Gorrie and Repatriation Commission

[2008] AATA 793

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 793

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/0491

VETERANS' APPEALS DIVISION		)
Re		ANDREW GORRIE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC; Senior Member Bernard J McCabe

Date5 September 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.......Signed.........

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – special rate of pension – incapacity from war-caused injury “alone” did not prevent the veteran from undertaking remunerative work – incapacity not substantial cause of inability to obtain remunerative work – decision under review affirmed

PRACTICE & PROCEDURE – cross-examination on documents – witness should not be cross-examined on the documents of another – tendering of documents – only relevant documents should be tendered

Veterans’ Entitlements Act 1986 (Cth) - ss 24(1)(c), 24(2)(b), 126

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Hendy (2002) 76 ALD 47

Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2006] 2 Qd R 145

REASONS FOR DECISION

5 September 2008	Deputy President P E Hack SC Senior Member Bernard J McCabe
Introduction

1.Mr Andrew Gorrie was born in August 1940. He served in the Australian Regular Army between 1961 and 1964 and again between 1970 and 1989. In June 2005, some two months short of his 65^th birthday, Mr Gorrie applied to the respondent, the Repatriation Commission, for an increase in the disability pension paid to him under the Veterans’ Entitlements Act 1986 (Cth) (the Act). Mr Gorrie applied to have certain conditions accepted as being war-caused and for a pension at the special rate, that is, the rate specified in s 24 of the Act.

2.The claim was accepted and Mr Gorrie’s rate of pension was increased to 100% of the general rate, however the Commission determined that Mr Gorrie was not entitled to pension at the special rate. That decision was affirmed by the Veterans’ Review Board. Thereafter, Mr Gorrie sought a review of the decision in this Tribunal.

Background

3.There is little dispute about the background. What follows is common ground. Mr Gorrie left school around the age of 15 years and then entered the workforce. He pursued unskilled occupations until he joined the Army in 1961. He left the Army in 1963. Notwithstanding the prominence given to the matter by the representative of the Commission, we regard the reasons for his leaving the Army on that occasion to be entirely irrelevant to the issues we have to decide. The questions put to Mr Gorrie regarding the matter ought not, in our opinion, have been put. Having left the Army Mr Gorrie took up the trade of sign writing. In 1967 he commenced his own sign writing business which he operated until 1970 when he re-joined the Army.

4.Mr Gorrie served in the infantry as a piper until 1989. On discharge he again commenced sign writing on his own account. He ceased that employment in June 2003 when he was able to sell his business. He did so, he told us, “because my back pain got intolerable”. Additionally, he said, he was “depressed about not being able to do my job the way I used to”. He tried to obtain other employment but, as he put it, “nobody wants [to employ] a 60-odd year old man”. He has not worked since June 2003.

5.Mr Gorrie has two relevant[1] conditions that are accepted by the Commission as being war-caused: degenerative thoraco-lumbar disease (accepted with effect from March 1989) and depressive disorder (accepted with effect from March 2005). He suffers from other conditions – degenerative joint disease in both knees, cervical spondylosis and post traumatic stress disorder – which have not been accepted as being war-caused. It is of some significance to the case for the Commission that Mr Gorrie was paid compensation, both lump sum for permanent impairment and weekly incapacity payments until he turned 65, by the Military Rehabilitation and Compensation Commission (the MRCC) for the condition of post traumatic stress disorder.

[1]There are other accepted conditions but it is not suggested that they have any present relevance.

6.After Mr Gorrie ceased employment on his own account he made some enquiries about alternative employment. We have statements from two witnesses, Mr Alleyne and Mr McAleer. Neither of them was available for cross-examination. According to Mr Alleyne, a sign writer, Mr Gorrie made enquiries of him about possible employment in the sign writing field in the latter part of 2003. Mr McAleer operates a furniture store and Mr Gorrie’s enquiry in July 2003 was in relation to working within that business but not, as we read the statement, as a sign writer. Neither approach was successful. Mr Gorrie appears to have given up looking for work after these enquiries.

The “alone” issue

7.Section 24 of the Act sets out several criteria that must be satisfied before the pension is payable at the special rate. Here the Commission concedes[2] that all but that required by s 24(1)(c) are satisfied. That paragraph provides:

“(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…”

[2]        Exhibit 19, paragraphs [12] and [13].

8.Guidance in the application of s 24(1)(c) of the Act has been provided by the Full Court of the Federal Court in Flentjar v Repatriation Commission[3] in which Branson J, with whom Beaumont and Merkel JJ agreed, described the issues as being:

“(1) What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?

(2) Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

(3) If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

(4) If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”

[3](1997) 48 ALD 1 at 4-5.

9.Her Honour went on to say of question four that it threw up for consideration the question of what the veteran would have done if he had none of his service disabilities. In approaching that question, we are required to “take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work”[4]. That case identified time out of work before the assessment period, lack of recent work experience and increasing age as being relevant considerations, saying[5]:

“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.”

[4]Repatriation Commission v Hendy (2002) 76 ALD 47 at 54, [37].

[5]        At 55, [37].

10.It seems clear enough by reference to Mr Gorrie’s work history that the remunerative work for the purposes of s 24(1)(c) was sign writing. Equally, and by reference to the reports of the medical practitioners, it seems clear enough that an affirmative answer must be given to question two. So much is conceded by the Commission in its supplementary written submissions[6].

[6] At paragraph [11].

11.Before dealing with the other questions we need to look at the period of time at which the questions posed in this case are to be considered. By virtue of s 19(5C) of the Act ,the Commission (and this Tribunal in its stead) must assess the rate at which a pension would have been payable “during the assessment period”. The assessment period, in relation to a claim, is the period starting on the day on which the claim was received and ending when the claim is determined. One of the matters of qualification under s 24 of the Act is that the veteran had not turned 65 when the claim was made. In the course of the hearing Mr Clutterbuck, counsel for Mr Gorrie, was minded to concede that the assessment period in this case ended when Mr Gorrie turned 65, however we permitted supplementary submissions to be lodged addressing this point. It is now submitted for Mr Gorrie that the assessment period continues to the date of determination despite Mr Gorrie’s 65^th birthday having occurred quite early in the assessment period.

12.The issue would assume some importance in a case where an applicant did not satisfy the “alone” test at the time of application but satisfied it at a later point in time but after turning 65. We do not think that the matter is as simple as the case for Mr Gorrie suggests, however the view we take of the evidence makes it unnecessary to decide the point. We propose to assume, rather than decide, that it is sufficient if Mr Gorrie can show that at some stage during the assessment period his war-caused conditions were the only factors preventing him from continuing to work as a sign writer. In our view the medical evidence does not support that conclusion.

13.The starting point is the fact of Mr Gorrie having ceased work in mid-2003. That was caused, he said, because his back condition depressed him. There is no doubt that his back condition played a part in his ceasing work. There is a report from Dr Mark McCawley, his general practitioner, dated 28 August 2003 which expressed the opinion that Mr Gorrie was “unable to work now due to degenerative thoracic lumbar disease”. Degenerative thoraco-lumbar disease is an accepted war-caused condition. The question of depression, also a war-caused condition, is not so simple and it is medical opinion, rather than that of Mr Gorrie, to which we need have regard.

14.Mr Gorrie saw Dr Ashim Majumdar, a consultant psychiatrist, in September 2003 on referral from Dr McCawley, and again in November 2003 at the behest of the Commission. Dr Majumdar’s report to the Commission dated 13 November 2003 gives a diagnosis of post traumatic stress disorder associated with substance (alcohol) abuse. That condition, according to Dr Majumdar, meant that Mr Gorrie was unfit to work for more than eight hours per week.

15.In October 2004 Mr Gorrie was seen by Dr Anthony Cook, also a consultant psychiatrist, who provided a report dated 9 November 2004 to the MRCC. Dr Cook was of the opinion that Mr Gorrie suffered from post traumatic stress disorder, a condition which he considered became permanent in approximately June 2003. Mr Gorrie was, he said, totally incapacitated for work due to that condition. Dr Cook also considered the question of depression. Of that he said:

“The question arises as to whether he has a separate major depressive disorder. This is a difficult question to answer, as the diagnosis of post traumatic stress disorder overlaps considerably with the diagnosis of major depressive disorder. However, having considered all the facts, it is my opinion that his depressive symptoms are all subsumed under the overarching diagnosis of post traumatic stress disorder.”

16.Mr Gorrie’s claim to the MRCC for compensation, under which he received incapacity payments and a lump sum for permanent impairment, was based upon his claim of suffering from post traumatic stress disorder.

17.In June 2005, which is the start of the assessment period, Mr Gorrie had both accepted and rejected conditions that affected his capacity to undertake work. Whilst the accepted conditions of degenerative thoraco-lumbar disease and depressive disorder undoubtedly prevented, and prevent, him from continuing to undertake his earlier occupation of sign writing the issue is whether they are the only factors that prevent him from doing so. The case for the Commission is that it is the combination of the accepted and non-accepted conditions along with other factors, such as his age and the time he had had out of the work force, that prevent Mr Gorrie from engaging in remunerative employment.

18.There is considerable evidence that suggests that it was not the war-caused conditions alone that prevented Mr Gorrie from engaging in remunerative employment.

19.Mr Gorrie made his application shortly before his 65^th birthday. His physical condition at that time was the subject of a report from Dr Mark Young dated 6 July 2005. Dr Young reported on the three relevant conditions in these terms:

“Degenerate Thoracolumbar Disease – Mr Gorrie demonstrated impairment, with respect to his thoracolumbar spine. There was a significant reduction in range of motion and objectively he reported moderate levels of low back pain. There was no evidence of radicular pathology or sciatica in either leg. Mr Gorrie’s impairment does produce moderate functional impairment when performing activities of daily living and in particular, with dressing the lower half of his body, rising from a chair, ambulating over stairs, slopes and distances.

Mr Gorrie reported significant levels of activity limitation (disability) related to his thoracolumbar spine degenerative condition, which would be consistent with a moderate to high level of disability. In my opinion, Mr Gorrie’s stated physical tolerances are medically consistent and would be supported by my examination and radiological findings.

In my medical opinion, Mr Gorrie has the following physical limitations, due to his degenerative thoracolumbar spine:

·walk – 500 metres

·sit – 20 minutes

·stand – 15 minutes

·drive – 20 minutes

·lift – 5kg from ground repetitively or 10kg occasionally.

…

Cervical spondylosis – Mr Gorrie does demonstrate objective impairment in the cervical spine, with restricted range of motion. There is no objective evidence of neurological deficit in the upper limbs and no reported symptoms or objective evidence related to any effect on digital dexterity in either hand. Mr Gorrie subjectively reported mild cervical spine pain related to his cervical spondylosis and in my opinion, this is medically consistent.

Mr Gorrie does exhibit impairment, but has minimal disability related to his cervical spondylosis.

…

Degenerate Joint Disease in Both Knees – Mr Gorrie does demonstrate bilateral objective impairment related to both knees. The level of impairment appeared greater on the right knee, on which he had experienced an open lateral meniscectomy and now almost certainly has significant osteoarthritis within the joints. The impairment relates to difficulty with ambulating on stairs and slopes and walking distances on the flat.

Subjectively, Mr Gorrie reports a degree of activity limitation related to his knee conditions. In my medical opinion, Mr Gorrie has the following physical tolerances related to his knee conditions:

·sitting – 20 minutes

·walking – 500 metres

·driving – 20 minutes

·stairs – 1 flight maximum with banister rail

·avoid squatting and kneeling repetitively”.

20.Dr Young said of the impact of these three conditions on Mr Gorrie:

“I would apportion the impact of his limitations by stating that approximately half is related to the thoracolumbar degeneration and the remainder of the disability would be equally apportioned to the cervical spine and knee conditions.”

21.In addition, we have a report from Dr Cameron Cooke, an orthopaedic surgeon, who saw Mr Gorrie in August 2007. Dr Cooke accepted that Mr Gorrie’s thoraco-lumbar condition would prevent him from pursuing his occupation as a sign writer, however he also noted “significant radiographic degenerative changes within his right knee and left hip”. These changes caused Dr Cooke to “suspect that his other joints would cause him difficulties in working as a sign writer”. 

22.Mr Gorrie placed reliance upon the evidence of Dr Brian Purssey. That evidence, and Dr Purssey’s conclusion on the question of whether the lumbar disease alone caused Mr Gorrie’s incapacity for work, does not take into account the other orthopaedic conditions – the cervical spondylosis and the degenerative joint disease to both knees – that afflicted Mr Gorrie. Thus, as it seems to us, Dr Purssey has been asked to consider the wrong question. There is no doubt, as Dr Purssey said, that Mr Gorrie’s accepted conditions prevented him from continuing in employment; the question (and one that Dr Purssey was not asked to address) is whether they were the only factors that did so.

23.As Mr Gorrie explained the position, sign writing is a physically demanding occupation that can require frequent work at heights and involve a considerable degree of climbing of ladders and the like. Moreover, as he himself said, “no one wanted to employ a 60 year old”. All the more so, we consider, in the case of someone shortly about to turn 65.

24.As can be seen from the reports of Dr Young and Dr Cooke, the non-accepted physical conditions, particularly the knees, created significant physical limitations on Mr Gorrie. Those limitations would have been acute in an occupation such as sign writing. Allied to the physical limitations are the limitations imposed by the diagnosis of post traumatic stress disorder, a condition that Dr Cook considered had become permanent in June 2003 and which was of sufficient severity to render Mr Gorrie totally incapacitated for work in November 2004. There seems to be no reason to suppose that that condition was improved by June 2005.

25.The position of Mr Gorrie’s mental state from June 2005 onwards is not entirely clear. The evidence of Dr Majumdar was that, on the basis of the history given by Mr Gorrie, he had symptoms of depressive disorder from 1999 or 2000 and that that condition co-existed (as we would put it) with the post traumatic stress disorder. When Dr Majumdar saw Mr Gorrie in 2003 post traumatic stress disorder was the “predominant” condition. By January 2006 depressive disorder had become predominant. But Dr Majumdar’s opinion was that “if he only had one of these conditions – PTSD or depression – Mr Gorrie … would still [be] unfit for work”. Dr Majumdar, on the basis of having treated Mr Gorrie during the period, expressed the opinion that the post traumatic stress disorder was “better”, in the sense of Mr Gorrie being in control of the condition, by the end of 2006 or early 2007.

26.Dr Janis Carter, another psychiatrist who saw Mr Gorrie in May 2007, “argued” that the depressive condition was “in the foreground” at the time she saw him. When asked to comment on the onset of depressive disorder Dr Carter referred to “clear evidence that [Mr Gorrie] was suffering from quite severe depression” as early as June 2003. That opinion was based, it would seem, on the history given by Mr Gorrie. In our view we should prefer the opinions of practitioners who saw Mr Gorrie at the time to that of Dr Carter. We have already referred to the evidence of Dr Majumdar and Dr Cook. That evidence satisfies us that at least to late 2006 Mr Gorrie’s post traumatic stress disorder was of sufficient severity to warrant it being regarded as the predominant influence upon Mr Gorrie’s mental state.

27.It is not to the point that Dr Majumdar considered that Mr Gorrie’s post traumatic stress disorder had abated by late 2006 or early 2007 and, necessarily, that it was the depressive disorder that was then affecting his mental state. By that time Mr Gorrie had been out of the workforce for a period in excess of two years for reasons which, a short time earlier, had been regarded by Dr Young as sufficiently serious to prevent him from working. Additionally Mr Gorrie had other significant physical limitations occasioned by his non-accepted conditions. And there was, as Mr Gorrie himself accepted, the reluctance of employers to take on a “60-odd year old man”. All of these matters, in combination, operated to prevent Mr Gorrie from continuing in employment. It was not the war-caused conditions alone that had that effect.

28.But even if we had been persuaded that war-caused conditions were the only factors preventing him from undertaking work we would have found question four against Mr Gorrie. That question requires us to consider whether Mr Gorrie, had he not suffered his war-caused conditions, would have been earning remuneration from mid-2005 onwards. We are thus required to postulate what the position would have been had Mr Gorrie not suffered from the war-caused conditions – degenerative thoraco-lumbar disease and depressive disorder – but suffered from other the conditions that might be thought to impact upon his capacity for remunerative work – degenerative joint disease in both knees, cervical spondylosis and post traumatic stress disorder.

29.If the war-caused conditions are disregarded the position of Mr Gorrie in mid-2005 is that he was almost 65 and had been out of the work force for almost two years. He had experienced the reluctance of employers to employ persons of his age. He had significant physical limitations that would have been a considerable impediment in a demanding occupation such as sign writing. He suffered from post traumatic stress disorder that, of itself, was sufficient to prevent him from working. Throughout the assessment period the physical matters worsened in the sense that Mr Gorrie got older and the period out of the work force got longer. Even treating the post traumatic stress disorder as having abated by late 2006, the other matters are such that we are satisfied that Mr Gorrie would not have been in employment from mid-2005 onwards even if he had had none of the war-caused conditions.

30.Thus, we are satisfied that Mr Gorrie is not suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of the accepted conditions. Accordingly we are satisfied that s 24(1)(c) is not made out in Mr Gorrie’s case.

31.It was argued, somewhat faintly, for Mr Gorrie that s 24(2)(b) of the Act, which operates in some circumstances to ameliorate the conclusion that s 24(1)(c) is not satisfied, has operation here. There is no evidence that Mr Gorrie was genuinely seeking to engage in remunerative work beyond the end of 2003. Indeed the contrary is true. He ceased looking for work then because “nobody wants [to employ] a 60-odd year old man”. There is no basis upon which the subsection could operate.

32.It follows that we would affirm the decision under review.

33.We want, finally, to comment upon two aspects of the hearing that in our view warrant particular remark. The first concerns the practice, which we observe is becoming more popular in the Tribunal, of cross-examining witnesses on the documents of others. In the present case there were numerous instances where Mr Gorrie was taken to documents and asked whether he agreed with matters set out in the documents. Perhaps the worst example was when he was taken to the contents of a radiologist’s report and asked to comment on what was said to be the findings of that report.

34.It has been the case for a considerable time that it is impermissible to cross-examine a witness upon the statements or documents of another witness in the proceedings. Chesterman J considered the history and rationale of the rule in Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd[7] and what his Honour said there warrants careful attention. Whilst the Tribunal is not bound by the rules of evidence the reason for the rule makes it all the more important that witnesses in the Tribunal, who will often be disadvantaged, not be cross-examined in this way. It is simply unfair to do so. Moreover, it will generally be unhelpful to do so. It is no answer to say that cross-examination is being undertaken in this way in order to give the witness the opportunity to comment upon the matters contained in the document. That can be done without putting the documents of another in the hands of the witness.

[7] [2006] 2 Qd R 145.

35.The other matter that we wish to remark upon is the number of documents put before us in the hearing under the guise of providing a “full history” to us. Where parties are represented, whether by lawyers or departmental advocates, the Tribunal is entitled to expect that some attention will have been given by the representatives to the real issues in dispute in the proceeding. Many hundreds of pages of documents (aside from the s 37 documents) were put into evidence by the Commission. Very few pages were

referred to because most had no bearing upon the issues that were live in the proceedings. One example will suffice. Ninety-nine pages of the clinical notes of Mr Gorrie’s general practitioner were put into evidence by the Commission. The relevance of them was never satisfactorily explained. They were not referred to in submissions. They contain vast detail of Mr Gorrie’s medical history that has absolutely no bearing upon the issues we had to decide. It is unnecessarily burdensome for the Tribunal and the other party to be vexed with irrelevant material, particularly matters as personal as medical histories.

36.Different considerations may apply where an applicant is not represented but where both parties are represented we expect that they will use their forensic judgment to put before us only those documents that are relevant rather than leaving us the task of separating the wheat from the chaff.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Senior Member Bernard J McCabe

Signed:         ......................Signed............................................
  Jacqueline Woods, Associate

Dates of Hearing  22-23 July 2008
Date of last submissions          8 August 2008
Date of Decision  5 September 2008
Counsel for the Applicant         Mr R J Clutterbuck
Solicitors for the Applicant        Slater & Gordon
For the Respondent                 Departmental advocate