had little faith in doctors and preferred to manage his pain himself.  I accept that his pain increased over time and that increasing dosages of medication made him feel drowsy at times.  I accept that he tried not to take any time off work and did not let on to his employers at Raytheon that he was having any difficulties.  I accept that he may not be able any longer to work full-time, or to work full-time without some modification to his duties.  Even Dr Chase acknowledges this possibility.

11. Taking all of the evidence into account, however, I do not accept that Mr Connell went from being able to carry out full-time work with little apparent difficulty despite chronic pain, to being unable to perform even eight hours a week.   

12. In coming to this conclusion, I prefer the evidence of Dr Chase to Dr Rosenthal.  Even if Dr Chase overestimates Mr Connell’s capacity for work and he is not capable of full-time work, I am not satisfied that the evidence as a whole bears out Dr Rosenthal’s opinion.  If Dr Rosenthal’s assessment is correct, it is reasonable to expect some evidence in Mr Connell’s employment or medical history consistent with suddenly finding himself unable to work even eight hours a week after a long period of apparently satisfactory full-time employment. 

13. Having regard to Mr Connell’s skills, qualifications and experience in logistics and training, including administrative work of the kind he was doing at Raytheon, and the evidence concerning the effect of his accepted disabilities on his capacity to undertake that kind of work, I am not satisfied that he meets s 24(1)(b) of the Act.  On that basis, his claim for the special rate of pension must fail. 

    Is Mr Connell prevented by that incapacity alone from engaging in remunerative work that he was undertaking?

14. Even if I am wrong, and Mr Connell’s accepted disabilities alone render him incapable of undertaking remunerative work for periods aggregating eight hours per week, I am not satisfied that he is prevented from continuing to undertake the remunerative work that he was undertaking by reason of his accepted disabilities alone.  In particular, I am not satisfied that Mr Connell ceased to engage in remunerative work for reasons of his accepted disabilities alone. 

15. Section 24(1)(c) comprises two limbs, the first of which requires a causal connection between the veteran’s war-caused incapacity, alone, and his or her inability to undertake the remunerative work he or she previously engaged in.  The second requires a causal connection between that inability to work and the veteran’s suffering a financial loss:  see Repatriation Commission v Richmond [2014] FCAFC 124.

16. The questions to be asked when applying s 24(1)(c) were described by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1as follows:

    (i)what is the relevant remunerative work that the veteran was undertaking;

    (ii)is the veteran, by reason of war-caused incapacity, prevented from continuing to undertake that work;

    (iii)if the answer to question (ii) is yes, is that incapacity the only factor preventing the veteran from continuing to undertake that work;

    (iv)if the answers to questions (ii) and (iii) are yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of income that he would not otherwise be.

17. “Remunerative work” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past.  It is not limited to the last employment that the veteran actually undertook: Repatriation Commission v Hendy (2002) 76 ALD 47; Starcevich v Repatriation Commission (1987) 18 FCR 221.

18. For the purposes of s 24(1)(c), I find that the substantial remunerative work that Mr Connell was undertaking was that of training and logistics officer; it was in the nature of an administrative or clerical position.

19. I accept Mr Connell’s evidence that the breakup of his marriage around 2006, some problems he encountered with his team leader when he started at Raytheon, his migraine headaches, and a slight haemorrhage he suffered in 2010, played no part in his ceasing remunerative work.  There is medical evidence supporting his claim that problems with his right shoulder related to the reconstruction following his motorcycle accident played no part.  No real challenge was made to Mr Connell’s evidence about the effect of these matters on his decision to cease employment.  I accept they played no part of any consequence. 

20. Dr Thomson’s clinical records show that, from at least February 2013, Mr Connell was suffering from anxiety and depression sufficient for him to see Dr Thomson and sufficient to warrant referral to Ms Lord.  Mr Connell saw Ms Lord throughout 2013 and continues to see her.

21. In a letter dated 24 April 2015 to the Department of Veteran’s Affairs, Dr Thomson stated that Mr Connell was suffering from chronic pain, PTSD, depression and social anxiety “stemming from his 30 years of service with the army”.  He reported that these diagnoses had recently been confirmed by a psychiatrist on Mr Connell’s recent admission to psychiatric units.  The Department approved funding for Mr Connell to receive treatment for post-traumatic stress, anxiety and depressive order and I do not understand the Commission to take issue with these diagnoses. 

22. While there is no evidence positively indicating that Mr Connell’s psychiatric conditions played a part in his ceasing work, they cannot be discounted as playing no part.  The evidence strongly suggests that, for at least a year before he ceased employment, as well as after, they were having a significant impact on Mr Connell.  It is relevant that, in his claim for an increase in pension in April 2013, he stated that he was struggling to deal with his pain mentally and that he was seeing a psychologist to help with his depression and anxiety. 

23. It is relevant that, while Dr Thomson’s notes from 22 November 2013 record that Mr Connell reported he was “struggling with work … pain, side effects from meds”, on 3 December 2013, he noted that current strategies for pain control were helping but nothing alleviated the pain or symptoms “completely”.  On 14 February 2014, around the time Mr Connell ceased work, Dr Thomson recorded that Lyrica was “helping to some extent”.  These notes do not indicate the increasing difficulties with his medication that Mr Connell refers to.  It was not until after he ceased work in February 2014 that Dr Thomson’s notes record increasing doses of painkilling medication and he was referred to Dr Davenport. 

24. It is also relevant that, on 3 December 2013, Dr Thomson recorded that Mr Connell was considering a claim for a pension for physical and psychological injuries. Even if Mr Connell’s anxiety and depression arise directly from the chronic pain from his accepted disabilities, they are separate conditions with separate diagnoses and are not as yet accepted for the purposes of his disability pension.  The basis for the diagnosis of PTSD is not clear, and it is hard to see how it would arise from chronic pain but nothing turns on this; it is a separate condition and is not yet accepted.  These conditions may be accepted if Mr Connell claims for them but, for the purposes of the current assessment period, they are not.

25. The Guide to the Assessment of Rates of Veterans’ Pensions (the Guide)  provides:

    Only the clinical features of an accepted condition may be taken into account in making an assessment. If the accepted condition causes some other distinct and diagnosable condition (sequela), the symptoms of the sequela cannot be taken into account when assessing the original accepted condition. Sequelae can only be assessed when they have themselves been separately determined to be war-caused or defence-caused.

26. The Guide is “part of the law of Australia” and “has binding effect according to its terms”:  Collins v Repatriation Commission, 33 ALD 557 at 566.

27. The respondent submits, and I agree, that the evidence about Mr Connell’s psychological or psychiatric conditions supports the conclusion that they played a part in him ceasing work.   

28. A further matter arose during Mr Connell’s oral evidence.  In response to questioning by the Commission’s representative, Mr Connell agreed he did not know when he first lodged his claim that he could not qualify for “TPI” if he was still working.  He said it was only after his advocate told him that he understood that full-time employment would preclude him from qualifying.  It was put to him that this was a factor weighing in his decision to cease work.  Mr Connell agreed that it was.

29. If some factor other than war-caused incapacity plays a part in preventing a veteran from continuing to undertake remunerative work, he will not satisfy s 24(1)(c).  This is so even if the war caused condition is “by far and away the more dominant of the causes of the preventative effect”: Forbes v Repatriation Commission (2000) 101 FCR 50 per Nicholson J at 57; Repatriation Commission v Richmond [2014] FCAFC 124; and see Repatriation Commission v Watkins [2015] FCAFC 10.

30. I am satisfied that Mr Connell’s psychological conditions played a part in his ceasing employment.  That part cannot be discounted as insubstantial.  It follows that he cannot be taken to be suffering a loss of salary or wages or income by reason of his accepted incapacity and his claim must fail.

    Conclusion

31. For these reasons, I am not satisfied that Mr Connell’s war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating eight or more hours per week.  It follows that he does not satisfy s 24(1)(b) of the Act.  Even if I were so satisfied, I am not satisfied that Mr Connell meets s 24(1)(c) of the Act.  In particular, I find that he ceased to engage in remunerative work for reasons other than his war-caused incapacity.  It follows that his claim cannot succeed.

32. I affirm the decision under review.

1.       I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 31 August 2015

Date(s) of hearing		30 July 2015
Representative for the Applicant		Ms Claire Mudge, Counsel
Representative for the Respondent	Mr Tim O’Reilly, Advocate