DONALD WRIGHT and REPATRIATION COMMISSION

[2010] AATA 407

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 407

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5242

VETERANS' APPEALS  DIVISION		)
Re		DONALD WRIGHT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M D Allen, Senior Member
Dr J Campbell, Member

Date3 June 2010

PlaceSydney

Decision  The decision under review is AFFIRMED.

....................[sgd]......................

M D Allen, Presiding Member  

CATCHWORDS

VETERANS’ ENTITLEMENTS:  Did Applicant cease work because of war-caused incapacity alone.  Effects of age and non war-caused incapacity in conjunction with war-caused disability.  Not satisfied Alone Test met.  Decision AFFIRMED.

LEGISLATION

Veterans Entitlements Act (1986) sections 24, 120(4).

CASES

Cavell v Repatriation Commission (1988) 9 AAR 534

REASONS FOR DECISION

3 June 2010 M D Allen, Senior Member
Dr J Campbell, Member     

1. By application made 6 November 2008 the Applicant sought review of a decision by the Respondent to deny his claim for a Special Rate Pension pursuant to section 24 of the Veterans’ Entitlements Act (1986) (“VEA”).

2.      As the Applicant was aged over 65 on the day he made his application for the said pension, being born on 5 September 1923, subsection 24(2A) VEA applied to him. 

3. The relevant subsections of section 24 are:

(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

(ii)  the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(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.

(2)  …

(2A)  This section applies to a veteran if:

(a)  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

(b)  the veteran had turned 65 before the claim or application was made; and

(c)  paragraphs (1)(a) and (1)(b) apply to the veteran; and

(d)  the veteran is, because of incapacity from war‑caused injury or war‑caused disease or both, alone, prevented from continuing to undertake the remunerative work ( last paid work ) that the veteran was last undertaking before he or she made the claim or application; and

(e)  because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

(f)  the veteran was undertaking his or her last paid work after the veteran had turned 65; and

(g)  when the veteran stopped undertaking his or her last paid work, the veteran:

(i)  if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or

(ii)  if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;

for a continuous period of at least 10 years that began before the veteran turned 65; and

(h)  section 25 does not apply to the veteran.

(2B)  For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war‑caused injury or war‑caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

(a)  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

(b)  the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.

4.      In this matter there was no dispute that the Applicant fulfilled the requirements of paragraphs 24(2A)(f) and (g)(ii) VEA.  After his discharge from the Royal Australian Air Force, the Applicant had trained as a motor mechanic and then had conducted his own business, Donald Wright Automotive Services Pty Ltd (“DWAS”), from around 1950 until he ceased trading on 5 September 2005.

5.      The Applicant has the following injuries and diseases recognised as being war-caused:

Bilateral sensory neural hearing loss;

Lumbar spondylosis with spinal stenosis;

Cervical spondylosis with spinal stenosis;

Acquired cataracts;

Spondylolisthesis L4-5;

Bilateral tinnitus.

In addition he suffers from the following non-war-caused diseases: 

Meniere’s disease;

Hypermitropia;
Cancer of the prostate (in remission);
Osteoarthritis of the hands and fingers;

Right rotator cuff syndrome.

6.      There is evidence from the financial report prepared by Ferrier Hodgson Forensics that upon the cessation of his business in 2005 the Applicant experienced a loss of earnings on his own account.  Although in some years the taxation returns of the business show a loss, the loss is after monies designated as Director’s Fees were taken out of the business.  As is pointed out at paragraph 104 of the report:

“The tax returns show an amount labelled ‘Directors’ Fees’.  These expenses vary considerably and in my opinion, this is the expense item used to transfer DWAS’ profits to Mr and Mrs Wright.”

7.      The real issue in this matter is whether the Applicant’s loss of earnings was occasioned by war-caused incapacity alone.  As was pointed out in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 the task of the Tribunal is:

“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.”

8.      Unfortunately the Applicant in his evidence proved to be a poor historian.  We found it difficult to reconcile what he said in evidence regarding the closure of his business with what he told examining medical specialists.  We do not regard the Applicant as dissembling, but rather as confused, and indeed there is reference in the notes of his General Practitioner (“GP”) to a loss of memory following treatment for his cancer of the prostate.  We also noted that the Applicant in these proceedings became quite confused as to who carried out the book work to maintain the accounts of the business.

9.      Cross examined, the Applicant stated that in 2005 he had been doing supervisory work only, and his foreman did the manual work.  He thought that the foreman would buy his business but the foreman’s wife was against that so he left to go to Adelaide. 

10.     Upon the foreman’s leaving, the Applicant dispensed with the services of the two apprentices he had and proceeded to wind down the business as he could no longer do the work he wanted to.

11.     Occupational physician, Dr Burns, took a different history from the Applicant.  In his report of 11 March 2009 he states:

“Following his initial back surgery in 1996 he stated that he had a foreman and probably two apprentices.  He himself cut back to doing the lighter activities including meeting clients, diagnosing problems with engines, getting spare parts, running the business and delivering cars.  If required, he would also do some lighter bench work.  He was not required to do any significantly heavy work.

In the late 1990s he also began manufacturing engine blocks with the assistance of a computerised milling machine.  This machine would do the work and he was only required to set it up.  Towards the end of the 1990s his last foreman left in order to set up his own business in Adelaide.  Additionally he had a disagreement with his last apprentice, who ceased work prior to 2002.  Mr Wright was quite uncertain as to the exact date.  It appears though that after this time he had cut back the amount of work he was doing.

It was quite difficult today to work exactly how many hours or how much work he was doing from 2002 through until 2005 when the business ceased.  It appears though that he was the only person working in the business.  In 2005 due to a deterioration of his back condition he gradually had to cut back on his work load.  He stated today that he eventually ceased doing any of the physical work including the bench work in 2005.  The business was formally closed in December 2005.”

12.     The Applicant had made a prior claim to the Department of Veterans’ Affairs (“DVA”) in 1998.  In that claim he described himself as “semi-retired” and working 30 hours a week.

13.     One of the Applicant’s non-accepted disabilities is osteoarthritis of the hands and fingers.  In a report dated 7 March 2006, the Applicant’s GP, Dr John Miller notes osteoarthritic deformities of both hands.  Occupational physician Dr Chase, in his report of 2 July 2009 states:  “He also has quite marked deformity of the hands consistent with osteoarthritis.”

14.     Hand surgeon, Dr Conolly, stated that the Applicant’s hand conditions did not prevent him carrying out the work he was doing before he retired in 2005.  The Applicant said that prior to retirement he was doing “bench work”.

15.     The Applicant’s right rotator cuff pathology was also noted by Dr Chase.  He stated: “He clearly has very restricted range of movement in the shoulders consistent with rotator cuff pathology.”  The Applicant said of this disability “It contributed with my back to the limitations, but I would not say it was the major cause” (of his ceasing work).

16.     Both Drs Chase and Burns state that it is the Applicant’s accepted disabilities that led to his retirement from the workforce.  That however, is not the test.  The cessation of work must be because of incapacity from war-caused incapacity alone.

17.     Dr Chase stated that it was obvious that the Applicant’s age was a significant factor in his ceasing work and added:  “… Furthermore I think it is somewhat disingenuous of all the assessors … to completely discount the osteoarthritis of his hands and the rotator cuff condition.  He does suffer from those conditions and they do have some impact on his ability to work”.

18.     Dr Burns in his report did not make any note of the Applicant’s right rotator cuff pathology.  Cross examined, he conceded that the fact he has arthritis in his shoulders could cause part of his inability to work.  That the Applicant has arthritic shoulders is evidenced by the report of Dr John Burke dated 23 September 2009, which states inter alia:

“There was moderately advanced arthritis in the shoulder girdle joints (mainly the AC joints) with some capulitis. 

There was arthritis at both 1^st CNC joints near the wrists.

Interestingly, there was no significant arthritis of the hips.  However, there was moderate uptake of trace at both greater trochanters, particularly the left, suggesting a moderate trochanteric enthesopathy.

There was arthritis at the knees, variously affecting all compartments on each side, and there was slight arthritis at the ankles.”

19.     A perusal of the Applicant’s GP’s clinical notes reveals that the Applicant also suffers from chronic renal failure and chronic airways limitation.

20.     There is no evidence as to what effect the above diseases had on the Applicant’s ability to work.  We note that Dr Burns stated that chronic renal disease of its own does not prevent people from working.  This much we can accept but what the Applicant bases his case upon is that, of themselves, none of his non accepted disabilities would have prevented him from working.  This may be so, but they cannot be approached in isolation but rather regard must be had to their cumulative effect.

21.     In this matter, the Applicant was aged 82 years when he decided to cease his business.  At that time it would seem that the foreman upon whom he had relied to perform the hard manual work in the business had left or was about to leave.  He had reduced his activities for example in 1998 he described himself as “semi-retired”.  Although he maintained that it was his accepted disabilities alone that caused him to cease work he had significant other disabilities in particular his rotator cuff syndrome and osteoarthritis of his hands.

22.     We are reasonably satisfied that as at September 2005 the Applicant had come to a point where because of a combination of all of his disabilities, war-caused and non war-caused, together with the fact that, as the Applicant himself stated that he had been able to conduct his motor repair business aided by fine staff who had now all moved on, he decided that it was time for him, at his age, to cease work.

23.     As the Applicant did not suffer a loss of income because of war-caused incapacity alone, the decision under review is AFFIRMED.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member and Dr J Campbell, Member

Signed:         ..................... .[sgd]......................................
  K. Lynch, Associate

Date of Hearing  21 May 2010
Date of Decision                   3 June 2010
Representative for the Applicant               A Latimore
Representative for the Respondent        J Warmoll