Giesen and Repatriation Commission

[2004] AATA 282

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 282

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1345

VETERANS’      APPEALS      DIVISION

Re:         LEO GIESEN

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             17 March 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS ‑ pension at special rate – various physical and psychiatric conditions ‑ substantial cause of inability to work 

Veterans’ Entitlements Act 1986 ss24, 119

Cavell v Repatriation Commission (1988) 9 AAR 534

Fox v Repatriation Commission (1997) 45 ALD 317
Repatriation Commission v Hendy [2002] FCAFC 424

Sheehy v Repatriation Commission (1996) 41 ALD 205

REASONS FOR DECISION

17 March 2004  G. D. Friedman, Member

1.      This is an application by Leo Giesen (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 30 October 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 2 April 2002 that the applicant’s disability pension should be continued at 100 per cent of the general rate.  

2.      At the hearing of this matter on 19 February 2004 and 5 March 2004 Mr D. De Marchi, solicitor, represented the applicant and Mr R. Fergusson, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T302), together with two exhibits (Exhibits A1 and A2) lodged by the applicant and fourteen exhibits (Exhibits R1‑R14) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 8 June 1941.  He enlisted in the Australian Army (the army) on 12 December 1966 and was discharged on 21 July 1970.  His service included service in Vietnam from 24 October 1967 until 24 November 1967.  On 1 March 2002 the applicant lodged an application claiming post traumatic stress disorder (PTSD) and seeking an increase in the rate of pension payable for accepted disabilities. The respondent has accepted that the applicant's following disabilities are war-caused: generalised anxiety disorder, psychoactive substance abuse or dependence, chronic solar skin damage, colorectal adenomatous polyp, gastro‑oesophageal reflux disease, hypertension, irritable bowel syndrome, impotence, neurodermatitis and cerebral ischaemia.  The respondent has rejected the applicant's following disabilities as being war-caused: mitral stenosis, lumbar‑sacral spondylosis, rheumatic heart disease, atrial fibrillation, benign prostatic hypertrophy, left ventricular dysfunction, chronic airflow limitation (no incapacity found), obesity and PTSD (no incapacity found).

5.      On 12 December 2002 the applicant applied to the Tribunal for review of the VRB decision.

6.      The issue before the Tribunal is whether the applicant’s inability to work was due to his accepted war‑caused disabilities to the extent that he is eligible for pension at the special rate.

EVIDENCE

7.      In a written statement dated 28 February 2003 (Exhibit A1) the applicant said that after leaving the army he returned to his trade as a boilermaker/welder.  He said that he stopped working in 1980 because of his heart condition.  He stated that in 1996 he obtained part‑time work with Cobral Metals Pty Ltd and stayed there until 1999, when he was forced to leave after continuing problems with binge drinking.

8.      The applicant stated that from 1999 to 2000 he worked five hours per week with the Corps of Commissionaires but ceased because of gastro‑oesophageal reflux problems, which kept him awake at night and he was unable to cope with the work.  He described how he returned to Cobral Metals from 2000 to 2001, working ten hours per week, but has not worked since ceasing that position in April/May 2001.  The applicant told the Tribunal that he believed the conditions of gastro‑oesophageal reflux disease, alcohol dependency, generalised anxiety disorder and irritable bowel syndrome prevent him from working more than eight hours per week.

9.      In oral evidence the applicant stated that the stroke he suffered has affected his memory, and a return to his trade as a boilermaker/welder was impossible.  He said that he becomes very tired, and has no strength in his left hand.  The applicant explained that his accepted disabilities, not his heart condition, prevent him from working.

10.     Under cross‑examination the applicant stated that when he returned to Cobral Metals he told his employer after several months that he was unable to continue because of exhaustion due to insufficient sleep as a consequence of the reflux condition.  The applicant referred to his multiple medical problems and said that he could cope with neck, heart, back, knee and shoulder pain for a few hours at a time, but the remaining conditions prevented him from working.

11.     In a written report dated 23 May 2003 (Exhibit A2) Dr J. Hofland, consultant in rehabilitation medicine, stated (at p3):

…

Mr Giesen has multiple medical problems, impacting on his day to day life and ability to work.  Given the above history together with the history obtained on initial assessment in July 2002 it is my opinion that Mr Giesen was unable to continue part‑time work-in any capacity in March 2002.  His inability to continue part-time work is due to symptoms of his Accepted Disabilities of gastro-oesophageal reflux disease, alcohol dependence, generalised anxiety disorder and irritable bowel syndrome.

The symptoms of gastro-oesophageal reflux disease were and are worse than I understood in June 2001, preventing him from bending and sleeping properly.  The symptom of tiredness appears to directly relate to this rather than his cardiac disease as stated in my earlier report.

I understand he suffered his stroke in March 2001 after he resigned from his part‑time job.  As an Accepted Disability it would have further added to his inability to work.

…

In oral evidence Dr Hofland stated that, despite the applicant’s many medical problems, he had demonstrated a willingness to work.  In cross‑examination she agreed that the applicant’s heart problems have contributed to his pain, but she stated that in her opinion the accepted disabilities represented the major cause of his inability to work.

12.     In a written report dated 13 October 2003 (Exhibit R10) Dr N. Strauss, consultant and occupational psychiatrist, stated the applicant’s capacity for work has been largely limited by his physical problems.  Dr Strauss said (at p9):

…

I believe that this man’s history has to be taken into account in total.  He has a number of service caused and non service caused disabilities and they have all contributed to his overall incapacity.  His psychiatric problems are partly related to his Army service and partly related to personal factors as stated.  Similarly his physical problems are both service related and non-service related and all these factors have in my opinion caused him to be incapacitated.  It has not just been his war caused disabilities that have stopped him from working.

…

You have asked me to estimate the relative contribution of his psychiatric condition versus the impact of his physical condition on his capacity to undertake remunerative work over the period 1980 to date and I have already stated that his incapacity for work has been contributed to by a factor of approximately 20% when psychiatric incapacity is considered.  

13.     In a written report dated 12 December 2003 (Exhibit R11) Dr Strauss stated (at p2):

…

I am of no doubt that he may have had problems remembering events in his life and I am quite prepared to accept that his stroke took place in 2002.  It may well be that his stroke therefore had nothing to do with his cessation of employment.

I therefore believe that other factors and not his stroke have caused his cessation of employment.

…It is not for me to comment on his incapacity for work on physical grounds but I hold with that opinion although I accept that a deterioration in his mental state over the years has also contributed to his inability to work.

…

14.     In a written report dated 14 January 2004 (Exhibit R12) Dr Strauss stated that taking psychiatric factors and non-accepted physical factors into consideration, the applicant would probably not have been able to work more than eight hours per week in recent years.  He noted that any exacerbation of a psychiatric condition due to personal or physical factors are also assessed as part of that condition, and stated (at p2):

…Therefore in recent years this man has suffered from physical problems which have not been war related but they have aggravated his psychiatric problems…

15.     In oral evidence Dr Strauss said that the applicant had a greater incapacity as a result of his service‑related conditions than his non‑service related conditions.  Under cross‑examination Dr Strauss agreed that the applicant’s physical problems interact with his psychiatric problems.

16.     In a written report dated 17 October 2003 (Exhibit R13) Dr J. Vohra, Associate Professor of Medicine, Victorian Heart Centre, stated (at p2):

Mr Giesen has deteriorated in his functional capacity since my report of 29 April 1997.  While his functional capacity has gone down due to a number of factors, there is some progression in the severity of his cardiac condition.  From mild mitral stenosis he now has moderate mitral stenosis and atrial fibrillation, and it is unlikely that Mr Giesen is capable of working.  I think that he should be regarded as permanently disabled.

I think Mr Giesen’s heart condition, obesity and lung disease all contribute to him requiring him to sleep on 5 pillows and day time fatigue.  He is very likely to have sleep apnoea related to obesity.

I would regard that the conditions mentioned above contribute 70% to his present functional incapacity…

17.     In a written report dated 16 June 2003 (Exhibit R7) Dr R. Horsley, occupational physician, stated (at pp15‑16):

…

I believe, on the basis of his accepted war caused physical disabilities that he is fit to work eight hours per week.  He is also fit to work twenty hours per week. 

…

I believe that Mr Giesen’s non-accepted incapacities and physical disabilities have had a significant impact on his capacity for work.

Clearly he has significant cardiac disability with ongoing atrial fibrillation that has not reverted with multiple efforts at DC version.  He has poor physical tolerances.  These are a combination of his lumbar-spondylosis, bilateral hip condition, bilateral knee conditions and his cardiac condition.  He was off work for a sixteen-year period on the basis of his heart condition.  He had multiple operations during that period.  Mr Giesen has had a valvotomy and now has echocardiograph evidence of atrial hypertrophy and left ventricular dysfunction.  This confirms objectively, a contributing factor with respect to his shortness of breath and reduction in physical tolerances.

Mr Giesen's physical incapacity is also affected by his musculo skeletal conditions.

…

18.     In a written report dated 16 December 2003 (Exhibit R8) Dr Horsley referred to the report from Dr Hofland and stated that she did not believe that irritable bowel syndrome would have any great impact on capacity for work.  She also stated (at p2):

…

I note my recommendations to avoid lifting items greater than 8 kg on a permanent basis and avoidance of lifting items up to 8kg on a repetitive basis, in view of his musculoskeletal problems.  If he were to find suitable duties within those restrictions, this would not impact upon his gastro-oesophageal reflux.

In my opinion, his musculoskeletal conditions prevent him from returning to the workforce and I consider him to be totally and permanent[ly] disabled on the basis of those conditions.

…

19.     In a written report dated 23 January 2004 (Exhibit R9) Dr Horsley acknowledged that, as an occupational physician, she was unable to comment on the applicant’s psychiatric status.  However, she stated (at p2):

…On the basis of his non-accepted physical disabilities, I believe that he is unfit to work greater than 8 hours and therefore greater than 20 hours per week.  I believe that on the basis of his multiple non-accepted physical conditions that he is totally and permanently disabled. 

…

Dr Horsley said that Dr Strauss’ comments did not substantially alter her opinion, as her comments were related to the physical component of the applicant’s disability.

20.     In oral evidence Dr Horsley said that the non‑accepted physical disabilities alone resulted in total and permanent incapacity.  She stated that the views of Dr Vohra about the worsening of the applicant’s heart condition confirmed her clinical impression.  Under cross‑examination she agreed that the applicant was well motivated to work.  She also agreed to defer to Dr Strauss on matters related to the applicant’s psychiatric condition.

21.     In a written report dated 15 October 2003 (Exhibit R14) Dr D. Devonshire, gastroenterologist and consultant physician, stated (at p1):

…

In my opinion, Mr Giesen’s symptoms have impacted at least moderately on his capacity to work and his daily quality of life.  In my opinion, his reflux disease does contribute to his breathlessness and his difficulty to sleep with his bed elevated at night and his subsequent day time fatigue…

CONSIDERATION OF THE ISSUES

24. 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:

…

(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

…

(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

…

(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.

…

22.     Mr De Marchi submitted that the evidence from the applicant was important.  He said that the applicant had given evidence in a truthful manner, was motivated to work, and had made repeated efforts to obtain work within the limits of his disabilities.  Mr De Marchi described the medical evidence as complicated.  He said such evidence should not be considered on the basis of each individual medical practitioner.  He said that Dr Strauss had given the accepted disabilities and the non‑accepted disabilities a role in the ability of the applicant to work.  He emphasised Dr Strauss’ evidence that non‑accepted physical disabilities had an impact on the anxiety condition suffered by the applicant, with a consequent impact on his ability to work.

23.     Mr De Marchi noted that Dr Horsley had deferred to Dr Strauss, and submitted that the Tribunal should be satisfied that the applicant’s inability to work was related directly to his accepted physical and psychiatric disabilities, and indirectly to his non‑accepted physical disabilities because these exacerbated his accepted psychiatric disability.  Mr De Marchi submitted that on the balance of probabilities the accepted disabilities were the predominant factors in the applicant’s inability to work and constituted the substantial cause of his inability to obtain remunerative work.

24. In relation to s 24(1)(c) of the Act, Mr De Marchi submitted that the ameliorative provision of s 24(2)(b) applied in this case, as the applicant was less than 65 years old at the relevant time. Mr De Marchi also noted the beneficial provisions of s 119 of the Act, which he said should be applied in this case.

25.      Mr Fergusson submitted that the correct test was not whether the accepted disabilities were the predominant factor, but were the substantial cause as specified in s 24(2)(b) of the Act. Mr Fergusson said that, in any event, the applicant did not satisfy s 24(2)(a)(i) of the Act, because the applicant had ceased to engage in remunerative work for reasons other than his incapacity from the war‑caused disabilities, such as heart‑related and orthopaedic factors. He also said that the Tribunal should consider the work history of the applicant, rather than his last remunerative work (Sheehy v Repatriation Commission (1996) 41 ALD 205).

26. In relation to s 24(2)(a)(i)(ii) of the Act, Mr Fergusson submitted that the applicant was incapacitated, or prevented from engaging in remunerative work, for some reason other than his accepted war-caused disabilities. He referred to Repatriation Commission v Hendy [2002] FCAFC 424 and said that the remunerative work did not have to be the last employment that the applicant actually undertook. Mr Fergusson conceded that the applicant was highly motivated to work, but stated that the applicant’s non‑accepted disabilities were sufficient to prevent him from working, so that the applicant cannot satisfy s 24(2)(a)(ii) of the Act.

27.     The Tribunal reached its decision taking into account the oral and written evidence and the submissions made at hearing.

28.     The Tribunal accepts that the applicant was highly motivated to work. Although Dr Hofland concluded that the applicant’s inability to work part‑time was due to accepted disabilities, the Tribunal notes that in cross‑examination she acknowledged that his heart problems contributed to his pain.   The Tribunal also agrees with Dr Strauss that the applicant’s history has to be taken into account in total, and that the applicant has a number of war‑caused and non-war‑caused disabilities, all of which have contributed to his incapacity.  Dr Strauss’ estimate that psychiatric incapacity contributed about 20 per cent of incapacity for work is generally consistent with the estimate by Dr Vohra that the applicant’s heart condition, obesity and lung disease contributed 70 per cent towards his functional incapacity.  Dr Vohra’s evidence was supported by Dr Horsley in her evidence that the applicant’s non‑accepted incapacities and physical disabilities have had a significant impact on his ability to work.

29.     The Tribunal accepts that the applicant’s physical problems, including non‑accepted disabilities, may have aggravated his psychiatric problems.  However, the clear weight of medical evidence is that the applicant’s non‑accepted conditions, together with the accepted conditions, have played a major role in preventing the applicant from working more than eight hours per week.

30. It follows that the Tribunal does not accept the evidence of the applicant, and the submission from Mr De Marchi, that it was the veteran's mental state, notwithstanding his physical problems, that prevented him from being able to obtain remunerative work. The Tribunal takes into account the totality of the medical and other evidence and the provisions of s 119 of the Act. The Tribunal also takes into consideration the necessity to make a commonsense decision, based on all the material (Cavell v Repatriation Commission (1988) 9 AAR 534). The Tribunal finds that the war-caused disabilities were not the substantial cause of the applicant’s inability to obtain remunerative work as required in s 24(2)(b) of the Act and as described by Kiefel J in Fox v Repatriation Commission (1997) 45 ALD 317 (at pp319‑320):

…

The words "the substantial cause" require that, if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it. That something might be "a substantial cause" has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as "substantial"… The definite article in s 24(2) of the 1986 Act (compare Repatriation Act 1920, Sch 2, as amended in 1985), requires a stronger and more direct causal connection between the incapacity and the inability to obtain remunerative work…

Therefore, the applicant cannot satisfy s 24(2)(b) and s 24(1)(c) of the Act, and the application must fail.

DECISION

31.     The Tribunal affirms the decision under review.

I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Dates of hearing:  19 February 2004,

5 March 2004

Date of decision:  17 March 2004
Advocate for applicant:                Mr D. De Marchi
Solicitor for applicant:                  De Marchi & Associates
Advocate for respondent:            Mr R. Fergusson

Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs