DOUGLAS MESSER and REPATRIATION COMMISSION
[2009] AATA 202
•24 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 202
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5564
VETERANS' APPEALS DIVISION ) Re DOUGLAS MESSER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss EA Shanahan, Member Date24 March 2009
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes its decision that Mr Messer qualifies for disability pension at the intermediate rate. (sgd) EA Shanahan
Member
VETERANS’ AFFAIRS – osteoarthrosis of knees – right ankle injury – disability pension at 90 percent of the general rate – application for intermediate rate – limited skills – decision set aside.
Veterans’ Entitlement Act 1986 s73, s23, s28
Chambers v Repatriation Commission [1994] FCA 1205
Chambers v Repatriation Commission [1995] FCAFC 1144
Fox v Repatriation Commission (1997) 45 ALD 317
REASONS FOR DECISION
24 March 2009 Miss EA Shanahan, Member 1. The Repatriation Commission (the Commission) made a decision dated 2 May 2006 that Mr Messer’s degree of incapacity was such that he was entitled to a disability pension at 70 per cent of the general rate but that he did not qualify for the special or intermediate rate of pension. This decision was affirmed by the Veterans’ Review Board (VRB) on 2 November 2007. Mr Messer has applied to the Administrative Appeals Tribunal for a review of the decision of the VRB.
2. The Commission has since conceded that Mr Messer’s level of incapacity is such that he is eligible for disability pension at 90 per cent of the general rate. Mr Messer seeks the intermediate rate of pension on the basis that his disabilities, for which the Commission has accepted liability, have worsened and limit him from working for more than 20 hours maximum per week. Those disabilities are:
·Degenerative changes in the right knee.
·Bilateral sensorineural hearing loss.
·Bilateral tinnitus.
·Localised osteoarthrosis of the right hand.
·Localised osteoarthrosis of the left knee.
·Collateral ligament injury and calcification right ankle.
3. Mr Messer was represented by Mr Turner, an advocate from the Returned and Services League (the RSL). The Commission was represented by Ms R Casamento, an advocate from 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 several documents:
·The T-documents – Exhibit R1
·Dr Pilbrow’s clinical notes – Exhibit R2
·Transcript of the Veterans’ Review Board hearing 4 December 2006 – Exhibit R3
·Transcript of the Veterans’ Review Board hearing dated 30 October 2007 – Exhibit R4
·The Murchison Medical Clinic notes regarding Mr Messer - Exhibit R5
·Dr Horsley’s report dated 28 May 2008 – Exhibit R6
·Supplementary report from Dr Horsley dated 5 August 2008 – Exhibit R7
·Employer records from Goulburn Valley Health – Exhibit R8
·Combined Impairment Assessment dated 24 June 2008 – Exhibit R9
·Prescription data concerning Mr Messer – Exhibit R10
·Employment Agreement between Mr Messer and Goulburn Valley Health – Exhibit R11
·Queensland WorkCover file regarding Mr Messer – Exhibit R12
·Updated clinical records of Murchison Medical Clinic – Exhibit R13
4. Mr Messer and Dr Horsley gave evidence at the hearing.
ISSUES
5. The only issue before the Tribunal is whether Mr Messer qualifies for disability pension at the intermediate rate.
BACKGROUND TO THE APPLICATION
6. Mr Messer served in the Royal Australian Air Force (RAAF) from 1966 until 1987 as an aircraft engineer/fitter. As such he has defence service under the Veterans’ Entitlement Act 1986 (the Act) . Following his discharge from the RAAF he worked as a storeman for two years; followed by three years as a sub-contractor; installing simple cooling systems known as a Breezemaker. For the next 12 months he was a doorman and a barman at a services club, rotating these duties with another employee. In approximately 1993 he shifted to Brisbane where he worked as a bus driver for five years. During this period he suffered a fall while entering a bus and injured his left shoulder. Investigation of his shoulder eventually resulted in a diagnosis of a crack facture of greater tuberosity and neck of the left humorous. He resigned from his position as a bus driver as part of a settlement reached after he had developed tension headaches related to his work. He also received a payment of $8,000.
7. On returning to Victoria to live, Mr Messer purchased a house in the Rye area and set about establishing a small business as a local handyman. His main activity was mowing lawns but he also performed minor house maintenance and repairs. He gradually built up his business to near full time, working 30 to 40 hours per week. As his workload increased he experienced increasing pain in both knees, the right more than the left; particularly when walking up and down hills, climbing ladders and kneeling and squatting. Occasionally his right knee locked. He also experienced pain in his right ankle after prolonged walking and pain in his right wrist when using heavy tools.
8. Mr Messer had sustained injuries to both knees, his right ankle, right wrist and neck during his defence service. The knee and ankle injuries were sustained while playing sport in the RAAF. In 1976 he fractured his right scaphoid bone in a motorcycle accident while on duty at Amberley in Queensland.
9. As his joint pains increased, from 2003 onward Mr Messer decreased his working hours gradually, until by late 2005 he was working 10 hours per week on average. He found the mowing of lawns on sloping properties provoked increasing knee pain.
10. In 1976 Mr Messer had undergone a right knee arthroscopy and lateral meniscectomy and in November 2005 a left knee arthroscopy and cartilage debridement. Both procedures where initially beneficial. X-rays in 2006 confirmed degenerative changes in both knees, an old fracture of the right fifth metacarpal and a normal right ankle joint with evidence of past trauma just above the tibiofibular syndesmosis.
11. Having reduced his work to 10 hours per week because of his knee pain, and as his home in Rye was built on a hill and had stairs, Mr Messer decided to cease work in the area. He sold his house, having already sold an investment property he owned in Queensland, and purchased a property in Murchison situated on three acres of land. His small business in Rye officially ceased in June 2006. Mr Messer said he could not afford to purchase property on the flat on the Mornington Peninsula. The property at Murchison was flat and the area around Murchison provided far greater educational advantages for his young daughter. Following the property transactions, Mr Messer had a balance of $100,000; $40,000 of which he placed in a superannuation fund, leaving him with $60,000 to cover repairs to the new home and meet living costs until he obtained some part-time work. He eventually did obtain some light maintenance work in the Murchison area by word of mouth. In March 2008 he obtained permanent part-time work at an initial rate of eight hours per fortnight with the Goulburn Valley Health Services. His duties included lawn mowing using a sit on lawn mower and very light maintenance work such as changing light globes, changing batteries in medical equipment, minor plastering and carpentry. His appointment was subject to a six month probationary term.
12. On four occasions during this period Mr Messer worked 20 to 21 hours per week when his senior maintenance colleague was on leave or was required to devote himself to certain other tasks. Mr Messer’s knee pain markedly increased during these occasions, necessitating increased medication. He performed the work as required because of the probation requirements and his fear that he might be dismissed if he did not meet the current demand.
13. In 2006 Dr S Pilbrow, assessed Mr Messer’s work capacity at 20 hours per week in clerical duties, 5 hours per week in manual duties and 12 hours per week as a driver. Mr P Scott, general surgeon, considered Mr Messer capable of full-time light duties with restrictions and 20 hours per week heavier work with more rigid restrictions. Dr Hunter, a rehabilitation physician, opined that Mr Messer could work full time at clerical duties and 10 to 19 hours per week at light manual tasks. Dr R Horsley, occupational health physician, saw and assessed Mr Messer in May 2008. She identified several disabilities, for which the Commission had not accepted liability, namely cervical spondylosis, bilateral hip osteoarthrosis, and bilateral shoulder dysfunction that would impact on Mr Messer’s working capacity. However, her view was that his degenerative osteoarthrosis of both knees was the prime factor limiting his work capacity to below 20 hours per week.
EVIDENCE BEFORE THE TRIBUNAL
Mr Messer
14. Mr Messer’s evidence in chief has been summarised above.Under cross‑examination, Ms Casamento obtained detailed descriptions of Mr Messer’s handyman and gardening activities and the tools he used, while living at Rye. The latter were a motor-mower, a whipper snipper and a leaf blower, all used in lawn care. The vast bulk of his work was lawn care of holiday homes, permanent homes and a small block of rental flats. Mr Messer occasionally performed light maintenance work such as fixing a gate, cleaning gutters, removing rubbish, cutting up fallen trees, repairing steps and the like. These were all documented in his invoice books, photocopies of which had been provided from the VRB hearing and which were not in chronological order. Both the lawn mowing and property maintenance on a friend’s Flinders hobby farm where longstanding regular commitments. The Flinders property maintenance included lawn care and the feeding of farm animals, hay being distributed by tractor. Minor amounts of painting using a long-handled roller where performed.
15. Mr Messer was also closely questioned on the work he performed for Goulburn Valley Health Services; which again was mainly lawn care and a lesser amount of light maintenance. Mr Messer’s original terms of employment were said to be for eight hours per fortnight but Mr Messer agreed that he had worked longer hours in June 2008, when his fellow full-time maintenance worker was on leave or required elsewhere. Mr Messer had accepted the need to work these longer hours but only coped by increasing his level of medication in the form of long and short‑acting Panadol preparations and Voltaren. He said he was taking 10 Panadol or its derivatives per day.
16. Ms Casamento addressed the entries in Dr Pilbrow’s clinical notes relating to episodes of shoulder and back pain. Mr Messer could not recall an episode of left shoulder pain in 2002 and only vaguely an episode of right shoulder pain in 2006. He denied any current pain. The back and hip pain mentioned by Dr Horsley in her report had resolved, Mr Messer said since he had purchased a new bed in early 2008. Mr Messer was confused as to the origin of his back and hip area pain, as the specialist he had seen in Shepparton had suggested the pains were referred either from a stress fracture in the back or from fractured ribs that he had sustained in early 2008.
Dr Horsley
17. Dr Robyn Horsley, in her report of 28 May 2008 (Exhibit R6), fully assessed Mr Messer’s accepted and rejected disabilities and found the most severe to be the osteoarthritic changes in his knees. This disability had the major impact on his work capacity. Osteoarthritic changes also affected his right hand such that he should avoid certain lifting and movements. No significant disability was present in the right or left ankles, mild cervical spondylosis was demonstrated along with osteoarthrosis of both hips and shoulder dysfunction (the cervical symptoms, hips and shoulder dysfunction are non-accepted disabilities). These non-accepted disabilities were considered to impact on his working capacity but the right and left knee conditions were the major disabilities. Dr Horsley was of the opinion that if Mr Messer worked for less than 20 hours per week his rejected disabilities would be fully accommodated.
18. In her evidence before the Tribunal Dr Horsley enlarged upon her written report. She said the reduction in range of movement in Mr Messer’s shoulders was mild, he was usually pain free at rest with respect to his shoulders and any residual discomfort after use of his shoulders readily responded to Panadol. She agreed with Ms Casamento that Mr Messer took more Panadol than advised or than was safe. However, it was Dr Horsley’s experience that patients frequently took up to 20 Panadol per day.
19. Dr Horsley had difficulty identifying the source of pain or discomfort in Mr Messer’s back; that is, whether it originated in the lumbar spine and radiated to the hips or originated in the hips. Whatever the cause this pain and discomfort had greatly lessened in the past four to five years. Examination had revealed mild reduction in the range of movement of the hips and the lumbar spine. Dr Horsley did not believe Mr Messer’s hip pathology would prevent him from occasionally climbing ladders, although the knee condition would and therefore climbing ladders was inadvisable. Dr Horsley had difficulty providing a prognosis or assessment regarding Mr Messer’s knees and hips, as she had not had any access to his x-rays. She attributed the back pain to mechanical factors.
20. In answer to Ms Casamento’s questions regarding the contribution of Mr Messer’s lumbar spine and possible hip osteoarthrosis to his work capacity, Dr Horsley said:
I think his knees are the big problem there, because he is going over uneven surfaces, he is going up inclines, and he is walking long distances.
…
…he would stop with his knees before it was a problem with his shoulders, his back and his hips.
…But he has only got 200 metres of walking with his knees
whereas she estimated he had a walking tolerance of 30 to 60 minutes in terms of his mechanical back pain and 15 to 20 minutes of pushing a lawn mower, also in terms of his back pain (Transcript, 31 October 2008, p22-23).
21. Dr Horsley considered the low grade maintenance work Mr Messer was undertaking for Goulburn Valley Health Services to be within his capacity.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
The T-Documents
22. The T-documents contain the decisions of the Veterans’ Review Board, the written opinions of Mr P Scott, Dr S Pilbrow and Dr R Hunter referred to above and Mr Messer’s income tax returns dating back to 2002, which show a gradual decrease in his income commencing in 2003.
Clinical Notes of Dr Pilbrow
23. These notes contain frequent entries relating to Mr Messer’s knee pain and the reports from the orthopaedic surgeon, Mr Hamilton, regarding the treatment of Mr Messer’s right knee. In early 2002 Mr Messer complained of sharp pain in his left shoulder at the extremes of abduction (graded at 150o). X-ray and ultrasound at that time showed the old fracture of his left clavicle and some irregularities in the greater tuberosity of the humerus. The rotator cuff was intact. In February 2006 an ultrasound of the right shoulder was performed after Mr Messer had complained of right shoulder pain. The ultrasound showed a slight irregularity of the supraspinatus muscle insertion but the rotator cuff was otherwise normal. The right shoulder pain rapidly abated with the use of Voltaren.
VRB Hearings of 4 December 2006 and 30 October 2007
24. Transcripts of these hearings do not provide any new evidence other than the detailed consideration of Mr Messer’s tax returns showing decreasing income from 2003 onwards.
Clinical Notes of the Murchison Medical Centre
25. Most of Mr Messer’s attendances at the Murchison Medical Centre were for monitoring of his blood pressure and serum lipid levels. He quite frequently complained of knee pain and attended for repeat prescriptions for Panadol, Panadol derivative and lipid lowering medication. An x-ray of the right hip was conducted on 9 February 2007 and showed what was described as a bony spur measuring nine centimetres by seven millimetres above the right hip. The right hip joint itself was normal. Mr Messer was referred to Mr Horton, orthopaedic surgeon, for an opinion on 29 March 2007. Mr Horton regarded this area of bone abnormality as soft tissue dystrophic calcification, probably due to past trauma. The area of calcification was regarded as being asymptomatic. Mr Horton did not detect any abnormalities in the right hip other than mild restriction of internal rotation and flexion. This he believed could well be related to past trauma as evidenced on x-ray. Mr Horton also gave an opinion regarding Mr Messer’s back pain which he diagnosed as mechanical back pain possibly due to a disc problem and for this reason he had a CT scan of the lumbar spine performed. This showed L5-S1 disc degeneration.
Mr Messer’s Employment Record with Goulburn Valley Health Services
26. These records confirm that Mr Messer worked between four to eight hours per week; except for a four week period in June 2008, when on each of the first three weeks he worked 21 hours per week and 21.25 hours in the fourth week.
Department of Veterans’ Affairs Pharmaceuticals Dispensed to Mr Messer
27. This report included the drugs dispensed under the Pharmaceutical Benefits Scheme as well as those dispensed through DVA. The DVA record from 5 March 2004 to 28 August 2008 records the dispensing of Diclofenac, which is a non‑steroidal anti‑inflammatory drug, paracetamol and also Arthro-aid, a long-acting paracetamol derivative. The PBS records also show the dispensed amounts and frequency of dispensation of paracetamol, Panadol Osteo and Parace, a slow release form of Panadol.
Workcover Queensland Compensation File relating to Mr Messer
28. The data contained relates to a fall suffered by Mr Messer in the course of his work. He injured his left shoulder. This was eventually diagnosed as a crack fracture of the left greater tuberosity and neck of the humerus. The Tribunal is of the opinion that the more recently reported ultrasound changes in the left shoulder probably relate to this past injury.
Employment Agreement with Goulburn Valley Health
29. This document records the conditions and hours of employment as a permanent part-time handy person working eight hours per fortnight to a maximum of 76 hours per fortnight.
RELEVANT LEGISLATION
30. Section 73 of the Act provides that disability pension assessment provisions, including s 23, apply to the assessment of pension under Part IV of the Act, which deals with pensions for members of the Defence Force. These are to be dealt with in the same manner as pensions under Part II of the Act. Section 73 also provides that the term war-caused is to be read as defence-caused and veteran is to be read as member of the Forces (s 73(2)(a) and s 73(2((c)).
31. Section 23 of the Act relates to qualifications for payment of a disability pension at the intermediate rate:
(1)This section applies to a veteran if:
…
(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’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:
…
(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.
32. Section 28 of the Act is concerned with the assessment of the types of remunerative work an applicant may undertake and the effect of Defence service‑caused disease or injury on the diminution of the capacity for such remunerative activity. Section 28(a),(b) and (c):
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(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).
SUBMISSIONS
33. Mr Turner acknowledged that the respondent had conceded that Mr Messer was entitled to a pension at 90 per cent of the general rate from the time of his application of 15 December 2005.
34. Mr Turner also acknowledged that Mr Messer agreed that he had worked for greater than 20 hours per week in the month of June 2008. However, Mr Turner submitted that Mr Messer had only exceeded 20 hours by one hour on three occasions and by one and a quarter hours on the fourth occasion without making any adjustment for rest breaks taken during these periods. Mr Turner submitted that working such hours was not Mr Messer’s normal work pattern and was done under the threat of possible dismissal and therefore performed under duress.
35. Based on Dr Horsley’s evidence, Mr Turner argued that Mr Messer’s defence‑caused disabilities were the prime reason for his incapacity for remunerative work, other than on a part time or intermittent basis, and as such he satisfied the s 23 requirements for receipt of payment of disability pension at the intermediate rate.
36. Ms Casamento summarised the evidence before the Tribunal. She contended that Mr Messer was an unreliable witness, as evidenced by his conflicting statement to Dr Horsley and his evidence before the Tribunal regarding his use and dosage of analgesics. She also noted that despite his evidence that he would not repeat the longer hours he had worked in June, he had allegedly done so for one or two weeks in July or August 2008.
37. Ms Casamento conceded that in the consideration of s 28(b), Mr Messer’s skills and experience were best suited to the position he now holds at Goulburn Valley Health Services; and the work he performed there is the kind of work he might reasonably be expected to undertake. As the normal hours worked in this position were 38 hours per week, Ms Casamento contended that the test to be applied was not a 20 hour per week work test but at the most 19 hours per week.
38. Ms Casamento regarded Mr Messer’s evidence relating to his analgesic medication as contradictory, since he told Dr Horsley he took up to eight Panadol per day in May 2008 and told the Tribunal he took six Panadol-Osteo per day prior to June 2008, doubling this dose when he worked longer hours in that month. Ms Casamento submitted that Mr Messer should be familiar with each preparation, its dosage and its side-effects.
39. Ms Casamento had analysed DVA’s and the Pharmaceutical Benefits records with respect to the dispensing to Mr Messer of Voltaren, Panadol-Osteo and Arthro‑Aid. Having done so, she submitted that there was insufficient evidence for the Tribunal to be reasonably satisfied that Mr Messer had increased or doubled his analgesia intake to cope with the longer hours he worked in June and for a further week in July or August.
40. Ms Casamento argued that on the evidence of Dr Horsley, Mr Messer suffers from lumbar spondylosis and some degenerative changes in the hips, the symptoms of which overlap and could not be separated. Mr Messer had given evidence that his back and hip pain had resolved since he acquired a new bed but his evidence as to the date of purchase of the bed was conflicting. Dr Horsley had been asked if the pain in Mr Messer’s hips and spine would affect his ability to mow lawns, if he was free of his knee pathology. Dr Horsley had said I think his back would stop him before anything else (Transcript, 31 October 2008, p23). Based on this evidence, Ms Casamento contended that s 23(1)(c) of the Act was not satisfied.
TRIBUNAL’S DELIBERATIONS
41. Mr Messer has made a claim for an increase in the rate of pension under s 15 of the Act. He is 58 years old and had 21 years of defence service and is now in receipt of pension at 90 per cent of the general rate. In accordance with s 73 of the Act, s 23 is attracted. Mr Messer satisfies the requirements of 23(1)(aa), (aab) and 23(a)(i).
42. Section 28 of the Act requires the Tribunal to identify the following:
(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).
43. Mr Messer joined the Royal Australian Air force directly from school at the age of 16 and worked as an aircraft engineer/fitter. In the last few years of his service his duties were clerical and related to the purchase and receipt of aeroplane equipment and parts. He has no computer or book-keeping skills.
44. Following his discharge from the RAAF Mr Messer worked as a storeman for two years, an installer of simple cooling devices for three years and as a service club doorman/barman for 12 months.
45. Following approximately five years of service as a bus driver in Brisbane, he established a handyman service on the Mornington Peninsula in approximately 1998. This business had been decreasing over a period of three years to the level where Mr Messer worked on average ten hours per week in 2005 and early 2006 and it ceased operating at the end of June 2006. Mr Messer was effectively unemployed, although seeking work from April 2006 to March 2008. Since 23 March 2008 he has been employed nominally for 8 hours per fortnight but working more regularly at 14 to 16 hours per fortnight.
46. Mr Messer’s current employment as a handyman is employment which he might reasonably undertake. The parties agreed that this was the appropriate remunerative work that Mr Messer could undertake (s 28(b)).
47. According to Dr Horsley and Dr Robin Hunter, Mr Messer’s physical impairments prevent him from working more than 19 hours per week.
48. Mr Messer’s bilateral knee osteoarthrosis (for which the Commission has accepted liability) is of such severity that it alone prevents him from working otherwise than on a part-time basis or intermittently. Although Dr Horsley had identified a number of conditions contributing to his reduced capacity for work, namely lumbar spondylosis, osteoarthrosis of the hips and bilateral shoulder rotator dysfunction, these did not impact on his ability to work up to 19 hours per week. In her evidence before the Tribunal, Dr Horsley said she could not clearly separate the right hip pain Mr Messer had previously complained of from a primary hip pathology or pain secondary to degenerative lumbar spine disease. It appears she did not have the benefit of hip x-rays, although she did have the CT lumbar spine report showing L5-S1 degenerative disc changes. She noted a report from Mr Horton, an orthopaedic surgeon, dated 29 March 2007, wherein he referred to previous x-rays performed on 9 February 2007 that showed no changes in the right hip itself but revealed the presence of a nine centimetre by seven millimetre area of heterotopic or dystrophic calcification placed one centimetre above the hip joint. Dr Horton had attributed the restriction in right hip movement that he detected to the presence of this bar of calcified tissue. He postulated that the calcification was due to past trauma.
49. The only major trauma reported in the documentation before the Tribunal was that caused by a motorcycle accident in which Mr Messer was involved whilst in the RAAF. It may well be that, if this is shown to be the case, the pathology adjacent to his right hip was also defence-caused.
50. In her evidence before the Tribunal, Dr Horsley expanded on her written report of May 2008. While Mr Messer had other non-accepted conditions impacting on his work capacity, she was of the opinion that his knee pathology limited his walking and pushing (as in lawn mowing) time to 15 minutes and his walking distance without pushing to 200 metres. Were he free of the knee pathology, the lumbar spondylosis would limit him to walking for 30 to 60 minutes and the hip pathology alone would be associated with a greater walking time or distance.
51. The Tribunal interprets Dr Horsley’s oral evidence as clarifying the contribution of Mr Messer’s non-accepted disabilities to his reduced work capacity; and her evidence clearly indicates that his knee pathology is the substantial cause of his inability to engage in other than part-time work and of his not being able to continue in the full time remunerative work that he was previously undertaking.
52. The considerations under s 23(1)(b) attract s 28 of the Act and it is established that it is only 23(1)(b) or 24(1)(b) that does so. This was the finding of the Full Federal Court in Chambers v Repatriation Commission and stressed by Kiefel J in Fox v Repatriation Commission (1997) 45 ALD 317.
53. The Tribunal finds that Mr Messer satisfies the requirement of s 23(1)(b). However, should it be wrong in so finding, the Tribunal has considered the provisions of s 23(3)(b). Section 23(3)(b) relates to the situation where the veteran’s incapacity is the substantial cause of his or her inability to obtain remunerative work and requires that the veteran has been genuinely seeking to engage in remunerative work. It is clear from Dr Horsley’s evidence that Mr Messer’s accepted bilateral osteoarthrosis of the hips is the substantial cause of his incapacity. Mr Messer has sought work, initially by making it known he was available, then by performing voluntary work as a handyman and, as of March 23 2008, by obtaining part-time work at Goulburn Valley Health Services.
54. On three or four occasions during Mr Messer’s probationary period at Goulburn Valley Health Services he worked slightly more than 20 hours per week, when his full-time handyman colleague was on leave or fully engaged in other work. During these periods Mr Messer said he coped by increasing his medication beyond advised levels and that he worked these hours because he was on probation and feared his appointment would not be confirmed if he refused. The Tribunal accepts his evidence and the reason for his actions.
55. On Dr Horsley’s evidence, Mr Messer’s bilateral knee osteoarthrosis alone prevents him from working at the same full-time capacity in work he previously undertook. In addressing the second limb of 23(1)(c), the evidence before the Tribunal indicates Mr Messer’s earnings decreased progressively from 2003 to 2006. When working full time in his own business his annual income was $30,000.00 or more. In the three and a half months prior to the hearing, while working with Goulburn Valley Health Services he earned approximately $3,800.00 or $242.00 per week. This equates to roughly $12,600.00 per annum. He has suffered a loss of salary or wages or of earnings on his own account that he would not have suffered were he free from the osteoarthrosis of both knees.
56. Therefore, the Tribunal finds that Mr Messer satisfies all the requirements of s 23 of the Act and is eligible for payment of the disability pension at the intermediate rate.
I certify that the fifty‑six [56] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss EA Shanahan, Member
Signed: Olympia Sarrinikolaou
ClerkDate/s of Hearing 29 August 2008 and 31 October 2008
Date of Decision 24 March 2009
Advocate for the Applicant Mr B Turner, Bayside Veterans’ CentreAdvocate for the Respondent Ms R Casamento, Department of Veterans’ Affairs
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