Graham and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 376

Graham and Repatriation Commission (Veterans’ entitlements) [2016] AATA 376 (3 June 2016)

Division	VETERANS' APPEALS DIVISION
File Number	2015/1617
Re	Kenneth Graham
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	3 June 2016
Place	Sydney

The Tribunal affirms the decision under review.

..........................[sgd]..............................................

Senior Member J F Toohey

CATCHWORDS

VETERANS ENTITLEMENT – special rate – intermediate rate – whether veteran incapable of undertaking remunerative work for eight or more hours per week – whether veteran incapable of undertaking remunerative work for 20 or more hours per week – whether veteran ceased to engage in remunerative work for reasons other than his accepted conditions – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act (1986) ss 19, 23, 24, 28, 120

CASES

Chambers v Repatriation Commission (1995) 55 FCR 9

SECONDARY MATERIALS

Second Reading Speech to Veterans’ Entitlements Bill 1985 Hansard, House of Representatives, 16 October 1985 at 2178

REASONS FOR DECISION

Senior Member J F Toohey

3 June 2016

BACKGROUND

1. Mr Kenneth Graham the served in the Australian Army from 27 March 1968 to 28 February 1969.  During a tour of duty in South Vietnam, he sustained a spinal injury when he fell into a deep hole.  He has suffered back pain since.  He suffers from lumbar spondylosis with intervertebral hollow disc degeneration, osteoarthritis right first metatarso-phalangeal joint, sensorineural hearing loss, tinnitus, hammer toe, and corns and callosities (right), all of which the Repatriation Commission (the Commission) has accepted are related to his service.

2. Mr Graham receives a disability pension at 80 per cent of the General rate for his service-related disabilities.  He seeks review of a decision made by the Veterans Review Board on 23 March 2015 that he does not qualify for the Special or Intermediate rate of pension.

   LEGISLATION

3. The legislation concerning the Special and Intermediate rates of pension is in s 24 and s 23 respectively of the Veterans’ Entitlements Act (1986) (the Act).  Different provisions apply according to a veteran’s age at the time of claiming the pension.

4. Mr Graham was 69 years old when he made his claim on 11 August 2014.

5. A veteran who turns 65 after making a claim for Special or Intermediate rate must satisfy the provisions of subsection 24(2A) or subsection 23(3A) respectively.  These provisions impose a higher test of qualification than for a veteran who has not yet turned 65.  This reflects the intention of Parliament, outlined in the Second Reading Speech for the Veterans’ Entitlements Bill 1985, that the  special rate of disability pension is payable in circumstances where, because of total and permanent incapacity resulting from war service, a veteran has been unable to resume or to continue in civil employment :

   [The Special rate pension] was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age.  It was never intended that the [Special rate pension] would become payable to a veteran who, having enjoyed a full working life after war service, then retired from work, possibly with whatever superannuation and other retirement benefits are available to the Australian workforce.

6. To qualify for the Special rate, the veteran must be totally and permanently incapacitated, meaning that his or her incapacity from war caused injury or disease, or both, of itself alone, renders the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours a week: subsection 24(1)(b).  For the Intermediate rate, the veteran must be rendered incapable of undertaking remunerative work for 50 per cent of the time ordinarily worked by persons engaged in work of that kind on a full-time basis, or for 20 hours or more per week: subsections 23(1)(c) and (2).

7. A veteran who claims either rate after turning 65 must be prevented by the incapacity arising from war-caused injury or disease alone, from continuing to undertake the last paid work that he or she was undertaking before making the claim.  The veteran must have been undertaking that work after turning 65 for a continuous period of at least 10 years that began before he or she turned 65, and must, as a result of the incapacity, be suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not otherwise be suffering: subsections 24(2A)(d), (e), (f) and (g), and subsections 23 (3A)(d), (e), (f) and (g).

8. A veteran will not qualify for either rate of pension if he or she ceased to engage in remunerative work for reasons other than the war-caused incapacity, or is incapacitated, or prevented from engaging in remunerative work, for some other reason: subsections 24(2B) and 23 (2B).

9. The standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).  The rate of pension is to be determined during the “assessment period” which means the period starting on the day the claim or application is made and ending when it is determined: s 19. 

   THE ISSUES

10. The issues in dispute in these proceedings are:

    (i)whether Mr Graham’s incapacity from his accepted conditions of itself alone renders him incapable of undertaking remunerative work for period necessary to qualify for either rate of pension; and

    (ii)whether he ceased to engage in remunerative work for reasons other than his incapacity from his accepted conditions.

    Mr Graham’s employment history

11. After leaving school, Mr Graham undertook an apprenticeship in motor mechanics which he completed in July 1966.  In September of the same year, he commenced a two-year period of national service.  In early 1967, he was posted to the 1st Battalion Royal Australian Regiment.  After undertaking jungle training in Canungra in Queensland, he was sent to South Vietnam.

12. On his return to Australia and after discharge from the Army, Mr Graham decided not to pursue work as a motor mechanic because of the stress that type of work placed on his back.  He found work as a truck driver with TNT in its Sydney depot.  After approximately 12 years, he took a redundancy package when the division in which he was working was dissolved.  Mr Graham gave evidence that, at that time, his back pain was becoming “a daily issue” and was a contributing factor to his decision to take the redundancy package which seemed like a “good idea” because it enabled him to pay off his mortgage.

13. After leaving TNT, Mr Graham and his wife moved to a  rural area where he worked as a casual labourer for three or four years.  He moved back to Sydney after he and his wife separated and, in 1986, was employed again by TNT as a full-time truck driver. He worked in that position until 30 September 2011.

14. Mr Graham gave evidence that his work for TNT involved on average 25 to 40, and some days up to 50, deliveries within the Sydney CBD. He had to get in and out of the truck each time and deliver loads, pushing and pulling trolleys with loads weighing a total of up to 200 kilograms, including up and down steps and gutters.  He says his back and foot pain increased over time to the point where he could no longer continue working, causing him to resign.

15. Mr Graham gave evidence that he takes painkillers most days for his back.  He has had no investigations or treatment for his condition.  He took no sick leave while working and was not subject to any restrictions on account of his back or foot.  He gave evidence that he did not want his employer to know about his back pain for fear of jeopardising his employment.  He would see his general practitioner, Associate Professor John Gullotta, approximately every six months; he would tell him about his back pain and the doctor would tell him to “take it easy”.  Associate Professor Gullotta’s clinical notes are considered below.

16. Mr Graham has not looked for work since leaving TNT.  For Mr Graham it was submitted that there are no other jobs he could do; truck driving is all he knows; he would not be able to work as a bus or taxi driver because he needs a different licence for each and because he cannot sit for extended periods in the same position.

    Does Mr Graham’s incapacity from his accepted conditions alone render him incapable of undertaking remunerative work for the relevant hours per week?

17. Mr Graham’s treating doctors and the doctors who assessed him for these proceedings agree that his accepted back condition alone prevents him from working as a truck driver who was required to make deliveries in the way that he did before leaving TNT.  I have no reason to question their opinion. 

18. The question remains whether, having regard only to the matters set out in s 28, I am satisfied that Mr Graham is, by reason of his accepted disabilities alone, incapable of undertaking remunerative work for the relevant hours per week. 

19. Mr Graham contends that he is incapable of undertaking work for periods aggregating more than eight hours per week because of his back and foot pain alone and that there is no other employment that he could reasonably be expected to undertake given his employment history and lack of transferable skills.

    Dr Rosenthal

20. Dr Thomas Rosenthal, occupational physician, saw Mr Graham for assessment on 1 July 2015.  He provided a written report dated 7 July 2015 and gave oral evidence by telephone. 

21. Dr Rosenthal noted in his report that there was a lack of contemporaneous evidence that Mr Graham’s back and foot conditions were becoming worse at the time he ceased employment in September 2011.  However, Dr Rosenthal noted that Associate Professor Gullotta, who was treating Mr Graham at the time, confirmed that he stopped work due to his lumbar and foot conditions on his advice.  Dr Rosenthal also noted that a form completed by Associate Professor Gullotta on 2 December 2011 indicated that Mr Graham suffered lower back pain after 15 minutes standing and after 20 minutes sitting and his right foot pain was severe after 10 to 15 minutes.

22. In Dr Rosenthal’s opinion, Mr Graham’s lumbar condition prevents him from prolonged sitting and standing, doing any lifting over five kilograms and recurrent bending; and, his right foot condition limits him to walking a maximum of 150 metres.  He acknowledged that Mr Graham’s capacity for work could depend on how long he is able to sit. 

23. Dr Rosenthal gave evidence that he does not believe that Mr Graham has any transferable skills given his employment history.  He does not agree with Dr Robin Chase, whose evidence is considered below, that Mr Graham can work part-time as a truck, bus or taxi driver.

    Dr Chase

24. Dr Chase saw Mr Graham for assessment on 31 July 2015. He provided a written report dated for September 2015 and gave evidence before the Tribunal. 

25. Dr Chase accepts that Mr Graham would be restricted to no more than eight hours a week if working in his former position with TNT.  However, if he were working as a bus driver, taxi driver, or courier driver driving a van or utility, and performing light deliveries, he sees no reason Mr Graham could not increase his hours.  In his opinion, as the physical demands of the job decreased, the hours could increase and, with appropriate work, there would be no reason he could not work full-time.

26. Dr Chase gave evidence that it was the loading and unloading component of Mr Graham’s former employment that stopped him working, but he saw no reason he could not drive.  On assessment, Mr Graham told him that he could drive his own car without problems but needs to have a rest “after about an hour and a half”.   Dr Chase gave evidence that, even if, on a bad day, he needed to stretch after about 30 minutes, Mr Graham should be able to do so if working as a taxi driver, a courier and possibly even as a bus driver, as long as he could pace himself.

27. In coming to this opinion, Dr Chase said he took into account the level of activity that Mr Graham currently pursues including playing golf regularly, going to the gym twice a week, gardening, driving his car, assisting around the home, and walking to the local shops.  Dr Chase describes these as “a broad range of normal activities that are on a day to day basis not limited significantly by of (sic) his symptoms”.

    Associate Professor Gullotta’s clinical records

28. Associate Professor Gullotta’s clinical records dating from August 1994 to 3 June 2015 are before the Tribunal.  Consistent with Mr Graham’s evidence, they show that Mr Graham saw him from time to time, but not with any regularity. 

29. Significantly, there is a single reference throughout the clinical notes to Mr Graham suffering from back pain.  A note on 30 April 2011 shows that Mr Graham saw Associate Professor Gullotta that day for a problem with his tooth.  He recorded on the side of his notes “DVA white card back pain not [illegible]”. 

30. I do not accept, if Mr Graham had complained of increasing back pain over the years as he claims, that his doctor would have made only a single record in nearly 20 years.   If he did complain of back pain, the only plausible explanation for the absence of any record would be that the pain was not as bad as he now says.

31. In a letter dated 21 July 2014 to Mr Graham’s former advocate, Associate Professor Gullotta stated that Mr Graham was capable of working more than eight hours per week as a driver, but with severe pain and disability on account of his back and foot conditions.  He referred, in the same report, to his “restriction to less than 8 hours” as a result of his back and foot conditions.  He stated that he advised Mr Graham to cease work because, at that time, “he could not sit for more than 15-20 minutes without a break and he felt it very difficult to drive due to his right foot pain”.  This account is at odds with the history taken by Dr Chase and with Mr Graham’s oral evidence confirming that he can sit for up to an hour or an hour and a half before needing a break.

    Other medical reports

32. For Mr Graham it is submitted that the Tribunal should give greater weight to the opinions of Dr Rosenthal, Associate Professor Gullotta, and his treating specialists Dr Michael Hunter and Dr Marc Coughlan, than to the opinion of Dr Chase.

33. Dr Coughlan is a neurosurgeon.  In a letter dated 16 October 2013, he confirmed that Mr Graham continues to have “significant foot pain” and “significant disc disease at L4/5 and L3/4”.  He suggested that Mr Graham see Dr Hunter because of his “considerable ongoing foot pain [which] seems to be eclipsing a lot of his other problems”.  In a report dated 23 June 2014, he noted that Mr Graham worked as a delivery driver and “this involved a significant amount of unloading and loading of goods throughout the day”.  He thought it “highly unlikely that he would be able to work more than 8 hours a week as a driver given his duties and also the condition of his lumbar spine, his right-sided knee and right ankle…”.

34. Dr Hunter is an orthopaedic surgeon. In a report dated 10 June 2014, he referred to Mr Graham’s employment, stating that he found stairs “particularly difficult as his work with driving a truck would require climbing up and down on a regular basis”.  He noted that Mr Graham found it difficult using the brake and accelerator with his right foot but said “the main issue with his work would be loading and unloading with the use of trolleys carrying up to 200 kilograms. This would entail multiple trips up stairs, ramps and over gutters”.

35. Dr Hunter concluded that it was difficult to assess Mr Graham’s capacity for work sometime after he had retired and was difficult to put “an absolute figure on restriction on hours particularly as each job [is] different”.  He thought Mr Graham “certainly could cope far better with longer trips and less loading and unloading but to put a figure on it one could perhaps state 2 to 4 hours”.  It is not clear from his report whether Dr Hunter means two to four hours per day or per week.

36. Dr Gerry Paul, general practitioner, completed a Work Ability Report for Mr Graham on 8 September 2014.   In response to questions as to how or Mr Graham’s disability reduced his ability to work and what, if any, type of work he would be able to perform, Dr Paul noted “unable” and “not able” respectively.  He indicated that Mr Graham could perform “Nil” hours work per week.  Given the very limited nature of the information in the report and no clear indication of the basis for Dr Paul’s opinion, I do not give this document any weight.

    Consideration

37. The Commission submits, and I accept, that a close reading of the reports and evidence of the other doctors shows that they are not at odds with Dr Chase to the extent suggested for Mr Graham.

38. The opinion expressed in Dr Rosenthal’s written report was based, at least in part, on his understanding that Mr Graham could not sit for more than 15 to 20 minutes.  His understanding was based on Associate Professor Gullotta’s notes which are at odds with Mr Graham’s evidence to the Tribunal.  The opinions expressed by Dr Rosenthal and in Associate Professor Gullotta’s notes are undermined by the inconsistency. 

39. Dr Coughlan’s opinion that Mr Graham could not work eight hours a week was on the basis of his significant loading and unloading duties.  He does not suggest that Mr Graham is incapable of working eight hours or more per week in suitable duties.  Similarly, Dr Hunter refers in particular to Mr Graham’s difficulties with loading and unloading.  As already noted, it is not clear how many hours per week he considers Mr Graham could work and he does not comment on his capacity for other suitable duties.

40. Give Mr Graham’s evidence that he can drive his car for up to an hour or an hour and a half without a break, and accepting Dr Chase’s opinion that there is little, if any, difference between sitting and driving a car and sitting and driving a bus or a taxi. I am therefore not satisfied that Mr Graham he is unable, by reason of his back and foot conditions of undertaking remunerative work for periods aggregating more than eight hours per week, or for 20 or more hours per week. 

41. Section 28 provides:

    In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

    (a) the vocational, trade and professional skills, qualifications and experience  of the veteran;

    (b) the kinds of remunerative work which a person with the skills, qualifications  and experience referred to in paragraph (a) might reasonably undertake; and

    (c) the degree to which the physical or mental impairment of the veteran as a  result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

42. Section 28 requires a broad view of a veteran’s skills and qualifications and should be applied sensibly and fairly: Chambers v Repatriation Commission (1995) 55 FCR 9. I am satisfied, having regard to Mr Graham’s qualifications and experience as a truck driver for many years and the degree of his impairment, that he could reasonably undertake other forms of driving work that do not involve lifting or loading and unloading. It is the kind of work that a person with his skills, qualifications and experience might reasonably undertake. There is no evidence to suggest that, if he needed to obtain the necessary licence, he could not do so. There is nothing to suggest that he would need significant retraining in order to render him capable of such work. Whether or not he would in fact obtain such employment is not the test.

    Did Mr Graham cease to engage in remunerative work for reasons other than his incapacity from his accepted conditions?

1. Section 24(2B) provides that, for the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

   (a) 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

   (b) the veteran is incapacitated, or prevented from engaging in remunerative  work for some other reason.

2. Section 23(3B) concerning qualification for the Intermediate rate is in identical terms.

3. Mr Graham’s written and oral evidence as to why he ceased employment was difficult to follow and in parts inconsistent.

4. In a written statement prepared for these proceedings, Mr Graham stated that, after separating from his wife and selling the family home, he took up accommodation is a border in the home of his current landlady. He wrote that, in September 2011, he decided to accept Associate Professor Gullotta’s advice and resigned.  He wrote:

   Prior to consulting Dr Gullotta about the increased level of pain into my lower back and right foot and before I had considered resignation, I learned that the lady to whom I pay board was intending to sell her home [in Sydney] and move to the Central Coast of New South Wales.

5. Mr Graham wrote that it is landlady’s home required extensive renovations which she could not afford and she “was seriously considering the move”. He wrote:

   I told her that I could get a transfer to the Central Coast with TNT and that it would suit me to continue living arrangements on the coast.

6. Mr Graham wrote that “at the end of July or early September, 2011” he visited Dr Gullotta and during that consultation was advised to stop; a few days later he submitted his resignation.  He wrote that he then had a discussion with his landlady and “informed her of my resignation and the reasons why I needed to resign”; she offered to continue their living arrangement on the Central Coast and he accepted the offer. Mr Graham wrote that the timing of his resignation from TNT had “nothing to do” with the move to the Central Coast and the two were “purely coincidental”.

7. Some time was spent at the hearing trying to clarify the sequence of events with Mr Graham.  Giving oral evidence, he said the possible move to the Central Coast had been “in the air” for some time but it played no part in his decision to cease work. Asked when he learned that his landlady intended selling, he said it was probably in about August or September 2011. He maintained that he had been considering resigning because of his back pain for some time and had decided before he learned she was planning to move.  When pressed about inconsistencies in his statements, Mr Graham then said he learned she was moving before he considered resigning. Finally, when asked by the Tribunal what he would have done had his landlady not decided to move, Mr Graham said he would probably have kept working although he doubted that he would still be able to do so today.

8. The evidence before the Tribunal shows that Mr Graham worked full-time in a relatively physically demanding job, without time off and without restrictions, for many years.  He had no investigation of, or treatment for, his back pain.  His general practitioner’s notes record only one occasion, in April 2011, of Mr Graham presenting with back pain.  He maintains a relatively active life.

9. I accept that Mr Graham experienced back pain for many years and, even though there is no independent evidence to confirm his claim that it was becoming worse, it would not be surprising, given his age, if it was.  However, I am not satisfied that his back pain was as bad as he says or, even if it was, that it was the reason he ceased work.

10. I am satisfied, on the basis of Mr Graham’s oral and written evidence, that the principal reason he ceased employment when he did was that his landlady was selling her house and moving. It was clear from his evidence that the long-standing arrangement suited him well.  It is also clear that, had she not moved, he would have probably kept working.

    CONCLUSION

11. For these reasons, I am not satisfied that Mr Graham’s accepted disabilities alone rendered him incapable of undertaking remunerative work to the extent necessary to qualify for either the Special or Intermediate rate pension.  In any event, I find that he ceased to engage in remunerative work for reasons other than his incapacity arising from his accepted conditions.

12. For these reasons, I affirm the decision under review.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

.........................[sgd]...............................................

Associate

Dated 3 June 2016

Date of hearing	27 May 2016
Solicitors for the Applicant	Mr G McAleese, Legal Aid New South Wales
Solicitors for the Respondent	Mr N Bunn, Repatriation Commission