Ford and Repatriation Commission
[2007] AATA 1109
•8 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200400857
VETERANS' APPEALS DIVISION ) Re RONALD FRANCIS FORD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton Date8 March 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
VETERANS’ AFFAIRS ‑ pension at special rate – whether war‑caused conditions alone cause of inability to work – decision affirmed
Veterans’ Entitlements Act 1986 ss 19(%C)(a), 19(9), 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50Leane v Repatriation Commission (2004) FCAFC 83
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
8 March 2007 Regina Perton 1. Ronald Francis Ford, who is now 61 years old, undertook national service in the Australian Army from 2 February 1966 to 1 February 1968. He served in Vietnam from 18 July 1967 to 9 January 1968. Mr Ford is currently on a disability pension payable at 100 per cent of the general rate. Mr Ford is seeking a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his war-caused disabilities alone.
2. Before and after his army service, Mr Ford worked in a variety of occupations including as a farm-hand, quarry worker, bobcat driver and truck driver. From 1986 to 1992 he was in business with his brother manufacturing aluminium windows and doors. He suffered a neck injury in April 1992 and could not work for over a year, receiving workers compensation payments. He sold his share of the business in June 1992. Mr Ford’s last employment was as a caretaker/ maintenance man on a small property from July 1994 to February 2001.
3. Mr Ford suffers from a range of medical conditions. Prior to the application for review being lodged, the Repatriation Commission (the Commission) had accepted several of those conditions as being war‑caused, namely post traumatic stress disorder (PTSD), gastro-oesophageal reflux disease, alcohol dependence/abuse, impotence, bilateral sensorineural hearing loss, bilateral tinnitus, chronic simple bronchitis, solar keratosis and acquired cataract in the left eye. On 22 June 2005, the Tribunal adjourned its hearing of this matter so that Mr Ford could make a claim in relation to other conditions that had been diagnosed since his previous claim. On 12 December 2005, the Commission decided that ischaemic heart disease, adenocarcinoma of the lung and diabetes mellitus were war-caused with effect from 22 March 2005. Mr Ford’s pension was continued at 100 per cent of the general rate following the acceptance of the latest conditions.
4. The issues before the Tribunal are whether Mr Ford’s inability to work is due to his accepted war‑caused disabilities alone and whether he is therefore eligible for pension at the special rate.
EVIDENCE
Mr Ford’s work history
5. Mr Ford finished school at around 13 years of age. Prior to army service he worked in a variety of occupations including as a farmhand on a poultry farm and a quarry worker. After army service he worked in a quarry for two years. In 1970 he commenced work at an iron foundry, firstly as a labourer, then a bobcat driver and subsequently a truck driver. He returned to work at the quarry but was sacked in 1971 following a fight with the boss. He then resumed work at the foundry and worked there until 1985. Mr Ford’s boss had been an army sergeant during the Second World War. Mr Ford said that his boss tolerated his difficult behaviour. Mr Ford’s transgressions at the foundry included a fight with a co-worker in which Mr Ford broke his colleague’s hand. In 1985, Mr Ford and his brother commenced an aluminium manufacturing business. He stated that he found dealing with the public the most difficult aspect of the business. His brother did much of the public liaison work. In 1992, Mr Ford suffered a neck injury and was on Workcover for 12 months. He sold his share of the business during this period. After Mr Ford recovered from the neck injury, he and his wife took a long caravan holiday in central and western Australia.
6. In July 1994 Mr Ford commenced work as a gardener and caretaker on a small property near Lakes Entrance. His wife also worked there as a housekeeper. He finished working there in February 2001. He has not worked since.
Mr Ford’s medical conditions
7. Mr Ford started smoking when he was 13 years old. His time in Vietnam led to a heavy smoking habit that continued until recent years. Doctors’ reports indicate that he experienced many years of smoker’s cough. Several of his conditions which have been accepted as war-caused are smoking related, including chronic simple bronchitis, ischaemic heart disease, adenocarcinoma of the lung and diabetes mellitus. The last three conditions were accepted as war-caused after lodgement of the application for review by the Tribunal. The carcinoma of the lung was only diagnosed in early 2005.
8. Dr Alan Kosky, who became Mr Ford’s general practitioner after Mr Ford moved to Nagambie in 2002, listed the following conditions as affecting Mr Ford in a referral to a consultant physician dated 4 March 2005:
Current Problems:
Date Condition
20/06/2002 CHRONIC BRONCHITIS – FROM SMOKING
20/06/2002 EMPHYSEMA
20/06/2002 HEARING LOSS
20/06/2002 HYPERCHOLESTEROLAEMIA
20/06/2002 HYPERTENSION
20/06/2002 IMPOTENCE
20/06/2002 OSTEOARTHRITIS
20/06/2002 REFLUX OESOPHAGITIS
20/06/2002 TINNITUS
1/04/2003 SPNDYLOSIS – LUMBROSACRAL
10/10/2003 ASTHMA
6/05/2004 DIABETES MELLITUS - NIDDM
9. The Tribunal had before it clinical notes from the Cunninghame Arm Medical Centre covering the period from late 1972 to early 2001. The notes contain entries referring to a range of medical conditions including those cited by Dr Kosky above. Specialist reports provided to the clinic indicate that Mr Ford had right knee pain in 1991 with early signs of osteoarthritis (diagnosed by Dr John Patrikios, an orthopaedic surgeon, in a report dated 8 October 1991); and a neck injury in 1992 for which he received workers’ compensation payments (reports from orthopaedic surgeons Dr Kierce and Dr Bourke in late 1992-1993). By 30 March 1993, Dr Bourke indicated that Mr Ford should be able to return to work within the next few weeks.
10. The Tribunal was provided with documents from CGU Workers Compensation, the insurer dealing with Mr Ford’s neck injury in 1992 -93. Mr Ford settled his claim for a lump sum of $3,393.60 plus costs and disbursements for permanent partial impairment of the neck. Prior to the settlement, specialists including Mr Elsner and Dr Wyatt were of the opinion that Mr Ford was able to return to work.
11. Mr Ford has been affected by shortness of breath in the last decade or so. There have been various diagnoses over the years as to the reasons for it.
12. Dr Ngoc Q Tran, a respiratory physician, prepared reports dated 20 September 2001 and 20 October 2002. In the latter report, he stated that:
Mr Ford has smoking induced chronic bronchitis and bronchial asthma. There is also radiological evidence of smoking induced emphysema as documented on previous CT chest. He has a well preserved ventilatory function based on recent spirometry result. I believe he is on optimal treatment for his airways disease and I have advised him to continue with this treatment indefinitely. I feel that his shortness of breath is severe and is out of keeping with his respiratory condition. Other contributing factors include stress, anxiety and unknown cardiac disease and may require further evaluation.
13. Dr David L Hart, a consultant respiratory physician, reported on 14 April 2005 that Mr Ford’s breathing problems were due to asthmatic bronchitis which was the result of his cigarette smoking. Dr Hart considered that Mr Ford did not suffer from asthma or emphysema. Dr Hart stated that it appears that respiratory symptoms first became a nuisance to Mr Ford around 1998. Dr Hart stated:
…I would make the point that the measured impairment on five occasions is not of a degree sufficient to account for his severe restriction and exercise tolerance. The lung function tests reveal relatively mild disease and spirometry which is above 100% of predicted. There must be other factors involved in limiting his exercise capacity and I would submit that these include his back pain and sciatica, his recently diagnosed ischaemic heart disease and his post traumatic stress disorder which has profoundly affected his desire to exert himself and maintain a reasonable level of physical conditioning….
14. Professor Richard W Harper, a consultant and interventional cardiologist, in a report dated 5 April 2005, was of the opinion that Mr Ford’s symptoms of shortness of breath were consistent with angina and ischaemic heart disease. Based on the history provided to him, Professor Harper dated the onset of ischaemic heart disease to around 1999. He indicated that it was his view that cardiac disease and smoking related lung disease each contributed about 50 per cent to Mr Ford’s shortness of breath in exertion. In a report dated 13 May 2005, Professor Harper stated that he had revised his opinion and ascribed 25 per cent of Mr Ford’s disability to respiratory problems, 25 per cent to back and sciatica problems and 50 per cent due to cardiac problems. Professor Harper noted that Mr Ford had a chronic back problem but that Mr Ford had told him that it was not causing him problems at the time of consultation, with the symptoms controlled by medication.
15. Mr Ford has experienced back pain since a workplace accident when he was 17 or 18 years of age. He disclosed that condition when commencing national service and to the various doctors he has seen over the years. He told the Tribunal that it had not affected his ability to work.
16. Professor Vernon Marshall, an orthopaedic specialist, in a report dated 25 November 2003, described Mr Ford’s symptoms at that time as follows:
He has constant low back pain extending into his buttocks and thighs, interfering with activities and sleep. He is unable to stand or sit for any length of time, and he has difficulties getting in and out of the car. His wife mostly drives, and he has to stop after short distances. He does no lifting and no activities around the house now, most of which are done by his wife. He is short of breath on exertion. He has made no previous claim in relation to his back. He finds it difficult to get down to take off and put on his socks and shoes.
17. Professor Marshall gave the following summary and opinion:
…
After return and discharge from service, he has worked at a variety of conditions, doing mainly driving and plant work, and has had progressive restriction of activities due to lumbar back pain and left-sided sciatica. He is currently on medications for blood pressure, asthma and stable gout, apart from analgesics, anti-inflammatories and antacids for his low back pain and left sciatic pain.
On physical examination, he has painful limitation of lumbar spine movements, particularly extension and flexion, without clinical radiculopathy. Imaging shows spondylytic Grade 1 Spondylolisthesis at L5-S1 level….
18. Professor Marshall was of the view that Mr Ford’s condition of spondylosis was probably congenital. He believed that the condition had developed gradually and was potentially aggravated by army service and subsequent employment.
What prevents Mr Ford from working?
19. There is general agreement amongst the many medical professionals who have assessed Mr Ford, that he is unfit to work for eight hours or more per week. Respiratory and psychiatric conditions which have been accepted as war-caused have clearly been major contributors to Mr Ford’s decision to cease work. However, the opinions provided as to the contribution, if any, of other conditions to Mr Ford’s inability to work, have varied.
20. In a signed statement dated 3 November 2004 Mr Ford stated that he had stopped working in January 2001. He stated that it was always his intention to work until retirement age. However he was prevented from continuing to work because of his anxiety condition and chronic bronchitis. He reiterated that view in oral evidence.
21. In a medical certificate prepared for Centrelink dated 22 February 2001, Dr D G Campbell of the Cunninghame Arm Medical Centre stated that Mr Ford would be unfit to work for at least the next two years as he was unable to sustain exertion and was subject to respiratory distress on moderate exertion.
22. In a report dated 26 April 2001 prepared for the Department of Veterans’ Affairs (DVA), Dr John Lange, a consultant occupational physician, was of the opinion that Mr Ford ceased to work because of shortness of breath which Mr Ford attributed to smoking approximately 40 cigarettes a day. Dr Lange suggested that a respiratory physician should assess Mr Ford’s condition.
23. In a DVA Employer’s Questionnaire signed on 10 May 2001, an unknown signatory indicated that Mr Ford had worked for H M Tyrell Farm from 26 June 1995 to 28 February 2001. The signatory stated that Mr Ford’s employment ceased because of retirement and that no sick leave had been taken by Mr Ford. Mr Ford’s employer at Lakes Entrance, Mr Harry Tyrell, signed a statement dated 15 October 2002 indicating that Mr Ford had worked for him for six years until 28 February 2001. He stated that Mr Ford's duties included the work associated with a farm of 1500 acres. Mr Tyrrell stated that Mr Ford left his employ because of ill-health which prevented him from performing his duties.
24. On 25 June 2001, Mr Ford lodged an invalidity claim with DVA. In response to a question asking that he provide details of the disabilities that prevent him from working, Mr Ford stated that chronic bronchitis & emphysema, hearing loss and gastro reflux were the relevant conditions. Dr Gerry Walsh of Glen Waverley, who stated that he had been treating Mr Ford since 19 March 2001, confirmed the above diagnoses.
25. Centrelink paid disability support pension (DSP) to Mr Ford from 4 September 2001 to 30 September 2003. Mr Ford lodged a treating doctor’s report with Centrelink on 14 September 2001 in support of his claim for DSP. In that report Dr Kosky stated that Mr Ford suffered from chronic bronchitis & asthma and that the condition was likely to persist for at least two years.
26. In a report prepared by Health Services Australia for Centrelink on 5 November 2001, Dr Hyzy stated that:
Mr Ford is a 56-year old man who stopped working as a gardener in January because of medical conditions.
He sees a respiratory physician for severe chronic obstructive pulmonary disease. He has been a severe smoker for most of his life, and has had symptoms for ten years. His condition has worsened over the last year and a half. He has a daily cough, productive of yellow sputum. He also has markedly reduced exercise tolerance. He becomes breathless when gardening, when walking about 100 metres on flat ground, and when showering….
He is also on medications for hypertension, and occasionally takes Naprosyn for mild osteoarthritis in his knees.
In my opinion, I feel that Mr. Ford is unsuitable for full-time or part-time work for at least two years.
27. In a report dated 10 September 2002, Dr James Rowe, a specialist occupational physician, indicated that Mr Ford had stopped working because of shortness of breath caused by chronic bronchitis and emphysema. Dr Rowe indicated that Mr Ford had tried various anti-asthmatic medications to no avail and was of the opinion that even if Mr Ford had a diagnosis of bronchial asthma in the past, that it was now not relevant to the overall assessment. Dr Rowe was of the view that there may have been other components to Mr Ford’s shortness of breath including a possible undiagnosed heart condition. Dr Rowe stated that although Mr Ford was being treated for conditions that had not been accepted as war-caused, he did not believe that those conditions prevented Mr Ford from working.
28. In a Centrelink initiated medical review in October 2003, Mr Ford listed the following disabilities (as shown on form):
Spondylisis – Lumbosacral
De-generate Oestoarthritis
Chronic bronchitis, Emphyspema & Asthma.
29. Dr Kosky provided a report to Centrelink dated 10 October 2003 as part of the medical review. The Centrelink form contains a question asking for details about the conditions which have a significant impact on the patient’s ability to function. The medical practitioner is instructed to list conditions in order of degree of impact on ability to function – starting with the condition with most impact. Dr Kosky described the first condition from which Mr Ford suffered as Spondylosis – lumbosacral & gen osteoarthritis. He indicated that Mr Ford’s back and knees were painful and his movement restricted and this limited his activities. Dr Kosky indicated that the condition would deteriorate and would impact on Mr Ford for at least the subsequent two years. The second condition described by Dr Kosky was Chronic Bronchitis, emphysema & asthma which were smoking induced & long term. This resulted in a shortness of breath on exertion & chronic cough. This condition would also impact on Mr Ford for at least two years.
30. In an application form seeking an increase in existing service pension dated 26 August 2003, Mr Ford claimed new disabilities of nervous problems and skin problems. Mr Ford indicated that he had problems walking and could not climb stairs, used a walking stick all of the time and that he needed fittings in the house to assist mobility. He stated that he could only drive in emergency situations and that he found it difficult to use public transport due to difficulties in getting to it as well as getting on and off.
31. In a DVA form lodged on 22 October 2003, in which Mr Ford was required to provide invalidity details, Dr Kosky listed osteoarthritis and lumbosacral spondylosis along with chronic bronchitis and emphysema as disabilities permanently preventing Mr Ford from working. Dr Kosky indicated that shortness of breath on exertion and pain and limitation of movement alone prevented Mr Ford from working.
32. Dr Jerome L Gelb, a consultant psychiatrist, in a report dated 17 November 2003, stated the following:
In terms of work performance, Mr Ford stated that he ceased work due to his chest problems, but there is some evidence that he was somewhat of a liability in the workplace and was only tolerated because of a sympathetic boss. In my view, Mr Ford is totally and permanently incapacitated for remunerative employment on the basis of both his physical and psychiatric disabilities.
33. Professor Marshall, in his report dated 25 November 2003, was of the opinion that Mr Ford’s back condition, which Mr Ford had claimed in his October 2003 application to the Commission was preventing him from working, did indeed affect Mr Ford’s ability to work. In oral evidence, Professor Marshall stated that he maintained the views outlined in his report.
34. In a report dated 15 November 2004 Mr George Foenander, a clinical psychologist, stated that Mr Ford had told him that he had stopped working mainly because of his psychological ill health and alcohol abuse and that his back problem contributed to a minor extent. Mr Foenander stated that Mr Ford’s psychiatric injuries of PTSD and alcohol abuse would render him totally and permanently incapacitated for any form of work.
35. In oral evidence Mr Foenander maintained the views expressed in his report concerning PTSD and alcohol abuse. Under cross examination Mr Foenander said that the history he took from Mr Ford did not include the information that breathing difficulties contributed to his ceasing work.
36. In a report dated 30 September 2004, Dr Amanda Sillcock, an occupational physician, described the many conditions from which Mr Ford suffered. As well as the accepted war-caused conditions, Dr Sillcock stated that Mr Ford suffered from a back condition, hypertension, irritable bowel syndrome, anxiety state, bilateral astigmatism, itchy rashes, high cholesterol/triglycerides, diabetes, cardiovascular disease, neck injury, arthritis left knee and gout. Her opinion was:
…
He has multiple medical problems as discussed above but many of them are not severe enough to prevent him from working. In my opinion the main reason he gave up work and why he remains unfit is his respiratory condition. His lung function tests were relatively normal but he had taken medication before I saw him, which helps him. He has a history of moderately severe shortness of breath and poor exercise tolerance.
I believe his post traumatic stress disorder and alcohol dependence also affect his capacity to work, but not as much as his chest condition. I do not believe that he has a significant back problem and that it is not affecting his ability to work.
37. In oral evidence, Dr Sillcock said that she was aware of tenderness in the back and noted the x-rays of Mr Ford’s back. She said that Mr Ford had told her that he had had occasional episodes of back pain over the years but it had never stopped him from working. Dr Sillcock said that many people who suffered from a condition such as Mr Ford’s have no back pain but on the other hand, he would not have been x-rayed had there not been some complaint of pain. She said that she had concluded that Mr Ford’s back pain was not of sufficient magnitude to prevent him from working. She commented that perhaps the pain may have been worse on the day he saw Professor Marshall. Under cross examination, Dr Sillcock’s final comments were (transcript, p 78):
[Mr Rudge] Taken together, do his musculoskeletal conditions affect his work capacity?
[Dr Sillcock] …His gout, I don’t think, certainly doesn’t. The arthritis in his knee – and that was, you know, with the limp – and, again, when I examined his knee, I couldn’t find anything wrong with him but, on the other hand, I don’t think there were any x-rays, or anything like that either, to suggest that he had arthritis. The neck injury seemed to have settled. He had had the neck injury some 11 years ago and he went off work and sold the business to his brother and then the neck improved and he was – you know, he recovered from it. He said it still gave him a bit of trouble but it hadn’t stopped him working on the farm for six years and didn’t seemed to have been a – it was possibly an issue in leaving there, although I think he also said that there was a fair amount of stress in working in the family business, and so on, and anything like that certainly makes neck pain worse. So my assessment there was that the neck injury had certainly been a problem when he left that job but hadn’t been an ongoing problem, and he’d had other work. He’d been working on the farm for, you know, some six or seven years after that without any difficulty from the neck.
[Mr Rudge] If we asked that question from 26 August 2003 to the present, that is, from the time he is 58 years onwards, and factor in what you say at page 7, that:
He has to sit down to put on socks, trousers and underwear. Is able to stand for a few minutes at a time and his left leg gets a bit sore. He has to get up and move around after a while because of thigh pain.
So the musculoskeletal conditions from August 2003, 58 years of age, if we take those conditions together, do you think they would affect him working?
[Dr Sillcock] I suppose they’d have some effect oh his work – a little effect – but not a lot.
38. Dr Lester A Walton, a consultant psychiatrist, in a report dated 22 February 2005, noted that Mr Ford has accepted disabilities of post-traumatic stress disorder and alcohol dependence/abuse. He agreed that Mr Ford is properly diagnosed as suffering from PTSD and alcohol dependence. Dr Walton stated that Mr Ford had told him he had eventually resigned due to a combination of breathing difficulties, conflict with his co-workers and upon the instructions of his general practitioner. In oral evidence, Dr Walton reiterated that Mr Ford’s psychiatric condition was a partial contributor to his inability to work.
39. Professor Harper, in a report dated 5 April 2005, stated his belief that Mr Ford's combination of cardiac and lung disease prevented him from working more than 8 hours per week as a manual labourer or doing such jobs as gardening. He stated that Mr Ford has a chronic back problem but that Mr Ford had told him that this was not causing him problems at that time. In oral evidence Professor Harper indicated that the level of cardiac disease was probably sufficient of itself from preventing Mr Ford from working.
40. Dr Hart, in his report dated 14 April 2005 cited above, indicated that Mr Ford could not work for more than eight hours per week in any form of employment requiring physical effort. Dr Hart’s report was written before the surgery in relation to Mr Ford’s lung lesion. Dr Hart was of the view that from 26 August 2003 to the date of the report, about 25 per cent of Mr Ford’s exercise restriction was due to his lung disease and the remainder due to other causes. In oral evidence Dr Hart elaborated on his attribution of percentages. He stated that the 25 per cent of Mr Ford’s exercise restriction was due to chronic bronchitis and not to asthma.
Is Mr Ford still looking for work?
41. There is no evidence before the Tribunal that Mr Ford has sought employment after he stopped working in February 2001.
CONSIDERATION OF THE ISSUES
42. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force…
(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…
(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.
…
43. Mr Ford receives a pension at 100 per cent of the general rate. There is abundant medical evidence from general medical practitioners and specialists that Mr Ford is unable to work for more than eight hours per week due to his accepted war- caused conditions. The Tribunal finds that Mr Ford meets s 24(1)(a) and s 24(1)(b) of the Act.
44. While there is no dispute between the parties that Mr Ford meets s 24(1)(a) and s 24(1)(b) of the Act, there is disagreement in relation to s 24(1)(c). In respect of s 24(1)(c) of the Act, the Tribunal notes that in Repatriation Commission v Hendy (2002) 76 ALD 47, the Full Federal Court said (at para 37):
…The language of s 24 (1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker 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 those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war‑caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.…
45. In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) in a series of questions:
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?
46. In respect of question 1, Mr Ford’s work history is set out earlier in these Reasons for Decision. The Tribunal finds that the remunerative work undertaken by Mr Ford through his working life was primarily physical work with varying degrees of strenuousness. He undertook some management and liaison work whilst in his own business.
47. In respect of question 2, the Tribunal accepts the medical evidence that Mr Ford is prevented from working due to his accepted war-caused disabilities including PTSD, alcohol dependence/abuse and the various conditions resulting in shortness of breath including chronic bronchitis, ischaemic heart disease and adenocarcinoma of the lung. So the answer to question 2 is yes.
48. In respect of question 3, Mr Ford now asserts that it is his war-caused conditions alone that prevent him from working. However, in the five plus years since Mr Ford stopped working, there have been other medical conditions he and his doctors have cited as disabilities which prevent Mr Ford from working. He was initially diagnosed with asthma but later diagnoses query whether Mr Ford actually suffered from that condition.
49. Another of Mr Ford’s disabilities is a back problem. When Mr Ford first stopped working and applied for a disability support pension from Centrelink in 2001, his back problem was not cited. He received that pension on the basis of his breathlessness due to respiratory conditions. However, by the date of the claim which is the subject of this review, namely 26 August 2003, the back condition became a consideration. Section 19(5C)(a) of the Act requires the Tribunal to determine the rate of pension during the assessment period. That term is defined in s 19(9) of the Act as meaning:
....the period starting on the application day and ending when the claim or application is determined.
50. In this case, the application day was 26 August 2003 and the assessment period runs from that date. At that time, Mr Ford had stopped working some two and a half years earlier. While evidence pertaining to the previous two and a half years is relevant as to why Mr Ford stopped working, it is his medical conditions during the assessment period that the Tribunal must concentrate on. The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:
39….The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
40…it is possible that the war-caused condition may will be by far and away the more dominant of the causes of the preventative 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.
51. In a medical review form prepared for Centrelink in October 2003, Mr Ford’s general practitioner, Dr Kosky, listed Mr Ford’s spondylosis–lumbosacral and osteoarthritis as the primary conditions impacting on Mr Ford. Dr Kosky indicated that Mr Ford’s back and knees were painful and his movement restricted, limiting his activities. In a DVA form lodged on 22 October 2003, Dr Kosky lists osteoarthritis and lumbosacral spondylosis as being amongst the conditions that prevented Mr Ford from working. Professor Marshall has maintained the opinion that Mr Ford’s back problems are part of the cause of his inability to work as a result of his observations of Mr Ford and because of the history Mr Ford gave him. Dr Sillcock, while initially denying that Mr Ford’s back problems played a part in his inability to work, conceded that his musculoskeletal conditions would have had some effect, albeit a small one.
52. Notwithstanding Mr Ford’s assertions to the contrary, the Tribunal is satisfied on the basis of the history Mr Ford himself gave to Dr Kosky, Professor Marshall and Dr Sillcock, that among the causes of Mr Ford’s inability to work are his back problems and osteoarthritis which are not accepted war-caused conditions. Given the Tribunal’s findings on the back condition, it is not necessary to explore whether other respiratory conditions that are not accepted war-caused disabilities also played a part. Therefore, the answer to question 3 in Flentjar is no. Question 4 is therefore irrelevant.
53. Mr De Marchi, the solicitor representing the applicant, submitted that Mr Ford may meet s 24(1)(c) of the Act on the basis of s 24(2)(b). In Leane v Repatriation Commission (2004) FCAFC 83, the Full Federal Court considered s 24(2)(b) in relation to whether a person is genuinely seeking work. The applicant in that case, like Mr Ford, was prevented by his war-caused disabilities from working more than eight hours per week. The Court stated:
27. The policy of s 24(2)(b) of the Act was explained in the speech on the second reading of the Bill for the insertion of that provision (see per Sackville J in Repatriation Commission v Sheehy (1995) 133 ALR 654 at 660-661). In that speech the relevant Minister made the point that ‘special provision is made by the bill to cover veterans who are under 65 years of age, are unemployed, and are genuinely seeking to engage in remunerative work.’
28 The primary judge interpreted the word ‘seeking’ to mean ‘attempting to’ or ‘trying to’. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant ‘do’ something. On the other hand the word ‘genuinely’ is used in the sense of ‘sincerely’ or ‘honestly’. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
….
37 We remind ourselves that the ‘satisfaction’ required in s 24(2)(b) of the Entitlements Act is the satisfaction of the Tribunal, not of this Court. Nevertheless, it seems to us that the limited evidence before the Tribunal was so inadequate that it was not capable of satisfying the Tribunal that the Veteran was genuinely seeking to engage in remunerative employment. This is not to suggest that there was any onus cast upon the Veteran – merely that the material before the Tribunal was not capable of satisfying it of matters upon which it had to be satisfied if it was to determine that the Veteran was entitled to a pension at the special rate.
54. Mr Ford stated that he had originally intended to work until retirement age. However, there was no evidence presented to the Tribunal to substantiate that comment or to suggest that Mr Ford had genuinely been seeking to engage in remunerative work after voluntarily finishing his employment in February 2001. It appears to the Tribunal that Mr Ford’s original intention to work until retirement age was a mere wish or hope. The Tribunal is not satisfied that Mr Ford is able to access the ameliorative provisions of s 24(2)(b) to obtain a special rate pension.
55. The Tribunal finds that Mr Ford does not meet the very onerous requirements of s 24(1)(c) of the Act. He is therefore not entitled to the special rate of pension.
DECISION
56. The Tribunal affirms the decision under review.
I certify that the fifty-six [56] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Ursula Noyé
Clerk
Dates of hearing: 21 June 2005, 22 June 2005, 7 April 2006
Final submissions: 14 July 2006Date of decision: 8 March 2007
Solicitor for applicant: Mr D. De Marchi
Counsel for respondent: Mr K. RudgeSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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