Conole and Repatriation Commission

[2008] AATA 1113

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1113

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5234

VETERANS' APPEALS DIVISION		)
Re		KENNETH CONOLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr J Campbell, Member

Date15 December 2008

PlaceSydney

Decision The decision under review is affirmed

..............................................

Ms N Bell, Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - disability pension - applicant in receipt of General Rate of pension - whether entitled to Special Rate Pension - whether war-caused diseases prevented veteran from continuing remunerative work – decision under review affirmed.

Veterans' Entitlements Act 1986

Flentjar v Repatriation Commission (1997) 48 ALD 1

REASONS FOR DECISION

15 December 2008 Ms N Bell, Senior Member
Dr J Campbell, Member     

1.      Kenneth Conole served in Vietnam.  He has applied for an increase in the rate of his disability pension, from the rate at which he is now paid, which is at 100 per cent of the “General Rate”, to the  “Special Rate” (which requires, amongst other things, that a person’s capacity for work amounts to no more than 8 hours per week).

2.      Mr Conole has the following conditions accepted as war-caused:

·Bilateral sensori neural hearing loss;

·Bilateral Achilles tendonitis;

·Post Traumatic Stress Disorder;

·Alcohol abuse;

·Chronic airflow limitation;

·Osteoarthrosis of the right knee;

·Osteoarthrosis of the right wrist;

·Osteoarthrosis affecting both ankles;

·Ischaemic heart disease; and

·Hypertensive cardiac disease.

3.      Mr Conole has made claims, rejected by the Repatriation Commission, for the following conditions:

·Osteoarthrosis of the right shoulder;

·Osteoarthrosis of the left shoulder; and

·Rotator cuff syndrome of the right shoulder.

4.      In addition, Mr Conole sustained an injury to his back in a motor vehicle accident in December 1993 for which he received a lump sum compensation payment of over $840,000 and for which he had surgery in 1998.  He also suffers from a number of not service-related disabilities which include; arthritis in the left knee, left hand, both shoulders, right hip,, neck and  back.

5. The essential requirements for eligibility for Special Rate of pension are set out in section 24 of the Veterans' Entitlements Act 1986 (the Act).  Those requirements are:

a)the veteran has a degree of incapacity from war-caused injury or disease or both of at least 70%;

b)the veteran is incapable of working for a total of more than 8 hours per week; and

c)the veteran's incapacity from war-caused injury or war-caused disease, or both, alone, prevent the veteran from continuing to undertake remunerative work that he was undertaking.

6.      The Repatriation Commission concedes and the Tribunal is satisfied, that Mr Conole meets paragraphs a) and b) of the above requirements.  The issue in this application is whether Mr Conole’s war-caused conditions, alone, prevent him from continuing to undertake the work he was undertaking.

7.      Mr Conole contends that his back, shoulders and neck and left hip conditions do not contribute to his incapacity to work.  The Repatriation Commission contends that they do.

8.      In determining this issue, we were guided by the decision of the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1, in which the court held that the provisions of section 24 of the Act posed the following questions:

i) What was the relevant remunerative work that the veteran was undertaking within the meaning of section 24 (1) (c) of the Act?

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

iii) If the answer to question 2 is “yes", is the war-caused injury or war-caused disease, or both, alone, the only factor or factors preventing the veteran from continuing to undertake that work?

iv) 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 own account that he would not be suffering if he were free of that incapacity?

9.      There is no dispute that Mr Conole, on leaving the army, trained and worked as a chef, cook or caterer.  He worked at Qantas, as a cook, until 1998 when he had surgery on his back.  After recovery from the surgery he commenced work again in 2000 -2001, as a part-time chef, finally ceasing work as a relief cook in 2004.  His remunerative work is therefore that of a cook, chef or caterer.

10.     There is also no dispute that Mr Conole is prevented, by reason of his extensive war-caused conditions, from continuing to undertake that work.  The only question that remains is whether those war-caused conditions are the only factors preventing Mr Conole from continuing that work.

the only factor?

11.     Dr McGroder, Occupational Physician, in his report of 24 May 2007, said:

"He has had back surgery but recovered from this and was able to undertake significant physical work until he ceased because of other problems.  The back condition would not however be totally irrelevant with regard to his fitness for work but relative to the other conditions would only be a small contributing factor."

He also said:

"The main affect of this man's ability to work as far as musculoskeletal conditions are concerned involves his ankles, his knees, and his wrist. … There would be some relevance with regard to his lower back and also some discomfort when doing overhead work as far as his shoulders are concerned."

12.     Dr Chase, Occupational Physician, in his report of 25 March 2008, found a loss of range of movement in Mr Conole's cervical spine of approximately 50% in all directions and a similar loss of range of movement in his lumbar spine.

13.     Dr Giblin, Orthopaedic Surgeon, in his report of 16 April 2007, described Mr Conole's shoulders as continuing to be a problem to him with repetitive heavy use at and above the level of the shoulders.

14.     Only Dr Yeoh,, Mr Conole’s local treating medical officer, asserts that it is only Mr Conole’s accepted conditions that prevent him from continuing to undertake his remunerative work.  In a rather impatient report dated 19 October 2005, Dr Yeoh maintains that Mr Conole has never consulted him for any lower back or neck condition.

15.     We prefer the evidence of the specialist physicians and surgeon.  It follows that it is not Mr Conole's war-caused conditions alone that prevent him from continuing to work.  It also follows that he does not qualify to be paid at a Special Rate of pension.

Decision

16.     The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Dr J Campbell, Member

Signed:         .....................................................................................
  Associate: Felicia Daniele

Date/s of Hearing   18 September 2008
Date of Decision  15 December 2008
 Advocate for the Applicant        Mr K Foster
Advocate for the Respondent     Mr T O’Reilly