Dennis Michael Wright and Repatriation Commission
[2012] AATA 683
•5 October 2012
[2012] AATA 683
Division VETERANS' APPEALS DIVISION File Number
2010/4133
Re
Dennis Michael Wright
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis
Dr R Ormston, MemberDate 5 October 2012 Place Adelaide The tribunal sets asides the decision under review and in substitution therefor decides that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans' Entitlements Act 1986 (Cth) with effect from 15 April 2009.
......... [signed] .........
Deputy President D G Jarvis
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability pension - rate of pension payable - special rate - applicant prevented from undertaking remunerative work by accepted conditions alone - decision under review set aside.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth), s 24
CASES
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Callaghan v William C Lynch Pty Ltd [1962] NSWR 871
Cavell v Repatriation Commission (1988) 9 AAR 534
Chambers v Repatriation Commission (1995) 55 FCR 9
Dibbins v Dibbins (1978) 80 LSJS 165
E.M.I. (Australia) v Bes [1970] 2 NSWR 238
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission, unreported Federal Court, 30 June 1997, 521/1996
Jamandilovski v Telstra Corporation Limited [1994] FCA 1578
Northern Territory v Mengel (1994) 95 NTR 8
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Connell (2011) 197 FCR 228
Repatriation Commission v Smith (1987) 15 FCR 327
Re Repatriation Commission and Thorpe [2011] AATA 491
Smith v Repatriation Commission [2012] FCA 1043
Watson, Laidlaw & Co Pty Ltd v Pott (1914) 31 RPC 104REASONS FOR DECISION
Deputy President D G Jarvis
Dr R Ormston, Member5 October 2012
INTRODUCTION
The applicant, Dennis Michael Wright, served as a member of the Defence Force from 8 July 1969 to 7 April 1982. He had a number of disabilities which had been accepted as defence caused, and on 11 February 2009, he lodged an application for a further disability that had not previously been accepted as service related, namely chronic back pain.
In August 2009 a delegate of the Commission decided that the appropriate medical diagnosis for the claimed condition was lumbar spondylosis, and accepted that this claim was service related. He also decided to increase Mr Wright’s pension to 100% of the general rate with effect from 11 November 2008.[1] Mr Wright subsequently applied to the Veterans’ Review Board (VRB) for review of the delegate’s decision,[2] and in August 2010 the VRB decided to affirm the decision under review.[3] Mr Wright then applied to this tribunal for review of the VRB’s decision, seeking pension at the special rate.
[1] Exhibit R1, T5, page 30.
[2] Exhibit R1, page 57.
[3] Exhibit R1, page 5.
Mr Wright’s entitlement to the pension at the special rate is to be determined under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (VE Act). It was common ground that he satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70% of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in ss 24(1)(a)(i) and 24(1)(b) respectively of the VE Act.
ISSUE FOR DETERMINATION
The issue before the tribunal is whether Mr Wright satisfies s 24(1)(c) of the VE Act, that is whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking.
This issue arises because Mr Wright has a non-accepted arthritic condition of his left hand, and it is necessary to determine whether this is a contributing factor in preventing him from undertaking his previous remunerative work.
Mr Wright also contended that he could rely upon the ameliorative provisions of s 24(2)(b) of the VE Act, on the grounds that he had been genuinely seeking to engage in remunerative work, and his accepted conditions were the substantial cause of his being prevented from doing so. We have found it unnecessary to determine that issue because we have reached the conclusion, for the reasons set out below, that Mr Wright has satisfied the requirements of s 24(1)(c) of the VE Act, and so is entitled to pension at the special rate, with effect from 15 April, 2009.
BACKGROUND FACTS
The following background facts are not in dispute, and are based on the evidence of Mr Wright and on the documentary material before us. We found Mr Wright to be an honest witness, and accept his evidence.
Mr Wright is aged 60. He served in the Royal Australian Navy until his discharge on 7 April 1982 after nearly 14 years’ service. He worked as an aircraft armourer, which involved placing bombs and live ammunition in aircraft. This involved heavy lifting, often in a hunched or awkward position.
After leaving the Navy he became a truck driver for a very short time, and from 1984 to 1986 worked at the Olympic Dam mine operating a large front-end loader. Commencing in 1989 he worked as a self-employed landscape gardener, and he continued this work after he moved to Queensland in about 2001. In 1999 he commenced working as a handyman, performing a wide range of repairs and maintenance. He would do just about anything that did not need a qualified tradesman to do; his work could range from something as simple as changing a tap washer or repairing a fly screen, to repairing or rebuilding a timber deck or a broken pergola or verandah, cutting a doorway into a wall, cleaning gutters, pressure cleaning of roofs or painting. He used hand tools, power tools, and ladders.
Applicant’s evidence re effect of his disabilities
Mr Wright has the following disabilities which have now been accepted as defence caused, namely osteoarthritis of the left ankle, sensorineural hearing loss of the left ear with tinnitus, osteoarthrosis of the right hand, lumbar spondylosis and osteoarthritis affecting both knees. He was asked to describe the effect that his injuries had on his work as a handyman prior to 2008, and his evidence was as follows. His back and ankle injuries were constant, but bearable, and his knees gave him “a bit of a tinge, a little bit of a problem here and there, (but) they weren’t a real problem”,[4] and he carried on as normal until about 2006. In about the middle of that year he started getting sharp pains in the fingers of both hands. That continued throughout the latter half of 2006, but in about late that year or early in 2007 he no longer felt any problems with his left hand, although his right hand continued to get progressively worse. By 2008 the pain in his right hand would be quite bad at the end of the day, and during 2008 it got worse and worse.
[4] Transcript extract, 7.8.12, page 10, lines 30-32.
In cross-examination Mr Wright described changes in the appearance of his hands. His evidence was consistent with specific observations that we made of his hands. We noted that on the left hand, there is one smallish nodule on the top joint of the middle finger, but on the right hand there are nodules at the top joint of each of the fingers, and in addition, the middle finger of the right hand is turned markedly to the left.
In late 2008 he decided to have a break and a holiday. He went to New Zealand, and in about February or March 2009, after a break of about four months, he returned to Adelaide. He said he helped some people in New Zealand on small projects, but nothing significant.
After returning to Adelaide he endeavoured to continue to work as a self-employed handyman. He made himself known to people from whom he obtained supplies, such as a Mitre 10 store and a local gardening centre. He also placed advertisements in local newspapers, and advertised in supermarkets. He obtained various handyman type jobs. In some cases he was able to complete the jobs with difficulty, but took very much longer to do so than he had previously done, and was unable to charge his customers for the time that he had taken. He found that he was getting plenty of inquiries, but after going to see the jobs or discussing them with potential customers, he realised that he would not be able to do them within a reasonable time or at all. He took “ridiculously long times” to complete the few jobs that he was able to finish, and it took him days to recover from them.[5] He became concerned that if he started jobs but was unable to finish them, or could not complete jobs in a reasonable time, his reputation would go down quickly. At some time between March and May 2009 he realised that he would not be able to continue to work as a handyman, and stopped looking for such work.
[5] Transcript extract, 7.8.12, page 11, lines 33-37.
Mr Wright referred specifically to the effect on his work of the conditions of his hands. As mentioned above, by about late 2006 or early 2007 he no longer felt any problems with his left hand, but his right hand continued to get progressively worse. He said that he is right-handed, and although he had tried to work using his left hand he did not have the dexterity to be able to do so. He said that he could not grip with his right hand, and could not perform the tasks that he had previously performed.
He said that as far as his left hand is concerned, he can still do everything that he had always been able to do with his left hand, and nothing had changed in regard to working with his left hand.[6] After describing the effect of his condition on his right hand, his evidence continued:
So how did this effect your business?---Basically it almost instantly ceased. I obviously tried to carry on working but I found that I just really couldn’t do the work, in the couple of jobs that I did, took ridiculously long times. I found that at the end of the – those few jobs that it literally took me days to recover and so, as I said, within a very, very short space of time basically I ceased working.
And at the time you ceased working what impact was your left hand having on your ability to work?---Absolutely none.[7]
[6] Transcript extract, 7.8.12, page 11, lines 10-14.
[7] Transcript extract, 7.8.12, page 11, lines 33-40.
After giving up his handyman business, he approached a building contractor who said that he would be able to give him between 20 and 30 hours’ work a week. However, after working for him for only a few hours he found that he was unable to manage, and he gave up that work also.
In his witness statement, Mr Wright also said that it became clear to him that nearly all jobs that he tried to do would result in a loss, given the travelling and maintenance due to the extended time it would take to complete the job compared to the small amount that he would be able to charge (this being based on his previous experience as to the amount of time the job should take to complete).[8]
[8] Exhibit A1, page 2, paragraph 7.
Mr Wright participated in a rehabilitation plan with the Commonwealth Rehabilitation Service, having been referred in September 2010. The goal of the rehabilitation plan was to investigate possible alternative sustainable realistic employment, and it commenced on 13 December 2010 but was closed on 2 May 2011. The summary of plan achievements recorded Mr Wright’s participation in the plan, and concluded that the job test assessment tool confirmed that his significant employment interests and transferrable skills were in physically active jobs, and he was unable to perform physically demanding work, and so it was agreed to close the assessment/program.[9]
[9] Exhibit A3.
MEDICAL EVIDENCE
We now refer to the medical evidence that is relevant to the question of whether the non-accepted condition of Mr Wright’s left hand is making a contribution to his inability to engage in the kinds of remunerative work that he was previously undertaking.
Dr Michael F Willis: In September 2006, Mr Wright made a claim for an increase in his pension for a new disability, which is described as “arthritis both hands”, with signs and symptoms being described as “pain, swelling, disfigurement, restriction”.[10] Dr Willis completed the medical practitioner’s portion of the claim form. He recorded a diagnosis of “osteoarthritis fingers”, and referred to x-rays dated 21 May 2004 showing wide-spread degenerative changes in IP joints of both hands.[11] The IP joints are inter-phalangeal joints of the thumb, being the upper joint of the thumb, and that the interphalangeal joints of the fingers are called “DIPs”, being the distal interphalangeal joints.[12] Dr Willis recorded that Mr Wright first consulted him for this condition on 25 September 2006.
[10] Exhibit R1, T12, page 103.
[11] Exhibit R1, T12, page 103.
[12] See evidence of Dr Cullum, transcript extract, 7.08.12, page 36, lines 1-17.
Dr Willis later completed a medical examination form dated 29 November 2006. Under the heading “Musculo-skeletal system” he reported “Limited DIP joint movements in hands, also heberden’s nodes with minor deformity”.[13] In answer to Question 3(h) of the form dealing with what medical conditions prevent or restrict Mr Wright’s capacity to work, Dr Willis recorded:
1. Lumbar spondylolisthesis
2. Osteoarthritis hands
3. Osteoarthritis left ankle
In response to paragraph 3(i) of the form, dealing with the way in which Mr Wright’s conditions affected his capacity to work, Dr Willis reported: “Reduced hours, and reduced strength, due to pain and stiffness, and reduced grip strength.”[14]
[13] Exhibit R1, T13, page 111.
[14] Exhibit R1, T13, page 114.
In the Medical Impairment Assessment section of the form, Dr Willis was asked to assess the disability described as “osteoarthrosis affecting both hands”. He answered yes to the question of whether Mr Wright experienced symptoms of osteoarthrosis affecting both hands during ordinary activities, and described his symptoms as “(p)ain, lack of grip/
weakness, stiffness, tenderness”.[15] He described Mr Wright as having severe and virtually constant wrist pain at the affected site(s), and reported that there was impaired digital dexterity, namely limited thumb extension, and that there was a loss of grip strength which he described as follows:(1) gripping small medallions; (2) landscaping sleepers, have become a 2-man job.[16]
He assessed that there had been a 50% loss of movement in the DIP joints and the proximal interphalangeal (PIP) joint of the thumb.
[15] Exhibit R1, T14, page 120.
[16] Exhibit R1, T14, page 120.
Dr George Zankov: Dr Zankov completed a medical report form dated 8 July 2009. He was advised that the following three disabilities, namely refractive error, osteoarthrosis of the left hand and spondylolisthesis at the L5-S1 level, had been determined not to be war-caused or defence-caused disabilities. He was then asked to describe how those disabilities affected Mr Wright’s ability to work, and stated:
Disabilities under 2 have a considerable affect [sic] on his ability to work.[17]
He was then asked to complete medical impairment assessments relating to the various accepted disabilities, but not the three non-accepted disabilities.
[17] Exhibit R1, T16, page 127.
Dr Grantley Tschirn: Dr Tschirn is a consultant occupational physician. The Department of Veterans’ Affairs asked him to provide an occupational medical assessment of Mr Wright. Dr Tschirn was unable to give evidence, but the Commission tendered his two reports, which are dated 11 April 2010 and 15 March 2011.
In his first report, under the heading “Bilateral hand osteoarthritis”, Dr Tschirn said:
This appears to be the most significant condition for him in terms of his work as a general handyman. There is a history of gradual onset of difficulty with grasping, holding, strong gripping and dexterity. On examination there was evidence of deformity to suggest osteoarthritic type degenerative joint disease with x-rays supporting the presence of degenerative changes in the interphalangeal joints of the fingers and degenerative changes in the carpometacarpal joints, ie at the bases of both thumbs, but no erosive changes to suggest a rheumatic type of inflammatory joint disorder.[18]
He proceeded to provide the following opinion:
With respect to his hands, he needs to undertake work not requiring the use of power tools, fine motor dexterity or strong gripping activities. He could use a computer, keyboard, mouse, telephone and can drive. With respect to keyboard activity, jobs not requiring higher levels of keystroke activity would be appropriate. It is my opinion that his non-accepted disabilities do not, at this time, impact significantly on his work capacity other than the osteoarthritis affecting his left hand, though noting that Mr Wright is right-hand-dominant. [19]
[18] Exhibit R1, T24, page 212.
[19] Exhibit R1, T24, page 213.
In his later report, Dr Tschirn referred to Mr Wright’s witness statement,[20] which attributed all of the issues to the right hand rather than the left. He was asked what effect, if any, the non-accepted left hand condition had on Mr Wright’s ability to undertake his remunerative employment. Dr Tschirn commented as follows:
I certainly agree with him that being right hand dominant and being a tradesman/
handyman/gardener he would use his right hand for all tasks that require more precision, accuracy of positioning, force and dexterity. Additionally using the right hand significantly more means the risk of aggravating the underlying degenerative disease, which is similar on both sides, is increased on the right side. However he would still need to use his left hand for various tasks to assist and support, steadying, holding objects, passing objects to the right hand and so on. The left hand contributes something to proficiency in carrying out tasks. With the similarity of the changes noted and Mr Wrights report above it is my view that a small component of the reported difficulty must be related to the osteoarthritic (degenerative) change. [21]
[20] Exhibit A1.
[21] Exhibit R2(b), page 2.
In response to a question as to whether there was any effect of the disease of the left hand so as to compromise its ability to carry out Mr Wright’s remunerative employment, Dr Tschirn responded that there was “a small but not ignorable contribution from the degeneration in his left hand and thumb to his inability to work proficiently in his most recent job vocation.”[22]He further reported that he agreed with Mr Wright’s comments in regard to the effect of his accepted disabilities on his ability to work in his most recent vocation as a tradesman/handyman/gardener, and that he could not continue that form of work any longer as a direct consequence of those compensable disabilities. However, he added:
There is a small component in regards to his left hand condition, but it is only small, noting that he is right hand dominant and noting that he has attempted to try and compensate more with his left hand.[23]
[22] Exhibit R2(b), page 2.
[23] Exhibit R2(b), page 2.
As appears from paragraph 25 above, Dr Tschirn had expressed the opinion in his earlier report that Mr Wright could use a computer, keyboard, mouse, telephone and could drive, and he thought that with respect to keyboard activity, jobs not requiring higher levels of keystroke activity would be appropriate. In his later report, having read Mr Wright’s statement, Dr Tschirn disagreed that Mr Wright could not do simple office-type tasks, and thought that there might be a role for him in undertaking sales and advice type roles in the industry of his most recent vocation, working for suppliers to the general public or to the trade itself.
The Commission also tendered a copy of some handwritten notes of Dr Tschirn which were written on the second page of the letter from the Commission requesting his later report. These notes came to the Commission’s attention after Dr Tschirn’s records had been produced to the tribunal in answer to a summons, and it appears reasonable to assume that the handwriting is that of Dr Tschirn. The Commission relies upon the following notes that address the above question of what effect the non-accepted left hand condition had on Mr Wright’s ability to undertake his remunerative employment.
Even if completely normal the LH must contribute something to working proficiency otherwise in theory Mr Wright’s left hand could be removed with no discernible effect on the proficiency.
The next question is does Mr Wright have full use of his (L) hand. Xrays reported similar r’s in both hands. The most significant r’s are in both thumbs.
Given that the X’s are similar I cannot see how one could contend that the left hand does not have any issues currently if compared to the right.
In my opinion the left hand exerts a small effect on his ability to undertake his remunerative employment.[24]
[24] Exhibit R4. The symbol r’s is said to represent diagnoses, and x’s is said to represent x-rays.
Dr David E Cullum: Dr Cullum is also an occupational physician. He assessed Mr Wright at the request of his solicitors. In a report dated 11 May 2012, Dr Cullum obtained a history of constant pain in the right hand, with paraesthesia which tended to wake him in the early hours of the morning, but that he had no symptoms in the left hand. On examination he noted nodular osteoarthritis in the distal phalangeal joints with Osler’s nodes somewhat worse on the right hand than the left, and second and first digits. He found that Mr Wright was unable to make a fist completely on the right hand and had loss of range of motion at the proximal interphalangeal and distal interphalangeal joints of the second, and to a lesser degree, third digit on the right hand. He noted that there was a significant weakness in the right-hand grip at only 9 kilograms compared with the left, which was 44 kilograms. He also found disparity in pinch grips, being 4 kilograms on the right and 11.5 kilograms on the left.
In response to a question as to whether Mr Wright’s non-accepted osteoarthritis of the left hand condition impacts on his ability to undertake remunerative employment, Dr Cullum replied:
I understand the patient has a non accepted degenerative change claim of his left hand, but this is genetic and aged related and nowhere near as significant as the right. In my view, it is not the left hand that is precluding him from working, it is the injury to his right hand in addition to his minor back strain and general physical status with marked grip and pinch grip loss of the right hand.[25]
[25] Exhibit A4(b), page 6.
Dr Cullum explained how the grip strength and pinch tests results were arrived at. He said that in his opinion, these tests were important, because they enabled him to quantify objectively the effect of the osteoarthritis on the functioning of the hands. He said that it was quite common to see people with the degree of osteoarthritic degeneration in their hands as in Mr Wright’s left hand and to find that those people have almost no symptoms. He also considered that the function of the left hand was normal for a man of Mr Wright’s age and background. His evidence continued:
And in your opinion what is it that is preventing Mr Wright from working?---Well, predominantly the weakness which is profound in his right hand.
In your opinion is it anything to do with the left hand?---No.[26]
[26] Transcript extract, 7.8.12, page 35, lines 6-9.
LEGISLATION
If s 24(1) of the VE Act applies Mr Wright is entitled under s 24(4) to a pension at the special rate therein provided. Sections 24(1)(c) and 24(2)(a) and (b) of the VE Act provide as follows:
24(1) This section applies to a veteran if:
...
(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 was free of that incapacity; and
...
(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.
CONSIDERATION
In considering the application of s 24(1)(c) of the VE Act, we refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission.[27] Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:
1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?
[27] (1997) 48 ALD 1 at 4-5.
A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith.[28] Neither party has an onus of proof (s 120(6) of the VE Act), and the tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
[28] (1987) 15 FCR 327.
The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Repatriation Commission v Braund;[29] Jackman v Repatriation Commission.[30]
[29] (1991) 23 ALD 591.
[30] Unreported, Federal Court, 30 June 1997, 521/1996; (1986) 4 AAR 365n.
What was the remunerative work that Mr Wright was undertaking?
As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission.[31]
[31] (1986) 9 ALN N223.
Mr Wright had previously undertaken unskilled manual work, both during his service and in his capacity as a self-employed landscape gardener and a self-employed handyman. He had also previously undertaken work as a truck driver, and in the mining industry as the operator of a large front-end loader. The possible alternative work postulated in Dr Tschirn’s reports involving keyboard work or office work was not work of a kind that Mr Wright had previously undertaken, and indeed would be quite inconsistent with such work. In any event, we accept that having regard to Mr Wright’s long working life doing unskilled manual work, he would be unable to do office work of the kind suggested by Dr Tschirn.
Is Mr Wright prevented from undertaking that work?
The second question in Flentjar is whether Mr Wright, by reasons of his war-caused conditions, is prevented from continuing to undertake the type of work which we have found is relevant. As mentioned above, the Commission has conceded that s 24(1)(b) is satisfied.
The remunerative work referred to in s 24(1)(b) has a broad meaning, and is not limited to the type of work previously undertaken; it is to be determined by having regard to the vocational, trade and professional skills, qualifications and experience of the veteran, and the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake (but subject to the degree to which the war-caused injury or disease has reduced the veteran’s capacity to undertake those kinds of work): s 28 of the VE Act; Chambers v Repatriation Commission.[32] The Commission’s concession that s 24(1)(b) has been satisfied therefore entails an acknowledgment of the very significant extent to which Mr Wright’s war-caused conditions have interfered with his capacity to undertake work, including the type of work which he had been previously undertaking.
[32] (1995) 55 FCR 9 at 19, where Moore and Sackville JJ discuss the broad criteria in s 28, and compare the wide range of employment activity encompassed by s 28 with the kind of remunerative work referred to in s 24(1)(c).
In the present matter, it is not immediately apparent that Mr Wright is prevented from undertaking the kind of work that he was previously undertaking, because he has acknowledged that he would be able to undertake some of the tasks that he previously performed in the course of his work as a self-employed handyman. However, it is also clear that those tasks were only a part of the range of work that he had previously been doing; he could only undertake those tasks with difficulty, and they took considerably longer than they should have, to the point where it was not economic for him to undertake them. In addition, we are satisfied that undertaking such tasks would have had an adverse effect on his reputation, and would therefore have been counter-productive.
Mr Wright’s situation can be compared with that of the veteran in Repatriation Commission v Connell,[33] where the veteran was able to undertake the same occupation as he was undertaking prior to being affected by a war-caused injury or disease, but could only do so on a part-time or restricted basis because of his injury or disease, and it was held that he was prevented from continuing to undertake remunerative work that he had been undertaking within the meaning of s 23(1)(c) of the VE Act. The Full Court said:
Further, in the context of the beneficial nature of the Act in question, “remunerative work” should not receive a restrictive interpretation. There is no valid reason to confine the expression to work of a particular type. “Remunerative work that the veteran was undertaking” should not be confined to the actual type of work involved but should also be referrable to its nature and quality. A person who works as a painter on a full-time basis but who, due to incapacity, can now only do that work on an intermittent or part-time basis is not continuing to perform the same remunerative work. The restricted nature of the work gives it an entirely different character. Being able to perform work without restriction because of illness or injury is a situation far removed from being able to perform the same work, but with restrictions due to illness or injury. Each is remunerative work of the same type, in this case, painting. But it is not the same remunerative work considering the nature and quality of the work. If one is performing full-time work without any health related restrictions that reduce one’s hours on account of such restrictions it cannot be sensibly said that the later work is a continuation of the work previously undertaken. It is of an entirely different nature and quality, although identical in terms of describing the relevant occupation.[34]
The same statutory criteria appear in both s 23(1)(c) and s 24(1)(c), and we consider that the above comments would apply equally to the present case.
[33] (2011) 197 FCR 228.
[34] (2011) 197 FCR 228 at [28], per Marshall, Downes and Bromberg JJ.
We refer also to Re Repatriation Commission and Thorpe, where the tribunal held that it was not necessary for the veteran to be prevented from undertaking all of the remunerative work, or all of the remunerative work of a particular kind, that he or she was undertaking.[35]
Is the war-caused condition the only factor preventing Mr Wright from continuing to undertake that work?
[35] [2011] AATA 491 at [88]-[94].
The third question in Flentjar refers to the “alone” test in s24(1)(c). On the authority of Cavell v Repatriation Commission[36], and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission,[37] the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
[36] (1988) 9 AAR 534.
[37] (2000) 101 FCR 50 at [33].
In Cavell, Burchett J said further, that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.[38] In Forbes, RD Nicholson J said: “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”.[39]
[38] (1988) 9 AAR 534 at 539.
[39] (2000) 101 FCR 50 at [39].
The advocate for the Commission, Mr Crowe, submitted that Mr Wright does not meet the “alone” test, because the non-accepted condition of the left hand has some effect on his inability to continue to undertake his work as a handyman. In support of his submission, Mr Crowe relied upon the opinion expressed by Dr Tschirn, as well as the opinions expressed by Drs Willis and Zankov, to which we referred above. Mr Crowe also pointed out that the opinion expressed by Dr Cullum in his report of 11 May 2012, which we quoted in paragraph 32 above, does not support Mr Wright’s claim, because Dr Cullum only goes as far as to say that the left hand does not preclude Mr Wright from working, and that is not the issue raised by s 24(1)(c); rather, the test is to determine whether the disability of the left hand plays a part in, or contributes to, Mr Wright’s inability to continue to work as a handyman.
We do not accept the above submission if it is intended to mean that Mr Wright’s claim should be determined only by reference to the medical evidence before us, without taking into account the lay evidence before us, being the evidence of Mr Wright, or to the extent that it does not take into account the oral evidence given by Dr Cullum. We note that in response to Mr Crowe’s submission, counsel for Mr Wright, Mr Manos, relied upon Mr Wright’s evidence, as well as further opinions expressed by Dr Cullum in the course of his oral evidence, and he contended that as a result, we should be satisfied that Mr Wright was prevented by his accepted disabilities alone from continuing to undertake his work as a handyman.
It is of course potentially more difficult for the tribunal to choose between competing medical opinions when the expert witness(es) expressing one point of view is not called, and the expert witness(es) expressing a contrary view is called. It has sometimes been said that less weight should be given to medical reports than to the oral evidence of expert witnesses, where there is an opportunity for the witness’s opinion to be tested in cross-examination by having propositions or facts put to him or her for opinion which may not previously have been considered or adequately taken into account. However, in other cases it has been said that it does not necessarily follow that preference should be given to the opinion expressed by a witness who is called to give evidence over opinions expressed in medical reports. For example, in Jamandilovski v Telstra Corporation Limited[40] Lindgren J said:
Although the presence of oral evidence enlarges the scope of factors which may cause a preferring of one witness to another, even on the basis of written evidence alone, many factors may cause the evidence of one expert to be accepted in preference to that of another. Examples of such factors are the extent of detail, thoroughness and objectivity demonstrated by an expert’s report; whether things said in a report accord with the decision-maker’s own store of knowledge and experience; whether the reasoning in the report itself “makes sense” to the decision-maker; the consistency of the content of a report with the corpus of the other evidence in the case, and in particular, with the decision-maker’s inferences, expectations and assumptions properly based on that other evidence.[41]
[40] [1994] FCA 1578.
[41] [1994] FCA 1578 at [40].
In the present matter, we have some reservations about the opinions expressed by Dr Tschirn in his two medical reports. In his earlier report, he seems to regard the condition of both hands as being a significant impediment to his continuing to work as a handyman, and not to differentiate between the function of the two hands, other than to say that Mr Wright is right-hand-dominant. That opinion is contrary to Mr Wright’s evidence, and also of course to the evidence of Dr Cullum, including in particular the grip strength and pinch grip tests which Dr Cullum undertook. Dr Tschirn also expressed the view in his earlier report that by working with suitable restrictions Mr Wright had the capacity to work greater than 20 hours per week. That again is contrary to Mr Wright’s experience and evidence.
In his later report, Dr Tschirn does compare both hands in assessing the ability to work, and conceded that the right hand would have to be used for all tasks that require more precision, accuracy of position, force and dexterity, and that using the right hand significantly more meant that there was an increased risk of aggravating the underlying degenerative disease on the right side. However, his opinion regarding the “not ignorable” contribution from the degeneration of the left hand and thumb was apparently based on his interpretation of Mr Wright’s witness statement, and he does not appear to have taken a comprehensive history from Mr Wright as to the kinds of tasks he had been undertaking in his work as a handyman, the manner in which he used his left hand, or the difficulties or otherwise of doing so. It may be that Dr Tschirn’s opinion can be explained by the first paragraph of the handwritten notes to which we referred in paragraph 29 above, where he noted in effect that even if the left hand was completely normal, it “must contribute something to working proficiency otherwise in theory Mr Wright’s left hand could be removed with no discernable effect on the proficiency”. It would appear from this proposition that Dr Tschirn considered that as soon as there was any condition that affected the function of the left hand, this of necessity would affect working proficiency. However, in our view that would depend on the nature of the work and the manner in which the left hand contributes to that work. As Dr Tschirn was not called, the basis on which he expressed his opinion regarding the “not ignorable” contribution is not clear.
We are mindful of the comments made by Drs Willis and Zankov in the forms which they completed. However, Dr Willis appears to have based his opinion regarding Mr Wright’s capacity to work on a combination of three disabilities, only one of which was osteoarthritis of the hands, and he did not differentiate between those disabilities. His comments in the medical impairment assessment form related to osteoarthrosis affecting both hands, and we are unaware of the extent of his understanding of the nature of Mr Wright’s work, including in particular the manner and extent to which he was required to use his left hand. Whilst Dr Zankov’s opinion as to the effect of non-accepted conditions does include osteoarthrosis of the left hand, he also does not differentiate between that condition and the other two non-accepted conditions to which he referred, and again we have no evidence of his understanding as to the manner in which Mr Wright was required to use his left hand in the course of his handyman work, or of Dr Zankov’s reasons for his opinion insofar as it related to the left hand.
As against the references in the medical reports and records to which we have referred, Mr Wright gave clear evidence that his left hand did not impede him in working as a handyman, and as mentioned above, we accept his evidence. In addition, we were impressed by Dr Cullum’s evidence, and in particular with his evidence as to the relevance of the grip and pinch strength tests which revealed a marked contrast between the two hands, and indicated that the condition of the left hand was not of concern. These tests provide objective evidence which corroborates Mr Wright’s account of his experience. In the circumstances, and consistently with authorities referring to the significance of lay evidence where there are competing medical opinions, we are satisfied that the condition of Mr Wright’s left hand does not make a contribution to his inability to continue to undertake the remunerative work that he was previously undertaking.[42]
[42] See for example E.M.I. (Australia) v Bes [1970] 2 NSWR 238 at 242, and Dibbins v Dibbins (1978) 80 LSJS 164.
In view of this conclusion, it is not necessary for us to determine Mr Manos’s alternative argument that Mr Wright had been genuinely seeking to engage in remunerative work and would but for his incapacity be continuing so to do, and that his incapacity was the substantial cause of his inability to obtain remunerative work, so that by virtue of the ameliorative provisions of s 24(2)(b) he should be treated as having been prevented by reason of his incapacity from continuing to engage in remunerative work that he had been undertaking for the purpose of s 24(1)(c). We should, perhaps, add that if our conclusion in relation to s 24(1)(c) had been otherwise, it would have been necessary to determine whether s 24(2)(b) would apply to Mr Wright’s circumstances in the light of the recent case of Smith v Repatriation Commission.[43] In that case Gordon J referred to the difference in wording between s 24(1)(c), which refers to a veteran being prevented from “continuing” to undertake remunerative work that the veteran “was” undertaking, and s 24(2)(b), which refers to a veteran who “has not been engaged in remunerative work”,[44] and concluded that s 24(2)(b) applies to veterans who have never been able to work as a result of severe war-caused injuries or diseases, but does not apply to veterans who have a work history.
[43] [2012] FCA 1043.
[44] [2012] FCA 1043 at [18] and [34].
Is Mr Wright suffering a loss of wages or earnings?
The fourth question in Flentjar is whether, if the veteran has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered. This question must be considered by reference to s 24(2)(a)(i), which provides in effect that in order to suffer a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work for some reason other than the veteran’s incapacity from war-caused conditions.
In Repatriation Commission v Smith (supra), Beaumont J, with whom Northrop and Spender JJ agreed, said: “As has been said, the question posed by s 24(1)(c) is one of hypothetical facts. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities”.[45]
[45] (1987) 15 FCR 327 at 337.
In the present case, Mr Wright intended to keep working as a handyman, and took steps to establish himself in this business after he returned to Adelaide. We accept his evidence that he loved his work as a handyman and wanted to continue, and we think it clear that he would have done so if he had not been prevented from doing so by his defence-caused disabilities.
Date of effect of pension at the special rate
Under s 20 of the VE Act, we have a discretion to specify a date not earlier than three months before the date on which the claim for a pension was received at an office of the Department of Veterans’ Affairs in Australia as the date when our determination takes effect. In this case, that date would be 11 November 2008. However, as at that date, Mr Wright had not ceased to engage in remunerative work, because it was at about that time he decided to go to New Zealand. By then his right hand had become much worse, but Mr Wright said that his reason for going to New Zealand was to have a “break and a holiday”, and he thought that if there was an opportunity to work while he was there, he would probably take it up.[46]
[46] Transcript extract, 7.08.12, page 25, lines 8-17.
It was only after he had returned to Adelaide and found that he could not continue to work that he ceased to engage in remunerative work and suffered a loss of earnings on his own account within the meaning of s 24(1)(c), as supplemented by s 24(2)(a)(i). It also appears from Mr Wright’s evidence that he is now unable to recall a precise date when he decided that he was unable to continue his work as a handyman, and was therefore prevented from undertaking remunerative work within the meaning of s 24(1)(c). In cases where precise evidence is not available, it is necessary for courts or tribunals to do the best they can, and apply what might be called a “broad axe” approach. For example, where there was difficulty in quantifying damage, Evatt CJ and Heron and Sugerman JJ of the Supreme Court of New South Wales said:
Many cases illustrate that uncertainty in the quantification of damage, either in cases of contract or tort, does not prevent an assessment provided that some broad estimate can be made … Obviously the law will disregard possibilities that are slight or chances which are nebulous; otherwise all the circumstances of the situation must be taken into account … where precise evidence is obtainable the court naturally expects to have it. Where it is not, the court must do the best it can.[47]
Applying this approach, and doing the best we can on the evidence before us, we specify that the date when the entitlement to pension at the special rate should take effect will be 15 April 2009.
[47] Callaghan v William C Lynch Pty Ltd [1962] NSWR 871. See also Northern Territory of Australia v Mengel (1994) 95 NTR 8 at [272] and Watson, Laidlaw & Co Ltd v Pott (1914) 31 RPC 104 at 118.
DECISION
The tribunal sets aside the decision under review, and in substitution therefor decides that the applicant is entitled to pension at the special rate provided for in s 24 of the VE Act with effect from 15 April 2009.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis and, Dr R Ormston, Member ... [Sgnd ] ...
Associate
Dated 5 October 2012
Dates of hearing 7 August 2012 Counsel for the Applicant Mr A Manos Solicitors for the Applicant KCI Lawyers Advocate for the Respondent Mr A Crowe Solicitors for the Respondent Department of Veterans' Affairs Advocacy Section
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