Edward Fraser and Repatriation Commission
[2014] AATA 191
[2014] AATA 191
Division VETERANS' APPEALS DIVISION File Number
2013/2182
Re
Edward Fraser
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 7 April 2014
Place Brisbane The Tribunal affirms the decisions under review.
........................Sgd.............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – Disability pension – Operational service with Australian Regular Army – Claim for trigger finger – No applicable Statement of Principles – No reasonable hypothesis of relationship to service – Condition not war-caused – Entitlement decision under review affirmed – Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Incapacity from war-caused conditions not sufficient, alone or substantially, to prevent undertaking remunerative work for more than 20 hours or 8 hours per week, respectively – Neither intermediate nor special rate payable – Use of Guide to the Assessment of Rates of Veterans’ Pensions – Lifestyle rating less than 6 – Extreme disablement adjustment not made – Assessment decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 15, 19, 22, 23, 24, 29, 120
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Willis v Repatriation Commission [2012] FCA 399
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veterans’ Pensions (5th Ed)
REASONS FOR DECISION
Mr R G Kenny, Senior Member
7 April 2014
On 21 October 2011, Edward Fraser (“the applicant”) lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension in respect of a condition diagnosed by his treating doctor, Dr Shailesh Tripathi, as “trigger finger”. The applicant contended that this was related to circumstances of his service with the Australian Regular Army (“the army”). On 10 April 2012, the respondent determined that
Mr Fraser’s trigger finger was not related to his service. On 30 January 2013, the Veterans’ Review Board (“the Board”) affirmed the decision. The applicant also claimed, under s 15 of the Act, an increase in his pension which was at 100% of the general rate. This was rejected by the respondent. On 30 January 2013, each of those decisions was affirmed by the Board.
In evidence was a Combined Impairment Report dated 21 October 2011 in which the total impairment in respect of the applicant’s accepted disabilities, as calculated under the Guide to the Assessment of Rates of Veterans’ Pensions (“the Guide”),[1] was 60 points.
In its decision of 10 April 2012, the respondent adopted that rating and allocated, under Chapter 22 of the Guide, ratings of 4 for each of the lifestyle categories: personal relationships, mobility, recreational and community activities and domestic or employment activities. This resulted in an overall lifestyle rating of 4. Those impairment and lifestyle ratings were also applied by the Board. Also in evidence was a
self-assessment of lifestyle completed by the applicant on 5 October 2011 in which he rated himself in the categories noted above at 6, 4, 4, and 5, respectively. This equates to a lifestyle rating of 5.
[1] Approved under s 29 of the Act.
SERVICE, LEGISLATION AND ISSUES
The applicant served in the army from 31 August 1964 until 30 August 1970.
This included periods of eligible war service in the form of operational service, as provided for in s 7 and s 6C of the Act, respectively, from 29 November 1965 until
29 May 1966 in Borneo, Sarawak and Sabah and from 21 January 1970 until
30 July 1970 in South Vietnam. Under s 9(1)(b) of the Act, a condition will be
war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
The standard of proof to be used in determining diagnostic matters and assessment matters under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[2] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act. It reads:
Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
[2] Fogarty v Repatriation Commission [2003] FCAFC 136, [34]-[35]; (2003) 37 AAR 363 at 373.
The application of that provision is affected by the terms of s 120(3) and the terms of
s 120A of the Act, which require that consideration be given to any relevant Statements of Principles (“SoP”) that have been published by the Repatriation Medical Authority. There is no such SoP for trigger finger.
The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[3] This requirement will be met if there is medical evidence which points to a causal relationship between the claimed condition and the applicant’s service. When considering the role of medical evidence in that context, the High Court of Australia stated:
…it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists…
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”.
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.
…it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.[4]
Subsequently, the High Court stated:
The position may be summarized as follows: (1) First, sub-s.(3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. [5]
[3] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
[4] Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415 per Mason CJ, Deane and McHugh JJ.
[5] See Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 per Mason CJ, Gaudron and McHugh JJ.
The issues for determination are whether the applicant’s trigger finger arose out of, or is attributable to, his army service and whether pension is payable to him at a rate beyond 100% of the general rate.
SUBMISSIONS
The applicant submitted that his trigger finger was caused by the nature of the heavy work he did while on operational service. For his rate of pension, he referred to his inability to engage in remunerative work as a result of his accepted disabilities such that he should be paid an earnings-related rate of pension. He also considered that the extent of his accepted disabilities was such that the extreme disablement adjustment should be made to his 100% pension.
For the respondent, Mr Bruce Williams submitted that the medical evidence was to the effect that trigger finger is a condition of unknown cause and that, as such, it could not be related to the applicant’s army service. In relation to assessment, he submitted that, while the applicant satisfied ss 24(1)(a) and 24(1)(b) of the Act, he did not meet the terms of
s 24(1)(c) thereof. In that regard, he submitted that it was not only the applicant’s accepted disabilities which prevented him from working. In particular, he submitted, there was contribution from conditions which have not been accepted as being related to his service. Mr Williams also submitted that the applicant’s level of impairment and lifestyle effects from his accepted disabilities were not sufficient to make the extreme disablement adjustment.
EVIDENCE
Mr Fraser
The applicant gave a summary of his employment history. In the army, he had been trained as an engineer and this involved the use of equipment such as generators,
chain-saws, jack hammers and water supply equipment as well as developing skills in handling explosives, laying mines, clearing mines, making roads and building bridges.
In his service, he put these skills into action and this included his period of operational service. He described the work as heavy and without the benefit of occupation, health and safety guidelines which have been implemented generally since the 1990s.
After his army discharge, the applicant continued in types of employment where he was able to utilise the skills and practices developed in his army service but, in the main, he worked at drilling and blasting in places such as building and mining sites. He described himself as a “powder monkey” or, in more recent times, as a “shot firer”. He worked for several employers for about eight years and then decided to undertake the same type of work as an independent contractor. He did this from Charters Towers from 1978 until 2005. He said that, when the GST was introduced by the Australian government, there was a sharp downturn in construction and not a great call for his work until things picked up again. In the meantime, he returned to being employed as a shot firer until 2009.
In that year, he underwent quadruple heart by-pass surgery. This resulted in a successful outcome and, after several months recuperating, he returned to being employed working as a shot firer in the minefields.
The applicant’s last work was as a shot firer with Brandrill Pty Ltd. He resigned from that position for a mix of reasons. One of these was a sense of annoyance that his employer would not allow him and two or three other employees who were veterans to take Anzac Day off work to attend a memorial service. This was after approval had previously been given but, on the eve of the day, the applicant and the other men were told that they would lose their jobs if they attended the service. Another reason was that the applicant had a verbal dispute with a leading hand about some aspects of the latter’s work practices. It was also at that time that the applicant began to experience the symptoms associated with his trigger finger. The applicant said that the condition, at times, made it difficult to grip things and, at other times, difficult to loosen a grip on something he had managed to grasp. He gave an example from his work. The drilling rig was operated by levers. The condition sometimes prevented him from gripping a lever, and at times he was unable to release the lever. He realised that this was a dangerous situation and, taking that and the other matters into account, he resigned from his job.
The applicant has not worked since then though he would browse web sites such as Seek for work that suited him but the advertisements became increasingly scarce and were largely outside of Queensland. He was selected for one job but, late in the process, he was advised he would have to base himself in Mackay. He was unwilling to shift to Mackay and did not take up the position.
The applicant is in receipt of the service pension and remains active in the
State Emergency Service (“SES”) as a volunteer. In that role, he works in traffic control when local festivals are on and helps the ambulance service out, particularly when it is short staffed. He may assist with the movement of patients when required and has been called upon to drive the vehicle at times. As recently as last week he participated in a line search in bushland in order to find a missing person and this involved him in walking some 14 to 16 kilometres. He is also a leader in the scouting movement.
The conditions of the applicant which have been accepted as being related to his eligible service are: bilateral sensorineural hearing loss, solar skin damage, posttraumatic stress disorder, lumbar spondylosis and osteoarthritis of the knees. Conditions from which he suffers and which have been rejected under the Act are: osteoarthritis of the right shoulder, right rotator cuff syndrome and dermatitis. The applicant also identified conditions which produce significant pain in each of his hips and in his wrists, a problem in his back between his shoulder blades which is painful and wasting in his left leg.
Medical evidence
Reports in evidence were from Dr Tripathi, the applicant’s treating practitioner,
dated 14 November 2011; psychiatrist, Dr Michael Likely, dated 27 February 2012; orthopaedic surgeon, Dr Peter Winstanley, dated 29 August 2013 and
11 November 2013; orthopaedic surgeon, Dr Peter Sharwood, dated 27 March 2012; orthopaedic surgeon, Dr Denis Nave; and Compensation Medical Adviser,
Dr A Casperson.
Dr Tripathi’s report relates to the effects of the applicant’s accepted disabilities.
Dr Likely’s opinion was that the applicant’s posttraumatic stress disorder was sufficiently severe to prevent the applicant from undertaking any work. Dr Nave reported on the accepted disabilities of the applicant as well as his right shoulder problem which he described as resulting in pain and reduced shoulder and arm movement. Dr Sharwood described the applicant’s trigger finger as resulting in intermittent symptoms which have been improved by steroid injections but he made no reference to the causes of the condition. Dr Winstanley gave the most common cause of trigger finger as “idiopathic” which is of unknown origin. Dr Casperson also concluded that the condition is of unknown origin and she was unable to link the trigger finger with the applicant’s eligible service.
ENTITLEMENT
The hypothesis advanced by the applicant is that his trigger finger developed gradually since his army service until it became manifest in 2010. He considered that the trauma to his hand from tools used and from the lifting and carrying of heavy tools and equipment during his eligible service marked the commencement of that process.
As noted above,[6] for that hypothesis to be reasonable, there must be medical evidence which points to a causal relationship between the applicant’s trigger finger and his army service. There is no such evidence, specialist or otherwise, which does so. Dr Winstanley described the most common cause of trigger finger as “idiopathic” which means that it is of unknown origin. Dr Casperson was of the same opinion and went further by concluding that she was unable to link the trigger finger to the applicant’s eligible service. In the absence of supportive medical evidence, the hypothesis advanced by the applicant is not reasonable. It follows that I must be satisfied beyond reasonable doubt that the applicant’s trigger finger is not caused by or attributable to his eligible service. As the condition is not war-caused, the entitlement decision is affirmed.
[6] See paragraph 6 (above).
ASSESSMENT
As noted above,[7] the standard of proof applicable to assessment of pension is set out in
s 120(4) of the Act, which requires that matters be determined to the decision-maker’s reasonable satisfaction. Theprocedure to be followed is set out in s 19 of the Act. It requires the rate of pension to be determined during the “assessment period” which
is defined as meaning the period starting on the application day, in this case
21 October 2011, and ending when the claim or application is determined.[8]
[7] See paragraph 4 (above).
[8] Veterans’ Entitlements Act 1986 (Cth) ss 19(5C)(a), 19(9).
It is not disputed that the general rate of pension payable to the veteran was correctly assessed at 100% of the general rate with an impairment of 60 points and a lifestyle rating of 4 or 5. The issue raised by the applicant is whether he meets the criteria for payment of an earnings-related rate of pension under s 24 of the Act (the special rate) or under s 23 of the Act (the intermediate rate).
For the special rate, the matters that need to be determined are whether or not the veteran meets the requirements of ss 24(1)(a)(i), (b) and (c) of the Act. These read:
(1) This section applies to a veteran if:
…
(a)…
(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
…
(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
The requirements for the intermediate rate are identical except for paragraph (b). To that end, s 23(1)(b) and s 23(2)of the Act, read:
(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.
(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.
For the respondent, Mr Williams conceded that the veteran met the requirements of ss 24(1)(a)(i)[9] and 24(1)(b)[10] of the Act. I am satisfied that those concessions have been properly made. However, he submitted that s 24(1)(c)[11] thereof has not been met by the applicant during the assessment period.
Section 24(1)(c) of the Act
[9] As well as its s 23(1)(a) equivalent.
[10] As well as its s 23(1)(b) equivalent.
[11] As well as its s 23(1)(c) equivalent
This provision involves a consideration of what the applicant would probably have done in the assessment period in the absence of his accepted disabilities.[12] The Federal Court has said that a proper consideration of paragraph 24(1)(c) of the Act requires responses to the following questions:[13]
(1) “What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?”
(2) Is the veteran, “by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?”
(3) If 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?”
(4) If 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?”
[12] See Repatriation Commission v Hendy (2002) 76 ALD 47 at 54.
[13] See Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1 at 2.
For the first of those questions, I am satisfied that the relevant remunerative work in this matter is in the role of a shot firer which incorporates both the operation of drilling equipment and the setting of explosives. For the second question, it is not contested that, by reason of the applicant’s conditions which have been accepted under the Act, he has been prevented from continuing to undertake that work. The third of the questions noted above raises in issue the first part of s 24(1)(c)[14] of the Act through what is referred to as the “alone test”. In Willis v Repatriation Commission, [15] Bromberg J said:
[14] As well as its s 23(1)(c) equivalent
[15] [2012] FCA 399 (emphasis in original).
[23] The question raised by the “alone test” is not whether, on its own, the
war-caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
[24]
Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done.
If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
There must be no factor, apart from the conditions accepted under the Act, which would impact upon his capacity to undertake the relevant remunerative work at the start of, or during, the assessment period. Such a factor may be associated with a wide variety of considerations, such as incapacity from a non-service-related medical condition, the effects of age, relocation to a locality distant from work opportunities or the impact of the length of time out of the workforce. Such factors, individually or in combination with each other or with accepted disabilities, may serve to prevent a person from continuing to undertake relevant remunerative work.[16] In the event that they would have contributed to preventing the applicant from doing so in the assessment period, s 24(1)(c)[17] of the Act will not be satisfied.
[16] See Repatriation Commission v Hendy (2002) 76 ALD 47, 54-55; Repatriation Commission v Alexander (2003) 75 ALD 329, 334.
[17] As well as its s 23(1)(c) equivalent.
In the applicant’s case, I am satisfied that this requirement is not met. One of the factors which contributed to his decision to cease work in 2010 was his trigger finger. This is not an accepted disability. He perceived that it interfered with his capacity to operate safely the heavy drilling equipment which he operated. He was unwilling to risk harm to himself or others and he resigned from his position. He has not worked since although he has been offered work but only if he was to relocate to Mackay which he was not willing to do. I am reasonably satisfied that it is not his accepted disabilities alone which are responsible for his no longer being engaged in remunerative work.
As, at the date of his claim, the applicant was under 65 years of age, it is sufficient if his accepted disabilities are the substantial cause for his no longer being engaged in remunerative work. Given that the ability to operate the drilling equipment is an essential component of the type of remunerative work applicable to the applicant, I am reasonably satisfied that his accepted disabilities are not the substantial reason for his no longer being engaged in remunerative work.
On the material before me, I am reasonably satisfied that pension is not payable to the applicant under ss 23 or 24 of the Act.
The extreme disablement adjustment is made in circumstances where pension is payable at 100% of the general rate, impairment is at least 70 points and the relevant lifestyle is at least 6.[18] While the first of those is met by the applicant, there is no evidence which meets the other required parameters. The applicant has self-assessed a lifestyle of 5 and his description of his current activities in the SES and as a scouting master demonstrate that he continues to make an active and meaningful contribution to his community such that his lifestyle rating is less than 6. I am reasonably satisfied that the extreme disablement adjustment cannot be made to the applicant’s pension.
[18] See s 22(4) of the Act.
The decision under review in respect of assessment is affirmed.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ..................Sgd..................................................
Associate
Dated 7 April 2014
Date of hearing 12 March 2014 Applicant In person Solicitors for the Respondent Bruce Williams, Department of Veterans' Affairs
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