Doherty and Repatriation Commission
[2008] AATA 99
•7 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 99
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600734
VETERANS' APPEALS DIVISION ) Re ROBERT DOHERTY Applicant
And
REPATRATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date7 February 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) E. A. Shanahan
Member
VETERANS’ AFFAIRS – eligible service – discharged as medically unfit – application for intermediate or special rate of pension – multiple medical conditions – not all accepted as service related – alone test – decision affirmed
Veterans’ Entitlement Act 1986
Chambers v Repatriation Commission (1995) 129 ALR 219
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
7 February 2008 Miss E.A. Shanahan, Member 1. Mr Doherty has applied to the Administrative Appeals Tribunal for review of the decision of a delegate of the Repatriation Commission (the Commission) dated 9 November 2004 to increase Mr Doherty’s level of pension to 70 per cent of the general rate. This decision was affirmed by the Veterans’ Review Board (VRB) on 24 July 2006. In his original claim to the Commission Mr Doherty contended that he qualified for the intermediate or special rate of pension. This application was denied under s 31 of the Veterans’ Entitlement Act 1986 (the Act) on 14 December 2004 as Mr Doherty was still employed by the Defence Forces, although on sick leave.
2. Mr Doherty was represented by Mr Bruce Turner, an advocate with the Returned and Services League of Australia (RSL) and the Commission was represented by Ms Tracy Chant, an advocate with the Department of Veterans’ Affairs (DVA). The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). The Commission tendered the following documents:
·Section 37 Documents (T-Documents) ‑ Exhibit R1
·The Transcript of the VRB hearing of 24 July 2006 – Exhibit R2
·Dr Forster’s Clinical Notes ‑ Exhibit R3
·Dr R. Horsley’s Report of 15 March 2007 – Exhibit R4
·Dr R. Horsley’s Report dated 2 August 2007 – Exhibit R5
·Mr P. Scott’s Report dated 14 June 2007 – Exhibit R6.
Mr Doherty gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
3. Mr Doherty served as an infantryman in the Australian Army (the Army) from 25 July 1979 to 24 July 1982 and again from 8 May 1984 to 8 December 2004. Most of his work in the Army was in logistics and he acquired administrative and clerical experience with basic computer skills relating to stocktaking. From 1986 to 2004 his job description was storeman. Mr Doherty has not worked since his discharge other than for one hour per week of voluntary work with his local RSL organization. Prior to his discharge, Mr Doherty repeatedly expressed the opinion that I will be unemployable once I am discharged from the Army (T3, p17, p32 and p41). Mr Doherty did not avail himself of the retraining options offered by the Army at the time of his discharge. Following his discharge on medical grounds, Mr Doherty returned to his hometown of Penshurst, some 30 to 40 miles from Hamilton. This decision was made on financial grounds and also as he wished to be near his brothers. Penshurst is a small country town with a population of 500 and essentially no prospects of employment. Mr Doherty now receives $601.00 in the form of a Defence Force Retirement Benefit and $228.00 in the form of a Disability Pension from the DVA per fortnight. When employed by the Defence Forces his fortnightly income was $1200.00.
4. Mr Doherty applied for a job as a driver with a mining company in Portland some 80 kilometres distance from his home. He appended his medical history to the application. The mining company did not respond to his application. While jobs might be available in Hamilton, Mr Doherty claimed that the driving required would be beyond his capabilities due to his back and foot conditions both of which have been accepted as war‑caused by the Commission. Additionally, the cost of petrol would make any part-time work at a rate of $15 to $25 per hour uneconomical.
5. Mr Doherty found that by living a quiet life and avoiding physical exertion his symptoms of back, knee, neck and foot pain were controlled and he did not require medication.
6. Mr Doherty attends a physiotherapist in Hamilton every Monday and Friday, being driven to and from the premises by a lady friend who lives in Hamilton. He is considering joining the gymnasium in Hamilton. Currently he can drive for 10 minutes, stand for 10 to 15 minutes, sit for 20 to 30 minutes and walk for 250 metres at a time.
7. The Commission accepted that Mr Doherty’s following medical conditions were war-caused :
Old Scheuermann’s Disease ‑ 6 February 1993
Low Back Strain – 6 February 1993
Right Lateral Epicondylitis – 17 July 1994
Right Patellofemoral Dysfunction – 17 July 1994
Bilateral sensorineural hearing loss with tinnitus – 17 July 1994
Osteoarthrosis affecting both knees – 21 April 2004
Right calf muscle tear – 21 April 2004Bilateral Metatarsalgia – (accepted 2005)
8. The Commission did not accept that Mr Doherty’s following medical conditions were war-caused:
Arthritis in the right hand
Calves (no incapacity found)
Chondromalacia Patellae of the left knee
Cervical Spondylosis
Arthritis of right wrist hand (no incapacity found)
Primary localised osteoarthrosis of the right hip
Rotator cuff syndrome of the left shoulderExposure to carcinogenic material (no incapacity found)
9. Mr Doherty believes that his non-accepted conditions are all related to his accepted conditions. This belief is supported by his physiotherapist but not by any of the expert medical opinions. Recently he is said to have developed trigeminal neuralgia and a question has been raised by Dr Horsley that he has osteoarthritis of the right hip.
EVIDENCE BEFORE THE TRIBUNAL
Mr Doherty
10. Mr Doherty’s evidence is primarily covered in the Background To The Application above. Mr Turner took Mr Doherty through his accepted medical conditions with respect to how they affected his physical performance. These are covered further in the medical reports. Briefly, Mr Doherty confirmed that his back pain limited his physical activity considerably, that he avoided all lifting, that his right elbow locks on occasions and that he cannot raise his left shoulder above 70 degrees. Mr Doherty said that following bilateral arthroscopies of the knee he had improved considerably but this condition was now deteriorating again. His hearing defect and tinnitus appeared to be stable. Mr Doherty said his so-called right gastrocnemius tear, which occurred in the early 1990s, still gave rise to what he described as a seizure. However, on questioning by the Tribunal he agreed that this was in fact a severe cramp. Mr Doherty said his physiotherapist had attributed his right calf pain to his lower back condition and Scheuermann’s disease.
11. The Commission accepted Mr Doherty’s claim for Metatarsalgia in 2005 and he says this is a major ongoing problem. While he was in the Army he was provided with excellent boots and orthotic supports which minimised his symptoms but he is now no longer able to access these benefits.
12. With respect to his non-accepted disabilities, Mr Doherty described his symptoms of cervical spondylosis as being unable to turn his neck to the left or right and not being able to tolerate his neck being flexed for any period of time as this gave rise to pain. Approximately one year ago he had experienced what he called a seizure in his neck.
13. Mr Doherty has self-diagnosed his right hip pain as osteoarthritis of the hip, although his physiotherapist has advised him that this is referred pain from his lumbar spine disc conditions. Mr Doherty believes that both his cervical pain and his right hip pain could occur at any time and would then interfere with any work he might be doing. In response to a question posed by the Tribunal he said he thought such events occur on a daily basis.
14. When asked by Mr Turner whether, if he was free of all accepted disabilities, he would he be able to work, Mr Doherty answered I believe all the unaccepted conditions are linked to the accepted.
15. Mr Doherty confirmed that he believed that he was unemployable, although he wanted to work.
16. Under cross-examination by Ms Chant, Mr Doherty did not provide any further substantive evidence. He affirmed his belief that his non-accepted conditions were related to the accepted conditions and once more relied on the opinion of his physiotherapist. The Tribunal asked Mr Turner if he intended to tender any reports from the treating physiotherapist into evidence. Mr Turner indicated that he had obtained such reports but had not filed them as the reports were vague and not substantiated by any objective testing.
17. The Tribunal asked Mr Doherty if he could in fact stay in Hamilton with his lady friend for two, three or more days a week and do part-time work or a retraining course. He agreed that this would be feasible but he still believed he would not be able to attain employment.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Clinical Notes of Dr Forster the applicant’s General Practitioner (Exhibit R3)
18. Dr Forster’s notes covered the period from 17 June 2005 to 22 January 2007. These notes document the Applicant’s right knee pain associated with a small effusion on x-ray, which was treated with Voltaren (a non-steroidal anti‑inflammatory drug). At a later date the Applicant complained of left knee pain but no abnormality was detected on examination. Approximately 50 per cent of the notes relate to the Applicant’s dysuria which was subsequently found to be due to a sexually transmitted infection of Chlamydia. On 19 May 2006 Dr Forster diagnosed a trigeminal nerve lesion, symptoms not described, and prescribed Tegretol. Subsequent entries by other general practitioners in the group do not add anything to this presumed diagnosis of trigeminal neuralgia and the Applicant has not been assessed, as would be appropriate, by a neurologist.
Report of Dr Robin Hunter, rehabilitation physician (T19, p261-264).
19. Dr Hunter saw Mr Doherty on 27 February 2006 and provided a most comprehensive report based on the extensive history she had taken and a full medical examination. She concluded that Mr Doherty’s accepted disabilities of bilateral sensory neural deafness and bilateral tinnitus did not affect his capacity to work. His disability due to Scheuermann’s disease and low back strain prevented him from moderate to heavy lifting, repetitive bending or prolonged sitting. The diagnoses of right lateral epicondylitis prevented Mr Doherty from doing repetitive upper limb work such as prolonged computer work, prolonged lifting and prolonged writing. Mr Doherty’s bilateral knee osteoarthritis would also prevent him from doing heavy manual work or work requiring prolonged standing or walking. Likewise, his metatarsalgia. Dr Hunter concluded that Mr Doherty would be prevented from performing manual labour in any form due primarily to his accepted disabilities. He was however capable of performing administrative and clerical tasks, provided there was flexibility in the workplace with adequate breaks from computer use. She concluded that Mr Doherty was capable of working 8 – 19 hours per week in an administrative role. She did however note that given his lack of formal training and the fact that he lived in rural Victoria, it would be difficult for him to retrain and find appropriate employment.
Dr Horsley, Occupational Health Physician (Exhibits R4 and R5)
20. Dr Horsley saw Mr Doherty at the request of the Commission and obtained a very detailed history and conducted a detailed examination on 14 March 2006. The history obtained and the examination findings were essentially the same as that reported by Dr Hunter. Dr Horsley addressed each of the Applicant’s accepted and non‑accepted medical conditions. She did note that although Mr Doherty had been provided with hearing aids he rarely uses them. Mr Doherty had told Dr Horsley that his major restriction was in fact his cervical spine and to a lesser degree his lumbar spine. During the formal examination Dr Horsley recorded minimal movement of the lumbar spine; which did not tally with the movement she observed during the course of the consultation. No muscle wasting in either leg or arm was detected and straight leg raising was limited to 60 degrees when formally tested but during the slump test was normal bilaterally at 90 degrees. Examination of the knees was normal except for some crepitus over the patello femoral region. Movements of the cervical spine were grossly restricted as were the movements of the shoulders. The measurement of power in the right hand was markedly reduced compared to the left. Dr Horsley considered Mr Doherty difficult to assess objectively as there had been recorded variations in the range of movement of both his cervical and lumbar spine and while he complained of pain in both knees the range of movement was normal.
21. Mr Doherty had self-diagnosed osteoarthritis of the right hip but there were no x-rays of this joint and Mr Doherty’s physiotherapist had given the opinion that the right hip pain arose from the lumbar spine. Dr Horsley did not agree with the latter diagnosis given that the hip pain radiated anteriorly rather than posteriorly. Dr Horsley concluded that Mr Doherty had the capacity to work in a clerical or administrative role for greater than eight hours and greater than 20 hours in suitable duties. She was of the opinion that his primary incapacities were in fact his cervical spine and both shoulders. Neither of these have been fully investigated in recent times. Mr Doherty’s remoteness from sources of employment did not affect his ability to perform work but did affect his capacity to find suitable employment.
22. Dr Horsley reviewed Mr Doherty on 15 March 2007. Her opinion was unchanged.
Mr Scott, Consultant Surgeon (Exhibit R6)
23. Mr Scott saw Mr Doherty at the request of the Commission on 12 June2007. The history Mr Scott obtained and his physical findings were similar to those of Dr Horsley. Mr Scott also commented on the incomplete investigation of Mr Doherty’s cervical spine, shoulders and right elbow. Similarly, the right calf pain which he attributes to a muscle tear while kick boxing in 1990 has not been investigated with ultrasound or MRI studies.
24. On examination Mr Scott recorded reduction in cervical spinal movement of 50 per cent in all directions and noted that Mr Doherty was voluntarily resisting movement. Shoulder movement was reduced significantly, there was a full range of movement of all other joints of the upper limbs and in particular there was no evidence of medial or lateral epicondylitis. Tenderness over the lumbar sacral spine and the cervical spine was recorded and straight leg raising on both sides was 75 degrees. The range of movement of all lower limb joints was normal and crepitus was detected over the patello-femoral articulation bilaterally. No evidence of muscle wasting was found. Examination of the hip joints was reported as normal.
25. Mr Scott concluded that the right elbow, right calf, feet and right wrist problems were minor in severity. The major effect on his inability to return to the workforce was related to his back, knees and shoulders. Mr Scott was also of the opinion that Mr Doherty’s non-accepted conditions related to his neck, shoulders and feet were significant factors affecting him being gainfully employed. (Mr Scott does not appear to be aware of the fact that Mr Doherty’s claim for metatarsalgia was approved in the year 2005).
26. Mr Scott concluded that Mr Doherty would not be fit for more than part time work for example, 2 hours per day 2-3 days per week performing some light work which could be supervisory in nature and not requiring any physical activity. Mr Scott also recommended further investigation of Mr Doherty’s back symptoms, his shoulders and his knees.
Transcript of the VRB hearing (Exhibit R2)
27. This transcript does not add greatly to the evidence already before the Tribunal except to confirm Mr Doherty’s claimed inability to travel any distance beyond about 10 kilometres, his inability to perform any physically demanding work which he had performed before his enlistment and that his major problems were his back, his knees and his feet.
The T-documents (Exhibit R1)
28. The T-Documents contain various assessments of the level of Mr Doherty’s impairment over the years, commencing at 10 per cent on 4 February 1993 and rising to 70 per cent on 21 April 2004. The T-Documents also contain a large volume of submissions by Mr Doherty as to why he is totally disabled and should be in receipt of the special rate of pension. Several of the claimed conditions are self-diagnosed and several others, namely his bilateral shoulder pain, his neck pain, his right wrist pain and his so called trigeminal neuralgia have not been adequately investigated or a definitive diagnosis reached.
RELEVANT LEGISLATION
29. Mr Doherty receives a disability pension at 70 per cent of the general rate and therefore meets the pre-requirement for consideration for intermediate or special rate.
30. The Act provides in s 23 and s 24 for the requirement for the qualification for these rates. Section 23 states:
23Intermediate 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)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(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
(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;
(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.
24Special 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)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
…
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
31. The Tribunal is required to follow the steps laid down by the Full Federal Court of Australia in its decision in Flentjar v Repatriation Commission (1997) 48 ALD 1. The Federal Court has directed that the questions to be asked in such a matter are:
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?
SUBMISSIONS
The Applicant
32. Mr Turner submitted that Mr Doherty was prevented from seeking, obtaining or performing work by his accepted disabilities. He also submitted that Mr Doherty strongly believed that his non-accepted disabilities were related to his accepted abilities.
33. Mr Turner submitted that the alone test was satisfied in that Mr Doherty was prevented from working by his accepted disabilities, involving his knees, back and feet which limited his ability to drive any distance to obtain work. Additionally, if Mr Doherty did obtain clerical work his right elbow pathology, diagnosed in the 1990s as lateral epicondylitis, would limit his ability to perform such duties. Mr Turner requested that the Tribunal find Mr Doherty unable to pursue remunerative work or any work and therefore that he qualified for special rate of disability pension.
The Respondent
34. Ms Chant submitted that s 120(4) of the Act decreed that the matter must be decided to the Commission’s, and thus to the Tribunal’s, reasonable satisfaction, that is on the balance of probabilities. She relied on the decision in Repatriation Commission v Hendy [2002] FCA FC 424. At paragraph 37, the Full Court considered the interpretation of s 24(1)(c) (the so-called alone test) and the requirement of the decision maker to take into account any factor that plays a part in or contributes to a veteran being prevented from continuing to engage in remunerative work. These factors included the time elapsed between the veteran ceasing remunerative work and the commencement of the assessment period, lack of work experience, time out of the workforce and increasing age. This was in addition to the consideration as to whether the war-caused injury or war-caused disease or both alone prevented the veteran from continuing to undertake remunerative work.
35. Ms Chant argued that Mr Doherty had been out of the workforce for over three years, he had not availed himself of an opportunity to retrain and his attitude that he was unemployable was present even before he left the Army.
36. Ms Chant submitted that the answer to the second question posed in Flentjar
Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
was no. The answer to question three was also no, as Mr Doherty’s war-caused disease was not the only factor preventing him from continuing to undertake work. Ms Chant relied on the expert medical opinions of Dr Horsley, Dr Hunter and Mr Scott, all of whom had found Mr Doherty’s non-accepted conditions of cervical spondylosis and rotator cuff syndrome to be major contributing factors to his inability to work. Mr Doherty’s claim that his non-accepted conditions were related to his accepted conditions was not supported by the medical evidence before the Tribunal.
37. Ms Chant submitted that neither s 23 nor s 24 of the Act were satisfied and thus the decision under review should be affirmed.
TRIBUNAL’S DELIBERATIONS
38. Mr Doherty satisfies the requirements of s 23(1)(a) and s 24(1)(a) of the Act, in that his degree of incapacity has been assessed at 70 per cent in accordance with the Guide to the Assessment of Rates of Veterans’ Pensions (GARP). He is now aged 50 and has not worked since his discharge from the Army on 8 December 2004. Prior to his discharge, he had been on sick leave for approximately ten months and thus he has not worked for over three and a half years. He did not avail himself of the Defence Force offer of retraining or the payment of a lump sum of $4,000 for retraining. His application for a disability pension was made on 21 July 2004, prior to his discharge as being medically unfit. Mr Doherty firmly believes that he has been unemployable since early 2004.
MEDICAL EVIDENCE
39. The expert medical opinions are essentially in agreement. All of the experts noted inconsistencies in examination findings in Mr Doherty, such as severe limitation of neck movements on formal testing but a greater range of movement during the consultation; limited straight leg raising on formal testing but 90 degree flexion at the hip level when seated on the examination couch with the legs extended at the knee; and voluntary resistance to movement of the neck and back on testing. Drs Horsley and Hunter and Mr Scott all identified Mr Doherty’s non-accepted neck and shoulder condition as impacting significantly on his ability to work; as did the accepted condition of osteoarthrosis of the lumbar spine and both knees. All three agreed that Mr Doherty was incapable of performing manual work but could undertake administrative or clerical duties albeit with some retraining. The latter had been offered by the Army in 2004 but was rejected by Mr Doherty.
40. Dr Horsley assessed Mr Doherty as fit for more than 20 hours of work per week; Dr Hunter assessed him as fit for 8 to 19 hours per week; and Mr Scott’s assessment was 6 hours per week. The Tribunal places greater weight on the opinion of Drs Horsley and Hunter in this regard as they are both occupational health and rehabilitation physicians trained in such assessments. All three doctors commented on the absence of appropriate radiological investigations relating to Mr Doherty’s neck, shoulders and right hip symptoms.
41. The Tribunal notes Dr Michael Forster’s entry of 22 January 2007, stating neck pain & restriction and new condition for repat [sic] and that a request for a cervical spine x-ray has been made. No report of this x-ray was provided to any of the medical experts, the Commission or the Tribunal.
TRIBUNAL’S CONSIDERATIONS OF THE STEPS IN FLENTJAR
42. The Tribunal as directed by the Full Court of the Federal Court of Australia decision in Flentjar has applied the questions posed by the Court.
Question 1. What was the relevant remunerative work that the veteran was undertaking within the meaning of s 24(1)(c) of the Act? (This question is also posed by s 28 of the Act)
43. Prior to his enlistment in the Army, Mr Doherty worked as a labourer building concrete tanks but predominantly as a brickies labourer in Warrnambool. Following his enlistment he was an infantryman but from 1986 until 2004 worked as a storeman in the Logistics Corps. There he obtained experience in ordering, dispersal of and recording the movement of goods and equipment and general stocktaking expertise. He was familiar with computer programs in this area using software developed for the Army. While he does not have a home computer he avails himself of the computers at the Hamilton Library and has produced lengthy submissions to the DVA in support of his claims. Section 28 of the Act has been interpreted to exclude the taking into account of matters such as the depressed labour market. (Chambers v Repatriation Commission (1995) 129 ALR 219).
44. Medical opinions are unanimous to the effect that Mr Doherty cannot undertake manual work but is capable of administrative or clerical work.
Question 2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
45. Based on the medical evidence the answer to this question appears to be no. However, the amount of time of such work that Mr Doherty could undertake has varied from expert to expert. The Tribunal therefore must proceed to consider question three.
Question 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?
46. All three medical experts have opined that Mr Doherty’s neck and shoulder symptoms significantly contribute to his inability to undertake various forms of work including clerical and administrative work. Based on this medical evidence Mr Doherty does not satisfy the alone test of s 24(1)(c) or s 23(1)(c) and the Tribunal does not consider it necessary to proceed to question four.
47. Mr Doherty’s non-accepted conditions relating to his neck, shoulders and his self diagnosed right hip pathology have not been fully investigated and therefore assessed. Mr Doherty did suffer a partial tear of his left supraspinatus while in the Army (T3, p31) which was said to have settled with physiotherapy in 1997 and there is a reference to limited neck movements (T3, p121,122) dated 30 August 1995 and again on 24 March 1997.
48. The Tribunal affirms the decision under review based on the medical evidence before it at the date of hearing. Further assessment of Mr Doherty’s neck, shoulder and right hip condition by appropriate medical consultants may clarify the issues referred to above.
DECISION
49. The Tribunal affirms the decision under review.
I certify that the forty‑nine [49] preceding paragraphs are a true copy of the reasons for the decision of:
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 10 December 2007
Date of decision: 7 February 2008Advocate for applicant: Mr B. Turner, Returned and Services League of Australia
Advocate for respondent: Ms T. Chant, Department of Veterans’ Affairs
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