Godfrey and Repatriation Commission
[2003] AATA 1313
•22 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1313
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/796
VETERANS' APPEALS DIVISION
)
Re DEAN CYRIL GODFREY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date22 December 2003
PlaceBrisbane
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Godfrey is entitled to pension payable at the Special Rate with effect from 31 October 2001. ...................(Sgd)...........................
EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - disability pension - whether entitled to special rate - capacity to undertake remunerative work
Veterans' Entitlements Act 1986, ss 24(1)(b), 28(a), 28(b), 28(c)
Chambers v Repatriation Commission (1995) 12 ALR 219
Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31
Re Starcevich and Repatriation commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564REASONS FOR DECISION
22 December 2003 Dr EK Christie, Member 1. This is an application by Dean Godfrey to review a decision of the Veterans’ Review Board (the “VRB”) made on 19 July 2002 which increased pension to the temporary Special Rate, effective from 16 February 2001 and reduced pension to 100% of the General Rate, effective from 7 March 2002.
2. At the hearing Dean Godfrey was represented by Mr J Griffiths of Counsel. Mr M Smith, a Departmental Advocate, represented the Repatriation Commission.
3. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
4. Mr Godfrey was born on 12 February 1952. Mr Godfrey served in the Regular Army of Australia for 20 years, from May 1969 to July 1989. He served in Vietnam in 1971. He was an infantry sergeant.
5. Mr Godfrey has the following service-related disabilities:
(a) Non-Hodgkin’s Lymphoma (02/07/1984)
(b) Sensorineural hearing loss (22/09/1989)
(c) Impotence (23/10/2001)(d) Peripheral Neuropathy (23/10/2001)
6. The following disabilities have been found to be non-service related disabilities:
(a) Hiatus Hernia (22/09/1989)
(b) Gastro-Oesophageal Reflux
Issues to be Decided
7. The only issue in dispute was whether Mr Godfrey was entitled to be paid pension at the Special Rate.
8. It was common ground between the parties that the only statutory question for the Tribunal to decide, in this regard, was whether subsection 24(1)(b) of the Veterans’ Entitlements Act 1986 (“the Act”) was satisfied. That is, whether Mr Godfrey’s service-related disabilities rendered him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
Examination of the Factual Evidence
Evidence of Dean Godfrey
9. Mr Godfrey said that he was diagnosed with Non-Hodgkin’s Lymphoma about 5 years before leaving the Army. Following radiotherapy, he went into remission in late 1983. He said that the cancer re-emerged in 2000 and, in retrospect, that he had endured stomach pain in the preceding 12 months.
10. He had been advised by his doctor that the frequency and dosage of his chemotherapy treatment caused the continual tingling sensations in his fingers and his feet. The tingling sensation became such a problem that his chemotherapy rate was reduced.
11. Mr Godfrey gave the following work history on his leaving the Army in 1989:
(a)He had left school aged 16 at the end of Year 11. His transferable skills from his Army years related to people management. His other skills arose from “hands on experience”.
(b)He initially started his own mechanical repair business. However, the business failed in a few months because of an accumulation of bad debts. He was responsible for running the business as he employed a mechanic to do the car repair work.
(c)Next (in 1991) he started full-time work in a car wrecking yard as a yard hand. He progressed in this job to become yard manager, then moved to the sales area of the wrecking yard before finally (from 1991-1994) being promoted to manage the car wrecker’s yard.
(d)Around May 1997, he decided to buy an existing car workshop. He employed his son, a qualified mechanic to do the car repair work. He restricted his work to general duties associated with the business.
(e)Because this business was slow, he left the running of the car workshop to his son and commenced employment as a console operator on the nightshift, at a servo.
(f)In 1998, his former employer (the owner of the car wrecker yards) offered him a job as a sales rep on the road; and
(g)Over the entire period he worked from 1989, he rarely took time off.
12. Mr Godfrey was referred to the letter of resignation from his last job with the car wrecking yard (T3, Folio 23: 7 February 2001) in which he had stated that the reason for his resignation was “due to ill health”.. Mr Godfrey stated that his resignation had been triggered off because his employer had said to him that his work had deteriorated over time and that he no longer considered Mr Godfrey to be as valuable an employee as he had been in the past.
13. Mr Godfrey said that the only difference between his capacity to work with this employer from 1991-1997 compared to 1998-2001 was the impact of his war-caused conditions, namely peripheral neuropathy (or “PN”) and his diarrhoea, on his work activity. As a result, he found himself in a situation where he had no option other than to resign.
14. Mr Godfrey stated that his PN condition was totally related to his chemotherapy treatment. The tingling sensation in his hands and feet were a function of his reaction to the drugs. Furthermore, the tingling sensation, once triggered, was maintained during periods of inactivity.
15. Mr Godfrey said that his bowel ruptured as a result of chemotherapy, necessitating bowel surgery. He described the impacts of surgery on his health as follows:
(a) continuous diarrhoea from 3-4 days to 6-7 days;
(b) that he could sit on the toilet for half a day;
(c) that on some days, because of diarrhoea he could not work;
(d)that the diarrhoea problem was such that his toiletry needs could become so acute to have embarrassing consequences, particularly when dealing with customers; and
(e)that for 2-3 days per month, his diarrhoea problems were such that he could not go to work.
16. Mr Godfrey then described the consequences of his PN condition and his past work activities:
(a)that his balance was affected. He had fallen off a ladder twice;
(b)that he had difficulty picking up a telephone. His job at the wrecker yard required him (and two staff) to answer 6 telephones;
(c)that pain was always there and was the most significant problem. As pain became worse his work activities were restricted;
(d)the problem also arose that he had cut himself at work and would be unaware that it had happened. He also had problems with heat sensitivity and burns; and
(e)that he had problems lifting heavy weights in the car wrecker yards and the car repair workshop.
17. Mr Godfrey compared the evaluations and consultations undertaken by his treating Neurologist (Dr McCombe) with his DVA referral to Dr Turner. Whereas each of his initial three consultations with Dr McCombe were about 1 hour, he only had one consultation of about 30 minutes with Dr Turner. He said that Dr Turner had only undertaken “limited testing” compared with Dr McCombe. Moreover, he stated that he described the experience during his consultation with Dr Turner as “upsetting” and “uncomfortable” as he “felt he was on trial for the entire time for being a malingerer”.
18. Mr Godfrey stated that he had returned to the car repair workshop around March 2001 after resigning from the wrecker’s yard. However, he could only work for “mainly 6-8 hours/week” because of pain from his PN and because of problems with dropping objects. Because he could not contribute to the income returns of the business, he sold his part of the business to his son in November 2001. He had stopped work in October 2001. He said that he initially did the “paperwork” and assisted his son whilst working with motor vehicles. However, problems with lifting heavy objects and the use of vibrating tools arose were particularly difficult because of his PN.
19. Mr Godfrey gave the following responses under cross-examination (and re-examination):
(a)That he returned to work to assist his son in March 2001 because of the growth in his son’s business. However, his PN and diarrhoea conditions did not allow him to continue working.
(b)Whilst he could operate a computer mouse, he could not operate the keyboard for more than 20-30 minutes because of his PN. Later, he said that if a PN problem arose with using a computer keyboard in the morning, he could not resume work until after lunch, depending on his recovery.
(c)Whilst he could “work” in his son’s motor repair shop for 15 hours for 2-3 days per week, the total hours represented the time he was present. However, he was only involved in work for half that time because of his PN condition. He also stated that, because of his PN and diarrhoea conditions, he felt he could only work for 6 hours a week – provided that it only involved light administrative work such as banking or answering phones.
(d)Furthermore, he said that the only way he could undertake work for 2 hours per day answering phones and using a computer would be if he had the flexibility to schedule how this time was used because of the impacts of both medical conditions on his work activities eg it would only be possible if he operated his own business – a situation not possible as an employee; and
(e)He acknowledged that:
(i)he could garden for short times (1 hour)
(ii)he could carry small parcels (up to 5 kg)
(iii)he could not lift heavy items eg car battery, wheel changes.
Expert Medical Evidence
20. Divergent medical opinion was before the Tribunal in terms of Mr Godfrey’s capacity to undertake remunerative work. The applicant relied on the expert opinion of Dr Pam McCombe, a Neurologist. The respondent relied on the expert opinion of Dr Beryl Turner, an Occupational Physician.
Dr Beryl Turner, Occupational Physician
21. In her report (T22, 28 December 2001), Dr Turner expressed the following opinion (at Folios 111, 112):
(a) Mr Godfrey had a degree of incapacity to work;
(b)that Mr Godfrey’s peripheral neuropathy contributed 60 percent of his incapacity; his bowel symptoms would contribute 35%; the pain in his left elbow would contribute the remaining 5%;
(c)that Mr Godfrey was capable of working 20 hours or more per week. However, he would require significant modifications to his work, such as being located near a toilet, avoiding any heavy lifting, or working with hot or sharp implements or machinery. She opined:
“I consider he would be capable of working 20 or more hours per week in light mechanical tasks such as servicing of vehicles, or in administration in the form of bookwork or banking.
In my opinion he would also be capable of working for 20 hours or more per week in a wrecking yard, with similar limitations to those previously described.”
(d)that Mr Godfrey’s situation was unlikely to improve with rehabilitation; and
(e)that Mr Godfrey was capable of working in a mechanical workshop, vehicle servicing, spare parts sales, or administrative work such as book-keeping, banking or using the telephone.
22. In her second report (Exhibit R2, 10 December 2002) Dr Turner stated:
“I found Dr McCombe’s reports particularly helpful in elucidating the symptoms of peripheral neuropathy and in particular the painful aspects of this condition.. I also note that since my assessment, Mr Godfrey has ceased taking Amitriptyline and has commenced Gabapentin with some relief of his neuropathic pain.
I also noted from review of Dr McCombe’s report that [s]he assessed Mr Godfrey’s loss of digital dexterity in both upper limbs as minor.
I noted from review of my report of December 2001 that Mr Godfrey had been able to participate in landscaping activities around his home and woodworking activities in his garage. I noted that he had signs of recent manual work such as paint around his fingernails, soiling of his hands and corns on both hands.
I consider that Mr Godfrey’s condition of peripheral neuropathy does cause him a degree of limitation and also restricts his ability to work. He needs to avoid excessive walking and needs to remain in proximity to a toilet. He also needs to avoid working with hot or sharp machinery or objects and he needs to work in less demanding manual tasks associated with his trade. He has difficulty with fine motor tasks and so is not able to perform many of the mechanical tasks of his former occupation at a commercial level. Nevertheless, I consider that he remains capable of answering a telephone, using a pen, performing a degree of computer work and he is capable of attending to the banking. He is also capable of limited mechanical tasks as well as retail sales and carrying of light parcels.
In general, I consider that Mr Godfrey is capable of the retail aspects of his previous employment and the administrative aspects.
Therefore having reviewed the additional reports provided by you and reconsidering the evidence found on my own consultation with Mr Godfrey, I do not wish to revise my original opinion.”
23. In her oral evidence, Dr Turner conceded that Dr McCombe was more qualified than her on the extent of the PN itself as “[PN] was not my area of specialty” – notwithstanding that she would “certainly see a number of cases”.. Whilst she stated that she would defer to Dr McCombe on the diagnosis of this condition she said that the difference in the professional opinion between herself and Dr McCombe related to “our various experiences of workplaces and work”.
24. Dr Turner stated that during her examination of Mr Godfrey that she:
“found evidence that he was capable of significant manual work with his hands, found soiling and roughening on his hands and paint around his fingernails and based on the activities that he told me he was capable of – then – and my knowledge of industry and the work of a mechanic and the – and the medical condition I saw a lot of similarities between some of the aspects of the work that he could do and the manual work that he was obviously currently engaged in.”
25. However, under cross-examination, Dr Turner conceded that she had arrived at the above conclusion as to manual work without giving Mr Godfrey any opportunity to say how the soiling and roughening came to be there.
26. In response to a Tribunal question relating to the evidence-in-chief that “lots of people who have colectomys…are able to work normal, productive lives”, Dr Turner stated that “there are obviously exceptions” and “that it all depends on the amount of bowel that’s been taken out”.. It was her professional opinion that where a person with a colectomy worked in a job where they could go to the toilet when needed, the person could work.
27. In response to a further Tribunal question relating to Mr Godfrey’s PN condition and his capacity to work, Dr Turner stated:
“I don’t see that the number of hours in the day or the time really has very much relevance provided he’s not doing repetitive continuous fine-motor movements all day, in which case I would expect the pain – his pain would have to escalate as the day went on but for – for other activities of just getting around the same as he would be getting around at home the pain is not going to be exacerbated, particularly by work, in my opinion, so the amount of time that he works in the day is not going to make much difference to his symptoms."
Dr Turner acknowledged that she had not seen Mr Godfrey’s actual ENG results but had relied on Dr McCombe’s report.
Dr Pam McCombe, Neurologist
28. In her first report (T2, Folio 15, 24 April 2002), Dr McCombe stated:
“On clinical examination, he [Mr Godfrey] had signs of a sensory neuropathy. He has now had nerve conduction studies, which shows some reduction of the amplitudes of the sensory nerve potentials consistent with a sensory neuropathy. It is therefore most likely that he has a painful neuropathy which is the cause of his symptoms and the neuropathy may also be contributing to his diarrhoea.
I do not think he could work at his occupation as a mechanic or indeed at any other occupation because of the sensory disturbance and pain in the limbs.” (Tribunal emphasis)
29. In her subsequent report (Exhibit A2, 8 November 2002), Dr McCombe stated:
“I would regard Mr Godfrey as being totally and permanently incapacitated by his service related conditions. I think his painful sensory peripheral neuropathy makes it impossible for him to carry out his usual work as a mechanic and spare parts salesman for more than eight hours a week. I have formed this view because he has severe neuropathic pain, which is usually very distressing, and also he has some functional impairment with lack of sensation making it impossible for him to perform fine movements with his hands. He also has loss of balance. The impaired sensation of his hands also makes him at risk for injury such as burns when being in contact with hot machinery...
Together with his other service related conditions I think that these conditions are the sole reason preventing his continuing his usual work…
I would also like to mention that he has been treated with Neurontin. Neurontin is used for symptomatic treatment of neuropathic pain. It does not repair the damaged nerves and has no benefit in improving sensory or motor function. Furthermore, the pain continues but causes less distress to the patient. Neurotin has given him some symptomatic control of his pain but he continues to experience pain and to be disabled by sensory impairment.” (Tribunal emphasis)
30. Under cross-examination as to the effects of pain from his PN condition and Mr Godfrey’s capacity to work, Dr McCombe stated:
“I think pain would be the limiting step, rather than, you know, inability to manipulate things, and all I can say is that neuropathic pain can be very distressing and disabling and fatiguing, and I think it would be difficult for him, you know, to – for example – concentrate or carry out duties if he were in pain, and while we gave him the Neurontin, which is really the best drug that we have, it had not completely improved his pain, so I would anticipate that because of pain he would have difficulty, you know, working.”
31. When asked later about Mr Godfrey’s capacity to undertake paid work in a number of possible jobs (such as retail sales, carrying light parcels, console operator at a petrol station and jobs with low skills), Dr McCombe responded:
“It’s a question whether the pain would impinge on his concentration and ability to kind of keep – keep working, and that’s not something that can readily be measured, but I – I am truly trying to help you. I mean, the best I can say is that in general, people with what we call a neuropathic pain, which is different from pain which is caused by injury, are usually distressed and distracted and disabled by the ongoing pain. Now, it’s not really possible for any of us to measure how much stress people are feeling, but I though that his description of his neuropathic pain was, you know, typical of the kind of pain people with neuropathy describe, and all I can do is say again, that generally it is disabling and people usually find it very intrusive, and it makes it difficult for them to do things.”
and:
“…my assessment would be if I saw him attempt to work eight hours a week and he told me that the pain was bad and that he couldn’t cope, that I would tend to believe him, but I can’t answer any differently from that…
It would all come down to whether the pain bothered him so much that he could not concentrate, that he felt distressed, that he couldn’t, you know, couldn’t stay calm in the face of dealing with people…”
32. Under re-examination by Mr Griffiths, Dr McCombe was asked, in the circumstances of the constant pain as described by Mr Godfrey and her professional opinion as to the distressing and distracting nature of the pain, whether it would be reasonable for Mr Godfrey to work more than 8 hours per week. Dr McCombe’s response was “Well, no. No, I guess not, no”.
33. In response to a Tribunal question, Dr McCombe stated that the results of the diagnostic tests [ENG] undertaken were consistent with the symptoms that Mr Godfrey presented and described to her during her clinical examination of him.
Summary of Contentions and Submissions of the Parties
34. Mr Griffiths submitted that because of his accepted disabilities, Mr Godfrey could only perform basic functions, regardless of the nature of the paid work. It was his contention that Mr Godfrey’s options for employment were limited, particularly where dexterity in the use of hands was required. He submitted that Mr Godfrey had little feeling in his fingers, could not perform repetitive functions (eg use of a keyboard) and was unable to distinguish levels of heat. Moreover, the pain associated with his PN condition made concentration difficult and resulted in his being easily distracted from his work. In addition, the intensity of the symptoms for Mr Godfrey’s PN condition varied from day-to-day over a continuum from “good” to “bad” days.
35. Mr Griffiths contended that “most if not all jobs” that represented possible remunerative work options for Mr Godfrey “required consistent use of his hands in some form”. Furthermore, if Mr Godfrey “overdoes things” it may take an extended period of time for him to resume further tasks.
36. Mr Griffiths submitted that the Tribunal should give weight to Dr McCombe’s professional opinion as it integrated diagnostic tests with clinical examination. Moreover, he contended that Dr Turner’s opinion “appears to have limited insight or experience in the symptoms associated with PN, particularly the painful aspects of the condition”.
37. Mr Griffiths concluded with the submission that, on consideration of Mr Godfrey’s accepted disabilities and his limited skills, qualification and experience, that it would be impossible for Mr Godfrey to undertake remunerative work for periods aggregating more than 8 hours or more per week.
38. Mr Smith stated that, although Mr Godfrey can no longer undertake the full range of his previous occupations, it was necessary to establish whether there was alternative work available that he could undertake.
39. Mr Smith submitted that, in this regard, the Tribunal should give more weight to the opinion evidence of Dr Turner, as she was an occupational physician. In contrast, Dr McCombe was a specialist neurologist.
40. Mr Smith contended that the Tribunal should rely on Dr Turner’s opinion that Mr Godfrey had employment options available to him. Specifically:
(a)work that did not require much manual labour or prolonged dexterity;
(b)work situation that provided ready access to a toilet; and
(c)a job where he did not have to work alone.
41. In addition, he submitted that Mr Godfrey required a job in which there was flexibility to enable him, where necessary, to restructure tasks that had to be undertaken.
42. Accordingly, Mr Smith contended occupations such as retail work, a ticket seller or car park attendant were available to Mr Godfrey.
43. Mr Smith contended that “it appeared” Dr McCombe “had not examined the possibility of alternative employment” options for Mr Godfrey and in her oral evidence had stated that she would not know the outcome until Mr Godfrey had tried such employment options.
44. Mr Smith acknowledged that Mr Godfrey “cannot return to his previous occupation” and “that he would suffer significant problems in attempting alternate employment”. However, it was his contention that evaluation of the medical and Mr Godfrey’s own evidence “indicate[d] that there was certain types of remunerative work he would be able to perform, albeit with difficulty, for at least 20 hours per week. Consequently, Mr Godfrey did not satisfy s.24(1)(b) or s.23(1)(b)”.
Consideration of the Issues
45. The object of the Tribunal is to review administrative decisions, not only on the merits, but in accordance with the law at all times. The relevant legislation is the Veterans’ Entitlements Act 1986 (“the Act”). The Tribunal has considered and applied the following case law to the issues to be decided under section 28 and subsection 24(1)(b) of the Act.
(a) Legal Principles
46. In considering the parties submissions, it is useful to consider the scope of the legislation itself. Section 24 specifies three criteria that a veteran must meet in order to be entitled to a special rate of pension. The second criterion requires that the veteran be totally and permanently incapacitated, in the sense referred to in section 24(1)(b). Section 28 gives directions concerning the matters to which the Commission “shall have regard to” in determining, for the purposes of section 24(1)(b), whether an incapacitated veteran is incapable of undertaking remunerative work.
47. Section 28 of the Act provides that in determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
“(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).”
48. In Chambers v Repatriation Commission (1995) 12 ALR 219, the Full Federal Court stated:
“Section 28(a) also directs that only the three specified matters are to be taken into account in making the determination. In this respect the section is exhaustive: Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 (FCA/FC), at 160. The purpose of the inquiry is to ascertain whether the veteran is totally and permanently incapacitated - that is (to use the language of s.24(1)(b)), whether the veteran's incapacity from war-caused injury or disease is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The phrase ‘remunerative work’ is defined in the widest terms, to mean ‘any remunerative activity’.. Thus the ultimate inquiry to which s.28 is directed is whether the veteran's war-caused capacity, of itself, has rendered that veteran incapable of undertaking any remunerative activity. It is in relation to this inquiry that s.28 specifies the matters - and the only matters - that are to be taken into account. The ultimate inquiry is not expressed to be whether the veteran's war-caused incapacity has rendered him or her incapable of undertaking employment of the kinds for which his previous work history provided training or relevant experience.”
49. Later, in Chambers’ case, the Full Federal Court concluded:
“One thing which is abundantly clear is that [s. 28] par (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is to find an objective criterion for the assessment of the extent of the impairment. The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open..”
50. The Full Federal Court in Chambers’ case then referred, with approval, to the following often-cited passage of Brennan J [as he then was] in Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31 at 34:
“If there be no incapacity of the relevant kind, a person's talents - his education, training, skills, physical strength, personality or other attributes - open to him a range of employment opportunities. The range may cover opportunities for engaging in various kinds of employment, for earning various levels of remuneration and for deriving tangible and other benefits. These are the opportunities which are appropriate to the individual - his own range of employment opportunities estimated by reference to the talents which, but for the incapacity, he would have had. When he suffers an incapacity, some of these opportunities are denied to him. He suffers an incapacity in relation to civil employment. A comparison between the lost opportunities and the whole range of the individual's employment opportunities provides the measure of his percentage incapacity.”
and concluded that:
“The reliance upon the extract from Re Bos made after the 1979 amendments shows that the Full Court considered that a wide range of skills, qualifications and experience were to be taken into account in assessing the opportunities for remunerative work available to the applicant, independently of his or her incapacity. The decision of the Full Court was that the opportunities were not restricted to work specifically related to that undertaken in the course of the individual's previous occupation. However, the adoption of Brennan J's analysis in Re Bos suggests strongly that all the individual's skills and qualifications, regardless of the means by which they have been acquired or developed, are to be taken into account in determining the opportunities for remunerative work available to that person.”
51. Finally, the Full Federal Court in Chambers’ case stated that:
“In our view, while it will often be desirable for the Tribunal to consider separately the three sub-paragraphs of s.28, and to record findings in relation to each of them, the Tribunal is not compelled as a matter of law to take this course. Section 28 requires the Commission (or the Tribunal) ‘to have regard to (three specified) matters only’ in determining whether an incapacitated veteran is incapable of undertaking remunerative work. These words mean that the Tribunal must give weight to each of the matters as a fundamental element in making a determination on that issue: R. v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, at 329, per Mason J. The Tribunal is also required to exclude all other considerations in making its determination. Provided the Tribunal follows this course it does not depart from the requirements of s.28. Whether it has followed the requisite course will depend upon a reading of the Tribunal's reasons as a whole. Such a reading should not be concerned with looseness in language. As was said by the Full Court in Collection of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FCA/FCT), at 287: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’” [Tribunal emphasis].
52. The above matters must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in subsection 120(4): Re Starcevich and Repatriation Commission (1986) 10 ALN 202; Re Doyle and Repatriation Commission (1986) 47 ALD 187. That meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality.”
(b) Application of Facts to the Law
53. Subsection 24(1)(b) required that Mr Godfrey be unable to work more than 8 hours per week as a result of his accepted disabilities, alone. Section 28 specifies the criteria that the Commission “shall have regard to” in determining for the purposes of section 24(1)(b) whether Mr Godfrey is incapable of undertaking remunerative work.
54. The Tribunal has taken into account the range of skills of Mr Godfrey in order to assess the kinds of work opportunities available to him independently of his incapacity. In this regard, Mr Godfrey would have a range of opportunities in semi-skilled work. His secondary school education is limited. His skills transferrable from the Army relate to “people management skills”. Following discharge from the Army, new skills had been acquired through his “hands on approach” over time. The primary skills so acquired related to sales and semi-skilled clerical/administrative work [section 28(a)].
55. The Tribunal considers that the range of occupations open to Mr Godfrey with these skills, and that he might reasonably undertake, relate to sales of consumer goods as well as some forms of semi-skilled clerical/administrative work [section 28(b)]. The respondent has contended that the range of occupations open also extends to ticket selling or work as a car park attendant. Furthermore, the respondent has conceded that Mr Godfrey “cannot return to his previous occupation” (car wrecking yard jobs held over time).
56. Given these conclusions, the Tribunal next considers the range of employment opportunities that might be reasonably undertaken by Mr Godfrey and the lost opportunities arising from his accepted service-related disabilities [Peripheral Neuropathy; Consequential Colectomy/Non-Hodgkin’s Lymphoma] (Bos’ case).
57. The Tribunal has considered the expert medical opinion and Mr Godfrey’s oral evidence before the Tribunal and the matters specified in section 28 in the context of the reasoning in Chambers’ case.. Specifically, whether Mr Godfrey’s incapacities themselves have rendered him incapable of undertaking any remunerative activity for periods aggregating more than 8 hours per week. The respondent has acknowledged that Mr Godfrey “would suffer significant problems in attempting alternate employment”.
58. The first issue for the Tribunal to consider is the reliability of the evidence given by Mr Godfrey. The Tribunal finds him to be a witness of truth. This finding of fact is further corroborated by the evidence of Dr McCombe who expressed a belief in Mr Godfrey. In addition, her evidence indicates that there was consistency between the results of the diagnostic tests (ENG), her clinical examination and the symptoms described by Mr Godfrey.
59. The next issue for the Tribunal to consider is the effects of Mr Godfrey’s Non-Hodgkin’s Lymphoma and consequential colectomy incapacity on his ability to undertake paid work.
60. Dr Turner said in her oral evidence that exceptions to her statement that “lots of people who have colectomy’s … are able to work normal, productive lives” exist and that this was dependent on the amount of bowel removed. However, this issue was not pursued in her evaluation and clinical examination of Mr Godfrey in order to effectively pursue this aspect. That is, to assess whether Mr Godfrey may be an “exception”. Nor was there any other information before the Tribunal in relation to this aspect, notwithstanding its significance with respect to Mr Godfrey’s being able to work a “normal and productive life”. Accordingly, the Tribunal is not reasonably satisfied as to Dr Turner’s conclusions as to the effect of Mr Godfrey’s colectomy on his capacity to undertake remunerative employment in alternative occupations.
61. In the circumstances of this factual situation, and given the Tribunal’s findings on Mr Godfrey as a witness of truth, the Tribunal accepts the oral evidence of Mr Godfrey on the effects of his colectomy on his quality of life and, most significantly, his ability to undertake paid work (see paragraph 15).
62. Dr McCombe’s professional opinion can be summarised as follows:
(a)Pain prevents Mr Godfrey from doing work as the sensory nerves that conduct pain have been damaged. The result is an unpleasant burning sensation of the extremities. People with neuropathic pain are “usually distressed and distracted as well as being fatigued and disabled by the ongoing pain”. Also, the pain was “very intrusive”.
(b)Mr Godfrey had a “cumulative compounding problem” with pain and a lack of effective feel in his fingertips.
(c)Mr Godfrey’s pain became worse with activity, eg, walking, using hands to operate tools or fine movements such as using a keyboard or screwdriver.
(d)Medication did not resolve the pain problem as the damaged nerves were not repaired. Medication merely lessened the distress associated with pain.
(e)Pain affects Mr Godfrey’s capacity to work as it is difficult to concentrate whilst in pain.
(f)The ability for Mr Godfrey to work at jobs involving the use of a telephone, limited mechanical tasks (lifting light parcels), semi-skilled clerical work or as a console operator was dependent on the extent of his pain and distress associated with each job.
(g)Because pain cannot be readily measured, the question could not directly answered whether the neuropathic pain that Mr Godfrey might experience should he undertake the hypothetical jobs suggested by Mr Smith. That is, given the nature of neuropathic pain, only a speculative answer was possible to respond to the hypothetical question raised by the respondent.
63. Dr Turner’s expert opinion in relation to Mr Godfrey’s capacity to undertake paid work in relation to his neuropathic pain can be contrasted to that of Dr McCombe. Dr Turner’s opinion evidence was that, provided Mr Godfrey did not do “repetitive continuous fine motor movements all day” the “pain would not be exacerbated by work” and that the “amount of time he works in a day is not going to make much difference to his symptoms”. Dr Turner’s opinion can be clearly distinguished from Dr McCombe’s opinion in this regard [see paragraphs 55(a), (b), (c)]. Dr Turner has acknowledged that she did not see the actual ENG results and that her conclusions were merely based on Dr McCombe’s report.
64. Accordingly, the Tribunal prefers the expert opinion of Dr McCombe rather than Dr Turner in relation to the effects of Mr Godfrey’s neuropathic pain on his ability to undertake paid work. The Tribunal does so because the Tribunal considers Dr McCombe’s opinion to be much more objective compared with Dr Turner and has incorporated a much more rigorous integration of the many and varied elements of all symptoms associated with neuropathic pain on his capacity to undertake paid work.
65. The Tribunal has followed the reasoning in Chambers’ case (see paragraph 57 of the decision) and has given weight to each of the three subparagraphs of section 28. The Tribunal concludes that the effect of Mr Godfrey’s accepted service-related disabilities is a compelling factor for the Tribunal findings. In effect, the range of employment opportunities available to Mr Godfrey are all “lost opportunities” because of his peripheral neuropathy and his lymphoma/consequential colectomy.
66. The Tribunal further accepts Dr McCombe’s evidence that because of the distressing and distracting symptoms associated with Mr Godfrey’s neuropathic pain, that it would not be reasonable for him to work more than 8 hours per week. When this medical opinion on peripheral neuropathy is additive to the Tribunal finding on the effects of Mr Godfrey’s colectomy on his capacity to work, the Tribunal is reasonably satisfied that Mr Godfrey satisfies section 24(1)(b) and is incapable of undertaking any remunerative activity for periods aggregating more than 8 hours per week: see Jackman’s case.
67. For all of the above reasons, the Tribunal sets aside the decision under review and in substitution therefor decides that Mr Godfrey is entitled to a pension at the Special Rate. The earliest date of effect is 31 October 2001.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Sarah Oliver
AssociateDates of Hearing 22 August and 25 September 2003
Date of Decision 22 December 2003Counsel for the Applicant Mr J Griffiths
Solicitor for the Applicant Sciacca's Lawyers
For the Respondent Mr M Smith, Departmental Advocate
0
5
0