Crilly and Repatriation Commission
[2003] AATA 382
•29 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/9
VETERANS' APPEALS DIVISION )
Re BRIAN JAMES CRILLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date29 April 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means Mr Crilly's application for review is unsuccessful. ....................(Sgd).....................
EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether rate of pension properly assessed – special rate – whether the applicant is entitled to pension at the special rate – whether the applicant’s accepted disabilities alone prevented him from working – ameliorative provision – whether accepted disabilities were the “substantial cause” for the applicant being unable to obtain or continue in remunerative work
Veterans’ Entitlements Act 1986 ss 6C, 24(1)(c), 24(2)(b), 120(4)
Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1
Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Cavell v Repatriation Commission (1988) 9 AAR 534
Re Horney and Repatriation Commission [1998] AATA 602
Fox v Repatriation Commission (1997) 45 ALD 317REASONS FOR DECISION
29 April 2003 Dr EK Christie, Member 1. This is an application by Brian Crilly to review a decision of the Veterans’ Review Board (“VRB”) made on 6 December 2000, which affirmed the decision of the Repatriation Commission. The VRB decided that the appropriate assessment for entitlement was 100% of the General Rate.
2. In reaching its decision the VRB concluded:
“23. There is no medical evidence to support the applicant’s contention that it was his war-caused melanoma that caused him to leave the workforce…
24. Furthermore, the Board finds that the veteran ceased work and is prevented from resuming remunerative employment as a result of factors unrelated to his eligible service. Those factors include the condition diffuse idiopathic skeletal hyperostosis which is not service related, the veteran’s age at date of application of 61 years and his time out of the workforce of 10 years. In that situation, it is clearly the case that his accepted disabilities, alone, are not responsible for his no longer being engaged in remunerative work.
25. There is no evidence before the Board that the veteran has made genuine attempts to obtain further employment since he ceased work on 16 April 1990 and the ameliorating provisions of Section 24(2)(b) do not assist his case. The Board is therefore reasonably satisfied that it was not his accepted disabilities either substantially or alone which have been responsible for the veteran no longer being engaged in remunerative work...”
3. At the hearing Brian Crilly was represented by Mr A Harding of Counsel, instructed by Gilshenan and Luton. The Repatriation Commission was represented by Mr J Kelly, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
5. The general facts were not in dispute and may be stated briefly. Brian Crilly was born on 25 November 1938 and served with the Australian Army from 21 June 1956 until 31 October 1961. During this period the applicant rendered operational service in Malaya from 29 November 1958 until 31 October 1960.
6. Mr Crilly has the following accepted disabilities:
§Bilateral Sensori-neural Hearing Loss
§Psychoactive Substance Abuse or Dependence involving alcohol
§Anal Fissure
§Diabetes Mellitus
§Chronic Bronchitis and Emphysema
§Ischaemic Heart Disease
§Malignant melanoma of the back
7. Mr Crilly has the following disability rejected as being service-related:
§Adjustment Disorder (no incapacity found).
Issues to be Decided
8. At the commencement of the hearing both parties agreed that the only issue for the Tribunal to decide was whether Mr Crilly was entitled to pension payable at the Special Rate and that such decision would require a determination of subsection 24(1)(c) and the ameliorative provision subsection 24(2)(b) of the Veterans’ Entitlements Act 1986 (“the Act”). Subsections 24(1)(a) and (b) of the Act were not in dispute.
Examination of the Factual Evidence
Evidence of Brian James Crilly
9. Mr Crilly said that whilst working in a quarry in Adelaide in 1988, he slipped on the factory floor and injured his back. He received workers’ compensation for this injury from 1988 to 1990. The injury he incurred in this fall was responsible for his DISH syndrome (Diffuse Idiopathic Skeletal Hyperostosis).
10. Mr Crilly acknowledged that he had no clerical skills and gave the following description of employment sought or undertaken over time, based on his manual skills:
(a)For part of the time during 1988 to 1990 he was on workers’ compensation. He worked as a caretaker/cook in a psychiatric hospital in Adelaide.
(b)He moved to Queensland in January 1992 for health reasons. He travelled to Dulacca for an interview to work in a hotel. However, as the publican was drunk and, given that he was a member of AA, Mr Crilly did not take the job.
(c)He did not accept a position with Pioneer Concrete as a caretaker, because the living conditions were “appalling” and he considered these conditions to be unsatisfactory for his health.
(d)From 1992 to 1996 he undertook voluntary work at Eventide Hospital on Saturdays and Sundays. He continued this work “on and off” for about two years. He ceased this voluntary work in 1997, following his melanoma surgery, as he could not move patients in wheelchairs.
(e)He had prostrate surgery in 1994.
(f)He commenced work as a caretaker in a shopping centre at Brighton, owned by a Mr Sue-Tin, in 1996 where he earned $40 per fortnight initially; later, payment increased to about $100 per fortnight.
(g)He had also undertaken work at a “Cut Price Store” unloading groceries and other general store work.
11. Mr Crilly stated that he sought employment in order to maintain his sobriety as he believed that if he were idle, his drinking problem may recur. He said that he also worked to support an adult son, as his son had a number of medical conditions and now lived in a halfway house in Adelaide.
12. Mr Crilly stated that following his melanoma surgery, he experienced pain in his lower back which he believed to be related to the site of the melanoma, rather than to his DISH condition. The pain he experienced caused him problems so that he could no longer work.
13. During cross-examination by Mr Kelly, Mr Crilly gave the following responses:
(a)He conceded that he had two falls at the Adelaide quarry “pretty close together”. He said that he was sacked from this job.
(b)He left the paid job at the psychiatric hospital because he “could not sweep a broom under a bed”.
(c)He had received an out-of-court settlement for his back injury at the quarry and had then applied to DVA for a permanent incapacity pension in August 1990 (Exhibit R3); at this stage he felt that he could not work.
(d)He conceded that, following his prostrate surgery, he did not accept a job to care for an autistic child at Ormeau because of the personal swearing habits of his prospective employers.
(e)The job at the Brighton Shopping Centre, owned by Mr Sue-Tin, involved a general clean-up of the store, car park and surrounds and did not involve much physical work. He was employed for about ten hours per week. He acknowledged that he had made enquiries to DVA as to how much he could earn without affecting his pension.
14. Mr Crilly was then taken by Mr Kelly to an Application Form (Deafness) [Exhibit R9, 15 February 1998] where at Question 22 [“Employment History”] he had answered that he ceased work in November 1991 because of “back troubles”.
15. Mr Crilly said that he had given this answer as he believed it to mean whether or not he had been fully employed. Because the work that he had done with Mr Sue-Tin was cash in hand and casual/part-time work, he did not consider this work to be permanent.
16. Mr Crilly also acknowledged that in an Application Form (Melanoma) [Exhibit R10, 14 July 2000] he had stated at Question 26 (“Employment History”) that he had been on a “pension since 1990” and had given no details of any employment history.
Evidence of Dr Anthony Tatkovic, Treating GP of the Applicant
17. Dr Tatkovic said that he had seen Mr Crilly at least thirty to forty times since September 2000. Dr Tatkovic was referred to his report (Exhibit A5) that listed the medical problems for which he had treated Mr Crilly. He then stated that the problems for Mr Crilly with respect to his ability to work were:
(a)chronic obstructive airways disease and his body size;
(b)ankle swelling and associated pain. The pain would appear to be a diabetic condition; and
(c)deafness because of communication problems.
18. Under cross-examination, Dr Tatkovic stated that he had treated Mr Crilly for a degenerative back disease and arthritic pain in his right knee and acknowledged that these were not service-related disabilities.
19. In response to his opinion expressed in his report wherein he stated that he “did not think Mr Crilly’s non-accepted conditions by themselves prevented him from working more than 8 hours a week”, Dr Tatkovic stated, in relation to Mr Crilly’s non-accepted conditions:
(a)The recorded degenerative changes in the right knee with narrowing of the medium joint compartment “was not a severe condition” and that “you would expect that it shouldn’t cause too many dramas for a couple of hours a day or an hour a day [of work]”.
(b)The “minor narrowing” at L5/S1 recorded in Mr Crilly’s back did not normally justify putting people on an invalidity pension and that you would expect them to work.
(c)The presence of advanced degenerative changes in the facet joints would “obviously” result in Mr Crilly “getting a fair bit of pain from that”. This matter would have to be a “questionable thing as to how much work he could do”.
20. Dr Tatkovic stated that Mr Crilly could not do eight hours of work because of his accepted disabilities particularly because of his “shortness of breath” and “chronic leg pain” and his diabetes. He acknowledged that Mr Crilly’s diabetes was controlled by diet and oral therapy.
21. In relation to the possible causes of Mr Crilly’s pain in both legs [ie, prolapsed disc and/or diabetic nerve damage], Dr Tatkovic stated:
“I really don’t know at this stage how much his back is causing his leg pain. That to me has not been adequately proven or explained in any way. But undoubtedly… well he has got a disc injury in his lower spine and his size of course would make that worse, and as a result, I suppose, that's definitely a factor in the issues....I don't think it can be proven or in any way confirmed 100 per cent that this is all from his back.”
22. Finally, Dr Tatkovic stated that, “having done a lot of surgical work on the back himself”, he was quite willing to state his comments in his report that the extent of the back surgery for melanoma may have interfered with local nerve structures causing Mr Crilly residual pain.
23. In response to a Tribunal question, Dr Tatkovic stated that if Mr Crilly had a chronic back problem then this condition would “intermingle” with his accepted conditions; and that the combination of accepted and non-accepted conditions would make it difficult for him to work extended hours.
Evidence of Dr James Love, Physician
24. Dr Love described the DISH syndrome as a disorder in which the discs enlarge and thicken, “probably as a result of trauma but because of an inherited over-sensitivity, over-reaction, over-response to physical injury and they gradually enlarge during life”. Furthermore, it was a degenerative disease that gradually became worse.
25. Dr Love acknowledged that it was uncertain whether the continuing sciatic nerve pain in Mr Crilly’s right leg was solely caused by disc problems associated with his back. It was possible there were other factors that may also cause pain in the leg.
26. It was Dr Love’s opinion that the back pain Mr Crilly suffered after his melanoma operation was “basically coincidental” as this pain was present for a number of years before the melanoma was excised.
Evidence of Dr Gamini Jayasinghe, Neurologist
27. It was Dr Jayasinghe’s opinion, based on his examination of Mr Crilly, plus the conduction test that had been performed, that the “likely source” of leg pain was peripheral neuropathy. In his report (Exhibit A4, 11 January 2002) he had stated that “the neuropathy is probably the result of diabetes”.
28. Under cross-examination by Mr Kelly, Dr Jayasinghe conceded that:
The nerve conduction tests only tell us if the nerves are conducting slowly and in this case if the peripheral nerves are damaged. If you want to find out whether there is something arising from a disc, then you have got to do a thing called an ENG where you put some needles into different muscles and try and map out which nerve roots are involved.” [Tribunal emphasis]
29. However, Dr Jayasinghe stated that an ENG had not been undertaken for Mr Crilly.
Contentions and Submissions of the Parties
30. Mr Harding submitted that the remunerative work undertaken by Mr Crilly whilst working for Mr Sue-Tin and later at the Cut Price Store, where he received $50 a week was a substantial and real job – and not a hobby. Mr Crilly had reasons to work which were related to his avoidance of alcohol problems and to support his adult son in Adelaide.
31. Mr Harding submitted that Dr Tatkovic’s report was clear that Mr Crilly’s service-accepted disabilities prevented him from continuing to undertake this work.
32. Mr Harding contended that it was not back pain that prevented Mr Crilly from undertaking work by distinguishing between past and existing back pain. He submitted that Mr Crilly always had back pain but that the pain Mr Crilly experienced which had developed over time was unlike the past pain. Rather, it was the “burning pain” from the melanoma scar that had affected his ability to work. Mr Harding submitted that Dr Tatkovic’s opinion was that the melanoma surgery may have interfered with local nerve structures.
33. Mr Harding submitted that non-service-related disabilities (including DISH Syndrome) did not prevent Mr Crilly continuing to undertake work. Furthermore, that his accepted service disabilities, and in particular the pain experienced from the site of the melanoma, were the only factors that prevented him from working.
34. Mr Harding submitted that if the Tribunal were not satisfied that Mr Crilly met the “alone” test imposed by subsection 24(1)(c), then in the alternative, Mr Crilly satisfied the ameliorative provision [subsection 24(2)(b)].
35. It was Mr Harding’s contention that any analysis of Mr Crilly’s effects to find work (Dulacca Hotel; Pioneer Concrete, child home care; voluntary work at Eventide; with Mr Sue-Tin and Cut Price Stores) indicated that he was genuinely seeking to engage in work and that he was willing to accept work if any could be found. Mr Crilly, rather than not working at all, and relying on his service pension, had reasons for wanting to work. In particular, his needs as a recovering alcoholic and in order to support his son.
36. Finally, Mr Harding acknowledged that the source of back pain was unclear submitting that it had not been “totally resolved”. In addition, he submitted that the leg pain in Mr Crilly’s legs was partially attributable to an accepted service disability.
37. Mr Kelly referred to the two falls Mr Crilly had whilst working as a foreman in a quarry in Adelaide in 1988 which resulted in Mr Crilly receiving WorkCover payments before eventually accepting a workers’ compensation claim. Mr Kelly submitted that all medical examinations and investigations at that time indicated that Mr Crilly had a degenerative back complaint that was set off by both falls. Moreover, during the period when he worked, at this time, Mr Crilly experienced back pain.
38. It was Mr Kelly’s contention that the reasons Mr Crilly did not take up some opportunities for remunerative work were for reasons unrelated to his service-accepted disabilities: Dulacca Hotel – because of drinking habits of the publican; Pioneer Concrete – because of unsatisfactory living conditions; home child care – particular personal habits of his prospective employer.
39. Mr Kelly contended that the work undertaken by Mr Crilly for Mr Sue-Tin and at the Cut Price Store, in which he received around $50 a week, was “pin money” given that it was an amount significantly less than the award rate.
40. Mr Kelly then contended that the substantial remunerative work that Mr Crilly had left (quarry foreman; caretaker/cook Psychiatric Hospital) was because of his non-war-caused conditions.
41. Mr Kelly referred to Dr Kwong’s report (Exhibit R5) which listed the conditions that he had treated Mr Crilly for: acute lumbar sciatica from lumbar spondylosis in 1996 and in 1997; cervical spondylosis; and severe osteoarthritis. These conditions were not related to his accepted service disabilities.
42. Mr Kelly further contended it was significant that, for both claims Mr Crilly had lodged for service disabilities (hearing loss; emphysema/bronchitis), Mr Crilly had stated that he had ceased work in 1990 and 1991. In addition, in his claim for a service pension, Mr Crilly had stated that he would not be able to work again.
43. Mr Kelly submitted that given Mr Crilly’s age (he was now aged 64), that age was a relevant factor to consider in terms of the ameliorative provisions being satisfied.
44. Finally, Mr Kelly stated that he had been “instructed” to put a submission to the Tribunal that it was not in the spirit of the legislation and the Special Rate pension for Mr Crilly to increase his entitlement to the Special Rate ($742 per fortnight) “for the loss of a $50 a week job”. He contended that such a situation was “anomalous”.
45. In response to a Tribunal question, Mr Kelly stated that there was no legal authority to support such a proposition.
Consideration of the Issues
46. The objective of the Tribunal is to review administrative decisions, not only on the merits, but in accordance with the law at all times. The relevant legislation is the Veterans’ Entitlements Act 1986.
Statutory Requirements and Legal Principles
47. The Tribunal has considered and applied the following case law authorities to the central issues to be decided: subsection 24(1)(c) and subsection 24(2)(b) of the Act.
48. The following approach was used in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52 and 53 by RD Nicholson FCJ, to interpret and to apply the provisions of subsection 24(1)(c):
“That approach [ss 24(1)(c)] is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s 24(2).
The first limb of s 24(1)(c) reads:
‘(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…’
That limb must be read subject to the application of s 24(2)(b) which reads:
‘(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 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.’
The second limb of s 24(1)(c) reads:
‘(c)…..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’
This is to be read in conjunction with s 24(2)(a) which provides:
‘(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 reasons 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…’”
49. With respect to the requirements of subsection 24(1)(c), Nicholson J referred to the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 where the Court said that the issues before the Tribunal were:
“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 of earnings on his own account that he would not be suffering if he were free of that incapacity?”
50. The above matters must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in subsection 120(4): Re Starcevich and Repatriation Commission (1986) 10 ALN 202; Re Doyle and Repatriation Commission (1986) 47 ALD 187. That meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’..”
51. The question of a combination of war service conditions and non-war-caused conditions and undertaking remunerative work, was also considered by Nicholson J in Forbes v Repatriation Commission (supra) at page 57:
“The applicant’s case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptional environment identified in the applicant’s case. Furthermore, it is consistent with the application by a Tribunal of a common sense approach ‘with an eye to reality’.
As in the case of the present applicant, it is possible that the war-caused condition will be far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made.. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration.” [Tribunal emphasis]
52. With respect to the third question identified in Flentjar, Burchett CJ in Cavell v Repatriation Commission (1988) 9 AAR 534 agreed with the following statement by the Tribunal, in terms of it clearly revealing an application of the statutory test, in an unexceptional manner, to the material in evidence before the Tribunal:
“that it followed from the use of the word ‘alone’ in s 24, that any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate.” [Tribunal emphasis]
53. Section 24(2)(b) has long been interpreted as an ameliorative provision, as compliance with this subsection would excuse a veteran from having to meet the “alone” test as provided in subsection 24(1)(c).
54. In Re Hornery and Repatriation Commission [1998] AATA 602 (11 August 1998), the Tribunal stated [at paragraph 41]:
“If a veteran falls within s 24(2)(b), the veteran is relieved from the ‘alone’ requirement in s 24(1)(c). In order to fall within s 24(2)(b) the veteran must satisfy the Commission (and now the Tribunal standing in the shoes of the Commission) that he or she ‘has been genuinely seeking to engage in remunerative work…’ and the Tribunal must also be satisfied that the veteran would, but for the incapacity, be continuing so to seek to engage and that war caused incapacity ‘is the substantial cause of his or her inability to obtain remunerative work’.” [Tribunal emphasis]
55. The meaning of the term “substantial cause” was considered in Fox v Repatriation Commission (1997) 45 ALD 317. Kiefel J noted that this term “requires that, if the incapacity is not of itself productive of an inability to obtain work, it is nevertheless the operative factor which, more than any other explains it. That something might be a ‘substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as ‘substantial’…” [Tribunal emphasis].
Application of Facts to the Law
56. The central question for the Tribunal to decide, pursuant to section 24 of the Act, is whether the accepted service-related conditions suffered by Mr Crilly are of such a nature in themselves to have caused him to cease work and to continue to prevent him from undertaking “remunerative work” that he was previously undertaking. The parties have agreed at the outset that the only issues for the Tribunal to decide are the application of subsection 24(1)(c) and subsection 24(2)(b) to Mr Crilly’s factual circumstances
57. In deciding the four issues identified in Flentjar’s case, the Tribunal has applied the “reasonably satisfaction test” in accordance with the standard prescribed by subsection 120(4) and has followed the meaning applied in Jackman’s case.
58. The first issue for the Tribunal to consider is whether the requirements of subsection 24(1)(c) are satisfied – whether Mr Crilly’s service-related disabilities, alone, prevented him from continuing or resuming remunerative work. With respect to the third question identified in Flentjar’s case, the decisions in Cavell and Forbes make it quite clear that any factor having employment consequences, which may play a part in Mr Crilly’s inability to work, or to obtain and to hold paid employment, would be sufficient to displace the case for pension at the Special Rate.
59. Some of the service-related conditions of Mr Crilly clearly have an impact on his capacity to continue or to resume paid employment. In particular, his chronic bronchitis/emphysema, diabetes and deafness.
60. However, Mr Crilly also has other non-accepted conditions and in particular DISH syndrome [and its associated effects] arising as a result of traumas from a quarry accident(s) in 1988, a lower disc protrusion and degenerative changes in his right knee.
61. In his report (Exhibit A7), Dr Love stated:
“A number of imaging investigations were performed including plain xrays, a bone scan and a CT scan of the spine. These xrays establish the existence of a degenerative condition affecting most of the spine referred to as the DISH syndrome which is a form of disc degeneration which may be painful but which is generally benign. At that time, the CT scan of the lower back showed the presence of a protrusion of the disc between the lower most lumbar vertebrae and the sacrum extending out towards the right side. At that stage this disc protrusion appeared not to be causing symptoms. Mr [Dr] Sheppeard [a Rheumatologist] advised Mr Crilly that his current employment at that time was contributing to the upper back pain and that he should desist from the work though Mr Crilly persisted.”
62. Dr Sheppeard in his report (Exhibit R1, T4 Folio 50) stated:
“In my opinion the first fall in January 1988 aggravated the underlying asymptomatic DISH syndrome resulting in a transient episode of back pain and stiffness. The second fall in March 1988 triggered of [off] persistent back symptoms.”
63. Accordingly, by applying the principles in Cavell’s case and Forbes’ case, the Tribunal is reasonably satisfied from the evidence before it that it was not Mr Crilly’s accepted service-related conditions which, alone, prevented him from resuming work or continuing in work that he was previously undertaking. A combination, or intermingling, of factors were involved – a point also conceded by Dr Tatkovic. Some of these factors are not service-accepted conditions.
64. The Tribunal concludes that on an assessment of all of the evidence before it, a combination of factors – rather than the accepted service-related conditions alone, prevents Mr Crilly from satisfying the requirements of subsection 24(1)(c).
65. The Tribunal has already noted that the legislation contains provisions to ameliorate subsection 24(1)(c), viz by subsection 24(2)(b) of the Act. In Mr Crilly’s circumstances, given that he is under 65, “substantial cause” may be substituted for the “alone” test – provided that the other pre-conditions of subsection 24(2)(b) are met.
66. The first pre-condition the Tribunal considers is whether Mr Crilly’s accepted service-related conditions are the substantial cause of his inability to obtain paid employment. Furthermore, the Tribunal has applied the meaning of “substantial” in Fox’s case in evaluating the accepted service-related conditions relative to the non-accepted conditions, that result in the Tribunal finding that Mr Crilly fails to satisfy the “alone” test imposed by subsection 24(1)(c).
67. The Tribunal is reasonably satisfied that Mr Crilly’s accepted service-related conditions are not the “operative factors” – more than any of the combination of non-accepted factors, and specifically his DISH syndrome and its associated effects, that are the substantial cause of Mr Crilly’s inability to obtain, or to continue in, remunerative work.
68. The Tribunal makes this finding based on all of the evidence and information before it and in accordance with the standard of reasonable satisfaction for the following reasons:
(a)The non-service DISH syndrome Mr Crilly suffers from is a degenerative condition and it is a condition that worsens with time and is associated with persistent back symptoms. The condition affects most of his spine and causes problems with respect to his ability to work, because of “episodes” of stiffness and back pain. Moreover, the two falls in January and March 1988 triggered off his back symptoms: see Dr Love (Exhibit A1) and Dr Sheppeard (Exhibit R1).
(b)Dr Sheppeard, in a second report (Exhibit R2, 16 March 1990) refers to an assessment by Dr R Brummitt in 1990 (Exhibit R2) in relation to the consequences of Mr Crilly’s back injury in 1988, in which Dr Brummitt concludes that Mr Crilly has “very marked permanent loss of function of his back”. Dr Brummitt assessed the loss of function of the back of Mr Crilly, at that time, to be 60 per cent. Dr Sheppeard assessed the “permanent loss of function as a result of the back injury in March 1988 to be approximately 10 per cent of overall underlying body function”. Dr Sheppeard’s assessment was based on the back contributing to 25 per cent of total body function. These assessments indicate very marked permanent loss of back function from 1990 and need to be considered in the context of a degenerative condition that worsens with time [paragraph 68(a)].
(c)A “much more pressing problem” now recognised by Dr Love over the past four years was a progressive worsening of pain and loss of feeling and reflex problems in both lower limbs. This problem has implications for Mr Crilly’s ability to work. Dr Love, in his report (Exhibit A7), states that this condition is the typical distribution of:
“irritation of the sciatic nerve or the L5 nerve root. This particular nerve would be at risk from pressure from the disc which was identified by Mr [Dr] Sheppeard years earlier on the CT examination. Not only has the pain persisted and worsened, but in the last few months, Mr Crilly has also started to develop a similar pain spreading down the left leg, raising the possibility that this disc may also be causing pressure on the opposite nerve. This pain is significantly disabling in that it restricts movement of the lumbar spine, interferes with walking, bending and lifting and at its most severe can be quite incapacitating.”
(d)However, it has not been established to the reasonable satisfaction of the Tribunal that the cause of the problem of leg pain is due to diabetic nerve damage. Dr Love concedes that he has only performed limited examination in this regard and states that investigations into disc and diabetic neuropathy are required. The Tribunal considers Dr Jayasinghe’s examination and nerve conduction investigations into the cause of such leg pain are incomplete. Dr Jayasinghe has conceded that further nerve conductance investigations [eg ENG] are also necessary to identify the nerve roots involved in order to establish cause(s). However, no such diagnostic tests were undertaken. In these circumstances, the Tribunal can make no conclusion other than to find Dr Jayasinghe’s opinion, at this stage, to be speculative.
(e)The melanoma is quite “incidental” to the problems which are now beginning to disable Mr Crilly given that the pain was present for a number of years before the melanoma was excised – a point not considered by Dr Tatkovic: see Dr Love’s report.
69. The Tribunal has considered these findings with special reference to:
(i)other accepted service-related conditions of Mr Crilly (see paragraph 6) and the actual Impairment Ratings as determined by the VRB for each service-related disability; and
(ii)his non-service conditions: including DISH syndrome, lumbar spondylosis, acute lumbar sciatic and cervical spondylosis: see Dr Kwong’s Report (Exhibit R5, 30 October 2001).
Accordingly, the Tribunal concludes that the service-related conditions are not the operative factors that are the substantial cause of Mr Crilly’s inability to obtain, or to continue to engage in, remunerative work.
70. Given that Mr Crilly does not satisfy the first pre-condition of subsection 24(2)(b), there is no need for the Tribunal to consider whether the second pre-condition of subsection 24(2)(b) is also satisfied. That is, whether Mr Crilly has been genuinely seeking to engage in remunerative work.
71. For all of the above reasons the Tribunal decided to affirm the decision under review.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .......................................................................................
AssociateDate of Hearing 13 December 2002
Date of Decision 29 April 2003Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Messrs Gilshenan and Luton
Solicitor for the Respondent Mr J Kelly, Departmental Advocate
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