French and Repatriation Commission
[2003] AATA 1227
•5 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1227
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/47
VETERANS' APPEALS DIVISION ) Re ERNEST GRAEME FRENCH
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member) Date5 December 2003
PlaceHobart
Decision The Tribunal sets aside the decision under review and in substitution therefor a decision that the applicant is entitled to the special rate of pension. The matter is remitted to the respondent for assessment in accordance with the Tribunal’s decision.
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Part-Time Member
CATCHWORDS
Veteran’s Entitlements – Special Rate of pension, veteran’s accepted condition of ischaemic heart disease alone rendered him incapable of undertaking remunerative work, appeal allowed
Veterans’ Entitlements Act 1986 – s24(1)
REASONS FOR DECISION
5 December 2003 Ms A F Cunningham (Part-time Member) 1. The applicant has sought the review of a decision of the Repatriation Commission dated 14 June 2000, which was subsequently affirmed by a decision of the Veterans’ Review Board dated 6 March 2001 whereby the applicant’s rate of pension was assessed at 100 percent of the General Rate with effect from 20 May 1999. The decision by the Repatriation Commission followed acceptance of the applicant’s conditions of hypertension, post-traumatic stress disorder, alcohol dependence or alcohol abuse as being war-caused. The applicant’s conditions of bilateral sensori-neural hearing loss, bilateral tinnitus and ischaemic heart disease had previously been accepted as being war-caused.
2. It is the applicant’s contention that he is entitled to the special rate of pension pursuant to the provisions of s24(1) of the Veterans’ Entitlements Act 1986 (“the Act”) in that he is incapable of undertaking remunerative work due to his accepted disability of ischaemic heart disease.
3. The applicant was represented by Ms Lindi Wall and gave oral evidence before the Tribunal. Dr Michael Loughhead was also called to give evidence on behalf of the applicant. The T documents were tendered pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
4. The respondent was represented by Mr M Castle. No evidence was submitted on behalf of the respondent.
5. The issue to be decided is whether the applicant’s accepted disability of ischaemic heart disease alone prevents him from undertaking remunerative work or alternatively is the substantial cause of his inability to engage in remunerative work.
Legislation
6. The payment of the special rate of pension is made pursuant to the provisions of s24(1) of the Act which provides:
“(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.”
History
7. The applicant’s condition of ischaemic heart disease was accepted as being war-caused in November 1996.
8. The impairment ratings as set out in paragraph 2 of the applicant’s statement of facts and contentions are not in dispute. It is agreed that the applicant meets the requirements of sub-sections of 1(aa) and (aab)(a)(i) of s24 of the Act. The applicant is currently aged 63 years of age.
9. The applicant last worked in November 1991 as a boundary rider and stockhand at Rheban, a farm property of the East Coast of Tasmania.
10. The applicant left the Royal Australian Navy in 1964 after 6½ years of service.
Evidence
11. It was Mr French’s evidence that after leaving the Navy and commencing employment he was required to undertake a medical examination which indicated that he suffered from very high blood pressure. At this time he was aged in his twenties. It took 4 years for his blood pressure to be controlled by appropriate medication which he still takes.
12. Mr French said that he first worked harvesting kelp, then as a truck driver for Walker Brothers, then for the Spring Bay Council where he drove a truck and backhoe. Following this work he worked as a deckhand and cook on various trawlers. After running his own truck business in Hobart he left to work as a farmhand on the Rheban property. The work involved was very physical and included walking property boundaries, fencing, moving stock, drenching and general farm activities.
13. Mr French informed the Tribunal his first chest pain was in the early 1970’s. An ECG revealed nothing. He said that when he was aged about 30 and whilst working as a truck driver for Walker Brothers, he experienced a sudden onset of chest pain and was referred again for an ECG. The result was negative and he did not experience any further symptoms for a further 3 years.
14. When he was aged approximated 33 years, Mr French said he experienced further severe attacks of chest pains. Again the ECG’s were normal. Mr French described the pain like having a heart attack. He said that during this period he was experiencing chest pain on a regular basis, but that he only sought medical attention when the pain was particularly severe. He recalls having a week off work in the early 1970’s because of chest pain.
15. It was Mr French’s evidence that he continued to experience a lot of chest pain and shortness of breath. Whilst working at Rheban he consulted his general practitioner who told him he may have arthritis and referred him to Dr Hilton Francis. Dr Francis gave him two injections and told him that he did not have arthritis and that there was nothing wrong with him.
16. Mr French ceased taking his medication, however he experienced ongoing shortness of breath and chest pain. He re-consulted his general practitioner Dr Bailey Williams and x-rays were taken. He was told that the reason for his chest pain and shortness of breath was a condition known as arthritis of the sternum.
17. Whilst Mr French had ongoing pain in his ankles, he said that the chest pains were the cause of him having to cease his work at Rheban. Mr French was adamant that if it was not for the shortness of breath he could have continued to undertake his farm work at Rheban. It was Mr French’s evidence that because of his shortness of breath and chest pain he was unable to undertake the walking that was involved in his job on the farm. He also had difficulty with tractor work and hooking up the implements. Whilst he did continue to suffer pain in the joints, he said that it was the chest pain and shortness of breath that made the physical work required of him in his farm activities quite impossible.
18. It was whilst Mr French was working at Rheban that he saw Dr Stewart Graham who prescribed him cortisone and other medication. This helped his swelling such that he was able to shear and crutch sheep.
19. Mr French stated that he knew of no other type of work that he could do. Although he had previously worked as a truck driver, he said that getting in and out of the truck would be difficult and particularly the loading and unloading that would have been required.
20. Mr French said that he is still on medication for joint pain. Whilst he feels “quite good” at present and can move his fingers easily, there are days when he is much worse.
21. Mr French said that following the diagnosis by Dr Hilton Francis of arthritis in the sternum, all his symptoms including his chest pain were attributed to this diagnosis.
22. Mr French was sent for a routine Navy test for asbestosis (all ex-servicemen were tested after 30 years) which revealed that he did not have rheumatoid arthritis of the sternum. No other investigations were made in relation to his chest pain.
23. In 1997 he experienced a very bad bout of chest pain, including numbness in his arms, tongue and tingling of the lips. He did not seek any medical attention however because previous tests had not revealed any problems..
24. Three weeks later on 10 September 1997, Mr French experienced a heart attack and as a result was in intensive care for six days and in hospital for a further 3 days.
25. Mr French said his condition improved following the heart attack and he felt better than he had for some time. Mr French said that although he still had some difficulty breathing, it was the first time that he had not suffered from chest pains since the early 1970’s.
26. However the chest pains re-emerged a few months after his heart attack and have remained with every since. Whilst his pain is controlled by medication, it was Mr French’s evidence that his breathlessness is getting worse all the time.
27. Mr French conceded that he had previously understood that all of his symptoms were due to the diagnosis of rheumatoid arthritis. In his claim form for compensation (T12) he stated that the disability he suffered which affected his employment or his ability to seek employment was “severe rheumatoid arthritis”. This claim is dated 17 August 1999. At page 34 in response to a question “did your disability stop you working in any way?” Mr French responded “Yes”, and stated “chest pain/due to medication, I could not do my job as required”.
28. Whilst Mr French continued to experience chest pains and shortness of breath, he accepted the diagnosis of arthritis of the sternum and ceased consulting a medical practitioner. It was not until the year 2000 when Mr French consulted Dr Loughhead who informed him that he had angina, (which was not evident from x-rays), that Mr French understood that his chest pain and shortness of breath were not related to his arthritis.
29. Dr Michael Loughhead gave evidence before the Tribunal and two letters written by him dated 22 January 2001 and 18 September 2003 were tendered in evidence.
30. Dr Loughhead informed the Tribunal that he first saw Mr French on 10 September 1997 when he suffered a myocardial-infarction. He stated that Mr French was forced to stop work because of pain in his chest and his ankles and hands.
31. He commented that Mr French’s chest pain was always put down to his arthritis. After speaking to Mr French, it was Mr Loughhead’s opinion as stated in his letter of 22 January 2001, “that he was getting angina in retrospect. He describes chest tightness accompanied by breathlessness whenever he pushed himself, such as walking up a rise. That pain continued until he had the heart attack in 1997 and then it did not occur after that for years”..
32. It was Dr Loughhead’s opinion that an important factor, if not the major contributor for Mr French stopping work in 1991 was coronary heart disease.
33. In his letter dated 18 September 2003, Dr Loughhead’s stated response to a question put by Ms Wall, namely, “Would Mr French have been forced to stop work in 1991 because of pain in his chest caused by coronary heart disease alone, irrespective of the arthritic pain in his ankles and hands” was “Yes”.. This response was conditional upon the accuracy of the history given in Mr French’s proof of evidence. Dr Loughhead stated: “Certainly from the description of his symptoms given in the proof of evidence, it sounds very much as if he was getting anginal discomfort at that stage. Obviously someone who is getting angina should not be doing a significant physical job and we would have recommended that he discontinue work at that stage if it had been known that he had significant coronary artery disease”. Mr Loughhead said in evidence before the Tribunal that one could have unrecognised symptoms of angina for many years. He stated that Mr French’s ECG was consistent with him having a past heart attack and having coronary disease.
34. Also tendered in evidence was a statement written by Kevin R Gatehouse who was the manager of the Rheban farm from 1964 until 1998. He said that he had known Mr French for many years who was a hard and honest worker. Mr Gatehouse stated that Mr French “began working with me at Rheban 1986 as a general stationhand and soon became a valued member of the farm workforce. From my memory it was about three years later I started to notice a deterioration in his health during the latter 18 months or so at his time at Rheban, that health problems became much more severe, and involved frequent bouts of chest and leg joints pain and treatment from doctors”..
Findings
35. It was Mr French’s evidence that whilst he suffered from arthritis, his chest pain and shortness breath were the principal reasons why he was forced to give up his work at his last place of employment on the Rheban property. Dr Loughhead informed the Tribunal that Mr French had told him that the principal reason for him giving up his work was the chest pain.
36. The provisions of s24 of the Act provide that the applicant’s accepted disability must be the sole cause of him ceasing his work.
37. It was Mr Castle’s submission that whilst Mr French’s heart condition was a major contributor to him ceasing work, it could not found on the evidence available that it was the sole contributor. The evidence was that he also suffered rheumatoid arthritis which presented as pain and swelling in his ankles and knees.
38. As Dr Loughhead commented, his opinion that Mr French was forced to stop work because of the pain in his chest caused by his coronary heart disease was dependent upon the accuracy of the history given by Mr French. Dr Loughhead said that he had no reason to doubt Mr French’s recollections and that he had always been accurate and provided a good history. This is also the conclusion of the Tribunal after seeing Mr French present his oral evidence and cross-examined by Mr Castle.
39. The Tribunal accepts Mr French’s evidence that he initially understood that his chest pain and other symptoms were due to the diagnosis of rheumatoid arthritis as he had been informed by various doctors. That it was not until he consulted Dr Loughhead and was informed in the year 2000 that he had suffered from angina for many years, that he understood that this was the cause of his chest pain.
40. Further, the Tribunal accepts Mr French’s evidence that whilst he was experiencing difficulties in undertaking his farm work because of the swelling and pain in his joints, he could have continued in this employment had he not also suffered from chest pain and shortness of breath. The Tribunal accepts that his chest pain and shortness of breath were the sole reasons why he ceased his farm employment at Rheban and has not sought alternative employment. The evidence was that he had considered what other employment he could undertake, but given his lack of skills and training and that his previous employment was essentially related to manual work and driving, it was his opinion that his chest pains and shortness of breath would prevent him from undertaking that type of employment in the future.
41. Dr Loughhead’s response to a question from Mr Castle as to whether the applicant is capable of working 8 hours or more was, “absolutely not”.
42. The standard of proof is that set out in s120(4) of the Act in that the Tribunal must decide matters to its reasonable satisfaction.
43. For the above reasons the Tribunal is reasonably satisfied that Mr French’s accepted condition of ischaemic heart disease is of such a nature that it alone renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week and thus satisfies the provisions of sub-section 1(b) of s24.
44. Pursuant to the provisions of s28 of the Act in considering whether Mr French is incapable of undertaking remunerative work, the Tribunal takes into account the type of work that Mr French was undertaking just prior to him ceasing his employment, his previous work as a truck driver and labourer and his lack of formal qualifications, skill or experience in other work that he may have been available to him.
45. Further, the Tribunal is reasonably satisfied that Mr French ceased his work as a farmhand at the Rheban property solely because of his ischaemic heart disease and as a consequence suffered a loss of wages that he would not have suffered if he was free from that incapacity, thus satisfying the provisions of sub-section 1(c) of s24.
46. The Tribunal having found that the applicant meets the qualifying provisions of sub-sections (1)(b) and (c) of s24 it is unnecessary to consider the ameliorating provisions of sub-section 2(b) of s24.
47. The Tribunal having so found sets aside the decision under review and substitutes a decision that the applicant is entitled to the special rate of pension in accordance with the provisions of s24 of the Act.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 10 July 2002 and 24 September 2003
Date of Decision 5 December 2003
Counsel for the Applicant Ms Lindi Wall
Solicitor for the Applicant Wallace Wilkinson and Webster
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Department of Veterans’ Affairs
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