Falzun and Repatriation Commission
[2011] AATA 891
•14 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 891
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1250
| VETERANS’ APPEALS DIVISION | ) | ||
| Re | PAUL ALEXANDER FALZUN | ||
Applicant
| And | REPATRIATION COMMISSION |
Respondent
DECISION
| Tribunal | The Hon Robert Nicholson, Deputy President |
Date 14 December 2011
Place Perth
| Decision | 1. The decision of the Veterans’ Review Board dated 25 January 2011 be set aside. 2. The following decision be substituted for the decision of that Board. 3. The applicant is entitled to the special rate of pension. | |
| …(sgd) Hon Robert Nicholson…………… Deputy President | ||
CATCHWORDS
Veterans’ Affairs – Disability pension – Special rate – whether applicant was alone prevented by reason of incapacity from war-caused injury or disease from continuing to undertake remunerative work that he was undertaking – nature of the applicant’s remunerative work - effect of evidence on non war-caused injuries or disease of knee and elbows.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s 24(1)(c)
REASONS FOR DECISION
14 December 2011 The Hon Robert Nicholson, Deputy President
On 17th April 2009, the applicant applied for increase in his rate of disability pension to the Special Rate. On 27th May 2009 the delegate of the Repatriation Commission determined that the applicant’s disability pension should continue at 100% of the General Rate. On 8th June 2009 the applicant applied for review of the delegate’s decision by the Veterans’ Review Board. On 25th January 2011 the Board affirmed the delegate’s decision. On 6th April 2011 the applicant applied for review of the Board’s decision by this Tribunal.
relevant statutory provision
The relevant statutory provision for a special rate of pension is s 24 of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’). It is common ground that the applicant has satisfied s 24(1)(a) and (b). That is that the applicant has a degree of incapacity of at least 70% and is totally and permanently incapacitated, that is his 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.
The issue remaining on this application is whether the applicant can satisfy s24(1)(c) which provides:
‘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.’
Prior decisions
In Flentjar v Repatriation Commission (1997) 48 ALD 1 a Full Court ( Beaumont, Branson and Merkel JJ) said that the issues before a tribunal in the matter before it were fourfold, namely:
‘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 question 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?’
In the present application the central question is the third of those referred to in Flentjar. However, the resolution of that question requires reference to the evidence relevant to the nature of the remunerative work that the veteran was undertaking.
In Repatriation Commission v Smith (1987) 15 FCR 327 a Full Court (Northrop, Beaumont and Spender JJ) held that the requirement in s 120(4) of the Act that ‘the Commission shall…decide the matter to its reasonable satisfaction’ was intended to introduce the civil standard of proof. That provision appears as s 120A(4) of the Act as it relevantly applies in this application. As Beaumont J stated at 335 in reasons concurred in my the other members of the Full Court, ‘there is…a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.’
In Repatriation Commission v Hendy (2002) 76 ALD 47 at 54 a Full Court (Whitlam, Emmett and Stone JJ) said in relation to the requirements of s 24(1)(c):
‘The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.’
Applicant’s history
The applicant was born on 31 August 1953.
The applicant receives a disability pension at 100% of the General Rate in respect of the following service-related disabilities:
Alcohol dependence
Functional dyspepsia
Post- traumatic stress disorder
Lumbar spondylosis
Solar keratosis.
The applicant also has the following conditions, the first two of which have been determined not to be service-related:
Localised osteoarthritis affecting both elbows
Sleep apnoea
Symptoms affecting his left knee.
The applicant joined the Royal Australian navy in 1969 and served as a seaman/sonar operator for 12 years until 1981.
After leaving the Navy the applicant worked as an insulation installer for approximately 1 year before serving as an able seaman in the Commonwealth Lighthouse Service.
He was then employed as a seaman on tugboats and barges by Stirling Marine for a period of 8 years.
In 1995 the applicant trained for and qualified as an integrated rating able seaman and was employed by Maersk.
In his application for the increase in pension rate the applicant stated that he had ceased work on 25th November 2000 as a result of injury to both his elbows. In his statement of facts, issues and contentions the applicant gives the cessation date as 9 December 2000, from when worker’s compensation commenced.
In 2001 the applicant suffered a breakdown leading to the acceptance of his post-traumatic stress disorder.
The applicant testified to this Tribunal that he was treated for his elbows only until 2002. However, the payment of compensation continued until 2008 when his claim was settled by payment of a lump sum.
The applicant’s treating psychiatrist Dr Brendan Jansen stated in a report dated 14th January 2009 that the applicant was unfit for work due to the worsening of his medical conditions. He stated that the substantive causes of his disability are his post-traumatic stress disorder, anxiety disorder and alcohol abuse. He also added ‘but a significant contribution from his back pain is also relevant.’
Also in 2009 the applicant’s treating general practitioner opined that he was unfit for employment under any circumstances, citing the same conditions including significant pain from back injury. He stated in a report dated 24 November 2009 that any issued the applicant had with his elbow has completely resolved long ago and ‘certainly does not impact on his ability to return to work…’
Dr Wan’s Reports
Two reports from Dr Wan were admitted into evidence by the respondent, the first being dated 23 June 2011 and the second 23 August 2011. In relation to the applicant’s elbows reference was made to an x-ray and CT of the right and left elbows on 3 August 2001 which showed prominent osteophytic changes. Another x-ray of them on 2 July 2011 showed bilateral osteoarthritis with mild to moderate disease on the left and mild disease on the right. Dr Wan said that on examination he did not detect weakness and the range of motion was not restricted and the applicant had not reported pain on movement.
In relation to the applicant’s knee Dr Wan found left knee weakness of uncertain aetiology. He added that the applicant had stated x-ray had shown osteoarthritis and his examination showed knee crepitus consistent with osteoarthritis. Nevertheless he did not find any weakness or instability on examination of the left knee. He stated that the range of motion was not restricted and the applicant did not report pain on movement or stress testing.
Overall Dr Wan’s opinion was that the applicant has sufficient mobility and function to perform light, sedentary or office duties but, from the mental perspective, he has been certified by his psychiatrist to be medically not fit to perform such duties or any kind of work.
Applicant’s Written Evidence
Particularly because of the respondent’s reliance upon these reports of Dr Wan the applicant tendered into evidence a statement providing his evidence on the specific roles and tasks he had performed.
Of his knee, the applicant said that his left knee sometimes ‘clicked’ and fees like it ‘gives way.’ This is instantaneous and goes away. He worked with this condition and it still sometimes occurs when his gardening. He has never had it treated or had medication for it. It has not caused him to take any time off work or prevented him from doing any work.
Of his elbows, the applicant stated they have resolved to the point that there is very little he cannot do. He stated that he cannot dig holes or use a crow bar but can lift and use most tools. He currently uses woodworking and power tools, including frills, reciprocating saws, and works in the garden and uses a lawnmower. It is rare for him to have any pain in his elbows but if it occurs he treats it with inflammatories and might wear a pressure bandage.
The applicant stated that he was trained a variety of roles, the main ones of which were (i) as a rigshifter on deck; (ii) as a cook; (iii) as a steward; and (iv) as a ‘peggy.’
As a rigshifter he was primarily responsible for working in ta team shackling and unshackling anchors and moving them around on deck. It was relatively heavy strenuous physical work which involved using trigger wires and winches. He had also been responsible for loading and unloading containers, usually containers of food or refrigerated containers. The use of hand and power tools was a relatively minor part of the job. He still uses hand and power tools and oxyacetylene equipment without experiencing any discomfort or difficulty in his elbows.
A cook works in the galley and is responsible for the planning and preparation of all meals for the crew, a role he had performed on roster. Neither his elbows nor his left knee would prevent him from fulfilling the duties of a cook in any way.
A steward is responsible for general cleaning, mopping, making beds, vacuuming, cleaning the galley and so on. He considered that neither his elbows or knee would prevent him from fulfilling the duties of a steward.
A ‘peggy’ is a scullery hand who performs odd jobs like helping the cook, washing dishes, cleaning the gallery and so on. Again he did not consider that either his elbows or his knee would prevent him fulfilling such duties.
The applicant said his last paid work was as an integrated rating able seaman with Maersk, working on off-shore oil rigs. Had he stayed with Maersk he would have done his ‘mates’ ticket and taken up a supervisory role that did not involve heavy physical work. His opinion is that if it was not for his back and post-traumatic stress disorder he would still be able to work as an integrated rating able seaman.
Applicant’s Oral Evidence
The applicant testified that he can now do just about anything. He repairs fences, mows, uses a whipper snipper and clears up after storms He has to pace himself and will call on a couple of mates if he can’t get around.
The applicant also stated that his knee problem has never interfered with his work. Further he has never had anyone examine his knee.
He further testified that when he could not return to work it was due to his psychological issues rather than anything physical. He affirmed that if it were not for his psychological condition he would be back at work.
In cross-examination he stated that he had injured his elbows in 2000. He had then experienced treatment until 2002. This included visits to an occupational therapist, use of compresses, massage, application of ultra-sonic and elbow support. After treatment ceased he had a niggling sensation continue in his elbows. He underwent regular review of his elbows until his claim was settled in 2008. Elbows would only cause a problem when, for example, he had to use a crowbar. He lives on a hobby farm of 8 cleared acres without animals, save for two fowls. The only reason he had not gone back to work was his service related psychological disorder.
In re-examination the applicant said that as far as his elbows are concerned, he would be able to do ‘the alternative jobs.’ By this I understand him to have referred to the jobs of a cook, a steward or a ‘peggy.’
Respondent’s Contentions
The respondent contends that if the applicant were without his psychological disorder, he could not return to his previous employment or take work of an alternative nature in the lighter commitments because his knee, elbows and back would occasion him to lack stability on board a vessel.
The respondent also contends that the presence of the applicant’s elbow condition has contributed to an extent to modification of the type of work he would undertake and that this is of itself adequate to result in the applicant not complying with s24 (1)(c) of the Act.
Findings of Fact
In the hearing of this application no evidence has been called by either party on the applicant’s capacity to cope with mobility of a vessel. At best, the respondent’s submission in that respect can only find support, if at all, by way of inference from the facts of the applicant’s condition as otherwise established.
Likewise, no attention has been directed in the presentation of the evidence and cross-examination of it to the impact of the applicant’s service-related back pain on his working capacity. The description of the condition states that it inhibits the applicant from prolonged sitting for more than 15 minutes or lifting more than 10kg. There is nothing in the description of the condition addressing any instability as arising from the condition. In my opinion, such instability cannot be inferred from this evidence. If the work of the applicant avoided prolonged sitting and lifting of more than 10kg, the nagging, aching back pain would not be likely to radiate to the back of the applicant’s right knee at all.
There is no direct or inferential evidence that the applicant’s knee condition has affected his work in any way.
So far as concerns the applicant’s elbows, the evidence is that they would inhibit the applicant to re-engage in the work which we was doing when the elbows were injured in 2000. What s 24(1)(c) requires is that the war-caused injuries or war-caused disease alone prevent the applicant ‘from continuing to undertake remunerative work that the veteran was undertaking…’ The evidence of the nature of the applicant’s work is not that it was confined to deck work only. Rather the evidence is that the remunerative work could involve a combination of deck work or lighter duties such as those of cook, steward or peggy. The evidence supports the finding, which I now make, that the injury or disease of the applicant’s elbows inhibits him only from continuing to undertake the whole or part of the heavier form of such work, namely deck work. It does not inhibit him from continuing such work in its lighter form, including work as cook, steward or peggy.
It follows that neither directly or inferentially can it be reasonably established that the applicant’s injuries or disease of his elbows, knee or back prevented him from continuing to undertake remunerative work that he was undertaking. The conclusion therefore must be that the applicant’s war-caused injury or war-caused disease, or both, alone, prevented him from continuing to undertake remunerative work that he was undertaking. The veteran therefore satisfies s 24(1)(c) of the Act.
In reaching this view I note that s 24(1)(c) of the Act also requires that the applicant shall have suffered a loss of salary or wages, or of earnings he would not be suffering if he were free of the incapacity. No issue has been made in the written or oral submissions that the applicant does not satisfy this requirement.
Conclusion
Accordingly, the Board’s decision should be set aside and a decision substituted to the effect that the applicant is entitled to the special rate of pension.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the
decision herein of The Hon Robert Nicholson, Deputy President
Signed:.(sgd) T Freeman.....
Associate
Date/s of Hearing 5 December 2011
Date of Decision 14 December 2011
Counsel for the Applicant Mr R Grayden
Solicitor for the Applicant Robert Grayden Legal
Representative for the Respondent Carl Ponnutharai
Department of Veterans’ Affairs
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