Cornell and Repatriation Commission
[2005] AATA 1177
•29 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1177
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/114
VETERANS' APPEALS DIVISION ) Re CRAIG ANTHONY CORNELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date29 November 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 with effect from 20 September 2003.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – special rate – accepted conditions of gout, post-traumatic stress disorder with alcohol abuse, hearing loss and tinnitus – non-accepted condition of osteoarthritis – alone test – decision set aside
Veterans’ Entitlements Act 1986 ss 19, 24, 120, 124
Flentjar v Repatriation Commission (1997) 48 ALD 1
Cavell v Repatriation Commission (1998) 9 AAR 534
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
29 November 2005 Senior Member L Hastwell 1. Craig Anthony Cornell (the applicant) served in the Australian Army between June 1967 and June 1969. He currently receives a Disability Pension from the respondent (the Commission) at 100 percent of the general rate. He has the following accepted disabilities, namely left sensorineural hearing loss, acne, tinea, post-traumatic stress disorder (PTSD) with alcohol abuse, bilateral sensorineural hearing loss with tinnitus and gout.
2. Throughout his working life the applicant was a plumber. For most of that time he was self employed. He ceased work on 19 September 2003 and the partnership known as Plaza Plumbing ceased trading as of that date. He wound up the partnership at the end of that financial year. He now seeks payment of his Disability Pension at the special rate.
3. On 10 October 2002 the applicant lodged a claim for an increase in Disability Pension. The delegate of the Commission decided on 24 December 2002 to maintain a degree of incapacity of 60 percent. The applicant sought a review of that decision to the Veterans Review Board (the VRB), and on 5 February 2004 the VRB set aside the decision under review and substituted a decision that his Disability Pension be assessed at 90 percent of the general rate. The applicant has applied to this Tribunal for review of the Commission’s decision.
4. Between the date of the VRB hearing and the date of the hearing before this Tribunal, an additional condition of gout was accepted as being service related, as a result of which on 14 October 2004 the applicant’s Disability Pension was increased to 100 percent of the general rate.
5. The applicant claims that he is prevented from continuing to undertake remunerative work by reason of incapacity from his defence caused conditions alone, and that he is entitled to the special rate of pension.
statutory framework
6. The applicant’s entitlement to the special rate of pension is to be determined under s 24 of the Veteran’s Entitlements Act 1986 (the VE Act), which provides as follows:
“(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; …”
7. If s 24(1) of the VE Act applies to the applicant, he will be entitled under s 24(4) to a pension at the special rate.
8. The standard of proof is that of reasonable satisfaction in accordance with s 120(4) of the VE Act which provides:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
9. Neither party has an onus of proof (s 124(6) of the VE Act) and the Tribunal must act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities (s 19(1)(g)).
10. It was common ground that the first two criteria as set out in ss 24(1)(a) and (b) of the VE Act are satisfied in this case. The applicant already has an entitlement to a pension at a rate higher than 70 percent of the general rate (s 24(1)(a)), and he suffers incapacity from war-caused conditions of such a nature, of themselves alone, prevent him from working for periods aggregating more than 8 hours per week (s 24(1)(b)).
issues for determination
11. The issues for the Tribunal to determine in this case are:
·whether the applicant satisfies s 24(1)(c) of the VE Act, that is whether he is, by reason of incapacity from war-caused conditions 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 were he free of that incapacity.
12. In considering these issues the Tribunal must also consider s 24(2)(a) of the VE Act and look to the applicant’s reasons for ceasing to engage in remunerative work and to any other factors that may be impacting on his ability to engage in such work during the assessment period. The assessment period commences on the day of his application.
13. In particular in this case the Tribunal must determine whether a non-accepted disability, namely osteoarthritis, is a contributing factor to the applicant being prevented from undertaking remunerative work, and whether it was a factor in him ceasing to engage in the last remunerative work in which he was engaged.
14. It was common ground that the applicant has not sought to engage in remunerative work since ceasing work, and so the ameliorating provisions of s 24(2)(b) of the VE Act are not relied on in this case. It was also agreed that the applicant has been a plumber all his working life and that is the sort of employment to which he is suited. This is the only type of remunerative work that the Tribunal should consider in this case.
hearing and discussion of the evidence
15. The applicant gave evidence as did his general practitioner, Dr Peter Ford. Mr Mark McPeake of McPeake Properties, who had regularly contracted his services, also gave evidence on his behalf. The Commission called an occupational physician, Dr Graham Long, to give evidence. Various documents were received into evidence including the T documents, and a number of medical reports including reports by the applicant’s treating psychiatrist, Dr Ewer.
16. The applicant told the Tribunal that after returning from Vietnam in 1969 he briefly worked with his father (who is also a plumber). He has otherwise been self employed as a plumber throughout his working life until he ceased work on 19 September 2003. His was a one man business. He and his wife were in partnership as Plaza Plumbing. He carried out plumbing work, usually as a sub-contractor, and would contract other assistance when required.
17. The applicant was adamant that his reasons for ceasing work related to the effects of his PTSD and alcohol abuse, and that no other condition impacted on his ability to work, or on his decision to cease work. He acknowledged that he also suffered a number of other conditions including gout, tinea, hearing loss and osteoarthritis. He pointed out that he had been able to work for years managing those complaints and it was the effects of the PTSD and alcohol abuse that ultimately caused him to decide to give up work. He denied that these other conditions had any affect on his ability to work. He said that in the last few years of his working life he became increasingly short tempered and volatile, he was drinking more and suffering from more anxiety. After seeking medical advice in 1999, he was diagnosed with PTSD and in late 1999 PTSD was accepted as a war-caused disability. Thereafter he has consulted with his general practitioner and Dr Ewer with respect to the condition of PTSD. He also sees his general practitioner for treatment for other conditions, including gout. He has now been using medication for several years to manage the symptoms of his PTSD.
18. The applicant has had to change medication prescribed for his PTSD on a number of occasions because of the difficulties he experienced whilst working from the side effects the medication was causing. He described those effects as being dizzy spells, nausea, stomach cramps and diarrhoea. He found that he had to be cautious when using power tools because of the side effects of the medication.
19. Eventually the applicant reached a point where he was not managing his work and he hired someone to assist him. When he decided to cease work he allowed that person to take over the balance of the contract that he was working on at the time. He said that he ceased work because he could not get his medication stabilised, and he was continuing to suffer the severe effects of PTSD.
20. The applicant was cross-examined at length about the extent to which other disabilities impacted on his ability to work. He acknowledged a long standing condition of gout which affected his joints, and in particular his knees, elbows, wrists and feet. This is an accepted condition. He has been using medication to manage that condition for many years, and has tolerated the unpleasant side effects that the medication causes. He estimated that he may have had a half day off on occasions when the gout was affecting him. He told the Tribunal that until he gave up work he would have lost only a couple of full days off work in the last 10 years as a result of the gout.
21. It was acknowledged by the applicant that he had some osteoarthritis and he sometimes experienced aching in the joints and limbs at the end of the day. He described that problem as being different to the joint problems that he suffered with the gout, describing the attacks of gout as being far more significant than the difficulties he suffered from osteoarthritis. His evidence was that the non-gout related joint problems had never prevented him working and he had never specifically taken medication for that condition.
22. The applicant remained steadfast in his evidence that any joint problems that he suffered were largely due to the gout, and that there had been an error in Dr Ford’s report (T11/63) in that Dr Ford had referred to osteoarthritis of the joints as causing him difficulties when in fact it was attacks of gout that caused difficulties from time to time.
23. Mr McPeake gave evidence. He is one of the proprietors of McPeake Properties who had employed the applicant as a plumbing contractor since 1995. There was a witness statement in evidence (Exhibit A6) signed by Mr McPeake and his partner and his evidence was confirmatory of what was contained in that statement.
24. Mr McPeake has known the applicant for many years and he described them as having a long standing business relationship. His building company had used the applicant as their main plumbing contractor for a number of years and until 2003. He told the Tribunal that he observed that towards the end of his working life the applicant appeared to become more frustrated and ill-tempered and much more difficult to deal with. He described the applicant as being irritable, moody and irrational at times. In the last 18 months to 2 years of their business relationship they had several discussions about the applicant’s difficult behaviour. He observed that the applicant began to take unreasonable risks. He gave the example of him going onto a scaffold that was not properly prepared, and on one particular occasion a shower was not properly fitted which necessitated significant remedial work. Mr McPeake was of the opinion that this was the applicant’s fault, but the applicant refused to accept responsibility and claimed someone else must have been responsible. When he questioned the applicant about his overall behaviour, the applicant did not give any detail, but he did disclose that he was taking antidepressant medication.
25. Mr McPeake was aware of the applicant’s problems, but was not aware of him having any significant time off from work. He worked regularly on site with the applicant and said that he would have been aware of the applicant having any significant time off. Towards the end of their business relationship he considered that the applicant no longer fitted into a team environment. Had the applicant not decided to cease work of his own accord, Mr McPeake indicated that he may have had to cease using the applicant’s services as a sub-contractor because of the deterioration in his overall attitude and performance.
26. Dr Ford, who is the applicant’s general practitioner, confirmed that he had treated the applicant since 2000, and prior to that one of his former colleagues at the same clinic had treated the applicant. He had access to the applicant’s medical notes back to 1995. The applicant has suffered from gout for a period of at least 10 years, if not more, and he suffers from a separate condition of osteoarthritis of the hands, knees and feet.
27. Dr Ford confirmed that it was not always possible in the initial stage of presentation with a joint problem to determine whether joint symptoms were referable to gout or osteoarthritis. Gout tended to flare up into a specific episode which could then be treated with medication and was clearly identifiable as gout. Anti-inflammatory medication was common to both ailments, but particular medication for gout was also taken by the applicant.
28. Dr Ford was asked to explain a medical report at T11/63, dated 21 October 2003, in which he had reported that in addition to PTSD, osteoarthritis of the hands, knees and feet had also contributed to the applicant’s inability to work as a plumber. At the applicant’s request he had then provided a further report dated 20 November 2003 in which he altered that view and stated that the applicant’s inability to work was “entirely due to his ‘accepted’ disabilities” (T13/171).
29. Dr Ford’s explanation for the conflicting reports was that upon request from the applicant he had reviewed his file and medical notes back to 1995, and there was no indication on his file that the applicant had ever had time off due to an arthritic disorder. He referred to his report of 24 February 2004, which clarified this point (Exhibit A3).
30. Dr Ford reported prior investigations of the applicant’s knee in 1996, his wrist in 1999 and his knee again in 2003. There was no evidence of degenerative changes in the knee in 1996, and in Dr Ford’s view that episode probably related to gout rather than osteoarthritis. Similarly the wrist investigation in 1999 was more suggestive of gout than of osteoarthritis. An x-ray of the left knee in 2003 showed relatively mild osteoarthritis in that knee joint. There was a history of the applicant undergoing an arthroscopy some years ago, and prior to the applicant becoming his patient, but he was really not sure what that was about as it could have related to a specific injury at the time. No records are available of that investigation.
31. Dr Ford expressed the opinion that it was more likely than not that the foot problems suffered by the applicant from time to time related to gout. He also expressed the view that a left knee episode in 2003 was more likely than not to have been an episode of gout. The most recent x-ray done of the knee joint in 2003 showed mild osteoarthritis in that joint.
32. Dr Long, an occupational physician, gave evidence on behalf of the Commission. He gave evidence as to the sorts of tasks involved in plumbing. He was also questioned at length about the difference between gout and osteoarthritis. He confirmed that gout was characterised by acute flare-ups and osteoarthritis was a progressive degenerative disease that can have flare-ups sometimes exacerbated by overuse of a joint. He concluded that musculoskeletal complaints did limit the applicant in his work capacity, but that he was already totally incapacitated as a result of PTSD and other complaints that Dr Long had not been asked to address in the referral. Exhibit R4 was the letter of referral and it asked Dr Long “to provide an opinion on the effect of any other medical condition, specifically any musculoskeletal condition, would contribute any significant difficulty to working as a plumber”.
33. Dr Long said that musculoskeletal capacity can be a factor affecting work capacity. However, he stated that gouty arthritis and osteoarthritis would not in themselves necessarily prevent a person working. He had not been provided with any tests or any radiologist’s reports, and so his commentary in his report was based largely on history provided by the applicant himself.
34. It was Dr Long’s opinion that the applicant’s arthritis is of a mild nature and it is not uncommon for a person to continue work with such a condition. He said that some people are able to work much more with pain than others. He also commented that a self-employed person has greater motivation to continue because of the fact that their income ceases if they are not in business.
35. Dr Long felt that it was more likely that the joint problems were being caused by a form of gouty arthritis. He said that both gout and osteoarthritis will over time cause long-term damage. The x-ray of the left knee in 2003 and the changes noted in the knee in that x-ray were more indicative of osteoarthritis rather than gouty arthritis. He said that it is sometimes hard to pick the changes occurring from gouty arthritis as they are more global and will not necessarily be picked up on a normal x-ray.
36. The Tribunal had regard to the contents of the five reports from the applicant’s psychiatrist, Dr Ewer, dated 8 September 1999, 11 March 2003, 10 October 2003, 22 April 2005 and 13 May 2005. Dr Ewer first saw the applicant in 1999 upon a referral from his general practitioner, and recommenced seeing him in 2002. His first report of 1999 outlines past medical history, and osteoarthritis of the hands, knees and feet is noted. At that stage he considered the applicant could still work 20 hours per week. In a later report of 11 March 2003, he recorded the symptoms described to him to him by the applicant at that time in the following terms:
“… is experiencing increasing difficulties in the workplace. He reported frequent conflict due to his irritability. He is lethargic in the workplace. His depression is adversely interfering with his ability to work. He lacks motivation. His poor concentration is a problem in the workplace.
…”
37. Dr Ewer considered that the applicant could no longer work more than 8 hours per week at that stage, although he did continue to work. In his report of 10 October 2003, which again describes the symptoms of PTSD and alcohol abuse from which the applicant suffers, Dr Ewer refers to ongoing problems with gout and osteoarthritis affecting the applicant’s knees. His most recent report merely confirms that he has changed the applicant’s medication on a number of occasions because of the nature of his condition and partly due to the pressures that he had been experiencing in his life.
findings of fact
38. The applicant served in the Australian Army between 1967 and June 1969. He served in Vietnam in the last year of his service. He has accepted disabilities as set out above arising out of his war service.
39. Since approximately 1971/72 the applicant has worked as a self-employed plumber. That is the remunerative work that he was undertaking at the time that he ceased work and that is the sort of work to which he is suited.
40. Plumbing involves a mixture of domestic work, maintenance and repairs and involves a wide range of tasks from changing tap washers to digging trenches and the replacing and digging of sewers. It is a physically demanding job, but the use of aids and the use of subordinate assistance can assist in reducing the effects of some of the more strenuous tasks. The use of digging machinery and mechanical aids to reduce physical work can also assist a person who has any degree of disability. A self-employed person is in an ideal situation to ensure that they can do work the way that they want to do it.
41. The applicant has taken almost no time off work during his years of being self employed, and he was well regarded by his employers. He has been a diligent and hard working member of our community. The standard of his work deteriorated particularly in the last 2 to 3 years that he was in the work force. The symptoms that were noticed by his main contractor were irritability, moodiness, irrationality and an overall reduction in work performance.
42. At the time that the applicant ceased work as a plumber, he was only part of the way through a job that he was carrying out for a contractor with whom he has had a business relationship for many years. It was out of character for him to hand the completion of this task to a third party.
43. The applicant earned an income in his plumbing business that he split with his wife who was his business partner. He was the sole source of income in that partnership. After ceasing work he wound up the partnership and thereafter suffered a loss of income. The partnership ceased trading on 19 September 2003 and was wound up on 30 June 2004.
44. The applicant has a series of disabilities that are accepted as war-caused. He has also shown signs in recent years of osteoarthritis in the hands, knees and feet. Because he also suffers from quite severe gout it is often difficult at any given point in time to determine whether joint pain is coming from the osteoarthritis or from the gouty arthritis. The evidence would point to gout being the more predominant cause of joint pain, but with increasing age and given the nature of his work, the osteoarthritis has progressed and will continue to progress.
45. There have been some radiological examinations carried out with respect to the applicant’s wrists and knees. The wrist x-ray indicated gout and investigations prior to 2003 pointed to gout rather than osteoarthritis as being the cause of the knee pain. An x-ray taken in 2003 showed that there was some degeneration of the knee joint that was probably due to osteoarthritis.
46. The applicant was self-employed and could elect to modify his work environment to deal with his joint problems. He used some aids to assist him in his work in particular when he had difficulties with his knees.
47. He managed his gout well considering the severity of that condition. He often continued to work when quite unwell from the side effects of the medication that he took for gout. He took no time off due to the symptoms of osteoarthritis.
48. The applicant’s symptoms relating to his PTSD and alcohol abuse became more pronounced in the late 1990’s and became progressively worse over the next few years. His general practitioner referred him to a psychiatrist for assistance. He was prescribed medication, but suffered from significant side effects, and for that reason his psychiatrist had some difficulty in managing his symptoms of PTSD as he had to keep changing his medication. He remains on medication.
49. There is no evidence that the applicant ever took time off work because of the effects of osteoarthritis, but there is evidence that he had some very brief periods off work because of the affects of gout when it was particularly severe.
50. The effects of PTSD, and to a lesser degree alcohol abuse, increasingly interfered with the applicant’s ability to function in the work place. The symptoms described in Dr Ewer’s report of 1999 persisted and became more pronounced. The medication prescribed for the management of this condition caused side effects that also interfered with his effective and safe function in the work place.
51. In November 2004 when the applicant saw the occupational physician it was observed that he could squat, climb and descend steps without particular difficulty, but he suffered a mild limp as a result of persisting left foot pain and swelling from a recent severe burn.
52. Osteoarthritis has caused the applicant some discomfort over the years. There are no radiological findings at this point to suggest that condition is severe, although it is a progressive disease. It also appears that on occasions, a presentation due to gout may have been attributed to osteoarthritis.
53. The applicant’s loss of income commenced on 20 September 2003 being the day after his partnership ceased trading.
consideration
54. Sections 24(1)(a) and (b) of the VE Act are satisfied in this case. The sole issue for the Tribunal to determine is whether the applicant satisfies s 24(1)(c) of the VE Act. In making that determination the Tribunal must have regard to s 24(2)(a) of the VE Act.
55. In considering the application of s 24(1)(c) of the VE Act, I refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9 Her Honour said that a 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?”
56. In response to the first question the Tribunal is satisfied that the type of remunerative work that the applicant has previously undertaken has been as a plumber.
57. The Commission has conceded that the applicant meets the criteria in s 24(1)(b) of the VE Act, namely that incapacity from his accepted conditions is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
58. The Tribunal now turns to the “alone” test in s 24(1)(c) of the VE Act. In Cavell v Repatriation Commission (1998) 9 AAR 534 Burchett J referred to the true task of a decision maker as being:
“To make a practical decision whether the veteran’s loss of remunerative work is attributable to his service- related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide …”
.
59. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:
“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran 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. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
60. The applicant suffers from relatively mild but ongoing osteoarthritis. This is quite consistent with his age and the effects of years of manual work. The major contentious issue here is whether that osteoarthritis is a factor that plays a part in, or contributes to, the applicant being prevented from continuing to engage in remunerative work. The Commission does not contend that there are any other factors that may have influenced his decision to cease work.
61. It is conceded by the applicant that he suffers from this condition, but he points out that it has never impacted on his ability to work.
62. It was clear from the evidence of both Dr Ford and Dr Long that gout is the predominant condition affecting the applicant’s joints. Although osteoarthritis appears to be present at an underlying level there was really no evidence based on the history of the matter, on radiological examinations or in the evidence of either doctor that osteoarthritis was other than a condition that the applicant worked with and a condition that was considerably less severe than the recurring gout from which the applicant suffered.
63. In a written submission the Commission put to the Tribunal that the test requires that “factors other than accepted conditions make no contribution to the inability to work”.
64. It is clear that the PTSD and alcohol abuse have caused significant deterioration in the applicant’s ability to manage during the last years of his working life before he ceased his business. He has had niggling problems with joints over the years and he has been suffering from gout which has become more severe over many years. Prior to 2003, and Dr Ford’s report which stated that osteoarthritis contributed to his inability to work, there was no suggestion that osteoarthritis was an issue. It became a major issue because of the comment in the report that Dr Ford then withdrew in a subsequent report.
65. It is acknowledged that osteoarthritis is an underlying condition, but not a severe condition. That is acknowledged by both doctors and there is no radiological evidence of severe osteoarthritis in any joint. Both doctors agree that gout is a severe condition that the applicant has suffered from for many years and that it is sometimes difficult to distinguish between the damage done by gout in a joint and the damage arising from the progressive effects of osteoarthritis. It was clear from the applicant’s own evidence that he had continued to work despite the more severe condition of gout, he dealt with the attacks of gout by the use of medication and he continued to work even when suffering quite unpleasant effects from that medication.
66. On his own evidence, and on the evidence of Mr McPeake, the applicant took no time off with respect to osteoarthritis and he continued to work with little time off at all over many years.
67. The applicant was self-employed with a very good working history. Because he was self-employed he was able to take on assistance to help him in the latter years of his work as he found it more difficult to cope with work. His medical notes indicated that the two dominating medical problems in his life in the last years of his work were PTSD and gout. The Tribunal accepts his evidence that he would have continued working were it not for the effects from the PTSD that he was experiencing.
68. The Tribunal is reasonably satisfied on the basis of all available evidence that the second limb of the Flentjar (supra) test is satisfied, and that war-caused disabilities alone prevented the applicant from continuing to undertake his usual work as a plumber. He has suffered a loss of income as a result of ceasing his work as a plumber. The Tribunal does not accept that the osteoarthritis was a contributing factor to his ultimate inability to work. He suffered from that condition, but it did not appear to interfere with his ability to work as a plumber.
69. The Tribunal is satisfied that from the day after the applicant ceased trading in his business Plaza Plumbing the war-caused disabilities alone prevented him from undertaking remunerative work of the type that he is skilled to do. He thereafter suffered a loss of income on his own account.
70. The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 with effect from 20 September 2003.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............................... .......................................
AssociateDate/s of Hearing 1/2/3 August 2005
Date of Decision 29 November 2005
Counsel for the Applicant Mr S Henchliffe
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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