Gowing and Repatriation Commission

[2005] AATA 1201

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1201

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/356

VETERANS' APPEALS DIVISION		)
Re		GEOFFREY GOWING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Ms R Hunt
Member Dr P Lynch

Date6 December 2005

PlaceSydney

Decision The tribunal affirms the decision under review.

..............................................

Ms R Hunt
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Claim for special rate disability pension -– Veteran in receipt of intermediate rate disability pension – Over the age of 65 – Incapable of undertaking remunerative work for periods aggregating more than 8 hours a week - Prevented from undertaking remunerative work that he was last undertaking before making the claim – When stopped work on own account - Working in that profession for a continuous period of at least 10 years  – War-caused injury not only cause of inability to work – Effect of aging - Decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 s24

CASES

Repatriation Commission v Haskard (2002) 126 FCR 1

Banovich v Repatriation Commission (1986) 69 ALR 395

Repatriation Commission v Hendy (2002) 76 ALD 47

Repatriation Commission v Alexander (2003) 75 ALD 329

Flentjar v Repatriation Commission (1997) 48 ALD 1

Cavell v Repatriation Commission (1988) 9 AAR 534

Re Easton v Repatriation Commission (1987) 12 ALD 777

Lucas v Repatriation Commission (1986) 69 ALR 415

Re Apthorp v Repatriation Commission (1986) 9 ALN N157

REASONS FOR DECISION

6 December 2005	Senior Member Ms R Hunt Member Dr P Lynch
SUMMARY

1.      Mr Geoffrey Gowing, the applicant, applied to the tribunal for review of a decision made by the Repatriation Commission which refused him an increase in his disability pension to the special rate. Mr Gowing currently is receiving the disability pension at the intermediate rate. He argues that he is entitled to receive it at the special rate as he is no longer able to work. He claims that the only cause of his being unable to work is the war-caused injury to his knees and back. A similar test applies for the intermediate rate. However, the Commission advised the tribunal that it would continue to pay Mr Gowing the intermediate pension rate even if he was found, for the purposes of the present application, not to meet the criteria, which are similar.

BACKGROUND

2.      Mr Gowing received war-caused injuries when his aeroplane crashed behind enemy lines in Burma. At a tribunal hearing, he related that all three crew received leg injuries which remained untreated because they were in an area controlled by the Japanese. The local Burmese gave them some assistance. Mr Gowing continues to suffer knee problems as a result and has undergone knee surgery. He was aged 88 years at the time of the tribunal hearing.

3.      Mr Gowing’s advocate told the tribunal Mr Gowing and his wife have owned and worked a farm in partnership for about 45 years. A family company owned the land which Mr and Mrs Gowing farmed. The family company used to own a much larger area but gradually sold off parts of the land to reduce the workload. Mr Gowing’s son has acquired a large part of the land that used to be worked by the partnership and now essentially manages the partnership farm as well as his own. The son bought 1,200 acres of the land in 2 tranches, according to his affidavit, and farms this land as well as managing his parents’ farm. Two parcels of land were also sold to other buyers as Mr Gowing explained in oral evidence. Some of the property was under leasehold that passed to the owner of the freehold land.

4.      Mr Gowing told the tribunal he now is unable to look after any aspect of the farm because of his knees and his back. These are war-caused injuries. He used to need help with repairs, moving cattle and putting out hay, according to his written statement. His wife, who is aged 85, was doing some of the administrative work on the farm once Mr Gowing found it too difficult. However, Mrs Gowing was unwell at the time of the hearing. She had made an affidavit previously about her duties. Mr Gowing gave evidence that, unfortunately, she since had undergone several operations from which she had not recovered. As well, things had changed recently because of the drought. He said the cattle herd has been reduced in the last few months from 80 head to 8.

5.      Mr Gowing claims he cannot even do the administrative work any more because a farmer needs to be able to access all parts of a farm to be able to run it properly. While he can ride in a vehicle, he finds walking and riding a horse difficult. Some parts of the property are inaccessible except by horse or by foot. He gave evidence that there are hilly, stony and boggy areas that he cannot venture into. However, he is able to do some administrative work for the family company and the partnership as this simply involves his managing their share portfolios. He explained in his statement he usually does this with the use of a calculator and does not use a computer. In his application form he said he did some of the office work but gave oral evidence that he did less now than when he applied for the special rate. He told the tribunal that he now just checks the shares and does not do the amount of work he did at the time he made the application. He complained of breathlessness after walking about 100 yards and attributed this to his back and leg pain.

6.      In the application form he filled out to claim the increased pension, on 29 January 2004 (T3), Mr Gowing set out that he had difficulty maintaining 6 hours a week working on the property. He gave as the reason for this trouble with his knees and left shoulder. In a lifestyle questionnaire dated 11 March 2004 (T5), Mr Gowing wrote that he had pain in his knees, back and left shoulder. The pain in his knees and back limited how far he could walk. He had shoulder pain when he used his left arm. He also was unable to get into or grip a saddle. At question 23, he wrote that his employment was “full time advisory some supervision”. At question 26, he said was unable to do “heavy work and of long duration: riding horse for moving cattle” because of his knees, back and left shoulder. At question 27, dealing with changes to his workplace, he wrote that he attended to supervision, helped with light work, attended to office work and sold some of the property. He had reduced his hours to “under 8 hours per week”. In the undated employment questionnaire (T5, 69-73), Mr Gowing wrote in answer to question 10 that “I continue to be self employed running my property which trades as ‘Kailana’, Musselbrook”. He again wrote above this that he worked less than 8 hours per week. In addition, he claimed that he sustained a loss in income.

7.      Mr Gowing has had surgery on both knees. He gave evidence that his left knee surgery took place some time ago and was a success. His right knee surgery took place on 15 August 2005 and he is still recovering. He said that his doctors were pleased with the operation and already he could walk a short distance before having to rest. He was still taking pain killers for his knee and back. He hoped he might be able to get back to what he had been doing before the knees caused problems. He said words to the effect that “if my knees improve I’ll hope to carry on as long as I can.”

8.      Dr Lindsay Laird, who furnished a report that was before the tribunal, also gave oral evidence. Dr Laird is an orthopaedic specialist and carries out replacement surgery. In his report, dated 7 July 2005, Dr Laird referred to Mr Gowing’s left knee replacement surgery on 21 January 2004 and the possibility of similar replacement surgery on the right knee in the near future. The report noted that “[W]ith the degree of arthritis that he has it is of course impossible for him to continue with any type of employment”.

9.      In oral evidence, Dr Laird confirmed the operation to the right knee took place on 15 August 2005. This was after the date of his written report. Dr Laird said the operation was a success and Mr Gowing was now under the care of his GP. It would usually take 12 to 15 months to recover fully from such an operation. Dr Laird thought that Mr Gowing would be able to continue supervisory activity and that, for his age, he was doing very well. When asked if Mr Gowing’s back had worsened, he told the tribunal that Mr Gowing might perceive this as his knees were no longer as much of a problem and he would notice the back pain more. Dr Laird confirmed Mr Gowing’s long history of back trouble but said it had not worsened.  In his opinion, Mr Gowing would be able to continue supervisory activity. When asked if Mr Gowing might be able to return to his pre-surgery activity on the farm, Dr Laird thought his age was a factor. Dr Laird also said his mobility would be better because of the right knee replacement but he would still have limitations of his age and other medical problems.

10.     Dr Claire Hollo also furnished two reports as well as giving oral evidence. Dr Hollo is an occupational physician. Dr Hollo, in assessing Mr Gowing’s disabilities in her report of 1 June 2005, wrote that Mr Gowing’s non-accepted cardiovascular disorder contributed to limited function of his lower limbs, specifically walking. She noted, on the basis of information provided by his cardiologist, “Mr Gowing gets puffed at 100 yards”. Dr Hollo concluded that Mr Gowing was restricted more by his cardiovascular status than his knees as to the specific function of walking. Dr Hollo noted that Mr Gowing told her that he does detailed work for the family company for 3 to 4 hours daily, although he initially said 4 to 5 hours. She reported that he explained that he was able to do minor repairs and tasks such as pruning trees and checking the water supply. He also drove a car. Dr Hollo concluded that Mr Gowing was able to continue to undertake administrative tasks in management of the farm. She observed that he appeared not to have significant difficulty in walking during the consultation and was reasonably agile for his age although he walked a much shorter distance, when she was observing him, than the distance at which he reported difficulty.

11.     Dr Hollo was concerned about Mr Gowing’s cardiac symptoms and gave oral evidence that she believed his shortness of breath and chest pains were most likely related to this and not to indigestion as Mr Gowing thought. Dr Hollo pointed out that, as Mr Gowing had undergone aortic repair and a stent graft, he should be cautious about physical exertion. This was delicate surgery and susceptible to damage. In addition, she noted that Dr Brahmbhatt, in a report which was among the material she had considered and which was before the tribunal, had expressed concern about Mr Gowing’s “unstable angina”. Breathlessness and chest pains were common symptoms of angina. She was, therefore, concerned about his cardiovascular status.

12.     In her second report of 10 August 2005, Dr Hollo referred to various reports and clinical notes of Drs Brahmbhatt, Oldfield and Mr Gowing’s GP, Dr Brown, correspondence with Dr Stephen Kemp, Orthopaedic Surgeon, and other materials concerning Mr Gowing’s knees, cardiovascular status and left shoulder osteoarthritis. She considered these conditions would contribute to Mr Gowing’s scaling down of farming activities as well as his accepted disabilities. In analysing Dr Brown’s reference to Mr Gowing’s cardiovascular system as “normal” on the lifestyle questionnaire at T6, 76, Dr Hollo was not surprised and did not change her opinion. Dr Hollo gave evidence that this status depended on what was considered normal and whether the patient was at rest when tested.

13.     Mr Gowing has the following disabilities accepted as causally related to his war service:

·Functional gastrointestinal disorder

·Excision of T.B. gland neck

·Thoracic spondylosis

·Rotator cuff lesion of left shoulder

·Lumbo-sacral spondylosis with IVD lesion

·Haemorrhoids

·Tinea cruris and pedis with ID eczema

·Osteoarthritis right knee

·Osteoarthritis left knee

ISSUE AND LEGISLATIVE PROVISIONS GOVERNING

14. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) governs special rate pensions.  Subsection 24(1)(a)(i) provides that in order to qualify for a special rate pension, the degree of incapacity of a veteran from a war-caused injury or disease must be at least 70%. Subsection 24(1)(b) provides that the veteran must be totally and permanently incapacitated from a war caused injury or disease which renders the veteran incapable of undertaking remunerative work for periods more than 8 hours per week.

15.      In the case of a veteran over the age of 65, subsection 24(2A) is applicable. Subsection 24(2A)(d) provides that the war-caused injury or disease must be the sole reason why a veteran is unable to undertake remunerative work. Subsection 24(2A)(e) states that the veteran must be suffering  a loss or salary or earnings as a result of the incapacity.  Subsection 24(2A)(f) provides that the veteran must have been undertaking paid work after turning 65 and subsection (g) provides that, if working on his own account, the veteran must have been working for a continuous period of at least 10 years before turning 65.

16. The respondent concedes that Mr Gowing suffers a 70% impairment as required for the pension under s24(1)(a)(i) of the Act. In addition, we are satisfied that Mr Gowing has worked continuously for remuneration for at least 10 years up to the time that he made his application. Therefore, the main issues that arise in order to determine whether Mr Gowing is entitled to disability pension at the special rate are:

·Has Mr Gowing ceased work

·If yes, has a war caused injury or disease prevented Mr Gowing from undertaking remunerative work

·If yes, is this war caused injury or disease the only factor preventing Mr Gowing from undertaking remunerative work

CONTENTIONS

Has Mr Gowing ceased work?

17.      For Mr Gowing to satisfy the requirements of subs. 24(2A) of the Act, he must have ceased work. In Repatriation Commission v Haskard (2002) 126 FCR 1, Hill J suggested that, for a veteran over the age of 65, remunerative work must have ceased completely before the special rate of pension can be paid. When looking at whether past paid work has ceased or continued, the respondent contends that, if the quality of work has declined, this does not mean that the work itself has ceased. However, we note that Hill J did not rule on whether the work in question leading to cessation must be full time. At paragraph 32, His Honour was inclined to the view that the initial work might be part time if this was caused by the veteran’s war caused impairment. In any event, the more important first question before us we consider is whether Mr Gowing has actually ceased work.

18.      Dr Hollo was of the opinion that Mr Gowing is still capable of managing the non-physical related aspects of his farm. Mr Gowing says this is not correct as he cannot access areas of the farm and this presents a practical difficulty preventing his carrying out the farm administration. Mr Gowing states that he feels he has ceased work. He says that the only involvement he now has is in the family company’s affairs to the extent of keeping an eye on the investment portfolios of the family and the partnership.  He explained that he and his wife had invested their partnership salaries in shares. Other shares were purchased from the proceeds of sale of part of the farm and were held by the company.

19.      Mr Gowing states that problems with his knees have stopped him from working at all and that farm work is all physical work.  He refers to the report of Dr Laird, dated 7 July 2005, which sets out that arthritis in both knees makes it “impossible for him to continue with any type of employment” and that it would seem “that his injuries came about as a direct result of his military service”. However, Dr Laird’s oral evidence was less conclusive as to the accepted injury to the knees being the only cause of Mr Gowing’s inability to work. He gave similar evidence to that of Dr Hollo that various physical problems and advanced age were contributing factors limiting Mr Gowing’s ability to work.

20. Dealing first with whether Mr Gowing has ceased to work, we note that the evidence before us is somewhat inconsistent. On one hand, Mr Gowing told the tribunal that he was unable to work but also set out in his answers to questionnaires described above that he was still putting in several hours every day in the office. He told the tribunal that there was an office in his home. He said he was no longer managing the share portfolio for the family and the partnership but just went to the office to check the investments. The information reported by Dr Hollo suggests that he did more than just check these investments, as does the information in the answers to questionnaires he completed. Mr Gowing downplayed his administrative role in oral evidence. On balance, we accept that Mr Gowing is no longer engaged in farming in any real and meaningful sense and that he has surrendered the farming operation to his son. Therefore, although he still carries out some work in the farm office, it is not the work that he has been performing in the last 45 years or so and not the work he had been performing in the last 10 years for the purposes of s24(2A)(g)(ii). He may have been putting in more than 8 hours per week but not in farming and not in the remunerative work that he had been performing. Even if he had surrendered part of the load to his son over the previous 10 years, this may not prevent his activities in that time being taken into account. See Haskard.

Is Mr Gowing’s inability to work due to his war-caused injury or disease alone?

21. In our view, based on the medical evidence before us and on the balance of probabilities, Mr Gowing suffers the disabilities set out above in addition to his war-caused back, shoulder and knee injuries. As well, while the evidence of the effect of old age on Mr Gowing’s ability to keep up the physical aspects of farming is less clear, Drs Laird and Hollo have given evidence that his age does play a role in Mr Gowing’s reduced ability to carry on his former activities. Dr Oldfield’s report also hints that Mr Gowing cannot expect to do certain farm activities, like assisting a cow to give birth, even though he is doing well “for his age”. For assessment under s24(2A)(d), the advanced age of Mr Gowing must be considered as a significant factor in his employment capacity. Mr Gowing conceded that at his age he wouldn’t expect to work at reparing fences. The importance of this was addressed in Banovich v Repatriation Commission (1986) 69 ALR 395, where the Full Federal Court observed:

“It was never intended that the TPI rate would become payable to a veteran, who, having enjoyed a full working life after war service, then retires from work…If a person has had the usual span of a working life or retired voluntarily or has left employment for reasons other than accepted disabilities, a TPI pension is not payable”.

22. Even though we accept that Mr Gowing’s remunerative work has ceased, Mr Gowing does not satisfy s24(2A)(d). This is because deficiencies in Mr Gowing’s work capacity are not purely the product of his accepted disabilities alone, as required. See Haskard. Mr Gowing is 88 years old and has other health problems not related to his service. As Dr Hollo notes in her report and as she has pointed out by reference to reports of other doctors who have seen and cared for Mr Gowing, he has a myocardial infarct together with his cardiovascular status at the age of 88. As well, he suffers from breathlessness after walking around 100 yards. There is no evidence to back up his perception that this problem is related to back pain or knee problems. It was also put to us that Mr Gowing’s breathing difficulties may be related to a respiratory condition mentioned by Dr Laird. A respiratory condition may be affecting Mr Gowing’s breathing but, whether it is caused by angina or by a respiratory deficiency, does not resolve in a conclusion that it is caused by knee and back problems. There is no medical justification before us pointing to such a conclusion. 

23.      In addition, Mr Gowing has told the tribunal that his surgery on both of his knees has been a success, a verdict with which Dr Laird agrees. It is his heart that has slowed him down and the effects of advanced age that has made him less able to continue farming. This is also implicit in the acknowledgement of the need to reduce his farming activity reported by Dr Oldfield on 23 May 2002 after an accident suffered by Mr Gowing when trying to assist the birth of a calf. As set out there and raised before Mr Gowing during the hearing, Mr Gowing suffered a fractured sternum when he tried to help the cow. Dr Oldfield reported that “he decided it is probably not his role anymore”. 

24. While Mr Gowing perceives that his knees and back are his main problems and finds support for this in the reports of Drs Oldfield and Brahmbhatt, we do not agree. These reports and the oral evidence show that his knees and back are not the only problems preventing Mr Gowing from performing his previous farm activities. It follows from the medical evidence before us and Mr Gowing’s own evidence that, on balance, we find that he does not meet the requirements of s24(2A)(d). This is an essential criterion for the grant of the special rate pension sought by Mr Gowing. Therefore, he cannot succeed in his claim.

25. Similarly, Mr Gowing does not satisfy the requirements of s24(1)(c) in that his knees and back are not alone responsible for his being unable to undertake the remunerative work in which he was previously engaged. Mr Gowing’s various physical and medical problems set out above all contribute to his inability to continue to earn the farming income he previously enjoyed. In making this finding, we have taken into account all the factors that contribute to Mr Gowing’s incapacity and determined that it is not Mr Gowing’s war-caused injuries alone which prevent him from continuing remunerative work in accordance with the procedure explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at paragraph 37. We acknowledge that Mr Gowing is restricted by his war-caused injuries but do not accept his proposition that if it were not for these, he would be able to continue to engage in remunerative work. It is not his war-related incapacity and that incapacity alone that prevents him from continuing to undertake remunerative work. In reaching this view, we have noted that this approach was recommended in several Federal Court cases cited by Spender J in Repatriation Commission v Alexander (2003) 75 ALD 329 at paragraph 18. These include Hendy (supra), Banovich (supra), Flentjar v Repatriation Commission (1997) 48 ALD 1, Cavell v Repatriation Commission (1988) 9 AAR 534, Re Easton v Repatriation Commission (1987) 12 ALD 777, Lucas v Repatriation Commission (1986) 69 ALR 415, Re Apthorp v Repatriation Commission (1986) 9 ALN N157.  It follows that the decision under review is affirmed.

DECISION

26.      The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms R Hunt and Member Dr P Lynch

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 18 November 2005        
Date of Decision: 6 December 2005         
Solicitor for the Applicant: Doyle Wilson Solicitors          

Solicitor for the Respondent: Department of Veterans’ Affairs