Dwyer and Repatriation Commission
[2005] AATA 544
•8 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 544
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/269
VETERANS’ APPEALS DIVISION ) Re STANLEY DWYER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P Staer, Member Date 8 June 2005
Place Perth
Decision The Tribunal affirms the decision under review.
[sgd Dr P Staer]
Member
CATCHWORDS Back and shoulder Injuries claimed and rejected – later diagnosis PTSD – special rate – PTSD “alone” – ceased work for physical injuries – conflicting doctors reports – conflicting applicants statements
Veterans’ Entitlements Act 1986 ss 24, 28
Forbes v repatriation Commission 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
8 June 2005
Dr P A Staer, Member 1. The applicant Stanley Dwyer has appealed against a decision of the Veterans’ Review Board made on the 2 July 2004 which affirmed a determination of a delegate of the Repatriation Commission made on the 9 January 2004 that presbyopia both eyes was not war-caused and that had assessed disability pension at 90 per cent of the general rate with effect from the 11 March 2003.
2. The applicant was represented by Ms Shelley Taylor of the West Australian Veterans’ Support Group and LINCS Inc.
3. The respondent was represented by Carl Ponnuthurai.
4. The Tribunal had before it the section 37 documents and the following exhibits:
A1 Reports by Dr Sharon Hodgson, Psychiatrist, dated 20 July 2004
A2A Report by Dr Brian Dare, Specialist in Occupational Medicine, dated 1 November 2004
A3A bundle of taxation documents in relation to Stanley Dwyer from 1999 to 2004
A4A Statement of Facts and Contentions by Ms Taylor as part of her submissions
A5A further submission by Ms Taylor stamped the 1 October 2004
Background
5. The applicant was born on 20 November 1944. He enlisted in the Royal Australian Navy on the 13 July 1960 and was discharged on the 12 July 1972. During his time of service with the Royal Australian Navy he had service which included operational service in the Far East Strategic Reserve and in Vietnam.
6. The applicant first made a claim for a disability pension on the 16 November 2001 for the disabilities of “hearing, shoulder strain, sore hip”. That first application went as far as a Veteran’s Review Board which sat on 21 August 2002 which found that the rotator cuff syndrome of the left shoulder and the osteoarthrosis of the right hip were not war-caused.
7. On the 10 June 2003 the veteran lodged an application for an increase in his disability pension. Among other claims (stomach problems, headaches, mood swings, substance abuse, road rage, eye problems, sleeping problems) he claimed for pain in the left shoulder and pain in the right hip. (T6/53-65) His claim was accompanied by a note by a Dr M Bowater dated 9 June 2003 (T6/66) which states
“He needs to make additional claims for:
(i) asthma - currently on treatment
(ii) left subacromial bursitis and supraspinatis tear - shoulder
(iii) osteoarthritis of the right hip
(iv) pain – left elbow
He also needs formal assessment for his mood disturbance, insomnia, agrophobia, and PTSD”
8. By the time his application came to this Tribunal his;
9. Accepted Disabilities were:
bilateral sensorineural hearing loss with tinnitus,
headaches due to chronic sinusitis,
post traumatic stress disorder,
chronic sinusitis.
Rejected Disabilities were
rotator cuff syndrome of the left shoulder,
diverticular disease of the colon,
osteoarthrosis of the right hip,
bilateral presbyopia,
chronic dacrocystis of the right eye,
substance abuse (nif).
The Evidence
10. Stanley Dwyer, the applicant, gave evidence of his time of service in the Navy of having had multiple jobs since leaving the Navy and ending up being self-employed doing part-time jobs and gardening from about 1995. He talked about his having difficulty in coping, avoiding people, “retreating to the back shed”. He claims he went to Centrelink in 2003 and was put on Newstart Allowance (the Tribunal notes from other evidence before us that he was on off work certificates in relation to his shoulder and hip from May 2003 until September 2004.)
11. He acknowledged it was his signature on T27/139 (10/12/2002) which described his injury/illness as “rotator cuff muscle tear and hip osteoarthritic” and that these conditions started in 2001. He stated that, at that time, his shoulder was very painful to move overhead or lifting and the hip was very painful after standing for a few hours.
12. He was then taken to his lifestyle questionnaire statements, the first one at T5/48 (undated but stamped 10/06/20030. Under the heading ‘Do you have any problems with walking?’ He said “Yes. All the time”
1 Walking distances
2 Standing static
3 Bending
4 Kneeling
5 Climbing ladders
When he was asked about these problems he said it was because he was worn out, old age and he had fear. There are many things he said he could not do like washing a car, lifting, or cooking. He did say if he took his time he could do minor house repairs and washing up. At question 26 he said he can’t do heavy work for long periods now and that what makes him unable to do them is pain in his shoulders, pain in his hips and general deterioration of health. At question 30 “In your opinion have your disabilities affected your future or career?” He said ‘Yes’ because of general deterioration of health due to constant pain in hips and shoulders.“
13. At a further lifestyle questionnaire at T23/116 (stamped 17/03/2004) again on being asked about walking he said that all the time he had problems bending, getting up and sitting down from chairs, climbing stairs, walking more than 50 metres and most of the time he had problems with standing static.
14. He had his shoulder operation in June 2003 and said that now he was having no problems with his shoulders but the “hips were just the same”. The applicant could not really fully explain how he could have hip and shoulder problems for three years and yet on Dr Dare’s examination say that they were no longer a problem.
15. The Tribunal saw the applicant as an intelligent man who showed some tendency to be an advocate rather than a witness. The Tribunal also gained the impression that having been diagnosed as having post traumatic stress disorder he was altering the impact of his other medical conditions to fit with the diagnostic criteria of PTSD
16. The Tribunal has problems in relating the evidence in the lifestyle questionnaires in relation to his walking restrictions with Dr Dare’s report which said “he stated his hip pain does not result in any restrictions”.
Dr Brian Dare
17. Dr Dare is a Specialist in Occupational Medicine. Dr Dare examined the applicant on 28 October 2004 and submitted a report dated the 1 November 2004. Dr Dare also gave evidence by telephone. Dr Dare was of the view that most of Mr Dwyer’s problems were of a psychological nature and that this was not his field of expertise. He was aware of the reports by Dr Sharon Hodgson, psychiatrist. Dr Dare found Mr Dwyer cooperative and found that:
(i) his left shoulder had a full range of movement with no pain on movement and no signs of impingement; and
(ii)examination of his hips – he demonstrated full range of movement again with no pain on movement.
On questioning he did agree that people with anxiety can have problems coping with pain.
Dr Scadden
18. A senior orthopaedic registrar at Royal Perth Hospital, also by telephone, gave evidence in relationship to the applicant’s shoulder surgery in the absence of Dr D Collopy. He affirmed that he had never personally seen the applicant but from the Royal Perth Hospital records there appears to have been a reasonable result from the left shoulder surgery. The records show that in June 2004 there was still pain on elevation and there was a 20 degree lack of full elevation and some restriction in rotation. The applicant was given a further three months off work. He was seen by a junior registrar on the 31 August 2004 and the report at that stage was ‘almost a full range of movement - happy with the result” .. he can return to work
There is no note in the records about PTSD being the cause of him not being able to work in mid 2004.
Dr Sharon Hodgson
19. Dr Hodgson, Consultant Psychiatrist did not give her evidence in person but has two reports in the T documents and a further report at exhibit A1. In her first report of the 18 November 2003, T17/89, she made the diagnosis of Post Traumatic Stress Disorder in relation to his service in the Royal Australian Navy. She stated in her report that “he is currently on JobStart having had a left shoulder operation five months ago. The recovery in the shoulder is slow and he continues to have some pain and restricted mobility”.. Further, Dr Hodgson notes that Mr Dwyer has modified his work environment so he works solitarily which reduces the impact his irritability may have on his relationships at work. (the Tribunal notes he was on off work certificates from his GPat this time).
20. In a brief report at T23/125, Dr Hodgson states “it is my opinion that on 6 March 2003 Mr Dwyer was suffering from symptoms of PTSD which would have contributed to his inability to work at that time.”
21. In a report of 20 July 2004, A1, she states “Mr Dwyer still experiences pain in his left shoulder but says it is improving slowly. He experiences pain if he leans on it or picks up any weight or lifts it above his head. He said it is better than before it was operated on”. She also stated “It is my opinion at this stage that Mr Dwyer s totally and permanently incapacitated for work from the point of view of his post traumatic stress disorder”. He has received treatment and this in combination with cessation of work has stabilised his condition. However, I believe that returning to work would aggravate his condition and would fail.”
22. The Tribunal notes that Mr Dwyer had medical certificates saying he was unfit for work in relation to his hip and shoulder from the 10 March 2003 to the 9 September 2003 and then was unfit in relation to his shoulder surgery from the 20 June 2003 until the 31 August 2004.
Legislation
23. The appropriate legislation in this matter is s 24 of the Veterans’ Entitlement Act 1986
Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(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) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, 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 if:
(i)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
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Section 28
Capacity to undertake remunerative work
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).
Discussion
24. The date on which Mr Dwyer ceased work is a little confusing. Dr Hodgson says he ceased work on the 6th of March 2003 but the applicant himself in his second lifestyle report says he ceased working on the 5th of May 2003. Be that as it may at the time he ceased work he had a certificate from his G.P. Dr Hanly dated the 10th of March 2003 which said he was unfit to work because of problems with his left shoulder and right hip. There are consecutive medical reports making the applicant unfit for work up until September 2004. Originally these certificates stated it was because of osteoarthritis in his right hip and rotator cuff syndrome of his left shoulder until he had surgery for his shoulder and after this time it was stated that he was unfit because of the disability with his shoulder.
25. He was classed as fit to resume work in relation to his shoulder on the 31st of August 2004 and thereafter was on Newstart Allowance until he received a service pension on his 60th birthday on the 20th of November 2004. There is no evidence that he actively sought work or was offered work during that three month period although he did register with Centrelink when he got the Newstart Allowance.
26. In none of the certificates as being unfit for work is there any mention of PTSD and his treating GPs certainly saw him as ceasing work because of his hip and shoulder problems.
27. The Tribunal finds as fact that at the time of his ceasing work, even if the PTSD was a factor, his physical problems of osteoarthritis of the right hip and rotator cuff syndrome of the left shoulder were the significant factors and certainly at the time of his ceasing work it was not the PTSD alone that caused him to cease work.
28. The Tribunal is required to look at the whole of the assessment period which runs from the date of application the 11th of June 2003 until the date the Tribunal makes its decision.
29. As already stated there is no doubt that the hip and shoulder were significant factors at the time of his ceasing work but over the assessment period the shoulder was operated on and appears to have had a good result. The PTSD appears to have become significantly worse since its original diagnoses by Dr Hodgson on the 18th of November 2003.
30. In looking at the legislation there is agreement that the veteran meets the requirements of section 24 (1)(a) of the Veterans Entitlement Act and also section 24 (1)(b) The question before the Tribunal is to whether he also meets section 24 (1)(c) and to what extent his war caused disabilities alone prevented him 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.
31. The question of alone has been discussed extensively in previous Tribunal and Federal Court decisions.
32. Nicholson J in Forbes v Repatriation Commission (101 FCR 50) comments at paragraph 40
“As in the case of the present applicant it is possible that the war caused condition will be by far and away the more dominant of the causes of the preventive effect where there is also present a non-war caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension…”.
33. Whitlam, Emmett and Stone J in Repatriation Commission v Hendy; (2002) 76 ALD 47 paragraph 37.
“The decision is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of these factors during the assessment period.”.
34. The Tribunal cannot accept that the arthritic condition of the right hip which caused constant pain and significant mobility difficulties suddenly disappeared once the diagnosis of PTSD was made. The Tribunal does not accept the opinion of Dr Dare that the applicant has no physical disabilities.
35. The veteran himself stated repeatedly he had constant pain and limitations with the right hip and his treating doctors have treated him for such and given him certificates of being unfit for work on the basis of his physical disabilities.
36. The Tribunal therefore finds that the veteran does not meet the requirements of 24 (1)(c) of the Act.
37. The Tribunal also has no evidence before it that the veteran is “genuinely seeking to engage in remunerative work” and when he ceased work on 5 May 2003. It was for reasons other than his war-caused injuries or war-caused disease. (24 (2)(b) . He had already indicated he was going to retire on a service pension at age 60.
38. The Tribunal affirms the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:
[sgd J Rainey].
AssociateDate of Hearing 3 May 2005
Date of Decision 8 June 2005
Advocate for the Applicant Shelley Taylor
Advocate for the Respondent Carl Ponnuthurai
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