DOUGLAS BEAUMONT and REPATRIATION COMMISSION
[2009] AATA 557
•29 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 557
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2944
VETERANS’ APPEALS DIVISION ) Re DOUGLAS BEAUMONT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr I Alexander, Member Date29 July 2009
PlaceSydney
Decision The decision of the Veterans’ Review Board dated 21 May 2008 is set aside. I substitute the decision that Mr Beaumont satisfies the provisions of section 24 of the Veterans’ Entitlements Act 1986 and is entitled to disability pension at the special rate with effect from 23 March 2007.
.................[sgd].............................
Dr I Alexander
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – War pension – Military service in the RAAF – War-caused knee injury – Special Rate Disability Pension – Claim for disability pension rejected – Whether capable of undertaking remunerative work – Loss of earnings – Decision set aside and substituted
Relevant Act:
Veterans’ Entitlements Act 1986 – paragraphs 24(1)(a), (b) and (c), section 28, subsection 120(4)
Citations:
Re Forster and Repatriation Commission (1992) 28 ALD 450
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
29 July 2009 Dr I Alexander, Member 1. Mr Beaumont is a 53 year-old veteran who had been receiving a disability pension at 100% of the general rate.
2. On 23 March 2007, he lodged an application for increase in his disability pension to special rate. His application was declined by the Repatriation Commission and his disability pension was continued at 100% of the general rate.
3. On 21 May 2008, the Veterans’ Review Board (‘the VRB’) set aside the decision of the Repatriation Commission and granted temporary payment at special rate to operate from 27 September 2007 to 21 May 2009 (“the reviewable decision”).
4. The VRB found that Mr Beaumont’s service related conditions in respect of his knees had precluded him from working but was not satisfied that the situation was permanent.
5. In this application, Mr Beaumont seeks review of the decision of the VRB and claims that pursuant to the provisions of the Veterans’ Entitlements Act 1986 (“the VE Act“) he is entitled to a disability pension at special rate with effect from 23 March 2007.
6. After considering all the evidence and for the reasons that follow, I have decided that Mr Beaumont is entitled to disability pension at the special rate with effect from 23 March 2007..
Issues
7. In deciding Mr Beaumont’s application pursuant to section 19 of the VE Act, I must assess whether, at some time during the assessment period, he satisfied the criteria set out in section 24 of the VE Act. In doing so, in accordance with subsection 120(4), I must decide the matter to my “reasonable satisfaction”, that is, on the balance of probabilities.
8. It is common ground that Mr Beaumont suffers disability from a number of accepted war-caused injuries or diseases which include internal derangement of the left knee, osteoarthritis of the left and right knee, lumbar spondylosis, otitis externa of both ears and otitis media of both ears.
9. In the course of the hearing, the Respondent conceded that Mr Beaumont satisfies paragraph 24(1)(a) of the VE Act in that the degree of incapacity from his war-caused conditions was at least 70%.
10. The issues presently before the Tribunal are whether Mr Beaumont satisfies the requirements of paragraphs 24(1)(b) and 24(1)(c) of the VE Act?
Does Mr Beaumont satisfy paragraph 24(1)(b) of the VE Act?
11. Paragraph 24(1)(b) of the VE Act stipulates that a veteran is totally and permanently incapacitated from war-caused conditions if his incapacity is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
12. Mr Beaumont claims that, as of the date of his application for an increase to the Special Rate on 23 March 2007, he has been incapable of undertaking remunerative work for more than 8 hours per week because of his war–caused conditions, particularly because of the osteoarthritis of both his knees.
13. In oral evidence, Mr Beaumont stated that he had stopped working in 2005 because of continuing problems with his knees and lower back which prevented him from carrying out his duties as caretaker of a holiday unit complex.
Medical Evidence of Mr Doig:
14. Mr Beaumont relied principally on the evidence of his treating orthopaedic surgeon, Mr Stephen Doig. Relevantly, on 8 August 2005, Mr Doig, in a written statement, stated:
“I have looked after this gentleman for a long time now. He has moderate degenerative changes in the right knee. I do not consider he will be able to do any lifting pushing pulling or carrying for the foreseeable future. He is not working at this stage because of his knees. He is looking at having a knee replacement in the middle future.”
15. On 17 July 2006, Mr Doig wrote:
“He is having a lot more trouble as far as his knees are concerned. He has now reached the stage where he requires a joint replacement. I think that he is in fact at this stage incapacitated for working more than 8 hours a week and he is certainly worse since I saw him last . I consider that the reason he is unable to work more than 8 hours per week is due to his knees primarily.”
16. On 29 August 2006, Mr Doig performed bilateral total knee replacements.
17. Mr Beaumont claims that, despite the bilateral knee replacements, he continues to suffer significant disability with regard to his knees and that this prevents him from undertaking remunerative work. In support of his claim he relies on the correspondence provided by Mr Doig.
18. On 27 September 2007, Mr Doig wrote:
“This gentleman has had bilateral total knee replacements. He is continuing to have troubles with both knees. He clearly cannot work because of his knees … I do not consider that he is going to be able to undertake any meaningful employment for a minimum of a year from now and it might even be longer depending on whether his knees continue to cause him troubles”.
19. On 1 November 2007 Mr Doig wrote:
“this gentleman was reviewed by myself and Professor John Hart today. He needs further surgery as far as his knees are concerned. At this stage he is incapacitated for all forms of work. I consider at this stage that this is likely to continue into the foreseeable future. “
20. In June 2008 Mr Doig wrote:
“He is continuing to have troubles with both his total knee replacements. He has decided against surgery at this stage which I think is a very reasonable thing for him to do. … I do not consider that he could go back to work. I think it is extraordinarily unlikely in view of the fact that he has not really changed in the last 12 months that he will be able to go back to work in the future because of his knees.”
21. In a medico-legal report dated 10 March 2009, Mr Doig noted that he had been treating Mr Beaumont for his knee problems since 1992 and provided a brief clinical summary. Mr Doig noted that although the bilateral total knee replacements seemed to have gone reasonably well apart from some stiffness, Mr Beaumont did not do all that well and continued to have problems. He noted that when he last saw Mr Beaumont in June 2008 he had been told that both knees “were still fairly sore and still fairly wobbly.”
22. Mr Doig expressed the opinion that Mr Beaumont’s accepted disabilities permanently affected his ability to undertake remunerative work in employment for which he had skills, experience or qualifications. He noted that Mr Beaumont’s most recent employment had been as a “handyman also helping to run a motel” and commented that the knee injuries and the fact that the knee replacement had not fully settled would affect his ability to do this kind of work.
23. Mr Doig added that Mr Beaumont’s knee problems alone would prevent him from working for more than 8 hours in any occupation involving any manual labour.
24. Mr Doig concluded by expressing the opinion that Mr Beaumont is unlikely to improve and that although further surgery may result in some increased stability of the knees it is unlikely to solve all the problems or improve his ability to work.
Medical evidence of Dr Mills
25. In a medico-legal report prepared at the request of the Repatriation Commission dated 3 December 2008, Dr Ross Mills, occupational physician, expressed the opinion that Mr Beaumont does have a significant incapacity as a result of his bilateral knee conditions and that the knee conditions were “sufficiently severe to significantly impact on Mr Beaumont‘s ability to perform his pre-injury duties as a handyman (including negotiation of stairs).”
26. Dr Mills concluded, however, that Mr Beaumont does have residual work capacity, at least, equal to that of a wheel chair bound person He considered that Mr Beaumont was fit for full-time employment with specific work restrictions but “unfit for his pre-injury duties” although fit to undergo rehabilitation or retraining.
27. I found Dr Mills’ opinion on this point somewhat confusing and unhelpful as he appears to have assessed Mr Beaumont in the context of a worker’s compensation claim rather than a claim under the VE Act.
28. When considering the capacity to undertake remunerative work within the meaning of paragraph 24(1)(b), section 28 of the VE Act mandates that I shall have regard only to the following matters:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease ,or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
29. I note in Re Forster and Repatriation Commission (1992) 28 ALD 450, where Deputy President Purvis observed at 461:
… It was rightly submitted by counsel that it was not open to the tribunal to go outside of the ambit of work experience of the veteran, nor to say that it was open to him to acquire another skill and thence obtain employment. The tribunal was to take the veteran as it found him so far as his vocation, trade, professional skills, qualifications and experience were concerned.
The regrettable situation whereby s 28 of the Act operates regardless of a need for retraining was identified. Rehabilitation was not in the minds of those who had been responsible for the drafting of the legislation. Thus, unlike the Commonwealth Compensation legislation, the Veterans Entitlements Act does not aid a veteran in obtaining new skills and experience and thence re-entering the work force.
Oral Evidence of Mr Beaumont
30. In oral evidence, Mr Beaumont stated that he left high school after third form and worked at odd jobs around town. In January 1974, at the age of 18 years, he joined the joined the Royal Australian Air Force (RAAF) and was posted to Darwin as a general hand. He was in Darwin following Cyclone Tracy and at that time his duties generally involved labouring, including clean-up and roof repair. After being a general hand for three to four years, he applied for a re-muster with the marine trade group but because of his limited high school education, he was unsuccessful. Twelve months later, he applied again and this time he was successful and was accepted into RAAF Marine Search and Rescue.
31. Mr Beaumont remained with Marine Search and Rescue until his discharge in 1994 with the rank of sergeant. He was promoted to sergeant in 1985 and during cross examination agreed that as a sergeant, he had some responsibility for supervision of more junior crew members but denied having formal responsibility for either their welfare or performance assessment, as this was managed by either the flight sergeant or the warrant officer. Mr Beaumont agreed that after being promoted, he attended a supervisor’s training course and also a coxswain’s training course with the navy where he learnt basic navigation skills and obtained a coxswains’ certificate.
32. Mr Beaumont stated that the crew of the rescue boat usually consisted of five people with two junior crew members, a sergeant, a flight sergeant and a warrant officer. He agreed that he was skilled at basic navigation and boat handling, but indicated that on-board communication was handled by the flight sergeant and documentation and report writing was generally the responsibility of the warrant officer.
33. Prior to leaving the RAAF, Mr Beaumont had already started to suffer problems with regard to his knees and following a left knee re-construction in 1993 he realised that he could no longer climb on and off boats and nor continue to work in the maritime field. This proved to be a significant factor in his request for discharge from the RAAF.
34. After leaving the RAAF, Mr Beaumont retrained in warehousing and learned to drive a forklift. He subsequently was employed as a forklift driver for several years, but experienced increasing difficulties with his knees
35. In 1999, Mr and Mrs Beaumont moved to Meribula in New South Wales and entered into a cleaning and caretaking agreement with the Owners Corporation in the block of holiday units in which they lived. This agreement provided remuneration in the amount of $10,928 per annum.
36. Mrs Beaumont was also elected as secretary and treasurer of the Council of the Owners Corporation and was paid an honorarium of $1607 per annum.
37. The unit complex comprised a two strorey building with nine two-bedroom units and did not have an elevator. The garden was of sufficient size to require a ride-on mower, but the terrain was not suitable so that a standard motor mower had to be used. Additionally, the property had one swimming pool.
38. In his oral evidence, Mr Beaumont explained that he was the designated caretaker and that his duties included wall maintenance, gardening, lawn-mowing, tree-pruning, swimming pool maintenance, barbecue maintenance and general repairs.
39. When asked how he would describe his employment since leaving school, Mr Beaumont said that he basically saw himself as a labourer involved in physical work.
Conclusion As to Paragraph 24(1)(b)
40. In my view, it is quite clear from the evidence before me that Mr Beaumont‘s educational background was quite limited and that his twenty-year experience in the RAAF occurred in a fairly specialised operational setting, that is, marine search and rescue. I am satisfied that at this time he did not obtain formal qualifications or experience that could easily be transferred to the civilian setting.
41. I accept that as a non-commissioned officer, Mr Beaumont would have had some supervisory and administrative experience but the evidence suggests that this was quite limited and that his role was directed mainly at operational activities which, in general, were fairly physically demanding. Furthermore, I note that he remained in the same role as sergeant for nine years with no further promotions.
42. When he left the RAAF, Mr Beaumont’s work as a forklift driver was again somewhat limited in scope and clearly also involved significant physical demands.
43. The kind of work Mr Beaumont was performing as a caretaker in the block of holiday units in which he and his wife resided was relatively unskilled in nature and was clearly of a highly physical nature.
44. After considering Mr Beaumont’s skills, qualifications and experience, I am satisfied that the kind of remunerative work he might reasonably undertake would be in the nature of manual labour and would, as such, require a significant physical capacity.
45. In my view, both Mr Beaumont’s evidence and the medical evidence clearly support a conclusion that the degree of impairment suffered by Mr Beaumont as a result of his knee problems alone has significantly reduced his capacity to undertake such remunerative work and that he could not work for more than 8 hours per week.
46. Accordingly, I am reasonably satisfied that the incapacity suffered by Mr Beaumont because of the war-caused injury to his knees is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
47. I therefore find that Mr Beaumont has satisfied the requirements of paragraph 24(1)(b) of the VE Act.
Does Mr Beaumont satisfy paragraph 24(1)(c) of the VE Act?
48. In Flentjar v Repatriation Commission (1997) 48 ALD 1, the Full Federal Court considered paragraph 24(1)(c) of the VE Act. Adapting Flentjar to the present case, the following questions must be asked:
1) What was the relevant remunerative work that Mr Beaumont was undertaking?;
2) Is Mr Beaumont, by reason of his war-caused injury or disease, or both, prevented from continuing to undertake that relevant form of work?;
3) If the answer to question 2 is “yes”, is Mr Beaumont’s incapacity from his war-caused knee condition the only factor preventing him from continuing to undertake that work?; and
4) If the answer to questions 2 and 3 is “yes”, is Mr Beaumont suffering a loss of wages or salary of his own account that he would not be suffering if he were free of his incapacity from his knee condition?
49. In my view, the evidence clearly supports a conclusion that Mr Beaumont stopped work as a caretaker and handyman in 2005 as a result of the incapacity he was suffering from the deterioration of the osteoarthritis in his right and left knees, which were accepted war-caused injuries, and for no other identified reason.
50. The fact that bilateral total knee replacements were necessary demonstrates that the incapacity in respect of his knees had been significant. Although an improvement in incapacity may have been expected after the operation, the medical evidence indicates that this did not occur and that Mr Beaumont continues to suffer significant incapacity from the condition of his knees.
51. Mr Beaumont claims that the continuing incapacity with regard to his knees prevents him from undertaking remunerative work that he was undertaking and, as a result, he is now suffering a loss of earnings.
52. In my view, the medical evidence as outlined above clearly supports a conclusion that Mr Beaumont’s incapacity resulting from his knee problems alone prevents him from performing the kind of work that he described as part of his caretaker and handyman duties.
53. The relevant question, however, is: “What was the remunerative work that Mr Beaumont was undertaking within the meaning of 24(1)( c) of the VE Act ?”.
54. I am mindful of the decision of the Full Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47 at 54 [36], where the Court stated that:
“The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past”.
55. As noted above, most of Mr Beaumont’s previous remunerative work was somewhat specialised and usually involved significant physical work. I am satisfied that his involvement with clerical, administrative or managerial activities was fairly limited.
56. Although Mr Beaumont claimed that from 1999 to 2005 he was the designated total caretaker, the Respondent raised some concerns about the nature of the caretaker agreement and relative roles played by Mr and Mrs Beaumont.
57. In his oral evidence, Mr Beaumont indicated that although his wife handled administrative and secretarial duties, he was solely responsible for the cleaning and maintenance duties which attracted the yearly payment of approximately $10,000. I accept Mr Beaumont’s evidence on this point.
Conclusion as to Paragraph 24(1)(c)
58. After having considered the evidence, I find that the relevant remunerative work that Mr Beaumont was undertaking within the meaning of s 24(1)(c) of the VE Act required a significant capacity for manual labour and that he was prevented from continuing to undertake that work because of the war-caused injuries to his knees.
59.
Furthermore, I am reasonably satisfied that the incapacity from the
war-caused injuries to his knees was the only factor that prevented him from continuing to undertake that kind of work.
60. In respect of Mr Beaumont loss of earnings, I note that there is some lack of clarity with regard to the caretaker agreement, but I accept Mr Beaumont’s evidence that prior to 2005 he earned approximately $10,000 per annum for his work. This conclusion is supported by copies of Mr Beaumont’s taxation assessments which show that in the years ending June 2006 and June 2007 his taxable income was reduced by approximately $10,000 per year when compared to previous years.
61. Accordingly, I am reasonably satisfied that Mr Beaumont suffers a loss of earnings on his own account and that he would not be suffering if he were free of the incapacity from his war-caused knee injuries.
62. It follows that Mr Beaumont satisfies paragraph 24(1)(c) of the VE Act.
Decision
63. For the reasons set out above, the reviewable decision is set aside and substituted with the decision that Mr Beaumont satisfies the provisions of section 24 of the VE Act and is entitled to a pension at the special rate with effect from 23 March 2007.
I certify that the sixty-three (63) preceding paragraphs are a true copy of the reasons for the decision herein of
Dr I Alexander, Member.Signed: …..………………[sgd]…………………………………
Associate
Dates of hearing: 27 May 2009 and 14 July 2009
Date of decision: 29 July 2009
Solicitor for the Applicant: Mr A Halstead, Bradfield Mills Solicitors
Counsel for the Respondent: Mr G Purcell
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