Ducat and Repatriation Commission (Veterans' entitlements)

[2017] AATA 1061

Ducat and Repatriation Commission (Veterans' entitlements) [2017] AATA 1061 (6 July 2017)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2015/0518

Re:Peter Ducat

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Ms N Isenberg, Senior Member

Date:6 July 2017

Place:Sydney

The decision under review is set aside and, in substitution, disability pension is payable to the Applicant as follows:

·90% of the General Rate with effect from 25 November 2010 up to 14 May 2013; and

·the Intermediate Rate with effect from 15 May 2013. 

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

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS AFFAIRS — disability pension — application for increase in pension – intermediate rate  of pension – whether veteran’s defence-caused incapacity renders the Applicant incapable of undertaking remunerative work other than on a part-time basis or intermittently – whether veteran capable of undertaking work for 20 or more hours per week – decision under review set aside and substituted

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 23, 28

CASES

Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1Repatriation Commission v Buckingham [1996] FCA 1218

Repatriation Commission v Butcher [2007] FCAFC 36

REASONS FOR DECISION

Ms N Isenberg, Senior Member

1. The Applicant, Peter Ducat, served for 20 years in the Royal Australian Air Force as an engine fitter.  He has had a number of medical conditions accepted as related to his service:

   ·lumbar spondylosis;

   ·labral tear of the right shoulder;

   ·cervical spondylosis; and

   ·tinnitus.

2. Pension for these conditions was initially assessed pension at 50% of general rate, but, on review by the Veterans’ Review Board, was increased to 90% with effect from 25 November 2010.  The Applicant sought an increase in his pension in respect of those conditions; in particular, he sought the Special Rate of pension.  He now seeks review by this Tribunal.  Although he had initially sought the Special Rate of pension, that application was withdrawn and his application for review sought only the Intermediate Rate.

3. Since the decision under review the applicant has had two further conditions accepted as service-related: osteoarthritis affecting both hips, and depressive disorder.  Acceptance of those conditions resulted in an increase in his pension to 100% of the General Rate with effect from 20 May 2014.

   LEGISLATION

   Criteria for the Intermediate Rate 

4. The criteria for the Intermediate Rate are set out in s 23 of the Veterans’ Entitlement Act 1986 (Cth) (VEA).  That section provides, in part:

   Intermediate 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 defence-caused injury or defence-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)    ...; and

   (b)the veteran's incapacity from defence-caused injury or defence-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 defence-caused injury or defence-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

   (d)....

   (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 defence-caused injury or defence-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 defence-caused injury or defence-caused disease, or both;

   (ii)    if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

   (iii)    if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that defence-caused injury or defence-caused disease, or both; and

   ...

5. Section 28 of the VEA , which sets out the matters to which regard must be had in considering whether s 23(1)(b) applies, states:

   Capacity to undertake remunerative work

   In determining, for the purposes of paragraph 23(1)(b) ... whether a veteran who is incapacitated from defence-caused injury or defence-caused disease, or both, is incapable of undertaking remunerative work, ... the [decision-maker] 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).

   APPLICANT’S EVIDENCE

6. The Applicant gave evidence that he served in the Royal Australian Air Force (RAAF), where he trained as an Engine Fitter, from 4 December 1979 to 10 December 1999, when he was medically discharged after he required spinal surgery.  He said he spent 18 months “in a chair” because he was unable to walk.  He was granted the Disability Support Pension (DSP) in 2003.

7. On 20 October 2003 he commenced work for a logistics company, which was contracted to the RAAF.  He worked as a Disposal Assessor which involved going to shipping containers and retrieving boxes of parts from F18 aircraft that were to be disposed of, and then recording the parts in a database, using a defence-specific program on which he was trained.  Approximately 60% of the time, he said, was in the shipping container shed, and the rest was in an office.  He ceased working in this position on 19 April 2004.

8. On 1 November 2004 he started working in another position for the logistics company, this time as a Publication Manager.  That role involved updating about 172 different manuals with amendments; it was a technical job that relied on his knowledge of aircraft fitting and his skills in aircraft mechanical engineering.  The job was office-based but involved “a lot of physical moving around” on foot to different parts of the building to retrieve manuals and boxes of paper containing the amendments – about 50% of the time.  Because he had difficulty sitting at a desk for more than about 20 minutes due to his neck and back problems, he used an orthopaedic chair.  He was not a proficient typist – he used two fingers – and he has not improved.  He does not correspond by email, nor use social media, but can upload photographs.  He ceased working in this position on 16 December 2005, according to his tendered employment record, although the applicant claimed it was on 28 February 2006. 

9. In about 2006/7 he worked for a riding school, mending fences and undertaking other maintenance/repair and demolition work for about 2 hours a week.  He was experiencing pain in his neck, shoulders and lower back.  The work ended when all the demolition work was completed and the manager’s wife engaged others for any ongoing work.

10. From March 2008 to May 2010, he worked 20-40 hours a week at a leisure centre as a pool attendant, lifeguard, and maintenance manager.  His duties entailed supervision of up to 1200 people, including rescue duties if necessary.  He was also required to repair broken lane ropes, tensioners, and other pool equipment.  His role included the maintenance of chlorine levels in both the pools.  In doing so, he would carry buckets of chlorine which weighed 10 kgs.

11. In November 2009, while the Applicant was working at the pool, a sky-larking pool patron crash-tackled him which resulted in his hitting the floor twice.  As a result, he was dizzy and sore. He said that after blacking out twice since that day, and having a few ‘grey outs’, he decided he was unsafe to stay in the position and resigned. 

12. He ‘registered’ with Bunnings and in mid-2009 and again in mid-2010 worked as a casual on two occasions as an assistant for their annual stocktake.  

13. The Applicant applied to have the DSP reinstated in 2010.  Centrelink referred him to the local Disability Employment Service and he attended appointments there.

14. In 2010 and 2011, to “increase [his] personal skill set and self-worth”, he enrolled in TAFE and learnt advanced welding techniques.  Classes were held one night per week for 4 hours.  Then from 2012 to 2014 he enrolled in furniture and cabinet-making certificates 1, 2 and 3.  Classes were two nights per week for 3.5 hours each night.

15. In approximately 2009/10 he set up a business, ‘Petducs Odd Jobs’, with an ABN to try and supplement his DSP and to get out of post-divorce debt.  In this capacity he undertook small pieces of repair work for a fee, for various local customers. 

16. Storage King at Raymond Terrace became a regular customer to his business, because the manager learned he was good at fixing things.  He undertook maintenance and repair work for the company as required, repairing, for example, damaged sheds.  He would hang doors and do trailer repairs and deliveries of boxes.  The work in total usually took about 2-4 hours per week and was performed as required.  In cross-examination, he said he had worked for the company for the three years prior to his shoulder surgery.  He said he did some removalist duties 2 or 3 times a month, for up to 4 hours at a time.  It was more efficient, he said, to do 4 hours straight. 

17. The Applicant was unable to take on larger jobs, because of his limited capacity; he was unable to carry out some jobs alone.  For heavier jobs he would obtain assistance from family members.  On other occasions, he was accompanied by his carer who drove him to the jobs, although in his evidence, he said he had no problem driving.  His carer also assisted in other ways, for example, assisting him in taking items such as tool boxes and welding equipment on and off the vehicle. 

18. He said he prefers to show people how to do tasks, rather than doing the work himself.  He said he made an error in telling Dr Robin Chase, occupational physician, who had examined the Applicant on behalf of the Respondent, that he does not do the work himself.  He sometimes draws a sketch for someone to build.  He has designed a pivoting frame for moving cars for gearbox repairs.

19. At the suggestion of the manager at Storage King, in early 2016, the Applicant arranged a business card.  There he described himself as ‘photographer’.  He said that he had photographed physical culture competitions since 1983, but could not continue after 2015, because he could no longer hold the camera.  Use of a tripod was not possible if the girls were, for example, on the floor doing the splits.  He would hand out the card in the street to people who he thought might be good subjects for photographs, and had a couple of people take up the suggestion and travelled to the studio in Gosford to have a photographic session.  He also listed on the business card other types of work he could undertake: basic gardening, trailer welding and wiring repairs, gate and fence repairs, and fiber (sic) glassing repairs. 

20. In late 2016 he did a job removing irrigation hoses which were about 300 metres long.  He managed the task by cutting the hoses into smaller pieces.  He did about two-thirds of the job, but it was for only 2 days for 4 hours per day.

21. All work has ceased from 10 March 2017 when he underwent a right shoulder reconstruction from which he is still recovering.  He regards himself as “fully retired”.

22. As to his neck condition, the Applicant said he has four damaged discs which he attributed to working inside Mirage fighter jet engine afterburners.  He said his cervical spondylosis has deteriorated and no surgeon is willing to consider operating on his neck, he said because there is a minimal chance of a successful outcome, compared to “the very high chance of ending up in a wheelchair”.  He experiences ‘snaps’ or pain spikes.  These cause his neck to suddenly spasm, often resulting in verbal outbursts and clenching motions of his hands.  Food can get stuck in his throat.  He can experience them as frequently as 3 in 20 minutes.  Before his shoulder operation he would drop things and he attributes this to his neck, rather than his shoulder condition. 

23. As to his back, he has a dull chronic pain which makes sitting, standing or walking for extended periods, difficult.

24. The Applicant said he spends his days trying to read, resting, feeding the birds and chickens and cleaning up his shed.  In the last 5-6 years he has made one laminated timber kayak paddle.  He has modified a trailer he had had custom-built.  About 2 months ago he tried working with a mate in the shed, but adverse weather conditions prevented successful completion of the task.  He worked at the task for only about 2 hours. 

25. He said he last experienced a blackout in 2012 and has not had one since his operation in 2013 when nerve bundles on either side of his neck were cauterised. 

26. The Applicant currently takes Lyrica 25 mgs.  He previously had been prescribed a higher dose but he became vague, irritable and forgetful.

27. He was referred to the history he gave to Dr Chase. The Applicant reportedly told Dr Chase he ceased work in 2013 but the Applicant said that his medication made him vague about dates.  He said that, at the appointment in July 2016, Dr Chase did not examine his hands, so he does not know how the doctor could make observations about his hands showing signs of being engaged in manual work. 

    CONSIDERATION

28. The VEA requires that the material before the Tribunal must satisfy a number of tests; if any one of the criteria is not met, the applicant will not be eligible for payment of pension at the Intermediate rate.  There is no discretion in this regard.  Firstly, the Applicant's degree of incapacity from defence-caused conditions must be at least 70% of the General Rate: s 23(1)(a) of the VEA.  There was no dispute that the Applicant met this test. 

29. Next, for a person aged under 65 as in this case, s 23(1)(b) of the VEA requires that an Applicant's incapacity from service-caused conditions must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 20 hours a week, or, 50% of what is ordinarily worked in a particular kind of work.  This test requires an examination of the veteran’s incapacity from his service-caused conditions to determine whether or not that incapacity is such, of itself alone, to render him incapable of undertaking remunerative work for the relevant duration. This does not require an examination of other causes that might render him unable to undertake remunerative work, but merely whether the service-caused disabilities, on their own, are sufficient to render him incapable of undertaking such work.  Section 28 of the VEA provides assistance in determining whether a veteran is incapable of undertaking remunerative work by setting out the only matters that regard can be had to in deciding that question. 

30. Then, the Tribunal must determine if, because of his accepted disabilities alone, the Applicant is prevented from continuing to undertake the remunerative work for more than 50% of the time ordinarily worked by persons engaged in work of the kind he had been undertaking on a full-time basis, or to work for more than 20 hours per week

    What are the Applicant’s trade and professional skills, qualifications and experience?

31. Section 23(1)(b) of the VEA requires an examination of the Applicant’s capacity to undertake remunerative work which he is physically and mentally able to carry out. The test is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience: Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219 (Chambers), where the Court said at 235:

    ... A person's skills are not confined to those acquired informal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.

32. The Applicant is a qualified aircraft fitter.  He worked in logistics in two separate roles for about 2 years.  He worked for about 18 months at a leisure centre as a pool attendant, lifeguard, and maintenance manager.  He has worked in his own business doing odd jobs, including furniture removals, welding, fibre-glassing, and similar tasks.

    What kinds of remunerative work might a person with the Applicant’s skills, qualifications and experience reasonably undertake?

33. The test requires an examination of all of the different kinds of work that a hypothetical person with the relevant skills and experience of the Applicant might reasonably undertake: Repatriation Commission v Buckingham [1996] FCA 1218 at [36]. The term "remunerative work" is broadly defined to include "any remunerative activity": s 5Q(1) VEA.

34. In Repatriation Commission v Butcher [2007] FCAFC 36 at [7] the Full Court said:

    7It is settled law that the subsection requires consideration of ‘remunerative work’ by having regard not to particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality...

35. I find that the applicant’s more specialised skill of aircraft fitting is unlikely to be reasonably open to him, given his orthopaedic limitations.  He has, however, many trade-related skills, for example welding, furniture and cabinet-making and fibre-glassing.  He also had some clerical capacity, although he has poor computer skills, and has the need to move about.  Those skills were limited to work for which he was specifically trained; also his work in that technical field is now over 10 years out of date.  He can undertake odd jobs, including light furniture removals and maintenance work.  I consider that the broad description of “maintenance work” adequately describes the kinds of remunerative work that a person with the Applicant’s skills, qualifications and experience might reasonably undertake.

1. Dr Chase considered that the Applicant could work as a teacher.  While this may the case, I do not accept that the Applicant could undertake such a role without further vocational training.  To require him to do so would be unreasonable: per Chambers at 237.

   To what degree do the Applicant’s service-caused conditions reduce his capacity to undertake the kinds of remunerative work referred to above?

2. In considering this question the Tribunal must disregard all of an Applicant’s non-accepted disabilities or any other factors that might have an impact on his capacity to undertake those kinds of remunerative work.  I must decide whether the Applicant’s incapacity from his service-caused conditions alone prevent him from working more than 20 hours a week (or 50% of what is ordinarily worked in a particular kind of work) in maintenance work.

3. The Respondent contended that the Applicant is capable of working full time, or at least more than 20 hours per week, although this does not appear to be supported by the evidence of Dr Chase in his report dated 20 July 2016, where he said that the applicant can work between 8 and 20 hours per week.  Further, Dr Chase considered the applicant’s work restrictions are that he cannot engage in heavy manual work.  Dr Thomas Rosenthal, an occupational physician, wrote in a report dated 19 September 2016 that the applicant could work 3-4 hours a day in a clerical position, 5 days a week, provided he could alternate sitting and standing and have rest breaks.  He considered that the Applicant could work 8-20 hours per week in an office based situation but observed that the applicant’s shooting pains could impact in his productivity. 

4. Although Dr Rosenthal did not take a history that the Applicant had been doing maintenance type work, I find that the medical evidence is otherwise consistent and find the Applicant’s accepted disabilities prevent the Applicant from working more than 20 hours per week undertaking maintenance work.    

   Is the Applicant prevented from continuing to undertake maintenance work, causing loss of salary, wages or earnings

5. The Full Federal Court in Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1 at 2, identified the following questions to be asked in making this determination (albeit in relation to s 24(1)(c)):

   1What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?

   2Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

   3If 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?

   4If 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?

6. Questions 1 and 2 have essentially been addressed above.  The real issue remains whether Mr Ducat’s accepted disabilities are the only factor preventing him from continuing to undertake maintenance work for more than 20 hours per week. 

7. Dr Ross Mellick, consultant neurologist, said in a report dated 11 April 2016 that the applicant told him he stopped work as a lifeguard because of blackouts.  The first occurred in 2009 and the second, in May 2013.  The blackouts and the ‘grey outs’ (which appear to refer to dizziness) have been extensively investigated by specialists in a variety of fields, without resolution.  The applicant also gave a history to Dr Rosenthal that he stopped work (albeit in 2010) because of blackouts.  Dr Chase reported that the applicant told him that it was the syncopal (blackouts) episodes that stopped him working.  However, on the applicant’s evidence, he has not experienced such an episode since 2012.  His evidence suggested that, following his 2013 operation cauterising nerve bundles on either side of his neck, he felt that they were in the past.  As the Applicant has not had a syncopal episode in recent years I do not consider these to have any impact on his work ability since that time.

8. As to the Applicant’s episodic neck spasms, Dr Richard Ferch, neurosurgeon/spinal surgeon wrote, in a report dated 28 April 2015, that the spasms occurred more frequently while at rest. Although on examination, Dr Ferch found that neck movement precipitates the Applicant’s spasms.  He considered that these spasms are associated with the Applicant’s cervical spondylosis, as did Dr Mellick.  The evidence supports a finding that his neck spasms are associated with his cervical spondylosis.   

9. Dr Mellick diagnosed the Applicant as suffering chronic tension headache which condition he thought was unrelated to the Applicant’s cervical spondylosis, but secondary to ‘anxiety’.  Dr Ferch, however, squarely linked the headaches to the Applicant’s cervical spondylosis.  This was also the view of Dr John Prickett, specialist in pain management in his report of 22 April 2013.  I consider the evidence supports a finding that the Applicant’s headaches are associated with his cervical spondylosis.  In any event there was no evidence as to the frequency of the headaches such that I could find that they had an impact upon the Applicant’s ability to work.    

10. I am therefore satisfied that  the Applicant has reduced the remunerative work that he was undertaking for reasons of incapacity from his accepted disabilities alone, and is prevented from continuing to undertake that work for more than 20 hours a week.

11. Further, I am satisfied, on the basis of the tax returns he produced, that he has suffered a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity. 

12. I therefore find that the Applicant has met all criteria for the Intermediate Rate of pension. 

    What is the appropriate date of effect?

13. As noted above, pension for the Applicant’s accepted conditions was increased to 90% with effect from 25 November 2010, now nearly seven years ago.  In the meantime, the Applicant has had osteoarthrosis affecting both hips and depressive disorder accepted as service-related, which resulted in an increase in his pension to 100% of the General Rate with effect from 20 May 2014.  Dr Rosenthal did not consider that the Applicant’s hips (which were not accepted until 20 May 2014) impacted on the Applicant’s walking as much as his back pain.  I could not identify any evidence about the effect of his depression on his work ability.   

14. Overall, I do not think the Applicant has, for the whole of the period under review, that is, since 25 November 2010, been as debilitated for work as he claims.  There was some evidence that since at least January 2012 his capacity for work was reduced to 20-25 hours per week: Dr Cher Sang Kuo, occupational physician. 

15. Some change in his financial position might have assisted in determining when he might first have had the inability to work in excess of 20 hours per week, however, the financial records produced were incomplete.  To the extent that I can determine, it appears that the Applicant has declared no income from personal exertion since the year ended 30 June 2012.  This, however, is at odds with his own evidence of continuing to undertake at least some remunerative maintenance work up until he ceased work completely, which, on his evidence, was in March 2017 prior to his surgery.

16. Perhaps the most relevant consideration in this regard is the effect of the Applicant’s syncopal episodes.  The Applicant told Dr Mellick, Dr Rosenthal and Dr Chase that it was his syncopal episodes that “stopped him working”.  On the applicant’s evidence though, he has not experienced such an episode since 2012 and he has been free of the condition since May 2013.  Up until that time this condition, which despite extensive investigation remained undiagnosed and unresolved, was, on the Applicant’s evidence, an impediment to his ability to work.  I therefore find that, up until that time, that non accepted disability had an impact on his work ability.  I do not have a clear picture of the date of the last episode or the surgery, so have adopted 15 May 2013, being the middle of the month which he has variously described as the date of his last episode and the date of the surgery. 

    DECISION

17. The decision under review is set aside and, in substitution, disability pension is payable to the Applicant as follows:

    ·90% of the General Rate with effect from 25 November 2010 up to 14 May 2013; and

    ·the Intermediate Rate with effect from 15 May 2013. 

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Associate

Dated: 6 July 2017

Date(s) of hearing:	4 and 5 May 2017
Date final submissions received:	9 May 2017
Counsel for the Applicant:	Mr L Karp
Solicitors for the Applicant:	Ms E Rice, Legal Aid New South Wales
Solicitors for the Respondent:	Mr B O'Brien, Moray & Agnew Lawyers