Graham and Repatriation Commission
[2004] AATA 208
•1 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 208
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/481
VETERAN'S APPEALS DIVISION ) Re PETER GRAHAM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date1 March 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant is eligible for a pension at the special rate payable pursuant to s 24 of the Veterans’ Entitlements Act 1986 with effect from and including 1 November 2001. D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERAN’S ENTITLEMENTS – disability pension – rate of pension payable – special rate – type of remunerative work that the applicant had previously undertaken – applicant ceased some remunerative work for non war-caused reasons – applicant ceased management and planning work due to war-caused disabilities alone – applicant entitled to special rate.
Veterans’ Entitlements Act 1986 s24
Flentjar v Repatriation Commission (1987) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 0564/97
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96
Starcevich v Repatriation Commission (1987) 18 FCR 221
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy [2002] FCAFC 424
Re Almond and Secretary, Department of Social Security (1990) 20 ALD 746
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Wiegand v Comcare Australia (2002) 72 ALD 795
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Re Laugher and Repatriation Commission (1985) 11 ALN N56
Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986)
Re Smith and Repatriation Commission (1987) 12 ALD 534
Counsel v Repatriation Commission (2002) 122 FCR 476
REASONS FOR DECISION
1 March 2004 Deputy President D G Jarvis Introduction
1. The applicant, Peter James Graham, is a Vietnam veteran. He currently has accepted disabilities of post-traumatic stress disorder, lumbar spondylosis and ischaemic heart disease. He also suffers from pain in the thoracic spine due to compression fractures of the thoracic vertebrae and osteoarthritis in the right hip, which are non war-caused disabilities.
2. On 1 February 2002 he lodged a claim with the respondent for an increase in his disability pension, which was then 60% of the general rate. A delegate of the Repatriation Commission decided that his degree of incapacity was 100%, but that he was not eligible for pension at the intermediate or special rate, or for the extreme disablement adjustment. The delegate therefore increased the applicant’s pension to 100% of the general rate. This decision was affirmed on review by the Veterans’ Review Board (“VRB”) in a reviewable decision dated 3 October 2002. The applicant has applied to this Tribunal for review of the VRB decision.
3. At the hearing before me, the applicant was represented by Mr E Jolly, of Counsel, instructed by Tindall Gask Bentley, and the respondent was represented by Mr G Doube, an advocate employed by the respondent. Evidence was given by the applicant and by his wife Yvonne Elaine Graham. The applicant tendered the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the “T Documents”), and each party tendered various other documents.
Issues for Determination
4. The applicant’s entitlement to the special rate of pension is to be determined under s 24 of the Veterans’ Entitlements Act 1986 (“VE Act”). It was common ground that the applicant satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70% of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.
5. The issue before the Tribunal is whether the applicant satisfies s 24(1)(c) of the VE Act, that is:
·whether he is, by reason of incapacity from his war-cased injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
·whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
It was common ground that the applicant had not sought to engage in remunerative work since ceasing work, and so the ameliorating provisions of s 24(2)(b) are not relevant.
6. I have reached the conclusion that the applicant has satisfied the requirements of s 24(1)(c) of the VE Act and so is entitled to a pension at the special rate with effect from 1 November 2001, for the reasons set out below.
Legislation
7. Section 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 to the applicant, he will be entitled to a pension at the special rate provided for in s 24(4).
Background and Evidence
8. I accept the evidence of Mr and Mrs Graham and make the following findings from their evidence and from the information in the T Documents.
9. The applicant is aged 59, having been born on 5 February 1945. He worked as a grader operator and ganger for the Carathool Shire Council from 1961 until he joined the Australian Army in 1967. He served in Vietnam from April 1968 until April 1969, and he was later discharged from the Army. He then returned to his former work until late in 1975, when he moved to Adelaide after his first marriage broke up.
10. The applicant obtained work in Adelaide with the City of Tea Tree Gully, initially as a grader operator. He then went to work at the Tom Price mine in Western Australia, but after a short time he returned to the Tea Tree Gully Council to work. He was promoted from a grader operator to a ganger, then to the position of construction supervisor and later still to the position of project planner. In this last position he was in charge of the planning and implementation of construction work being undertaken by the engineering department of the council, that is road and drainage construction works. He was also attending to call-outs arising from emergencies.
11. In 1995 he left the employment of the Tea Tree Gully Council. Some time before this he had started feeling uneasy and anxious, had difficulty in concentrating on his work, and felt depressed. He had remarried in 1985, and the feelings and difficulties which he experienced at work resulted in tension at home. He and his wife felt they needed a change, and they decided to move to Queensland and to change to a more relaxed lifestyle. In August 1995 they purchased a restaurant business which operated from leased premises in Tin Can Bay in Queensland. In October 1995 they purchased freehold a property in Tin Can Bay comprising four holiday units and a substantial residence. They operated the two businesses in partnership. The units overlooked a bay and was in a growing area. Two of the applicant’s step-daughters and their husbands also went to Tin Can Bay, and the family members between them ran the restaurant and the units.
12. After acquiring the units, the applicant repainted them to improve their presentation. He also did all of the lawn mowing and maintenance of the units, and both he and his wife and family members managed and cleaned the units, took bookings for the units and for the restaurant, and also took orders from customers and waited on them. The husband of one of the step-daughters did the cooking in the restaurant.
13. At first the applicant felt somewhat better than he had felt at the end of his time in Adelaide, but he gradually became unwell again. After about the first 12 months in Tin Can Bay the applicant became aware that he was making many mistakes in taking telephone bookings from customers of the units as well as customers of the restaurant. Mrs Graham and her daughters found they had to check and go back over what the applicant was doing; they found that he would forget to put towels and other supplies in rooms in readiness for incoming customers, and would repeat gardening tasks which he had done the day before. More importantly, they found that he was making mistakes with bookings. On occasions, due to the applicant’s mistakes, the units were double booked. This was understandably very upsetting to customers. They would have to be sent to another motel at Tin Can Bay, and Mr and Mrs Graham would then be obliged to pay for their alternative accommodation. The applicant’s mistakes were due to his inability to concentrate.
14. When the applicant commenced his new work of managing the units and assisting with the restaurant, he got on well with people, but over time his relationship with customers became more and more difficult. He reached the point where he would avoid customers. He would not answer the telephone, and if a customer came into the front door of the units he would go out of the back door to avoid contact with the customer. He was lacking in confidence and had feelings of anxiety. He became suspicious and felt worthless. The applicant’s mistakes in his work and problems with customers caused stress in his relationship with his wife, and affected the revenue and profitability of the business. He had to withdraw altogether from assisting with the restaurant, and the amount of work he could do in relation to the units was reduced.
15. Late in 1997 Mr and Mrs Graham sold the restaurant business on a walk-in walk-out basis, but they continued to own and operate the holiday units. The applicant said that they decided to sell the restaurant because of the problems being caused by his inability to cope with the work. However, Mrs Graham was concerned that her daughters’ work in the restaurant meant that they could not go out with their friends and enjoy themselves at night, and she found that she had to go down to the restaurant quite often to assist. I find that there were a number of reasons for selling the business, namely the applicant’s inability to assist in the running of it, Mrs Graham’s desire to free her daughters of their commitment to the restaurant to enable them to engage in the social life of Tin Can Bay, and the increased workload faced by Mrs Graham as a result of the applicant’s difficulties.
16. Early in 1998 the applicant consulted a local general practitioner, Dr Julie Conway of Gympie, Queensland. It appears that by June 1998 Dr Conway made a provisional diagnosis that the applicant was suffering from PTSD (T5). I will refer below to further information provided by Dr Conway.
17. In June 1998, the applicant claimed a disability pension in respect of symptoms of insomnia and PTSD, chest pains and low back pain (T5). The Department of Veterans’ Affairs sought an assessment from Dr Brian Hutchinson, a psychiatrist, of Sunshine Coast Psychiatric Services, and he provided a report dated 17 August 1998 to the department (T7). Dr Hutchinson concluded that the applicant had a clear case of post traumatic stress disorder, and that he was then depressed. Dr Conway referred the applicant to another psychiatrist, Dr Burnett Kann of Cooroy, Queensland, and in reports dated 19 January 1999 and 30 May 1999 (T10) and 12 March 2002 (T12), Dr Kann confirmed the diagnosis of combat-related PTSD that was delayed in onset and chronic in nature. Dr Kann prescribed medication. The applicant said that initially this seemed to calm him down and helped his depression, but after about six months he started to become aggressive, both with neighbours and strangers, and also with his family.
18. In about October 1999 Mr and Mrs Graham returned to Adelaide because Mrs Graham needed medical treatment, and also in an endeavour to improve the applicant’s condition. They put the units in the hands of a manager. They returned to Tin Can Bay late in September 2000 after Mrs Graham had completed her medical treatment in Adelaide. On their return, they resumed the management of the units. The applicant said he continued on his downhill slide and this meant that his wife, family and friends were putting in increasing efforts to cover for him. This added to the tension in his relationship with his wife. Whilst his step-daughters by then had alternative employment, they still assisted whenever they could in running the business. It became obvious that the applicant was not coping, and in about October 2001 Mr and Mrs Graham put the units on the market. They were sold in October 2002. They then returned to Adelaide permanently. Whilst the applicant has felt better since his return to Adelaide as a result of changing his medication, he still has a number of problems, and has not worked since selling the units.
Respondent’s Submissions
19. Mr Doube on behalf of the respondent submitted that the applicant did not satisfy the requirements of s 24(1)(c) of the Act for the following reasons:
(a)the applicant ceased working in the restaurant business because that business was sold, and an important reason for selling the restaurant was to enable the applicant’s step-daughters to enjoy a social life;
(b)the applicant was suffering from two further non war-caused conditions, namely thoracic vertebral crush fractures and osteoarthritis of the right hip, and these factors contributed to his inability to undertake remunerative work;
(c)the businesses acquired by the applicant and his wife in Tin Can Bay were financially not viable, with the result that the applicant and his wife were eating into their savings, and this inevitably had led, or would have led, to the cessation of this remunerative work by the applicant even if he was not suffering from his war-caused conditions; and
(d)the applicant was not suffering a loss of earnings that he would not be suffering if he were free of his war-caused conditions, because the businesses were running at a loss.
Consideration
20. In considering the application of s 24(1)(c) of the VE Act, I refer first to the very helpful 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?”
21. 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 120(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)). The time at which the assessment under s 24(1)(c) is the date of application, not retirement: Jackman v Repatriation Commission, Federal Court, 30 June 1997, 0564/97.
22. As regards the first question in Flentjar, the reference to “remunerative work that 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: Banovich v Repatriation Commission (1986) 69 ALR 395. 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, 1106/96. 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 454 per Fox J.
23. In the present matter, I find on the evidence before me that the type of work which the applicant had previously undertaken was:
(a) working as a grader operator;
(b) working as a ganger in charge of road construction gangs;
(c)planning and arranging for the implementation of road and drainage construction works;
(d)managing a restaurant business;
(e)working as a waiter in a restaurant;
(f)managing holiday units; and
(g)working as an unskilled domestic gardener and handyman.
I am mindful that the applicant’s previous work in managing the holiday units also embraced carrying out gardening and maintenance activities. However, on the authorities mentioned in paragraph 21 above, the determination required by s 24(1)(c) of the relevant remunerative work is not confined to any particular job, but rather entails an examination of the type of work which the veteran has previously undertaken. I consider that the work of managing the holiday units would not necessarily also entail performing outside maintenance and gardening activities, and that these activities constituted a separate kind of work.
24. The second question in Flentjar entails a simple factual decision, and if s 24(1)(b) is satisfied it is unlikely to be an issue. In the present matter the respondent acknowledges that s 24(1)(b) has been satisfied, and I find that the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work referred to in paragraph 23 above.
25. The third question in Flentjar refers to the “alone” test in s 24(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 paragraph 33, the word “alone”, in the absence of ambiguity, should not have substituted for it other words. The word “alone” as it appears in s 24(1)(c) requires a practical decision as to 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 (supra, at page 539), Burchett J said further 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 (supra), RD Nicholson J said (at paragraph 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 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] FCAFC 424 at paragraph 37 as follows:
“The language of s 24(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’s 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. As regards the applicant’s work in the restaurant, I have already found that there were reasons for the sale of the restaurant business which were not related to the applicant’s war-caused conditions (see paragraph 14 above). However, this work was only one of the types of remunerative work which the applicant had previously undertaken. I accordingly find, on the authority of the decisions referred to in paragraph 22 above, that the applicant’s loss of work in connection with the restaurant business does not mean of itself that he fails the “alone” test in s 24(1)(c).
29. Another type of work which the applicant had undertaken was the work entailed in managing the units. This included taking the bookings and preparing the units for occupation, and (I infer) establishing and maintaining a good rapport with customers in order to develop the goodwill of the business, as well as attending to gardening and maintenance work. I have already found that the applicant’s condition of PTSD prevented him from undertaking this type of remunerative work. In order to determine whether, as was submitted on behalf of the respondent, the non war-caused conditions of thoracic vertebral crush fractures and osteoarthritis of the right hip were factors which contributed to his being so prevented, it is necessary to examine the evidence as to these two conditions in some detail.
30. The applicant said in evidence that he has pain mainly in his back but also in his right hip. He said that his back pain slowed him up a bit; he could still do everything but it took a lot longer. He said that the back pain was no worse than the hip pain; it was part of his life and nothing out of the ordinary for him. He said that his mental problems had only developed in the mid 1990’s but the big problem he had with the units was totally in his mind, and this affected his ability to concentrate and made him feel worthless. He said that he had always controlled his pain. I note that he was not asked any questions about the assessments made by Dr Conway, his general practitioner, in the various departmental forms, to which I will refer in paragraphs 32 to 39 below.
31. Mr Doube cross-examined the applicant and Mrs Graham regarding the applicant’s back problem. Mrs Graham admitted that in a handwritten statement dated 30 October 2001 headed “Re Back PJ Graham” she had said: “He is very restricted to doing things around the house even an attempt to help will cause extreem (sic) pain. Peter suffers with this problem no matter when sitting or laying (sic) down. The most comfortable possition (sic) he can get in is flat on his back on the floor.” (T4 page 63). Mrs Graham acknowledged that this statement related to the applicant’s condition as at the time when she wrote the statement. This statement, and other similar statements, were apparently provided to the respondent in support of a claim by the applicant dated 27 September 2001 for the disability of lumbar spondylosis (T4, pages 19 to 28). This claim was allowed, but the applicant also suffers from pain in the thoracic spine due to compression fractures of the thoracic vertebrae and also osteoarthritis of the right hip, and these disabilities have not been accepted as war-caused disabilities. As the claim then being made by the applicant was for lumbar spondylosis, it might reasonably be inferred that Mrs Graham’s statement related to the applicant’s lumbar back, although the statement does not indicate whether the pain and problems which Mrs Graham described emanate from the lumbar spine or the thoracic spine.
32. Certain medical information regarding the applicant’s non-accepted conditions is contained in various forms completed by Dr Conway. In a medical impairment assessment dated 25 October 2001 (T10, page 187) Dr Conway assessed two disabilities on the one form, namely “Lumbar spondylosis/degenerative wedging of thoracic vertebrae”.. She said on this form that the applicant experienced back symptoms when standing, and said: “Pain is thoracic. Present constantly. Gets worse after standing for 10 minutes.” She stated that he experienced back symptoms when sitting or lying down and that he could sit for five to 10 minutes and could lie flat on his back. She also said that he could walk 500 metres without needing a rest, and then needed to rest because of thoracic back pain. She assessed a restriction of about 25% of range of thoracicolumbar spinal movement. She further reported “anterior wedging of numerous mid and lower thoracic vertebral bodies”.
33. Dr Conway also completed a medical impairment assessment in respect of the applicant’s “localised osteoarthrosis of the right hip” (T10, page 188). She reported that he had pain in the right hip when walking, bending and sitting. She described the pain as intermittent, moderate, occurring daily and lasting a couple of hours. She further said that he had an intermittent severe limp occurring three to four times a day, and that he could walk 500 metres without needing a rest, and then needed to rest because of back pain and also hip pain, but his back pain was worse (T10, page 188).
34. Dr Conway also completed a work test questionnaire (T11, pages 191 – 197). As regards musculo-skeletal system, she reported that there was a full range of movement in the lumbar sacral spine, pain in the thoracic spine with movement, but no significant loss of movement. She completed the following incapacity details:
Condition Known by DVA Year of onset Temporary or Permanent Functional Rating (see below) Post traumatic stress disorder early 1990’s permanent 4 Lumbar spondylosis 6/98 permanent 0 Ischaemic heart disease 7/98 permanent 0 Thoracic vertebral crush fractures 1968 permanent 2
Other Conditions known by LMO Year of onset Temporary or Permanent Functional Rating (see below) Osteoarthritis right hip 2001 permanent 2 Hyper cholesterolemia 1998 permanent 0 The functional ratings were derived from the following rating scale:
“0. No functional effect
1. Minor effect on certain functions only
2. Moderate effect on certain functions only
3. Severe effect on certain functions only
4. Severe or disabling effect on many functions
5. Overwhelming effect on all relevant system functions”
35. Dr Conway then completed a number of questions under the heading “Capacity to Work”. She considered that he could not work at all. In answer to the question of what medical conditions “prevent or restrict” his capacity for work, she stated “PTSD primary reason. Back pain & hip arthritis some impact on ability to work” (T11, page 196). In answer to the next question as to the way in which the applicant’s conditions affected his capacity to work, Dr Conway said:
“Too anxious. Not socializing. Very withdrawn. Increasing anxiety. Poor sleep. Poor concentration. Wouldn’t cope with demands of a job at all. Also back and hip affect ability to bend, lift, walk etc.” (T11, page 197).
36. In a medical impairment assessment form relating to the applicant’s thoracic compression fractures and osteoarthritis of the right hip (T11, pages 205 – 206), Dr Conway stated that the applicant experienced symptoms of the thoracic compression fractures during ordinary activities, and described these symptoms as follows: “Constant thoracic pain. Bending worst. Difficulty lifting. Pain during cleaning, eg scrubbing at home. Aggravated by mowing.” (T11, page 205).
37. Neither party called Dr Conway to give evidence. No other medical evidence relating to the applicant’s non-psychiatric conditions was made available to the Tribunal. This is not, therefore, a case where the Tribunal is required to compare the opinion expressed by a doctor not called as a witness with the opinion of a doctor who has given oral evidence and whose evidence has been tested by cross-examination. Considerations arising in those circumstances were discussed in Re Almond and Secretary, Department of Social Security (1990) 20 ALD 746 and Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, and other authorities discussed in those cases. It is, of course, permissible and common for the Tribunal to receive medical reports without the doctors concerned being called to give evidence, and for the Tribunal to rely upon those reports. In order to determine the relevance of the applicant’s non war-caused injuries, namely his thoracic vertebral crush fractures and the osteoarthritis of his right hip, it is necessary to consider Dr Conway’s evidence in the context of all of the factual material before the Tribunal. I note that neither Mr nor Mrs Graham attempted to quantify the extent of problems caused by these two non-accepted injuries compared with problems caused by his lumbar spondylosis, which is an accepted condition. However, it appears from the functional rating assessed by Dr Conway that she attributed much more significance to the thoracic vertebral crush fractures and the osteoarthritis of the right hip than to the lumbar spondylosis (see paragraph 34 above). I therefore consider that when the applicant and his wife referred in their evidence to the problems arising from the applicant’s back pain, these problems should be attributed mainly, if not wholly, to his non war-caused injury.
38. On the face of it, Dr Conway’s assessment of the applicant’s capacity to work indicates that his back pain and hip arthritis were factors which prevented the applicant from continuing to undertake remunerative work (see paragraph 35 above). However, where an expert witness expresses an opinion on the ultimate issue before a court or tribunal, it is important to ensure that the expert has correctly applied the relevant legal test in reaching his or her opinion (Wiegand v Comcare Australia (2002) 72 ALD 795 at paragraph 30) and also that the expert’s opinion is based on the correct factual material. In the work test questionnaire, Dr Conway said that the applicant’s last occupation was “Project Planner Local Government” (T11, page 195). This was, of course, incorrect. Further over in the same assessment form, Dr Conway states that the applicant’s capacity for work was “Nil”, and she gave this answer in response to a question which directed her to consider “all types of work for which he may have the skills qualifications and/or experience”.. The form then required her to tick one of a number of boxes which gave a range starting with “Heavy/skilled” descending to “Light lesser skilled”, and included a final category “No work at all”. There is therefore nothing on the form to indicate that Dr Conway considered each of the categories of work which the applicant had undertaken in the past, namely (on my findings) the categories of work set out in paragraph 23 above.
39. I also note that the next question which follows the question seeking the doctor’s opinion as to what type of work the applicant could undertake reads “What medical conditions prevent or restrict Peter Graham’s capacity to work” (emphasis added). However, the test in s 24(1)(c) involves an examination of whether the veteran’s war-caused injury or disease alone prevents the veteran from continuing to undertake the relevant remunerative work, and not whether that injury or disease restricts the veteran from continuing to undertake that work. It is, therefore, not clear that when Dr Conway answered the question appearing on the form and stated that the applicant’s pain and hip arthritis had some impact on his ability to work, she was expressing an opinion that those conditions were factors in preventing him from working, as opposed to restricting him from working. If her comments related to the latter issue, they would not be relevant to a determination of the “alone” test in s 24(1)(c).
40. The extract from Mrs Graham’s handwritten statement dated 30 October 2001 refers to the applicant being “very restricted to doing things around the house”, and therefore on the face of it, her evidence indicates that his non war-caused injuries were factors which prevented him from undertaking the gardening and maintenance activities which the applicant had undertaken when the units were first purchased (see paragraph 31 above). On the basis of this evidence and the opinion expressed by Dr Conway as to the relative significance of the two non war-caused injuries (see paragraph 34 above), I find that these conditions were factors which prevented the applicant from continuing to undertake work as an unskilled domestic gardener and handyman (being part of the work which the applicant undertook when the units were first purchased in 1995). I make this finding notwithstanding the applicant’s evidence as set out in paragraph 30 above as to his assessment of the effects of his back pain and hip pain (to the extent that his evidence can be understood as referring to his gardening and maintenance work at the units). I further find that the non war-caused conditions were factors which prevented the applicant from working as a grader operator, as a ganger in charge of road construction gangs and working as a waiter in a restaurant.
41. The three remaining types of work referred to in paragraph 23 above are managing a restaurant business, managing holiday units and planning and arranging for the implementation of road and drainage construction works. I find that the applicant was prevented from continuing to undertake those three remaining types of work by his war-caused condition of PTSD alone, and that the two non war-caused injuries were not contributing factors. As I understand the evidence, the work of managing a restaurant and managing holiday units would involve taking bookings, receiving guests on their arrival and promoting the business appropriately, and in addition, in the case of managing holiday units, checking the units and ensuring that they were ready for incoming customers, and also some limited form of record keeping. This work would not entail bending, lifting or walking (being the aspects of his incapacity to work noted by Dr Conway (T11, page 197). I accept that the applicant could control his back and hip pain so that he could manage this kind of work. I further think that it is likely that the applicant would also have been able to continue his work in planning and arranging for the implementation of road and drainage construction works, although this is less clear because of the absence of detailed evidence as to what was entailed in his former work in this category for the Tea Tree Gully Council.
42. In considering the viability of the two businesses, I note that Mr and Mrs Graham did not obtain any financial advice before purchasing the restaurant or the units, and apparently bought the businesses only on the basis of information as to the takings of the businesses. Mr Doube, for the respondent, pointed out that the units had never made a profit. He referred in this regard to the summary of taxation and financial records (exhibit A2) which showed that during the financial years 1996 to 2002 inclusive, the units made losses of varying amounts between $3,057 in 1998 and $15,212 in 1999. Further, in the three years whilst the parties operated the restaurant as well as the holiday units, the combined partnership operations produced a loss of $5,944 and $707 in 1996 and 1998 respectively, and a profit of $12,036 in 1997. Mr Doube further referred to and relied upon the 2002 tax returns of the partnership and Mr and Mrs Graham (exhibits R3 and R5) and the 1999 partnership tax return (exhibit R4). Further financial information is included in T18, commencing on page 277.
43. The applicant admitted that he and his wife were dipping into their savings, but said that he and his wife survived and kept their repayments up-to-date on the money they had borrowed to purchase the businesses, as well as paying all of their business accounts. The businesses were providing them with food and lodging. I accept this evidence. He said that he was not sure how his accountant worked out the financial statements. He acknowledged that the restaurant business was sold by them at a loss, but it appears that the units appreciated in value and they were later sold at a capital profit which more than offset the loss on selling the restaurant business.
44. On the evidence before me, I find that the lack of viability of the partnership was not a factor which prevented the applicant from continuing to undertake the work of managing the holiday units or the restaurant. Mr and Mrs Graham gave evidence that they had intended to significantly expand the number of holiday units from four to sixteen. I find that if it had not been for the applicant’s war-caused condition of PTSD, they would have done this, and whilst there is no direct evidence to this effect, I infer that this would have significantly increased the viability of the business. Further, the profitability of the business was clearly affected by the applicant’s mistakes in bookings, which meant on occasions that the partnership had to bear the cost of customers staying in alternative accommodation in Tin Can Bay. In addition, I find that the business was affected by the applicant’s withdrawal from, and later aggressive attitude in dealing with customers. This no doubt prejudiced the goodwill and profitability of the business.
45. The fourth question in Flentjar (that is, the “loss” issue, being the second aspect of s 24(1)(c)) entails a consideration of whether the veteran is suffering a loss of income that he or she would not have been suffering if not affected by the war-caused disability. In Repatriation v Smith (supra) at 337, Beaumont J, with whom Northrop and Spender JJ agreed, said: “As has been said, the question posed by s 24(1)(c) is one of hypothetical fact. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities”. In Repatriation Commission v Hendy (above) the Full Court said at paragraph 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”.
46. In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J considered the relevance of the deeming provisions of s 24(2)(a)(i). His Honour said at paragraph 25:
“This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work. It in fact presupposes that he or she may well not be: cf 24(1)(b). And because of the deemed ‘no loss’ provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work”.
I also refer in this regard to Re Laugher and Repatriation Commission (1985) 11 ALN N56, which indicates that under s 24(2)(a) the veteran’s own reasons for ceasing work may be relevant, unlike the more objective test imposed by s 24(1)(c).
47. It appears from earlier Tribunal decisions that the reference in s 24(1)(c) to “remunerative work” does not necessarily mean profitable employment or profitable undertakings, and will extend to work where the aim is to make a profit, whether or not that aim is successful: Re Bertram and Repatriation Commission (AAT 2783, 29 July 1986). I also refer in this regard to Re Smith and Repatriation Commission (1987) 12 ALD 534 where poorly paid employment afforded no net economic benefit because of excessive expenses, but could nevertheless properly be regarded as remunerative work. Further, in Counsel v Repatriation Commission (2002) 122 FCR 476, the Full Court of the Federal Court decided that the veteran had suffered a loss of earnings on his own account in circumstances where the business partnership in which he was involved had operated at a loss for a number of years. The Court held that “earnings” in this context meant gross earnings to which the partners had access from time to time rather than net earnings.
48. The applicant gave evidence that if he did not have his ongoing problems he would like to be back at Tin Can Bay with his wife managing the units. He said further that when they first acquired the two businesses, they anticipated increasing the restaurant business, and (as mentioned above) they intended to increase the number of units to 16, which would have given them a comfortable and idyllic existence. They had no intention to return to Adelaide. Mrs Graham also confirmed that if the applicant had not been in the state he was in they would have continued running the units. I find that the applicant would have continued to manage and operate the units if he had not been prevented from doing so by his war-caused conditions.
49. From the evidence of the applicant and his wife, it appears that the difficulties which the applicant had in his employment at the Tea Tree Gully Council were also due to the delayed onset of PTSD, although that affliction was not diagnosed until some three years later. I further find on the evidence before me that the applicant would have continued to work at the Tea Tree Gully Council if he had not been prevented from doing so by his war-caused condition of PTSD. I also find for the reasons referred to in paragraph 44 above that the applicant is suffering a loss of earnings on his own account, or alternatively a loss of salary from the Tea Tree Gully Council, that he would not be suffering if he were free of his war-caused incapacity.
Decision of Tribunal
50. I accordingly set aside the decision under review and in substitution therefor determine that the applicant is eligible for a pension at the special rate payable pursuant to s 24 of the Veterans’ Entitlements Act 1986 with effect from and including 1 November 2001.
I certify that the 50 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .......................................................................................
Nikki Quirke AssociateDate/s of Hearing 3 and 4 November 2003
Date of Decision 1 March 2004
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr G Doube
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