Corbett and Repatriation Commission - [2002] AATA 1194

DECISION AND REASONS FOR DECISION [2002] AATA 1194

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/71

VETERANS' APPEALS DIVISION       )
           Re      JAMES ARTHUR CORBETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date20 November 2002
PlaceHobart

Decision      The Tribunal sets aside the decision under review in so far as it assessed the applicant's rate of pension at 80% of the General Rate and remits the matter to the respondent for the assessment of the appropriate rate of pension with effect from 5 July 2000.
   [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Veterans' Pension – accepted disabilities – special rate of pension – whether accepted disabilities alone responsible for inability to work – whether applicant genuinely seeking to engage in remunerative work – whether the incapacity is the substantial cause of the applicant's inability to obtain remunerative work – decision set aside.
Veterans' Entitlements Act 1986 – s24
Re Banovich and Repatriation Commission   (1986) 69 ALR 395

REASONS FOR DECISION

20 November 2002 Ms A F Cunningham (Part-time Member)

The applicant has sought the review of that part of the decision made by the Repatriation Commission on 15 December 2001 which assessed the applicant's rate of pension at 80% and determined that he was not entitled to a special rate of pension. The decision was subsequently affirmed by the Veterans' Review Board on 8 May 2001.
Legislation
The applicant was represented by Mr R M Webster and the respondent was represented by Mr M Castle. The T documents were tendered pursuant to s37 of the Administrative Appeals Tribunal Act 1975. Oral evidence was given by the applicant, Mr Garry Bell, a management consultant and Mr John Mills, an orthopaedic surgeon. No evidence was called by the respondent.
It is the applicant's contention that he is eligible for the special rate of pension payable pursuant to the provisions of s24 of the Veterans' Entitlements Act 1986 ("the Act").
Section 24 of the Act provides as follows:
"24 Special rate of pension
(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 is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(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
(d)       section 25 does not apply to the veteran.
(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; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."
It was conceded by Mr Castle that the applicant's circumstances satisfy the provisions of sub-section 1(aa), (aab), (a)(i). It was contended that the applicant's incapacity from a war-caused injury did not "of itself alone" render the applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
It was further contended by Mr Castle that neither did the applicant satisfy the provisions of sub-section 2(b) in that the evidence did not establish that the applicant had been "genuinely seeking to engage in remunerative work" as required by that sub-section.
It had previously been accepted that the applicant's conditions of early osteoarthritis of the spine and bilateral sensori-neural hearing loss were war-caused and the Repatriation Commission in its decision of 15 December 2000 accepted the applicant's condition of depressive disorder as being war-caused. The Commission accordingly increased the applicant's pension rate to 80% of the General Rate. At the commencement of the hearing Mr Webster contended that with the acceptance of the applicant's condition of depressive disorder took the applicant's incapacity rating to 90%, rather than 80% assessed by the Commission. It was submitted by Mr Webster that if the Tribunal determines that the applicant is not eligible for the special rate of pension, then he should be paid at 90% of the general rate of pension.
The Tribunal is satisfied that the applicant meets the following requirements of s24(1) of the Act for the special rate of pension in that (a) he made a claim for pension on 5 October 2000 pursuant to s14 of the Act, (b) he has not yet turned 65 years of age being born on 12 August 1947; and (c) he has a degree of incapacity of at least 70%.
The Tribunal must determine whether the applicant satisfies the further provisions of sub-section 24(1)(b) and (c), or the ameliorating provisions of sub-section 24(2)(b) to its reasonable satisfaction in accordance with the provisions of s120(4) of the Act.
Evidence
It was the applicant's evidence that until 3 March 2000 he was employed as the Tasmanian Merchandising Manager for Pipeline Supplies in Hobart. The applicant said he first commenced work with Pipeline Supplies in 1992 as a telephone salesman. The applicant stated that during the 2 years prior to leaving his employment, his workload had gradually been increasing as various staff members were retrenched. The applicant said that he suffered some stress as a result of the additional workload.
It was the applicant's evidence that his back condition limited his work capacity and that during the times that he was sitting at his desk it was necessary for him to get up every 10 to 15 minutes to stretch his back and walk around.
The applicant informed the Tribunal that the pain from his back condition is ongoing and radiates down his left leg. He said that he has to be careful in what he does in relation to housework etc. particularly as he lives by himself.
The pain is with the applicant every day, he does not take any medication for his back pain, but attends physiotherapy sessions on a regular basis. The applicant stated that he takes medication for his depressive disorder.
The applicant went on to describe the circumstances in which he was retrenched from his employment with Pipeline Supplies. The applicant recalled that at a meeting with the Victorian manager, the local managing director and Garry Bell, he was advised that the Hobart office was to be closed and that he no longer had employment with the firm. Of the four employees at the Hobart office, only one was offered re-location to Launceston. The applicant stated that there had never been any criticism from management about the way in which he performed his duties and that he was totally dedicated to his job.
The applicant subsequently registered with Centrelink but was not entitled to any assistance until he had expended his holiday and long service leave pay. The applicant was not offered any work from Centrelink. When asked whether he had followed up any job advertisements in the newspaper, he replied that he did not have the appropriate qualifications, particularly in the area of IT work. The applicant said that he had not taken any other steps to find employment, one of the main reasons being that he attends physio twice a week, which he thought would be a difficult request of an employer.
Mr Garry Bell confirmed that he had been present when the applicant's employment with Pipeline Supplies was terminated. He said that he was engaged by the firm as an outplacement consultant and subsequently took the applicant through an extensive program with the aim of providing him with the necessary skills to obtain other employment.
Mr Bell stated that he was aware that the applicant had been employed by Pipeline Supplies for 22 years and understood that but for the applicant's back condition, he would have been retained by the firm. He pointed out that the redeployed position in the Launceston office was a driving position and was offered to another employers who had worked for 11 years with the firm. Mr Bell said that it was his understanding that the applicant had not been retained because of his back condition and that his employers commented that they did not think that the applicant would be able to carry out the driving work because of his back problem. He said that the state manager commented that the applicant was very good at what he had been doing in his clerical position.
Mr Bell referred to the difficulties in obtaining alternative employment for the applicant who was not able to undertake any labouring or store work because it would have required lifting and, that the applicant's skills were in the clerical area which required him to be able to sit for long periods of time. Mr Bell observed that during his meetings with the applicant it was necessary to have breaks so that the applicant could stand up and walk around.
When Mr Bell was asked by Mr Castle whether he thought that the applicant's age would inhibit his obtaining employment, Mr Bell responded that apart from the applicant, he had had 100 per cent success rate with people over the age of 50 years embarking on new careers. Mr Bell said he had seen over 100 people aged over 40 years and that they had all been successful in obtaining further employment.
Mr John Mills, an orthopaedic surgeon, first saw the applicant on 13 July 1993 and again in September 1997 when he was requested to prepare a medico legal report.
In his report dated 27 October 1997 (T8) Mr Mills described the applicant's condition as spondylosis of his lumbar spine, and reported that the applicant's first episode of back pain occurred during his army service. In Mr Mills opinion, it was likely that the applicant would remain symptomatic indefinitely because of increasing problems. It was his opinion that the applicant's lumbar spondylosis had not at that stage stabilised.
During his evidence before the Tribunal, Mr Mills confirmed that the term "lumbar spondylosis" and "osteoarthritis of the spine" are used interchangeably and are effectively the same conditions.
Mr Mills said that he had last seen Mr Corbett in August 1999 and that his back condition "if anything was probably worse". Mr Mills said that the applicant's flares were more frequent and the duration, particularly of his last flare, was longer than the previous flare.
Mr Mills stated that during the 12 months preceding his visit in August 1999, there had been periods of between 7 and 10 days when the applicant had suffered flares and in the month prior to seeing him he had suffered an episode when the flares lasted for 7 days and then gradually improved over a period of 3 weeks. In Mr Mills opinion it was likely that the applicant would continue to suffer flares indefinitely. He said that the flares can be quite disabling, particularly during the middle of an episode and that the applicant would probably require bed rest.
Whilst it was unlikely that the applicant would require surgery, Mr Mills said that the non-operative measures were to avoid weight gain, pay attention to lifting and carrying methods, muscle strengthening and the occasional assistance from short term analgesics, anti-inflammatories and perhaps some physiotherapy and hydrotherapy. In Mr Mills opinion having last seen the applicant in 1999, he thought that it was unlikely that the applicant's condition would "change for the better". Mr Mills confirmed that the applicant's difficulty in sitting for periods longer than 10 or 15 minutes was consistent with his back condition.
Mr Mills commented that it was likely that during the course of any employment, the applicant may require periods of time off work, for instance, if he suffered a bad flare which lasted for up to a week. Mr Mills confirmed that the applicant would need the standard sick leave allowance of between 2 and 3 weeks per annum.
Contained in the T documents was an assessment report from Peter Nelson, a clinical psychologist. In his summary Mr Nelson commented:
"James Corbett has chronic pain with depression resulting from the limitations imposed by it. The pain, depression and his age make it unlikely that he will be placed vocationally in the future. He is tending to isolate himself and is not particularly interested in the group process's offered by the VVCS".

In Dr Burges-Watson's report of 23 November 2000 he states:

"In summary, Mr Corbett describes some anxiety and depressive symptomatology that has been increasing since his back condition started deteriorating some eight years ago. It increased still further following being retrenched but the symptoms remain mild.
They may well get worse if his back deteriorates further, as seems likely, and it is thus very unlikely that he will be able to find another job."

Submissions

It was Mr Castle's submission that the Tribunal could not be satisfied on the balance of probabilities that the applicant's accepted disabilities were the sole cause of his being incapable of undertaking remunerative work pursuant to s24(1)(b) of the Act. It was Mr Castle's contention that it was clear from Mr Bell's evidence that the applicant's accepted disabilities were not the sole cause for him ceasing work with his former employer when embarking on the process of reducing staff numbers from 4 to 1. Mr Castle stated that there was no evidence to support a finding that had it not been for the applicant's back condition, he would have been the employee retained by his former employer.
Mr Castle further contended that there was no evidence that the applicant actively sought work following his termination and that he was content to "sit back and see whether he got a pension from the Department of Veterans' Affairs".
Mr Webster contended that the Tribunal could be satisfied on the basis of the evidence before it that the applicant's inability to undertake remunerative work was due to his accepted disabilities. He referred to Dr Nelson's report at T16 where he stated that: "the applicant's pain, depression and age would make it unlikely that he would be placed vocationally in the future".
Mr Webster also referred to Dr Burges-Watson's report at T20 where he stated that in his opinion that if the applicant's back deteriorates it would be very unlikely that he would be able to find another job.
If the Tribunal was unable to conclude on the basis of the evidence that the applicant was incapable of undertaking remunerative work "for periods aggregating more than 8 hours per week", Mr Webster submitted that the Tribunal could be satisfied pursuant to the provisions of s24(2)(b) that the applicant had been seeking to engage in remunerative work and that his accepted war-caused disabilities are the substantial reason for his ceasing his remunerative work.
Determination
It is clear from the decision in Re Banovich and Repatriation Commission (1986) 69 ALR 395 @ 402 that a loss suffered by a veteran may be caused either by loss of existing employment or by an inability to obtain new employment. As the Full Court stated:
"There is no difficulty in regarding either circumstance as preventing the member `continuing to undertake remunerative work'".
The Tribunal is unable to conclude to its reasonable satisfaction on the available evidence that (1) the applicant's accepted war-caused disabilities are of such a nature to "alone" render him incapable of undertaking remunerative and (2) and that he is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
Whilst the Tribunal accepts that the applicant's back condition interfered with his work at Pipeline Supplies and imposed certain limitations, the Tribunal cannot be satisfied on the balance of probabilities that it was because of these limitations alone that the applicant's position with Pipeline Supplies was terminated. The evidence was that the Hobart office was to be closed and 3 out of 4 positions terminated. Whilst Mr Bell stated that it was his opinion that the applicant would have been offered the remaining position if it were not for his back condition, this was not the applicant's evidence nor was there any corroborating evidence from the applicant's previous employer. Further, the Tribunal is not satisfied on the evidence presented that the applicant was incapable of working more than 8 hours per week. It was Mr Mills evidence that the applicant would need time off work when he suffered flares which could last up to a week, but that they could be managed within the standard allowance of sick leave allowance of between 2 to 3 weeks a year. Whilst it was Mr Webster's contention that the applicant's back condition had deteriorated since he last saw Mr Mills in August 1999, it was the applicant's evidence that whilst he was working with Pipeline Supplies it was necessary for him to get up every 10 to 15 minutes to get up to stretch and walk around. Given that the applicant's back condition was already substantially interfering with his work at Pipeline Supplies, the Tribunal is unable to conclude on the balance of probabilities, that it was because of his back condition alone that his employment with Pipeline Supplies was terminated.
The Tribunal is however satisfied that the applicant's back condition was the "substantial" cause of him being unable to obtain remunerative work following his retrenchment. The Tribunal is also satisfied on the evidence that the applicant has been genuinely seeking to engage in remunerative work. He participated in the outplacement program with TMP Worldwide conducted by Mr Garry Bell which is designed to assist him to find new employment. The applicant was apparently enthusiastic about the program and completed all modules over a six week period with subsequent ongoing contact with Mr Bell. It was Mr Bell's evidence that it was the applicant's back condition that inhibited his employment prospects. In his opinion his age was not a negative factor as he had previously had 100% success rate in finding employment for people aged over 50 years, apart from the applicant. Mr Bell said that he had been engaged in this line of work for the past 9 years with over 100 clients all aged above 40.

The applicant told the Tribunal he periodically scanned the newspaper for employment, but found there were few positions that would suit him, for instance, he had no training in the area of information technology, he was unable to undertake any labouring work which involved lifting or positions which required extensive driving. The Tribunal accepts Mr Mills evidence that it is likely that the applicant's back condition has deteriorated since he last saw him in August 1999 and that it is likely that the applicant would continue to have flares indefinitely which require bed rest. The applicant informed the Tribunal that since October 2000 upon his doctor's recommendation, he has been attending physiotherapy twice a week which could interfere with any employment prospects.
The Tribunal is accordingly satisfied that the applicant satisfies the provisions of sub-section 24(2)(b) in that (1) he has not attained the age of 65 years; (2) has not been engaged in remunerative work; (3) has been genuinely seeking to engage in remunerative work; and (4) that his back condition is the substantial cause of his inability to obtain remunerative work.
The Tribunal therefore sets aside the decision under review in so far as it assessed the applicant's rate of pension at 80% of the general rate and remits the matter to the respondent for the assessment of the appropriate rate of pension with effect from 5 July 2000.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing  17 April, 27 June, 20 August 2002
Date of Decision  20 November 2002
Counsel for the Applicant        Mr R M Webster
Solicitor for the Applicant
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Department of Veterans' Affairs