Dantel and Repatriation Commission (Veterans' entitlements)
[2020] AATA 1490
•27 May 2020
Dantel and Repatriation Commission (Veterans' entitlements) [2020] AATA 1490 (27 May 2020)
Division:VETERANS’ APPEALS DIVISION
File Number: 2017/1890
Re:Valentine Dantel
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:27 May 2020
Place:Brisbane
I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – application for increase in pension under s 23 and s 24 of the Act – whether veteran totally and permanently incapacitated by war-caused injury or disease – whether veteran prevented from continuing to undertake remunerative work by reason of war-caused injury or disease alone – veteran prevented from undertaking remunerative work by reason of non-war-caused injury – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Butcher (2007) 94 ALD 364; [2007] FCAFC 36
Repatriation Commission v Hendy (2002) 76 ALD 47; [2002] FCAFC 424;
Repatriation Commission v Richmond (2014) 226 FCR 21; [2014] FCAFC 124
Repatriation Commission v Watkins (2015) 228 FCR 573; [2015] FCAFC 10
Willis v Repatriation Commission (2012) 202 FCR 323; [2012] FCA 399
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
27 May 2020
INTRODUCTION
Mr Valentine Dantel (‘the veteran’) is currently in receipt of the disability pension from the Department of Veterans’ Affairs (‘DVA’) at 100% of the General Rate. He is now seeking for his rate of pension to be increased to the Special Rate or, in the alternative, the Intermediate Rate. The veteran was under 65 years of age at the time of his application.
The veteran enlisted in the Royal Australian Army (‘the Army’) from 27 August 1974 and continued to serve until 12 April 1999 when he elected to take an administrative discharge.[1]
[1] Exhibit A, T-Documents; Exhibit C.
Following his discharge, the veteran found employment as a security officer on a part-time basis. He ceased working as a security officer in 2000. Between August 2000 and February 2002 the veteran worked as a Traffic Controller. He has not worked since.
The veteran has the following conditions which have been accepted as related to his service under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’):
(a) Back strain (22 February 1985) accepted on 27 February 1986;
(b) L4-5 Facet joint dysfunction (2 March 1995) accepted on 29 March 1996;
(c)Adjustment disorder with anxiety and depressed mood, chronic (3 September 2012) accepted on 30 October 2015; and
(d) Lumbar spondylosis (3 September 2012) accepted on 14 November 2013.
The veteran also has a number of claimed conditions which have not been accepted as related to his service under the Act:[2]
[2] Exhibit A, T-Documents, T3, pp. 6-9.
(a)Insomnia: claim rejected 17 September 1999;
(b)Allergic rhinitis: claim rejected 25 March 2002;
(c)Cervical spondylosis: claim rejected 2 March 1996 and 17 September 1999;
along with the following reported conditions which the veteran has not claimed as related to his service:
(d)Hip problems;
(e)Left knee problems;
(f)Hypertension;
(g)Coronary Artery Disease; and
(h)Shoulder problems.
The veteran has the following conditions accepted under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (‘DRC Act’)
(a)Cervical spondylosis with spinal fusion at C6/7 and mild nerve root irritation (1 September 1993) accepted on 23 August 1999;
(b)Low back pain - back strain and L4/L5 facet joint dysfunction (14 September 1982); and
(c)Adjustment disorder with depressed mood (19 June 2002).
In December 2007, the veteran was paid lump sum compensation under the DRC Act for permanent impairment arising from his cervical spine condition under ss 24 and s 27 of the DRC Act in the amount of $28,473.17.
CLAIM HISTORY
The present claim process was commenced by the veteran in 2012 and is now before this Tribunal for the second time, the first time being in 2015. The veteran applied for an increase in the rate at which his disability pension was payable on 3 December 2012 in respect of Lumbar Spondylosis and Adjustment Disorder with Depressed Mood. In that claim form the veteran relevantly stated:[3]
I Injured my back in 1982 and have lumbar spondylosis as a result. I have had chronic pain from this condition since…
My lumbar spondylosis has worsened since 2008…
Have not worked for more than 10 years…
If it were not for my Lumbar spondylosis I would be able to work
[3] Exhibit A, T-Documents, T53, pp. 205, 207, 209.
The Repatriation Commission (‘the respondent’) accepted liability for the veteran’s lumbar spondylosis condition on 14 November 2013, with effect from 3 September 2012. This decision also determined that the veteran’s adjustment disorder with anxiety and chronic depressed mood conditions were not related to his service and the veteran was not entitled to compensation for this condition. The veteran’s disability pension was continued at 100% of the General Rate.[4]
[4] Exhibit A, T-Documents, T57, pp. 223-229.
On 29 January 2014, the veteran appealed to the Veterans' Review Board (‘VRB’) for review of the respondent’s decision that the veteran’s adjustment disorder was not related to his service.[5] On 2 September 2014 the VRB affirmed the decision.[6]
[5] Exhibit A, T-Documents, T58, pp. 229-230.
[6] Exhibit A, T-Documents, T62, pp. 188-199.
The veteran applied to this Tribunal for further review of the determination of the VRB dated 29 January 2014. On 30 October 2015, this Tribunal made a decision by consent of the parties, pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (Cth), that the veteran’s adjustment disorder with anxiety and chronic depressed mood were related to his service and the matter was remitted to the respondent for reassessment of the veteran’s disability pension with effect from 3 September 2012.
On 5 February 2016, following the remittal of the claim from this Tribunal in October 2015, the respondent made a decision that the veteran’s disability pension was to be continued at 100% of the General Rate. The respondent considered that the pension was not payable at either the Special or Intermediate Rate as, on the basis of the medical evidence before it, the respondent was not satisfied that the veteran’s accepted conditions “alone” prevented him from working.
On 4 March 2016, the veteran appealed to the VRB for review of the respondent’s decision not to increase the rate at which the veteran’s disability pension was payable. On 28 June 2016 the matter was heard before the VRB. The hearing was adjourned to further investigate the significance of the veteran’s cervical spondylosis and his non-accepted conditions of insomnia, allergic rhinitis, left knee problems, shoulder problems and hypertension.
On 3 February 2017 the VRB affirmed the decision dated 5 February 2016 to continue the veteran’s pension at 100% of the General Rate.
On 3 April 2017, the veteran applied to this Tribunal for review of the respondent’s decision dated 5 February 2016, as affirmed by the VRB on 3 February 2017, not to increase the rate at which the veteran’s disability pension was payable.
LEGISLATIVE FRAMEWORK
The veteran’s service in the Army from 27 August 1974 and 12 April 1999 is “defence service” for the purposes of s 68 of the Act.
The standard of proof to be applied in this matter is that outlined in subsection 120(4) of the Act whereby the Tribunal must determine any issues to its reasonable satisfaction.
To be eligible for payment of the disability pension at the Special Rate, the veteran must satisfy the requirements of s 24 of the Act which provides:
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) …
(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; …
(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; …
(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.
Section 28 of the Act provides:
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
To be eligible for payment of the disability pension at the Intermediate Rate, the requirements of s 23 of the Act must be met:
23 Intermediate 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) …
(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; …
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
…..
Section 19(5C)(a) of the Act provides that the rate of pension payable to a veteran must be determined during the “assessment period”. Subsection 19(9) defines the assessment period, in relation to a claim or application relating to a pension, as the period starting on the application day and ending when the claim or application is determined.
Therefore the assessment period in relation to this matter commenced on 3 December 2012 when the veteran made his claim and ends on the date when the claim is finally determined, namely, the date of this decision.
EVIDENCE
Veteran’s evidence
The veteran provided a statement in support of his application dated 16 June 2017,[7] and also gave extensive evidence at the hearing of this matter.
[7] Exhibit D.
In his statement, the veteran listed his employment history and medical history focussing on his lower back pain. A summary of the history contained in the veteran’s statement is as follows:
(a)In 1997 he had surgery on his neck which “removed” disk C6-7 with fusion. The recovery period then continued, military duties until 1999, regularly seeing physio.
(b)He chose to discharge administratively from the Army in 1999 instead of being medically discharged, to access the Defence Force Retirement and Death Benefits Scheme. He used the lump sum to pay off the house. He was waiting for end of the financial year to find work.
(c)He started working as security and then traffic controller.
(d)By mid-2001 he was experiencing more regular lower back pain with longer durations.
(e)In February 2002 there was an incident at work where the pain was so bad he left work. He saw Dr Murray the next day. He was prescribed Tramal and was referred to an orthopaedic specialist and neurosurgeon. They informed him there was no surgical remedy option for his lower back pain.
(f)On medical advice, he began walking on a treadmill and the footpath. He did a combination of walking, stretches and exercises with the physiotherapist which alleviated his lower back pain and allowed him to survive on milder analgesics than Tramol.
(g)He ceased work in 2002 because of his lower back pain.
(h)He described the psychological effects from the pain and the prevention from working and he sought medical help by seeing a psychologist and a psychiatrist. He continues to experience issues and continues to see a psychologist.
(i)He had been referred by a GP, Dr Angel, to Spinal Clinic radio frequency ablations and epidurals to alleviate his lower back pain and he stated those treatments helped.
(j)Because he worked on a part-time/casual basis he did not require a medical certificate for inability to work.
(k)He has not looked for work since February 2002 because of lower back pain. He struggles to do chores and would be “a liability” to return to the workplace and “unless [he] lied [he] could not find employment”.
(l)Lower back pain affected his family life which in turn affected his mood, for example, no longer being able to play with his children.
(m)He started experiencing severe lower back pain in early 2017, often times while he is walking and that the pain remains for hours to even days
The veteran gave the following evidence at hearing:
(a)He went through period of service and periods of employment post-discharge up until 2002.
(b)He confirmed he ceased work in February 2002, he described the incident: ‘Well, I had gone to work. We had set up the site, and about 6.30, I took a couple of Panadeine Forte for the pain, and about 7 o'clock the pain was worse, and I rang up the supervisor and I said, "I just can't stay here anymore". He came and relieved me and I went home, and that was it’.
(c)He discussed the management of his lower back pain since 2002 – physio, massages, TENS machine, heat packs, exercise physiologist and epidurals.
(d)He went through the medication that he takes and the conditions they were prescribed for.
(e)He stated he had a previous diagnosis of mental health issues when left the Army. He said he saw Dr John Chalk, Psychiatrist, in 1999 and Mr Vic Mellors, Psychologist, in 2002. He then saw Dr Peter Field, Psychiatrist, in 2003 who diagnosed him and he continues to see psychologists.
(f)During his examination-in-chief, the veteran acknowledged a range of medical problems including those that have impacted his back, heart, blood pressure, historical mental health issues, neck, allergic rhinitis, left knee, hypertension and shoulders. He largely denied ongoing issues or treatment regarding, in broad terms, any of the non-accepted medical problems.
(g)He stated there was no other condition that he suffers from.
Cross- examination
(a)The veteran was questioned about his state of health from the time of his claim in December 2012 to the current date and about his non-accepted medical conditions.
(b)His statements were tested regarding the non-accepted medical issues and the veteran’s denial of ongoing issues or treatment, including in relation to his hip, knees, shoulders, sacroiliac joint and neck issues.
Other lay evidence
Pastor Cam Bennett
Pastor Cam Bennett provided a statement dated 15 March 2018 in which stated he has known the veteran for seven years.[8] He stated he has been aware, since meeting the veteran, of his chronic back problems. He stated he has observed the veteran’s obvious discomfort and physical limitations this condition puts on him.
[8] Exhibit E.
Expert evidence
The Tribunal has had regard to the medical evidence in the documents lodged by the respondent,[9] as well as:
[9] Exhibit A, T-Documents, pp. 1-325; Exhibit B, Supplementary T-Documents, pp. 1-79.
(a)extracts of medical records produced under summons;[10]
(b)report of Dr Peter Field, Psychiatrist dated 19 February 2003;[11]
(c)report of Dr John Chalk, Psychiatrist dated 9 August 1999;[12]
(d)report of Dr Matthew Keys, Specialist Pain Medicine Physician, dated 21 February 2018;[13]
(e)report of Dr Simon Journeaux, Consultant Trauma and Orthopaedic Surgeon, dated 29 May 2018;[14] together with
(i)Supplementary report of Dr Journeaux 27 Nov 2017;
(ii)Supplementary report of Dr Journeaux dated 29 May 2018; and
(f)the oral evidence of Dr Journeaux during the hearing.
[10] Exhibit C.
[11] Exhibit F.
[12] Exhibit G.
[13] Exhibit H.
[14] Exhibit I.
The respondent indicated prior to the hearing in its Hearing Certificate that it was desirable that Dr Keys, Mr Mellors, and any other witnesses on whose evidence the veteran intended to rely, be made available for cross-examination. Dr Keys and Mr Mellors were not called by the veteran to give oral evidence.
Medical reports
Dr M.A. Fitzgerald, Medical Officer
On 30 August 1995, Dr M.A. Fitzgerald, Medical Officer, reported that the veteran claimed he had “neck pain leading to headaches” and degenerative joint disease at C4/5 level and had loss of movement at half the normal range.[15] On 30 August 1995 Dr Fitzgerald diagnosed the veteran with degenerative joint disease at C4/5 level and reported that the veteran had been symptomatic since April 1994.[16]
[15] Exhibit A, T-Documents, T7, pp. 27-28.
[16] Exhibit A, T-Documents, T9, p. 29.
Dr Simon Murray, General Practitioner
On 19 July 1999, in a document titled “Medical Report – Trauma to the Cervical Spine: Cervical Spondylosis”, Dr Simon Murray, General Practitioner, reported that the veteran describes suffering from neck pain “all the time”, and adds that it is “usually a constant dull ache and severe exacerbations about three times per month each lasting about 2 days”.[17] Dr Murray also reported that the veteran “doesn’t run now – aggravates neck” and that he “has trouble sleeping” due to his neck pain. Dr Murray stated that the veteran had 50% loss of range of movement in the cervical spine. Dr Murray opined that the described symptoms were due solely to Cervical Spondylosis.
[17] Exhibit B, Supplementary T-Documents, ST4, p. 28.
On 8 March 2002, in a document titled “Medical Examination Form: Capacity to Work – Ceased or Ceasing Work”, Dr Murray stated that there was stiffness and pain in the veteran’s neck and lower back.[18] Dr Murray described the veteran’s cervical spondylosis as a permanent condition with rating of 1 to 2. The form provides a “Functional Rating Scale” which prescribes that a rating of 1 to 2 means a “minor [to] moderate effect on certain functions only”. Dr Murray gave the veteran’s back strain and L4-5 facet joint dysfunction together a rating of 4 for a “severe or disabling effect on many functions”. Dr Murray opined that the veteran could not work at all because of his lower back pain.
[18] Exhibit B, Supplementary T-Documents, ST6, p. 35.
On 8 March 2002, in a document titled “Cervical Spine Condition: Medical Impairment Assessment”, Dr Murray noted that the veteran had a quarter loss of range of movement in his cervical spine.[19] Dr Murray also opined that the veteran’s cervical spine condition caused “minor loss of digital dexterity causing handwriting changes, or difficulty in manipulation of small or fine objects.”[20]
[19] Exhibit B, Supplementary T-Documents, ST6, p. 43.
[20] Exhibit B, Supplementary T-Documents, ST6, p. 44.
On 12 September 2002, in a “Medical Examination Form: Capacity to Work-Ceased or Ceasing Work”, Dr Murray opined that the cessation of the veteran’s employment as a traffic controller was due to “back pain” and that the veteran could not work at all.[21] Dr Murray stated that the medical conditions preventing the veteran’s capacity for work were “neck, back pain”.[22] Dr Murray stated that the veteran had ‘some reduction in range of movement of the neck and lumbar spine’.[23] The veteran’s cervical spondylosis, L4-5 facet joint dysfunction and back strain were described as permanent conditions with a rating of 4 on the “Functional Rating Scale”, that is, a “severe or disabling effect on many functions”.
[21] Exhibit A, T-Documents, T26, p. 108.
[22] Exhibit A, T-Documents, T26, p. 109.
[23] Exhibit A, T-Documents, T26, p. 107.
On 25 February 2005, Dr Murray reported that the veteran “has been unable to work since 15 February 2002, due to his severe back pain”.[24] Dr Murray opined that the veteran has up to 50% reduction in forward flexion and that the veteran’s back pain condition “was severe and the only reason that he is unable to work.”
[24] Exhibit A, T-Documents, T37, p. 142.
Dr John Chalk, Psychiatrist
Dr John Chalk, Psychiatrist, assessed the veteran on 3 August 1999 and prepared a report dated 9 August 1999.[25] Dr Chalk’s report relevantly contains the following observations:
He is currently in receipt of a 70% pension from the [DVA] principally because of his lower back… He was medically discharged from the army in April of [1999] because of his lower back after 24 years of service… His back condition has been present since 1982 when he was moving a trailer and he was discharged under the new medical guidelines… He has been since discharge under the care of EKCO rehabilitation and has been referred to see a psychologist, Vic Mellors, whom he has seen on four occasions. This has principally been in relation to his discharge and the manner of it as well as pain management…
[25] Exhibit G.
Under the heading “MEDICAL AND SURGERY HISTORY:” Dr Chalk notes “Hyptertension; spinal fusion August 1997; nasal surgery; tonsillectomy and adenoidectomy.”
Dr Richard Williams, Consultant Orthopaedic Surgeon
On 13 March 2002, Dr Richard Williams, Consultant Orthopaedic Surgeon, reported that the veteran claimed his back pain had become more frequent in the preceding six months and that until very recently the veteran worked as an air traffic controller but left work on 15 February 2002 due to ongoing back pain.[26] The veteran indicated the region of pain as the left side at the L5/S1 level. While Dr Williams notes that the veteran “reports having undergone a previous cervical discectomy in Sydney”, he does not record any further observations relating to the veteran’s neck condition.
[26] Exhibit A, T-Documents, T15, pp. 62-63.
On 19 June 2002, Dr Williams reported:
The pain in the lower back dominates the clinical picture. He reports suffering left leg pain which passes into the anterior left thigh then into the left calf. He also reports sensory alteration affecting the lateral border of the left foot. He reported that his back pain was exacerbated by activity and was equally uncomfortable sitting and standing. He reported that the pain was not exacerbated by the Valsalva manoeuvre and tended to wake him at night.
Dr Williams further noted that the available radiological imaging showed a circumferential disc bulge at the L4/5 level. His impression was that the veteran was suffering discogenic pain or pain which may be ascribed to ‘instability’ of the lower lumbar levels. Dr Williams was ‘unable to ascribe a firm cause for his symptoms’ and felt the veteran suffered from a ‘transient facet dysfunction.’ Dr Williams made a diagnosis of lower pain of undetermined origin and that there was no evidence of significant degenerative disease of the lumbar spine. He concluded that he could ascribe no permanent impairment to the veteran’s current condition.
Mr Vic Mellors, Psychologist
On 1 August 2002, Mr Vic Mellors, Psychologist, provided a report after examining the veteran on 19 June 2002.[27] Mr Mellors reports that he had previously assessed and treated the veteran for “The Military Compensation and Rehabilitation Services” on 11 June 1999.
[27] Exhibit A, T-Documents, T21, p. 88.
Mr Mellors made a diagnosis of chronic pain disorder and adjustment disorder due to the psychological impact of the veteran’s physical injuries. Mr Mellors stated that the veteran’s “pain from his back and neck injuries was very real” and that the veteran’s pain from his physical injuries was so bad that he had suicidal ideations which had been addressed in therapy. He compared results of his psychological assessment with the results from the 1999 assessment and stated that the pain from the veteran’s injuries “had psychologically affected him so much that there were significant changes to his personality”. Mr Mellors was of the opinion that the veteran could not pursue full time work and it was unlikely that he would be ever have the capacity to return to his career as a security officer.
In a further report dated 11 February 2003, Mr Mellors stated that that the veteran presented to him “four months after he had ceased employment due to severe pain in his lower back. He had ceased work on the 15/02/02…” Mr Mellors went on to conclude: “… Valentine Dantel’s pain disorder and adjustment disorder preclude him form [sic] pursuing or undertaking remunerative work because of his accepted disabilities alone.”
Dr Norman Rose, Consultant Psychiatrist
Dr Norman Rose, Consultant Psychiatrist, provided a report on 25 September 2002 after examining the veteran on 19 September 2002.[28]
[28] Exhibit A, T-Documents, T29, pp. 117-124.
The history taken by Dr Rose relevantly states that the veteran:
… was discharged from the Army as being medically unfit for service three years ago after being a solider [sic] for 24 years…. He said that on 14 September 1982, whilst serving in the Army, he was required to move some trailers by hand and in doing so he jerked his back. He has experienced back pain ever since. This pain has been of varying severity but of late it has been very severe.
Dr Rose diagnosed the veteran with Adjustment Disorder with Depressed Mood and described these conditions as a psychological reaction to severe low back pain and disability caused by this pain. Dr Rose stated: ‘from a psychiatric point of view Mr Dantel is not totally incapacitated for work or likely to become so due to his condition’. His Adjustment Disorder does not prevent him from working but it would seem that his chronic pain prevents him from working.
Dr Peter Field, Psychiatrist
In a report dated 19 February 2003, Dr Peter Field, Psychiatrist, diagnosed the veteran with Adjustment Disorder with depressed mood.[29]
[29] Exhibit F.
Dr Field stated ‘I have no doubt that this man has psychological problems which are the result of his ongoing pain’. Dr Field stated the veteran has at times become so depressed that he had contemplated suicide. Dr Field stated that there was no question that that the back injury was service related and this injury resulted in the veteran’s psychological problems. He concluded that ‘it is fairly obvious that this man can’t work because of his back problems and the depression is the result of the ongoing back pain and inability to work’.
Dr Andrew Patten, Consultant Orthopaedic Surgeon
Dr Andrew Patten, Consultant Orthopaedic Surgeon, provided a report on 2 September 2007 after examining the veteran on 10 August 2007.[30] On the covering page of the report it notes that the Medical Assessment relates to a claimed condition of “Cervical Spine”.
[30] Exhibit B, Supplementary T-Documents, ST8, pp. 55-65.
Dr Patten opined that the veteran suffered a permanent impairment of “10% (loss of half normal range of cervical movement)” whole person impairment (‘WPI’) under Table 9.6 of the “Guide to the Assessment of the Degree of Permanent Impairment” as a result of his “Cervical spondylosis, spinal fusion at C6/7 and mild nerve root irritation”. In answer to a question whether he considered the veteran was “totally incapacitated for work or likely to become so due to the accepted condition(s)?”, namely, the cervical spondylosis condition, Dr Patten answered “Totally Incapacitated”. Dr Patten considered that the impairment had “stabilised” and that further medical or rehabilitative treatment would not reduce the percentage WPI given.[31]
[31] Exhibit B, Supplementary T-Documents, ST8, pp. 63-64,
Dr Patten relied upon available medical records and the interview with the veteran in reaching his diagnosis and went through the veteran’s medical history. Dr Patten stated that it appeared that the veteran had “sustained two injuries to his cervical spine prior to his claimed aggravation due to activities running with heavy packs” in 1999. Dr Patten referred to two motor vehicle accidents in 1993 and 1994. He reports that the veteran was involved in a car accident in September 1993 and suffered discomfort in his neck as a result. The veteran also reported to Dr Patten that in 1994 while doing marches he suffered a sudden headache and underwent radiological investigations for his head and neck which did not detect any issues. Dr Patten reports that the veteran claimed that he experienced problems from that time with pain in his neck and headaches. Dr Patten also reports that the veteran claimed that he remained satisfactory:
… until March 1999 when he began undertaking heavy pack training for a charity run. This required him to run in field gear with a heavy pack and rifle. This run was to take place over 17.5 kilometres. Training took place over a seven week period, with varying distances from 4 kilometres to 20 kilometres, three or four times a week initially without packs and ultimately building up to carrying full packs.
Dr Patten noted that “An MRI scan was undertaken which demonstrated a disc protrusion in his neck and he was placed in rehabilitation for about a month, but this produced no improvement” and the veteran subsequently underwent a cervical spinal fusion at C5/6 in August 1997.[32] The veteran reported that following the surgery “his pain was improved ‘200%’” but Dr Patten notes that the veteran had residual pain and experienced intermittent paraesthesia on the border of his right hand. The veteran also reported pain in his neck and shoulders, weakness in his shoulders and pins and needles in his hands at times. The veteran reported constant headaches of fluctuating severity and a constant ache in his cervical spine and a burning sensation in his right shoulder. The veteran reported that his neck pain had increased and there was restricted range of movement in his neck. Dr Patten reported that the veteran had been “discharged from the army as medically unfit in April 1999, for reasons of both his cervical spine and a previous low back injury...”[33]
[32] Exhibit B, Supplementary T-Documents, ST8, p. 57.
[33] Exhibit B, Supplementary T-Documents, ST8, p. 58.
As to the veteran’s then current status in 2007, Dr Patten reported that:
Mr Dantel states that he experiences pain every day, of varying severity, and that on three or four days of the week, the pain can be 4 out of 10 on an visual analogue scale, but that on other days it can be 8 out of 10 for three days. He describes no pain-free days.
The Pain appears to be in his neck and his shoulders and he claims to experience weakness in his shoulders and some pins and needles in his entire hands at times. This will occur in both arms. He describes a constant headache, the severity of which will fluctuate on a daily basis. He has an ache in his cervical spine most of [the] time and describes this ache as being on the right side of his cervical spine in a lower cervical paravertebral area. He describes a burning sensation over the entire aspect of his right shoulder which he believes is referred from his cervical spine problem. He describes an ache in the medical aspect of his proximal arm and paresthesia in his little and ring fingers of his right hand. Of resent times he has only suffered paresthesia in his right hand and has had no symptoms in his left hand. I note that he is right-handed.
He describes of recent times that his pain in his cervical spine has increased. He describes no pain in his left arm…
Mr Dantel is currently not actively looking for work…
Dr A. G. Cook, Psychiatrist
Dr A.G. Cook, Psychiatrist, provided a report on 10 September 2007 after examining the veteran on 10 August 2007.[34] Dr Cook notes that the veteran reported persistent severe back pain. Dr Cook noted that the veteran underwent surgery for his neck condition in 1997.
[34] Exhibit A, T-Documents, T43, pp. 158-172.
Dr Cook agreed with the diagnosis of Adjustment Disorder with Depressed Mood. Dr Cook was of the impression that the predominant cause of distress was the pain the veteran was suffering and the effect it had on his life. He was of the opinion this condition was a secondary condition that was dependent on the veteran’s back pain. Dr Cook opined that the veteran was probably totally incapacitated for work due to combined accepted permanent conditions of lower back pain and Adjustment disorder with depressed mood.
Dr Iain Kelman, Consultant Orthopaedic Surgeon
Dr Iain Kelman, Consultant Orthopaedic Surgeon provided a report on 19 October 2010 following his examination of the veteran on 11 October 2010.[35] The veteran complained of pain in the lumbar spine which he rated as fairly severe and described as a dull ache. Dr Kelman diagnosed the veteran with L3/4, L4/5 and L5/S1 disc disease with dehydration and narrowing of the discs and L3/4 and L4/5 facet joint degenerative disease. Dr Kelman’s report provides the following summary:
… Mr Dantel, currently 54 years of age, spent 24 years in the Army, the last 18 of which he had spent in the Military Police. He was a sergeant on discharge. He suffered an injury to his back when preventing a trailer from rolling downhill by pushing against the towbar and thereby causing an injury to his lumbar spine. This more than likely resulted in injury to the L4/5 level. There is some evidence of more extensive lateral recess stenosis at this level. He may also have suffered disc disease as a result of the injury which he sustained on that day. Since that time he has had backache with intermittent acute exacerbations of the pain and on at least two occasions required admission to hospital. He has been treated conservatively throughout with analgesics and anti-inflammatories as well as physiotherapy. He has also been assessed for surgery and it was determined that this was not appropriate.
By 1992 he was unable to continue working and since that time has not done any work for income. he does however run the home but requires family members to help with any activities that require bending, lifting and repetitive movements…
[35] Exhibit A, T-Documents, T44, pp. 173-182.
In a report dated 23 October 2012, Dr Kelman provided a further report regarding incapacity after reassessing the veteran on 18 October 2012.[36] Dr Kelman diagnosed the veteran with lumbar spondylosis involving L3/4, L4/5 and L5/S1 and L3/4 and L4/5 facet joint degeneration. Dr Kelman concluded that the veteran was permanently incapacitated for work because of his lower back pain.
[36] Exhibit A, T-Documents, T50, pp. 188-194.
Dr Paul Angel, General Practitioner
On 24 October 2012, Dr Paul Angel, General Practitioner, reported that there was very limited range of movement in the lumbar spine.[37] The veteran’s “lower back pain, spondylosis” was described as a permanent condition with rating of 4, that is, severe or disabling effects on many functions. Dr Angel stated that in his opinion the veteran could not work at all because of his lower back pain.
[37] Exhibit A, T-Documents T51, p. 196.
Dr C. Slack, Psychiatrist
On 15 October 2013, Dr C. Slack, Psychiatrist, reported a diagnosis of chronic Adjustment Disorder with anxiety and depressed mood and this was impacted by the veteran’s chronic back pain.[38] Dr Slack considered that the veteran’s chronic Adjustment Disorder is almost totally related to his chronic back pain and the difficulties this has created for him. Dr Slack opined that the veteran’s chronic Adjustment Disorder does not prevent him from working but it would seem that his chronic pain prevents him from working.
[38] Exhibit A, T-Documents, T56, pp. 217-222.
Dr Phil Allen, Consultant Orthopaedic Surgeon
On 11 November 2015, following a reassessment of the veteran on 4 November 2015, Dr Phil Allen, Consultant Orthopaedic Surgeon, noted that the veteran reported that:[39]
He … has not returned to employment.
Mr Dantel reported that he continues to have low back pain which radiates down his left leg. He is quite adamant that the pain radiates down the leg right to his foot. It tends to radiate to the lateral side of the foot and the sole of the foot.
I note that in Dr Kelman’s report dated 23 October 2012 on page 2 he reported there was no radiation.
[39] Exhibit B, Supplementary T-Documents, ST10, pp. 70-79.
Dr Allen was of the opinion that the veteran was wholly incapacitated for work, probably as a result of his military employment. Dr Allen opined that the veteran suffers from degenerative lumbar spondylosis which contributed significantly to his symptoms and his ‘military employment aggravated his underlying degenerative spondylosis and is partially responsible for his ongoing symptoms’.
Dr David Douglas, Consultant Occupational Physician
Dr David Douglas, Consultant Occupational Physician, provided a report dated 11 August 2016 after assessing the veteran on 8 August 2016.[40] Dr Douglas noted that although the veteran took an administrative discharge “he had been downgraded medically since a back injury sustained in the Army in 1982”. Dr Douglas went on to report that the veteran:
… worked as a traffic controller from August 2000 until February 2002. He stated that although this work had shorter hours than security work his lumbosacral spinal problem became more symptomatic.
By July 2001 he was no longer able to play golf because of his back pain. He was started to take more analgesics including four to eight Panadeine Forte on most days when working.
He stated that by February 2002 the pain had become much worse and on a particular day, being about 16 February 2002, he developed a severe flare of low back pain in addition to the ongoing chronic low backache. He ceased work on that day and he has never returned to regular remunerative work.
[40] Exhibit A, T-Documents, T76, pp. 291-302.
As to cervical spondylosis, Dr Douglas reported that:
Mr Dantel stated that he was involved in a motor vehicle accident in 1993 while on one month leave from the Army. He stated that in September 1993 his vehicle was hit from behind by another vehicle. He stated he did not feel there was any injury at that time however some months later in early 1994 he developed severe headaches and consulted the Army doctor. He underwent investigations and had some physiotherapy. He stated that he was also aware, from that time on, of intermittent tingling in his right arm. Mr Dantel described this tingling in the distribution of the right ulnar nerve extending into the little and ring fingers of his right hand (C7/8 distribution). Later he was reviewed by an orthopaedic surgeon and had investigation of his cervical spine and was prescribed analgesics. He stated that by 1997 the headaches had persisted and the paraesthesia in his right arm had become more prominent. He underwent further investigations including MRI of the cervical spine. He stated that in about August 1997 he underwent anterior cervical discectomy and fusion. He understood that this was at C6/7 level. Mr Dantel stated there was no specific injury during his Army service except that in 1994 when based at Randwick Barracks in Sydney he had been required to do pack marches and running with packs about three times a week for some months. Mr Dantel stated that since his spinal surgery in 1997 he took several years to recover fully from the surgery. He stated however that over the past 10 or 15 years his cervical spine has felt more comfortable. He has not had any recurrence of right arm symptoms. His headaches and neck pains have mostly settled. His concentration has improved. He has not required any specific medications.
Dr Douglas opined that over the years the veteran’s level of impairment had increased due to lumbosacral spondylosis affecting multiple discs and resulting in persistent low back pain and left L5/S1 sciatica. Dr Douglas further opined that by February 2002 the veteran could no longer continue in his previous employment and he continues to have ongoing symptoms which have a significant impact on his activities of daily living.
Dr Douglas considered that the veteran is totally incapacitated for work because of the combination of the back strain, L4/5 facet joint dysfunction, and lumbar spondylosis conditions which he amalgamated as being one condition for the purposes of his report. His opinion was that the veteran’s other conditions of cervical spondylosis, bilateral hearing loss, insomnia, PTSD and allergic rhinitis, would not prevent the veteran from working. Dr Douglas reported that the veteran’s cervical spondylosis was not a reason for his ceasing work in 2002. Dr Douglas did not address the veteran’s hip, shoulder or knee conditions.
Dr Simon Journeaux, Consultant Trauma and Orthopaedic Surgeon
On 13 September 2017, the veteran was referred by the respondent for an independent medical examination with Dr Simon Journeaux, Consultant Trauma and Orthopaedic Surgeon, who provided his report on 19 September 2017.[41] Dr Journeaux relied upon the veteran’s medical records and the interview with the veteran.
[41] Exhibit I.
Dr Journeaux noted the veteran “has a long history of musculoskeletal complaints”.[42] He opined:
In addition to the musculoskeletal complaints there is a long history of a psychiatric illness in the presence of an adjustment disorder with depression and anxiety. This in my view is highly relevant in terms of his pain reporting and it is more likely than not that much of his current presentation has the basis in the somatic manifestation of psychological distress particularly in relation to lumbar spine.
I note the [veteran] has not worked in gainful employment since 2002 and given his significant pain reporting and alleged functional incapacity and the fact that he has not worked for 15 years means that he has a low employability. It is highly unlikely that he will work in gainful employment ever again.
[42] Exhibit I, Report of Dr Simon Journeaux dated 17 September 2017, p. 23.
Dr Journeaux was of the opinion that the veteran’s long period of unemployment made it unreasonable for the veteran to undertake sedentary work at least on a part time basis in his previous roles. Dr Journeaux opined from an orthopaedic musculoskeletal perspective that the veteran is “capable of working eight or more hours per week but for the reasons… outlined… it is unlikely that he would work this.” Dr Journeaux noted those reasons as a combination of the veteran’s musculoskeletal pathology, chronic pain and psychosocial factors. From a musculoskeletal perspective, Dr Journeaux considered that the lumbar spine condition is the more problematic pathology.
In a supplementary report dated 27 November 2017, Dr Journeaux opined that the veteran:[43]
is capable of working from the orthopaedic musculoskeletal perspective. Having taken into account his musculoskeletal conditions and the presence of significant psychosocial factors, I would estimate he could work only 20 hours per week. This would be on a part hours per day basis.
Dr Journeaux stated that “there are very significant psychosocial factors precluding the Applicant from working 20 hours or more per week” as well as his longstanding unemployment and lack of motivation.
[43] Exhibit I, Supplementary Report of Dr Journeaux dated 27 November 2017.
On 29 May 2018, Dr Journeaux provided a further supplementary report in which he stated that in addition to the “multilevel disc degeneration involving the lumbar levels” there also appears to be a “nociceptive source of pain from the left sacroiliac joint…” Dr Journeaux stated that degeneration was the likely cause of the joint dysfunction. Dr Journeaux opined:
The [veteran]’s referred left leg pain is likely contributed to significantly by the sacroiliac joint condition on the basis of what would appear to be a significantly improved response in symptoms following the recent injection. But in essence all of the conditions noted in the question [lumbar spondylosis involving L3/4, L4/5 and l5/S1 and L4/5 facet join dysfunction] would likely contribute to varying degrees to the referred left leg pain.
Dr Journeaux considered that “all of [the veteran’s] conditions have contributed to a varying degree as to the [veteran]’s incapacity for work...” At the hearing, Dr Journeaux clarified that the conditions referred to were the conditions of lumbar spondylosis, cervical spine, hip, sacroiliac joint, knee and left shoulder.
Dr Matthew Keys, Specialist Pain Medicine Physician
On 22 March 2018 the veteran filed a Medical Certificate dated 21 February 2018 from Dr Matthew Keys, Specialist Pain Medicine Physician, to Dr Angel. Dr Keys noted the MRI results performed on 25 January 2018 showed multilevel disc disease with disc degeneration and loss of disc height at L3/4 and L4/5 and L5/S1. Dr Keys stated that he had referred the veteran for a sacroiliac joint injection which has given him great relief and is still effective at the date of the report three to four weeks after the procedure. Dr Keys stated that overall the veteran had significantly improved.
SUBMISSIONS
It is not in contention that the veteran satisfies ss 24(1)(a), 24(1)(aa), 24(1)(aab) and ss 23(1)(a), 23(1)(aa) and 23(1)(aab) of the Act: the application was lodged under section 14 and 15 of the Act and at the time of lodgement the veteran was not yet 65 years old and the veteran suffers from a degree of incapacity of at least 70%.
The respondent contends that notwithstanding his musculoskeletal and psychiatric conditions the veteran is capable of working more than 8 hours per week and is therefore not entitled to a pension at the Special Rate. The respondent relies on the report and evidence of Dr Journeaux in support of this contention. The respondent concedes that the veteran is not capable of working more than 20 hours per week. However the respondent contends that the Tribunal cannot be satisfied that the veteran’s accepted conditions under the Act “alone” prevent the veteran from undertaking remunerative employment to the extent required in either s 23(1) or s 24(1) of the Act (the “alone” test). The respondent contends that the veteran’s incapacity for work is contributed to by a combination of non-compensable psychosocial factors, including time out of the work force, lack of motivation to work and his long history of non-compensable musculoskeletal pathology and chronic pain in his sacroiliac joint, cervical spine, legs, knees and shoulders and hip.
Further, the respondent submits that the ameliorating provisions in ss 24(2)(b) and 23(3) do not apply as the veteran’s evidence is that he has not made genuine efforts to seek any form of employment since February 2002.
The veteran submits that he meets the criteria for the Special Rate of pension outlined in s 24 in in the alternative the requirements for the in the Intermediate Rate of pension outlined in s 23 as he is in receipt of the pension at 100% of the General Rate, he is unable to work, and he has experienced a loss of salary as a result of his inability to work. The veteran submits he is unable to undertake remunerative work due solely to his accepted conditions, particularly his back condition, and if it had not been for his back condition he would still be working as a traffic controller.
CONSIDERATION
To be eligible for pension at the special or intermediate rate, the veteran must satisfy certain criteria set out in s 24 and s 23 of the Act. There is no issue that the veteran satisfies ss 23(1)(aa) and (aab), and ss 24(1)(aa) and (aab) of the Act: the veteran made an application under s 15 of the Act for an increase in the rate of pension that he was receiving; and he had not yet turned 65 when the application under s 15 of the Act was made.
Pension - 24(1)(a) of the Act
The veteran is currently in receipt of pension at 100% of the general rate.[44] He therefore satisfies s 24(1)(a) of the Act because he has a pension which is at least 70% of the general rate.
Whether the veteran is prevented from working for more than eight hours per week by reason of his accepted conditions - s 24(1)(b) of the Act
[44] Exhibit A, T-Documents, T57, p. 223.
I will next consider whether the veteran satisfies s 24(1)(b) of the Act. There is an issue whether the veteran is prevented from engaging in remunerative work for more than eight hours a week by reason of his accepted conditions.
Dr Iain Kelman, Consultant Orthopaedic Surgeon, was consulted by the respondent. In his report dated 19 October 2010 he reported:[45]
I do not consider Mr Dantel is fit for his pre-injury employment and I doubt whether he would be able to carry out any other activities for which he has skills and training. The rationale for this is that he has significant difficulty in sitting for more than 10 minutes and standing for more than one minute. These difficulties prevent him from carrying out a job of any description. Although he is able to walk satisfactorily he has problems with sitting and standing which preclude him from working.
[45] Exhibit A, T-Documents, T44, pp. 173-182.
Dr David Douglas, Consultant Occupational Physician, was consulted by the respondent. Dr Douglas examined the veteran on 8 August 2016 as well as reviewing the available records. He reported on 11 August 2018:[46]
In my opinion Mr Dantel is not capable of working eight or more hours a week in a regular, timely, and effective manner because of the disabling nature of his lumbosacral spondylosis which includes L4/5 facet joint dysfunction. The spinal condition first became symptomatic in September 1982 following a specific incident during his service in the Army.
[46] Exhibit A, T-Documents, T76, pp. 291-302.
Dr Journeaux, was consulted by the respondent. He examined the veteran on 13 September 2017 and reported on the veteran’s work capacity.[47] In his report dated 19 September 2017 he remarked: “Purely from an orthopaedic musculoskeletal perspective, it is my view that the applicant is capable of working for more than eight or more hours a week”.[48] However, Dr Journeaux considered the fact that the veteran’s significant pain reporting and the fact that he had not then worked for 15 years detrimentally affected his employability. Dr Journeaux also provided a response to the question of whether the veteran’s incapacity for employment at more than eight hours per week is due to, or contributed to by his lumbar spine condition to any degree. Dr Journeaux responded:
It is my view the applicant is capable of work but for multiple reasons chooses not to do so. This is likely due to a combination of his musculoskeletal pathology, chronic pain and psychosocial factors. From the musculoskeletal point of view it is my view that his lumbar spine condition is the more problematic pathology.
[47] Exhibit I, Report of Dr Simon Journeaux dated 17 November 2017.
[48] Exhibit I, Report of Dr Simon Journeaux dated 17 September 2017, p. 25.
Dr Journeaux in his report dated 27 November 2017 provided a response to a question of whether from an orthopaedic musculoskeletal perspective the veteran was capable of working 20 hours or more per week in part-time employment. Dr Journeaux answered:[49]
As I have indicated in my report, the claimant is capable of working from the orthopaedic musculoskeletal perspective. Having taken into account his musculoskeletal conditions and the presence of significant psychosocial factors, I would estimate he could work only 20 hours per week. This would be on a part hours per day basis.
Dr Journeaux indicated that there were significant psychosocial factors precluding the veteran from working 20 hours or more per week. It was contended that there was some inconsistency in these two answers of Dr Journeaux concerning work capacity, however, I accept the submission of the respondent that Dr Journeaux was not answering the same question. However, I regard that in his supplementary report dated 27 November 2017, Dr Journeaux was providing an estimate rather than a firm opinion.
[49] Exhibit I, Report of Dr Simon Journeaux dated 17 November 2017, p. 2.
I have relied upon the reports of Dr Kelman and Dr Douglas to conclude that the veteran is not capable of working eight or more hours per week.
In his report of 19 September 2017 Dr Journeaux confirms he had reviewed the report of Dr Douglas dated 11 August 2016.[50] In that report he did not contradict the opinion of Dr Douglas. At the conclusion of the oral evidence of Dr Journeaux I referred to his report of 19 September 2017 where he referred to the report of Dr Douglas. I informed Dr Journeaux that he was fair in referring to what Dr Douglas has said, but I asked him whether there was anything about Dr Douglas’ report that he had issues with; he answered: “No, not if – that’s obviously how he – how the claimant presented to him, and his interpretation of the claimant’s presentation”. Based on that answer I have concluded that Dr Douglas has come to a reasonable conclusion which is in accord with the report of Dr Kelman.
[50] Exhibit I, Report of Dr Simon Journeaux dated 17 September 2017, p. 19.
I therefore conclude that the veteran is prevented from engaging in remunerative work for more than eight hours a week by reason of his accepted war-caused disease of lumbar spondylosis. The reference to “war-caused” in s 24(1)(b) of the Act is, by reason of the application of s 73 of the Act, to be read as a reference to a defence-caused injury.
I am reasonably satisfied that the veteran satisfies s 24(1)(b) of the Act.
“Alone” test - s 24(1)(c) of the Act
I next must consider whether s 24(1)(c) of the Act is satisfied. This one criterion in contention, often referred to as the “alone” test, requires that "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...". As mentioned earlier in these reasons, the reference in this provision to “war-caused” is to be read as a reference to a defence-caused injury
In Repatriation Commission v Watkins,[51] the Full Court of the Federal Court of Australia referred to the decisions of Repatriation Commission v Richmond,[52] Repatriation Commission v Hendy,[53] and Repatriation Commission v Butcher,[54] and reaffirmed the settled principle that:
...if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied.
[51] (2015) 228 FCR 573; [2015] FCAFC 10 at [41].
[52] (2014) 226 FCR 21; [2014] FCAFC 124.
[53] (2002) 76 ALD 47; [2002] FCAFC 424.
[54] (2007) 94 ALD 364; [2007] FCAFC 36.
The Full Court of the Federal Court of Australia in Flentjar v Repatriation Commission[55] (“Flentjar”) held that s 24(1)(c) of the Act requires the consideration of the following 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 own account that he would not be suffering if he were free of that incapacity?
[55] (1997) 48 ALD 1, 5-6.
I will consider the first Flentjar question. The term “remunerative work” is defined in ss 5Q(1) of the Act as including “any remunerative activity”. The veteran has had a variety of occupations since his discharge in 1999. On behalf of the veteran it has been pointed out that he has worked in a variety of occupations prior to ceasing work in 2002, including that of a security officer and traffic controller. I am reasonably satisfied that each of those occupations would constitute remunerative work in the case of the veteran.
I answer “yes” to the second Flentjar question which reflects the first limb of s 24(1)(c) of the Act. Dr Douglas gave his opinion that the veteran’s accepted lumbar spondylosis condition prevented him from working in remunerative employment.[56] That opinion was given after the veteran had informed Dr Douglas that his symptoms of lumbar spondylosis were of such severity that he ceased employment in 2002.
[56] Exhibit A, T-Documents, T76, p. 297.
The third Flentjar question is central to what is often referred to as the “alone test” in s 24(1)(c) of the Act. In Willis v Repatriation Commission,[57] it was recognised that different judicial views have been expressed on the “alone” test. His Honour has provided guidance on the proper application of the “alone” test at [23] to [24]:
The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran's continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
[57] (2012) 202 FCR 323; [2012] FCA 399.
Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the “alone” test requires that the war-caused incapacity is ‘the’ reason, rather than merely ‘a’ reason, for the veteran's inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
I mention that the reference to “war-caused” in s 24(1)(c) of the Act is, by reason of the application of s 73 of the Act, to be read as a reference to a defence-caused injury.
In applying the “alone” test I am conscious that there must be no other factor, apart from the the veteran’s incapacity which is accepted as arising from war-caused (or defence-caused) conditions, that prevents the veteran from undertaking remunerative work during the assessment period. I have to consider if there is another reason which, independently of war-caused incapacity, is preventing the veteran from working. If there is such a reason, the inability of the veteran to engage in remunerative work is not “by reason” of war-caused incapacity “alone”.
There are other medical conditions which are not accepted under the Act which would prevent the veteran from undertaking remunerative employment. These conditions are the neck, left shoulder, hip and knee conditions which arose before the commencement of the assessment period.
There is evidence from 2002 which indicates that the veteran’s neck condition contributes to his difficulties in obtaining full-time work. Mr Mellors in his report dated 1 August 2002 had reported that the veteran’s pain from both his back and neck injuries was “very real” and that the veteran could not pursue full-time work and would be unlikely to return to his career as a security officer. That report was issued after the veteran had ceased employment in February 2002. The veteran’s cervical spondylosis condition was examined by Dr Patten in 2007. Dr Patten then reported that the veteran experiences pain every day of varying severity and that the cervical spondylosis condition was permanent, and stabilised, resulting in a 10% WPI.[58] I have concluded that the cervical spondylosis condition prevented the veteran from continuing to undertake remunerative work. On 9 August 2012, which is prior to the assessment period, there is a reference in the medical reports to the neck pain experienced by the veteran.[59]
[58] Exhibit B, Supplementary T-Documents, ST8, pp. 58, 64.
[59] Exhibit C, Respondent’s Material Relied Upon From Records Produced Under Summons, Progress note of Dr Angel, p. 50.
The sacroiliac joint condition of the veteran is the subject of a report by Dr Keys dated 21 February 2018 in which Dr Keys indicated that a sacroiliac joint injection is a “temporising measure” which gave the veteran three weeks’ relief.[60] There are two medical reports which refer to the pain experienced by the veteran in his hip. The GP management plan dated 12 February 2009 refers to his pain in the right hip. A report dated 10 March 2009 from Dr Farmer, orthopaedic surgeon reports on the “intractable trochanteric pain”. Having regard to that report, which was issued some years prior to the assessment period, I consider that the sacroiliac joint condition prevented the veteran from continuing remunerative work. A medical report dated 17 March 2017 confirms that the hip pain was getting worse.
[60] Exhibit H.
I have to conclude that the “war-caused” incapacity of the veteran is not the only factor preventing the veteran from continuing to undertake remunerative work.
The fourth Flentjar question requires me to consider whether the veteran is, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity. As I have answered “no” to the third Flentjar question, my answer to the fourth Flentjar question must also be “no”.
Before me I have the report of Dr Journeaux dated 19 September 2017[61] who has given his opinion that the veteran was able to work as a security guard or a traffic controller, he confirmed his opinion when giving evidence. Dr Journeaux recognised that the tolerance of the veteran to pain and his motivation to work were important considerations. The veteran did not place any evidence before the Tribunal to contradict that report.
[61] Exhibit I, Report of Dr Simon Journeaux dated 17 September 2017.
In Repatriation Commission v Hendy it was observed:
The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s 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 section 24(1)(c) of the Act.[62]
[62] (2002) 76 ALD 47; [2002] FCAFC 424.
The veteran last worked in 2002 and a realistic appraisal of his position is that he is not motivated to seek employment having regard to his age and his time out of the workforce. In his claim form he states that he had not worked for more than 10 years.[63]
[63] Exhibit A, T-Documents, T53, p. 209.
I conclude that the requirements of s 24(1)(c) of the Act are not met. As the “alone” requirement is mirrored in s 23(1)(c) in relation to whether a pension is payable to the veteran at the immediate rate, I also conclude that the requirements of that section are not met.
Ameliorating provisions
As the veteran was under 65 years of age at the time of his claim, the ameliorating provisions of ss 23(3) and 24(2) of the Act are relevant. At the commencement of the assessment period at the time of claim the veteran had not since 2002 been engaged in remunerative work.
The ameliorating provisions of ss 23(3) and 24(2) of the Act apply where a veteran “who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work”. On the state of the evidence before me there is no evidence of the veteran genuinely seeking to engage in remunerative work.
CONCLUSION
I have concluded that the veteran is not entitled to be paid a pension at either the intermediate or special rate.
DECISION
I affirm the decision under review.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 27 May 2020
Dates of Hearing: 20 September 2018 Date final submissions received: 28 November 2018 Advocate for the Applicant: Ms Sharon Baker Solicitor for the Respondent: Mr Matthew Hawker, Sparke Helmore Lawyers
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