Godfrey and Repatriation Commission
[2007] AATA 79
•7 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 79
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/24
VETERANS’ APPEALS DIVISION ) Re BERNARD JOHN GODFREY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member)
Mr S J Ellis (Member)
Rear Admiral A R Horton AO (Member)Date 7 March 2007
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a decision that from 31 December 2004 until 15 October 2006 Mr Godfrey’s rate of Disability Pension be fixed at 100 percent of the general rate and from 16 October 2006 Mr Godfrey’s rate of Disability Pension include the extreme disablement adjustment.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – rate of pension payable – special rate – extreme disablement adjustment – decision set aside
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996
Starcevich v Repatriation Commission (1987) 18 FCR 221
Sheehy v Repatriation Commission (1996) 66 FCR 569
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
7 March 2007 Mr J G Short (Member)
Mr S J Ellis (Member)
Rear Admiral A R Horton AO (Member)introduction
1. On 31 March 2005 Bernard Godfrey claimed war-caused conditions, including sensorineural hearing loss, tinnitus and hypertension. On 9 June 2005 these conditions were accepted as war-caused, however Mr Godfrey’s rate of pension was continued at 100 percent of the general rate. The Veterans’ Review Board (VRB) affirmed the assessment decision on 1 December 2005. On 31 January 2006, Mr Godfrey lodged an appeal to this Tribunal.
issue for determination
2. The issue before the Tribunal is whether Mr Godfrey satisfies either ss 23 or 24 of the Veterans’ Entitlements Act 1986 (the VE Act), that is whether he qualifies for one of the earnings related rates of pension and if not, whether Mr Godfrey is entitled to the extreme disablement adjustment.
3. It is common ground that Mr Godfrey has not sought to engage in remunerative work and that the ameliorating provision of s 24(2)(b) of the VE Act is not applicable.
4. The Tribunal has concluded that Mr Godfrey has not satisfied the requirements for payment of either of the earnings related rates of pension, that is either the intermediate or special rates. However, the Tribunal has determined that with effect from 16 October 2006 (the day Mr Godfrey turned 65 years of age) he has been entitled to the extreme disablement adjustment.
5. There was no contention before this Tribunal that Mr Godfrey qualified for the intermediate rate of pension. However, it was submitted that Mr Godfrey satisfied the requirements of s 24(1) of the VE Act for payment of the special rate of pension and has done so since at least 3 months prior to lodging his claim, that is since 31 December 2004.
6. While the issue of an extreme disablement adjustment was not raised in either the applicant’s or the respondent’s statements of facts, issues and contentions, the respondent (the Commission) did indicate partway through the hearing that it considered that from Mr Godfrey’s 65th birthday, he satisfied all the requirements for payment of the extreme disablement adjustment.
legislation
7. Sub-sections 24(1)(c) and s 24(2)(a) of the VE Act relevantly provide as follows:
“24(1) This section applies to a veteran if:
…
(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; …”
If s 24(1) of the VE Act applies, Mr Godfrey will be entitled under s 24(4) of that Act to a pension at the special rate provided therein.
background and evidence
8. Mr Godfrey told the Tribunal that following discharge from his Naval service in 1974, he commenced work as a tiler, particularly involved in ceramic tiling of walls and floors. He said that he pursued this trade on his own account until mid 2002 when he said that a heart attack experienced in January 2002 caused him to cease work in about June of that year. Mr Godfrey said that he has not worked since. He pointed out that following his successful by-pass surgery on 14 January 2002, and 12 weeks of recovery thereafter, he was able to return to complete a job he had started prior to December 2001. He said that he was able to complete that job with the assistance of free labour provided by his principal. He said that although he was able to complete the work it was not without some difficulties in the form of shortness of breath and giddiness on getting up and down.
9. Mr Godfrey confirmed that his accepted disabilities now comprise atherosclerotic peripheral vascular disease affecting both legs; ischaemic heart disease; secondary cardiomyopathy; post-traumatic stress disorder; alcohol dependence; bilateral sensorineural hearing loss and tinnitus. He also confirmed that he had rejected disabilities of asbestosis and emphysema and that he also has a history of suffering from osteoarthritis of his back, knees and right shoulder.
10. Mr Godfrey had previously been in receipt of a Centrelink Disability Support Pension. In respect of his claim for that condition, a Commonwealth Medical Officer, Dr Yaeger, had reported on 29 November 2000 that Mr Godfrey suffered from ischaemic heart disease “as well as lower back and knee pain”. Dr Yaeger went on to make the following comments:
“…
The lumbar back pain (lumbar disc degeneration and spondylosis) has been gradually deteriorating over about 10 years. The back pain moderately restricts all activities involving bending, lifting, twisting (especially heavier or repetitive activities), and prolonged postures (sitting and standing tolerance of 60 minutes) without the ability to vary position.
The knee pain (mild osteoarthritis) mildly restricts kneeling, squatting, and the ability to negotiate steps, ladders, and uneven ground.
…”
Dr Yaeger went on to say that it was his opinion that as a result of Mr Godfrey’s medical condition which, as indicated, included a significant difficulty with ischaemic heart disease, he was unfit for his usual (tiler/paver) occupation or for any other full-time work or for retraining for the next 2 years.
11. Mr Godfrey’s counsel suggested that Dr Yaeger’s report was unreliable as clearly Mr Godfrey was able to continue working until mid 2002. Counsel also referred to the purpose for which Dr Yaeger’s report was prepared, that is for consideration of Mr Godfrey’s qualification for a Centrelink benefit. Mr Godfrey said that as with most tilers, he did suffer from knee pain and back pain. However, he said that this never prevented him from working.
12. Mr Godfrey was referred to an employment questionnaire completed by himself on 13 August 2003 (T11/64). This document referred to Mr Godfrey as ceasing work in June 2002 and now being in receipt of an “invalid pension” (Centrelink). In answer to a question “What do you believe is preventing you from getting a job or being employed” Mr Godfrey wrote “Cardiac problems, asbestosis (breathing difficult), problems with walking/bending/lose [sic] of muscles and arthritis in legs)”. In relation to this report, Mr Godfrey said that his difficulty with bending related primarily to giddiness experienced as a result of his heart condition. He repeated that his experience of arthritis did not prevent him working.
13. Mr Godfrey was also referred to a Lifestyle Report prepared by himself on 22 April 2005 (T20/106-113). In that report Mr Godfrey indicated that he had trouble walking. He referred to shortness of breath and chest pains, but also referred to “back ache” experienced most of the time and “legs ache” also experienced most of the time. In answer to a question as to whether he needed fittings in his house to assist mobility, Mr Godfrey indicated “Yes”, saying “Handrails in toilet and bathroom to assist me to get up and wash myself”. Mr Godfrey told the Tribunal that it was easier for him to use handrails but that those handrails were in fact installed in the house in order to assist his mother.
14. The Lifestyle Report also contained Mr Godfrey’s indication that there were restrictions in his ability to sit in or drive a car. He referred to “Getting in and out of vehicles”. He also referred to having difficulty using buses and trains and experiencing difficulties “Getting on and off and being with strangers”, all of the time. In answer to a question related to his recreation and community activities, Mr Godfrey indicated in his Lifestyle Questionnaire that he had difficulty “Bending and squatting to weed gardens or to do small jobs around the house. Vehicle maintenance”. He also indicated that he could not do light gardening such as weeding or watering, mowing of lawns, washing a car or lifting. He indicated that the domestic activities which he had stopped doing because of his disabilities included “Cleaning bathroom, toilet, mopping – vacuuming floors”. In answer to a question as to whether Mr Godfrey’s disabilities stop him from working in any way, Mr Godfrey answered “Yes” and commented “Shortage of breath, chest pains. Unable to lift. Dizziness when bending over. Back and legs ache”.
15. Mr Godfrey said that most of the restrictions to which he had referred, related to the effects of his ischaemic heart disease and particularly giddiness on bending. He repeated that the pain he experienced in his back and legs did not prevent him working.
16. Mr Godfrey’s formal local medical officer, Dr N Johnson, provided a brief report dated 19 September 2005 (T2/11) simply stating:
“This is to certify that the above ceased paid work in mid 2001 because of cardiomyopathy and coronary artery disease.”
Mr Godfrey’s counsel conceded that the indication of cessation of work in 2001 was inaccurate. Dr Johnson had previously provided a report in November 2003 (T14/86-89) in which he indicated, amongst other things, that other disabilities from which Mr Godfrey suffered and which may (Tribunal’s emphasis) affect his ability to work included:
“Arthritis of ankles, knees and elbows.
Knees painful – when bending or kneeling and if walks.
Ankles [?] painful – walking.
Elbows R >L – has to stop work after 20-30 minutes to rest it.”
In answer to another question concerning how Mr Godfrey’s other disabilities (that is disabilities other than his accepted disabilities) affect his ability to work, Dr Johnson had written:
“Asbestosis aggravates SOB and [?].
Arthritis is a constant problem with working and may flare up at any time”.
17. Mr Godfrey’s counsel suggested that the form prepared by the Department of Veterans’ Affairs and used by Dr Johnson to complete his report may be unfair and perhaps even unreliable due to its format and the way in which questions are asked. Mr Godfrey repeated that he had managed to work in the past with his arthritis and that arthritis did not contribute to his inability to work as at the date of his claim.
18. Mr Roger Skurray provided evidence to the effect that he had worked with Mr Godfrey in 2000 and at about the time Mr Godfrey completed his last paid employment, that is about mid 2002. He said that both he and Mr Godfrey were independent contractors and consequently he was not supervising Mr Godfrey. He did say however that although he had noticed Mr Godfrey occasionally rubbing his knees, he did not consider it unusual for a tiler to have knees which became a bit sore. He also said that Mr Godfrey never complained to him about pain in his knees or back or anywhere else.
consideration
19. In considering the application of s 24(1)(c) of the VE Act, we refer first to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four 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 account that he would not be suffering if he were free of that incapacity?”
20. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
21. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial: Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/1996. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.
22. In this case the Commission has conceded, and the Tribunal has found, that Mr Godfrey satisfies the requirements of ss 24(1)(a) and (b), that is that Mr Godfrey’s degree of service related incapacity is at least 70 percent (s 24(1)(a)) and that Mr Godfrey is incapacitated from accepted disabilities which of themselves alone are of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours a week (s 24(1)(b)).
23. The Commission however suggested that Mr Godfrey does not satisfy s 24(1)(c) of the VE Act, that is question 3 of Flentjar. The Commission submitted that although Mr Godfrey’s ischaemic heart disease was successfully treated (the triple by-pass surgery by cardiologist Dr Peter Waddy on 21 January 2002 (Exhibit A3)) his heart condition was perhaps the main reason Mr Godfrey was not working at the time of his claim in March 2005. The Commission suggested however that other relevant factors also existed including musculo-skeletal problems, Mr Godfrey’s age in 2005 and the period since he last worked. The Commission’s statement of facts, issues and contentions also referred to asthma. This Tribunal, however, is satisfied that other respiratory conditions have not significantly impacted on Mr Godfrey’s ability to work.
24. Mr Godfrey’s counsel suggested that there was no evidence that Mr Godfrey’s musculo-skeletal problems had ever prevented him working. He also referred to Mr Godfrey’s evidence to that effect that he had not formed a view as to any particular intended age of retirement and that he would have continued to work as long as he was able.
25. The third question in Flentjar refers to the “alone” test in s24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.
26. In Cavell, Burchett J said further, at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”. In Forbes, RD Nicholson J said at [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”.
27. The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:
“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the 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.
[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(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 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. … (H)aving 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.”
28. In this matter the Tribunal considered that the primary reason Mr Godfrey ceased work in mid 2002 was as a result of his ischaemic heart disease. The Tribunal also considered that giddiness flowing from that disease was a continuing problem. The Tribunal, as suggested proper by Mr Godfrey’s counsel, was mindful of the purposes for which Mr Godfrey’s Lifestyle Report, and the reports of Dr Yaeger and Dr Johnson had been prepared. On balance however, the Tribunal considers that throughout the assessment period which commenced on 31 March 2005 conditions other than Mr Godfrey’s accepted disabilities and including his musculo-skeletal problems, were a factor in his inability to work during the assessment period. As such, Mr Godfrey does not satisfy the requirements of s 24(1)(c) of the VE Act and does not qualify for an earnings related rate of pension.
29. As Mr Godfrey did not qualify for an earnings related rate of pension, the Tribunal considered whether the extreme disablement adjustment was payable. In this case the Commission had recorded in its reasons for decision dated 9 June 2005 that Mr Godfrey’s lifestyle was appropriately rated at 6. The remaining qualifications for an extreme disablement adjustment are attaining the age of 65 years, which Mr Godfrey did on 16 October 2006, and having conditions warranting at least 70 impairment points. At the time the Commission determined Mr Godfrey’s appropriate rate of pension he had not achieved the age of 65 years. In these circumstances, and although that decision also accepted bilateral sensorineural hearing loss as war-caused, the Commission did not ascribe an impairment rating for that condition. At the hearing it was noted that the Audiometric Report at T21/114 recorded Mr Godfrey as experiencing “a bilateral, severe – profound, sensorineural hearing loss”. In these circumstances it was conceded by the Commission’s advocate and found by the Tribunal, that Mr Godfrey’s accepted disabilities warranted at least 78, rounded to 80 impairment points. As Mr Godfrey was also assessed as having a degree of incapacity of 100 percent, he satisfied all the requirements for payment of the extreme disablement adjustment from the date of his 65th birthday. This was a matter conceded by the Commission’s advocate. It is in these circumstances and for these reasons that the Tribunal sets aside the decision under review and substitutes a decision that from the date of Mr Godfrey’s 65th birthday, that is from 16 October 2006, he is entitled to receive the extreme disablement adjustment.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Mr S J Ellis (Member) and Rear Admiral A R Horton AO (Member)Signed: ..................J Coulthard...................................
AssociateDate of Hearing 2 February 2007
Date of Decision 7 March 2007
Counsel for the Applicant Mr S Churches
Solicitor for the Applicant Tindall, Gask & BentleyAdvocate for the Respondent Mr A Crowe
DVA
0
8
0