Dantel and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1490

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 1490
Decision Date: 27 May 2020

CaseChat Overview and Summary

This matter concerned an application by a veteran for an increase in his pension under sections 23 and 24 of the *Veterans' Entitlements Act 1986* (Cth). The veteran sought either the intermediate or special rate of pension, asserting he was totally and permanently incapacitated by war-caused injury or disease, and that he was prevented from continuing remunerative work by reason of such injury or disease alone. The Repatriation Commission opposed the application, and the decision under review affirmed the Commission's refusal to grant the increased pension.

The primary legal issues before the court were whether the veteran was prevented from undertaking remunerative work for more than eight hours per week solely by reason of his accepted war-caused conditions, and whether his incapacity for work was due to, or contributed to by, his accepted lumbar spine condition to any degree. The veteran contended that his inability to work was solely attributable to his accepted back condition, and that without this condition, he would still be employed.

The court considered medical evidence from several consultants. While Dr Iain Kelman and Dr David Douglas opined that the veteran was not capable of working eight or more hours per week due to his accepted spinal condition, Dr Simon Journeaux stated that from a purely orthopaedic musculoskeletal perspective, the veteran was capable of working more than eight hours per week. However, Dr Journeaux also noted that the veteran's significant pain reporting and prolonged absence from work detrimentally affected his employability, and that his incapacity was likely due to a combination of musculoskeletal pathology, chronic pain, and psychosocial factors, with the lumbar spine condition being the more problematic musculoskeletal pathology. The court concluded that the veteran had not satisfied the criteria for either the intermediate or special rate of pension.

The court affirmed the decision under review, finding that the veteran was not entitled to be paid a pension at either the intermediate or special rate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.EVIDENCEVeteran’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 evidencePastor Cam Bennett

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.