GREGORY MICHAEL BUTCHER and REPATRIATION COMMISSION
[2009] AATA 332
•12 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 332
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2004/0001
VETERANS' APPEALS DIVISION ) Re GREGORY MICHAEL BUTCHER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Senior Member L HastwellDate12 May 2009
PlaceAdelaide
Decision The tribunal sets aside the decision under review, and in place of that decision:
1. decides that the applicant is entitled to pension at the special rate provided for in section 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect on and from 1 October 2008; and
2. remits the matter to the respondent to assess the applicant’s entitlement to pension in accordance with the tribunal’s reasons for decision.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – special rate – accepted conditions of personality disorder, conversion reaction, psycho-somatic illness, psoriasis, anxiety disorder, alcohol dependence or alcohol abuse, and hypertension – seven asserted non-accepted conditions – relevance to alone test of periodic consultations and treatment – evaluation of medical evidence – decision set aside – applicant became entitled to pension at special rate during assessment period.
Veterans’ Entitlements Act 1986 (Cth), ss 24(1)(c) and 31
Baljas v Repatriation Commission [2009] FCA 171
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Butcher [2006] FCA 811
Repatriation Commission v Butcher (2007) 94 ALD 364
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
12 May 2009 Deputy President D G Jarvis
Senior Member L Hastwell1. The applicant, Gregory Michael Butcher, served in the Australian Army from 8 January 1974 to 13 April 1981. He has the following accepted disabilities, namely personality disorder, conversion reaction, psycho-somatic illness, psoriasis, anxiety disorder, alcohol dependence or alcohol abuse, and hypertension.
2. On 31 March 2003 Mr Butcher lodged a claim for an increase in pension and for the condition of hypertension to be included as being defence caused. A delegate of the Commission decided on 20 February 2004 to include hypertension as a defence-caused condition, and to pay Mr Butcher’s pension at 100 percent of the general rate with effect from 31 December 2002.
3. Mr Butcher sought a review of this decision by the Veterans’ Review Board (VRB). On 17 August 2004 the VRB affirmed the decision under review. Mr Butcher then applied to this tribunal for a review of the Commission’s decision. He asserted that he is prevented from continuing to undertake remunerative work by reason of incapacity from his defence-caused conditions alone, and that he was entitled to the special rate of pension provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act).
4. The tribunal set aside the decision of the Commission, and decided that on and from 1 August 2004, Mr Butcher was, by reason of incapacity from a war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that he had been undertaking and was, by reason thereof, suffering a loss of earnings that he would not have been suffering if he had been free of that incapacity, and so was entitled to pension at the special rate.
5. The Commission appealed against the tribunal’s decision. Besanko J decided that the tribunal had erred in law by limiting the characterisation of Mr Butcher’s past remunerative work by reference to six specific jobs in which the veteran had been employed, and by considering the application of the requirements of s 24(1)(c) to only some of those positions. His Honour decided that the tribunal had not classified the remunerative work in sufficiently general terms, and that a correct characterisation of the remunerative work was “general labouring duties involving unskilled work, process work and general driving duties” (“relevant remunerative work”). He then proceeded to determine the factual questions raised by s 24(1)(c) for himself, rather than remitting the matter to the tribunal for further consideration.
6. The Commission then appealed to a Full Court of the Federal Court. The appeal was allowed. The Full Court decided that his Honour’s description of the past remunerative work which the veteran had been undertaking was appropriate, but held that he had erred in not referring the matter back to the tribunal for further consideration, because there was an inconsistency between the actual finding he had made and that made by the tribunal. The Full Court (Tamberlin, Nicholson and Tracey JJ) said at [18]:
“In these circumstances, it is appropriate that there should be a further investigation by the Tribunal as to whether, having regard to the types of work that the veteran was undertaking as correctly interpreted, the war-caused injury alone prevented him from engaging in the work which he previously undertaken.” [sic]
7. Following the remitter, the matter proceeded in this tribunal as a re-hearing. The evidence and exhibits tendered in the earlier proceedings in the tribunal were received as evidence in the remitted proceedings. In addition, both parties led further evidence and tendered a number of further documents.
Issue before the Tribunal
8. The issue before the tribunal in the remitted proceedings is whether the “alone” test in s 24(1)(c) of the VE Act was satisfied. At the earlier hearing, the tribunal had accepted that problems which Mr Butcher had experienced with his left shoulder were the result of degenerative changes in his cervical spine, and that this condition was not service related. At the re-hearing, the Commission asserted that Mr Butcher was suffering from some six further conditions that contributed to Mr Butcher’s incapacity to undertake the relevant remunerative work. The seven non service-related conditions which the Commission now asserts contribute to his incapacity to undertake the relevant remunerative work are (a) hearing loss; (b) degenerative change of the neck with probable nerve root irritation; (c) a left shoulder condition, which it is said mainly arises from osteo-arthritis of the acromio-clavicular joint; (d) a right shoulder condition, said probably to be a rotator cuff degeneration; (e) divarication of the abdominus rectus muscles; (f) obesity and general physical de-conditioning; and (g) left ulnar neuritis.
9. In its Statement of Facts, Issues and Contentions, the Commission also referred to the need to take into account that it was nearly five years between Mr Butcher’s ceasing work and the date when he lodged his claim, which marked the commencement of the assessment period.
10. At the re-hearing both parties accepted Besanko J’s formulation, for the purposes of s 24(1)(c), of Mr Butcher’s past remunerative work (see paragraph 5 above).
11. The Commission did not formally concede that Mr Butcher had not ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or war-caused disease or both, being a matter relevant to whether the “loss” limb of s 24(1)(c) is satisfied. The apparent basis for that non-concession was that an occupational physician, Dr Wilson, whom the Commission called, expressed the opinion, by reference to some knowledge he gained from another case, that Mr Butcher “could” have left his last remunerative work because of problems with his shoulder. However, the Commission did not produce any other evidence that Mr Butcher had not satisfied the “loss” test. The tribunal finds that Mr Butcher satisfies that criterion of s 24(1)(c). The tribunal further finds that when Mr Butcher was working for his last employer, Comit Farm, he was not having any problems with his arm or problems that could have been associated with symptoms of degeneration in his cervical spine, or with his 1978 shoulder injury, or any of the other non service-related conditions asserted by the Commission.
12. It is also common ground that Mr Butcher is totally and permanently incapacitated within the meaning of s 24(1)(b), in that his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The Commission also accepts that Mr Butcher satisfies the other criteria for eligibility for special rate pension in s 24(1) of the VE Act.
Background Facts
13. Mr Butcher is now aged 53. He was educated to third year at high school, and before he enrolled in the Army he was employed as a block hand, which was essentially unskilled work.
14. Evidence was given in the earlier proceedings of Mr Butcher’s work in the period after his discharge from the Army. This evidence was conveniently summarised by Besanko J at first instance as follows:
Period
Position
Employed
1 November 1983-June 1985 Process Worker Stan Bond Limited 2 December 1985- Yard hand North East Timbers 3 August 1988-February 1989 Truck driver MRW Co-op 4 August 1989- Truck driver Lindfox Transport Australia Ltd 5 March-May 1992 Fork-lift driver Adelaide Steel Processing 6 March-May 1998 General hand Comit Farm Produce Pty Ltd
15. After formulating the more general characterisation of the remunerative work which Mr Butcher had previously undertaken (namely, general labouring duties involving unskilled work, process work and general driving duties), his Honour continued:
“I would not include driving a fork-lift in the description of general driving duties. That was employment he undertook for only a short period of time and the question is the ‘substantive’ or ‘substantial’ remunerative work the respondent has undertaken in the past. That leaves for consideration whether, in this case, the general labouring duties involving unskilled work includes tasks that required work above his head, such as fixing ceilings or cornices, or painting, or prolonged looking down, such as concrete laying or flooring work. I do not think that it does, because there is no evidence that the respondent undertook such work on a prolonged or repetitive basis for any period of time, or that he was qualified to undertake such work.” ([2006] FCA 811 at [44])
These further comments, which were approved by the Full Court, were not contested by either party on the hearing of the remitter.
16. Certain relevant findings of fact made by the tribunal in the earlier proceedings were not disputed on the remitter, and are relevant to the issue before the tribunal. The tribunal re-iterates these findings, which are as follows.
(a)Mr Butcher has had considerable periods of unemployment since leaving the Army, and he has left various positions because of what he referred to as his “nerves”, his nervous disorder, and his skin disorder. These appear to be the predominant conditions that he has suffered for many years.
(b)He sustained a left shoulder injury in a motor bike accident in 1978. He had surgery on the dislocated shoulder, and thereafter had no significant problems with that shoulder until around 1999/2000. He has experienced shoulder and left arm problems intermittently from around 2000 onwards.
(c)He left his last employment at Comit Farm because of an aggravation of his skin disorder, and because of the ongoing effects of his anxiety disorder. He described “things building up”, and said that he left the job because he was not able to handle it. He had worked both in the field and in the processing sheds. It was manual work, and sometimes quite dirty work. It involved his having skin contact with vegetables when they were being sorted, and prior to their being washed. He was inevitably exposed to pesticides that were still on unwashed vegetables. He said that he did not have to use his shoulder very much in that work. He worked long hours, sometimes 14 to 15 hours a day.
(d)From the reports of Dr Ding (exhibit A5) and Dr Ewer (exhibit R1, T17), it appears that Mr Butcher has long-standing psychiatric problems which in themselves have a significant impact on his ability to cope in any working environment. He suffers from excessive anxiety, panic attacks and an almost constant feeling of “edginess”. He has had to take medication for his condition for many years.
(e)Mr Butcher’s skin condition has also been a persistent and significant problem, and it affects almost every part of his body. It precludes him from working in dirty or dusty environments. It precludes him from working in environments where he would be exposed to chemicals or where his skin would be exposed to dirt, or in hot or closed environments. That condition in itself has affected his ability to maintain previous employment, combined with his psychological state.
(f)The medical evidence before us shows that his condition is quite intolerable at times, and becomes worse when he is stressed and is under pressure. The interaction between his psychiatric disorders and psoriasis results in a very significant level of disability for any employment.
17. Mr Butcher gave further evidence at the re-hearing. Counsel for the Commission, Dr C Bleby, submitted that the tribunal should not accept Mr Butcher’s evidence, and that Mr Butcher had tailored his evidence to support an entitlement to pension at the special rate. It was clear that Mr Butcher had memory difficulties, and this is not surprising having regard to his psychiatric difficulties, including alcoholism and anxiety disorder. He was also inarticulate, and his evidence was often confused. Nevertheless, the tribunal is satisfied that he did his best to give an honest account of his condition and symptoms over the years, and accepts his evidence except insofar as he denies certain aspects of matters recorded by certain medical witnesses, to which the tribunal will refer below.
18. In his evidence at the re-hearing, Mr Butcher said that he had not been able to do any work since the earlier hearing, and that at the time of the re-hearing, he was unable to work. He attributed this to his service related problems, because he could not handle stress, and his psoriasis had to be treated with cream three or four times a day, and that took about three hours a day. He said that he was on anti-depressants. He also said that he had had psoriasis since the age of nineteen, and that in the last couple of years it had got worse.
19. It is common ground that Mr Butcher’s psoriasis is severe. The general practitioner who (according to her computerised notes) treated Mr Butcher from June 2001 until May 2004, Dr Astrid Lettberg, said that she had been in general practice for over 40 years, and Mr Butcher’s psoriasis was about the worst that she had ever seen. He was treated with cyclosporin, an immune suppressant drug that is only used in extreme cases of psoriasis, but he had to be taken off that drug because of adverse side effects. As mentioned above, he also has four accepted psychiatric conditions, which on the evidence before us are in themselves very disabling, as well as hypertension and alcohol dependence or alcohol abuse, which on the evidence of his general practitioner has entailed very significant levels of alcohol consumption.
Legislative Scheme
20. The legislative provision which contains the “alone” test of eligibility for pension at the special rate is s 24(1)(c). This section provides 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
…”
21. Under s 120(4) of the VE Act, the tribunal must decide the issues raised by s 24(1)(c) 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 124(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)).
22. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Repatriation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996.
Consideration
23. In his judgment in relation to the appeal from the earlier tribunal decision in this matter, Besanko J, after summarising a number of helpful propositions from earlier authorities about the proper approach to the characterisation of the nature of remunerative work that the veteran had been undertaking for the purpose of determining that issue under s 24(1)(c), proceeded to discuss some other aspects of the scope and operation of s 24(1)(c). His Honour said, at [39]:
“First, under s 24(1)(c), the veteran must, by reason of the incapacity from the war-caused injuries alone, be prevented from continuing to undertake remunerative work. It is clear from the authorities that other words should not be substituted for the word ‘alone’, and the issue is to be approached in a practical, common-sense, fashion.”
24. He then quoted from the judgment of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 538 – 539, and the quotation included the following often repeated description of the tribunal’s true task under s 24(1)(c), namely:
“… 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.”
Besanko J continued, at [40]:
“Secondly, factors other than war-caused injuries may be relevant, even if they are not of themselves sufficient to prevent the veteran undertaking remunerative work he or she was undertaking” : Repatriation Commission v Hendy (2002) 76 ALD 47, at 54 [37]
25. On the hearing of the remitter counsel for the Commission also emphasised the approach of the Full Federal Court in Hendy, and referred to the following extract from the judgment in that case.
“[36] The Tribunal’s task [under s 24(1)(c)] was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period …
[37] The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. 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. … having 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. …” (per Whitlam, Emmett and Stone JJ).
26. Counsel for the Commission conceded that Mr Butcher’s accepted conditions were of a very severe and incapacitating nature, but emphasised that Mr Butcher would nevertheless not meet the “alone” test in s 24(1)(c) if non service-related conditions were a factor in preventing him from continuing to undertake the relevant remunerative work, even if those conditions were of secondary importance. He cited Repatriation Commission v Alexander (2003) 75 ALD 329 at [22] in support of this proposition, and also Forbes v Repatriation Commission (2000) 101 FCR 50. In the latter case, Nicholson J said at [40]:
“As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non-war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.”
27. A consideration of whether a non-accepted condition makes a contribution to the relevant incapacity must nevertheless be undertaken in the context of the accepted condition(s), taking into account the extent of incapacity resulting from such condition(s). There might theoretically be cases where the extent of incapacity from accepted condition(s) is so overwhelming that a co-existing non-accepted condition could not, as a matter of common sense and in reality, be said to play a part in the relevant incapacity.
28. Counsel also referred to a further formulation applied by Gray J in Baljas v Repatriation Commission [2009] FCA 171 at [13], namely whether the non-accepted condition(s) “play a part” in preventing the veteran from continuing to undertake remunerative work that he was previously undertaking.
29. The tribunal will consider the facts of the present matter in the light of the approach of Besanko J and the principles referred to in the above authorities in order to determine whether Mr Butcher meets the criterion of the “alone” test during the assessment period, which commenced on 31 March 2003 and continues until the date of the tribunal’s decision. The tribunal will consider in turn each of the asserted non service-related conditions which the Commission contends have played, and still play, a part in preventing him from continuing to undertake the relevant remunerative work.
(a) Hearing loss
30. The Commission arranged for Dr Wilson, a specialist in occupational medicine from an organisation called Jobfit, to examine Mr Butcher. Dr Wilson examined Mr Butcher on 15 October 2007 and again on 19 January 2009, and provided reports to the Commission’s solicitor dated 13 December 2007 (exhibit R4) and 5 February 2009 (exhibit R5). In his first report (exhibit R4, page 6) he referred to a hearing loss “maximal in the high frequencies and consistent with noise exposure” and following further testing on the second examination, confirmed this finding. He also reported that Mr Butcher does not meet the medical standard for an unconditional commercial driver’s licence. He appended to his second report an extract from a report published by the National Road Transport Commission and dated September 2003. According to that extract, an unconditional driver’s licence is only required for drivers of heavy vehicles, public passenger vehicles or bulk dangerous goods vehicles (see the attachment to exhibit R5), but a conditional licence may be granted, subject to periodic review, if the standard is met with a hearing aid.
31. The description of the relevant remunerative work formulated by Besanko J refers to general driving duties, but this would not necessarily involve driving vehicles in circumstances where a commercial driver’s licence would be required. Dr Wilson acknowledges that the hearing loss would not have had a bearing on Mr Butcher’s capacity to perform labouring work and to drive a non-commercial vehicle (exhibit R4, page 12). His omission to refer to process work presumably means that Dr Wilson considered that the hearing loss would have an effect on the capacity to perform that type of work, but he does not explain his reason for that view, and there is no other evidence to support that view.
32. In any event, Mr Butcher called another occupational physician, Dr Mills, who said in effect that the hearing loss could be corrected, and that this was not an “absolute” bar to Mr Butcher working as a commercial driver (transcript, 07.04.09, page 115, line 44).
33. On the evidence before it, the tribunal finds that Mr Butcher’s hearing loss has not during the assessment period contributed to his incapacity to undertake the relevant remunerative work.
(b) Degenerative change of neck; (c) Left shoulder disorder; and (d) Right shoulder condition
34. It is convenient to address these three asserted non service-related conditions together, because certain evidence is potentially relevant to the diagnosis and effects of each of them. The tribunal thinks it appropriate in this matter to narrate various events and evidence relevant to these conditions, and will do so in approximately chronological sequence.
35. Mr Butcher said that he had a motor cycle accident in 1978 in which he dislocated his left shoulder. He underwent surgery, and the acromio-clavicular joint was repaired, and after the operation, a screw was removed. He resumed his normal Army duties and said that he had no further problems with his left shoulder during his Army service or for many years later. In particular, he said that he worked as a truck driver for Linfox for about six months, and this involved a lot of lifting by hand, but did not cause any problems with his shoulder or back (see transcript 11.07.05, page 29).
36. At the earlier hearing, Mr Butcher gave evidence that for about two and a bit months, in about March, April, May and June 2003, he helped a friend to build a house and developed pain in his left shoulder and tingling in his fingers. He went to see Dr Lettberg, who referred him to an orthopaedic surgeon, Dr Angel. Mr Butcher thought that the pain settled down by about September 2003. Mr Butcher said that the work on the house had involved a lot of lifting above his head and neck and general lifting. He thought he had one or two physiotherapy treatments from a physiotherapist who visited Hamley Bridge, where he was then living.
37. Dr Lettberg: The progress notes kept by Dr Lettberg from June 2001 to June 2004 (exhibit R10) include certain references to Mr Butcher’s left shoulder and upper arm. The first such reference is on 18 February 2002 which reads “shoulder still playing up→/elbow” (exhibit R6, page 35). There is a further reference in her notes for 25 March 2002, indicating a referral for physiotherapy treatment. Apart from subsequent references to Mr Butcher’s entitlements as a veteran, the next relevant notes include reference to Mr Butcher’s shoulders. An entry on 6 January 2003 reads “Elbows aching +++ and shoulders. ? Psoriatic arthritis”. An entry on 21 January 2003 reads “shoulders giving him hell”. Dr Lettberg’s notes and recollection suggest that this was related to when Mr Butcher was helping his friend to build the house, and indicate that this activity had occurred somewhat earlier than Mr Butcher recalled when he gave evidence.
38. Dr Lettberg referred Mr Butcher to a rheumatologist, Dr Sheppeard, who provided a report to her dated 28 March 2003 (exhibit R10). According to this report, Mr Butcher gave a history of “aches and pains in the shoulders, upper arms and also in the knees for several years, steadily getting worse. Physical activity tends to make the symptoms worse”. The report also (apparently incorrectly) refers to Mr Butcher having dislocated his left shoulder in a motor vehicle accident the previous year. The report concludes:
“The current picture is of degenerative joint disease not inflammatory joint disease in association with psoriasis. However, I have arranged for appropriate x-rays and blood tests and will review the results in a month’s time.”
39. The tribunal will refer below to a report dated 3 June 2008 by another rheumatologist, Professor Ahern, to Mr Butcher’s solicitor. This indicates that at that later stage, Mr Butcher had mild psoriatic arthritis.
40. There is a further reference to the arm or shoulder in Dr Lettberg’s notes, on 4 June 2003, reading “Arm and elbow sore +++ (L) side. Shoulder sore too. Pins and needles when leans on it” (exhibit R6, page 39). On that day she referred Mr Butcher to Dr Angel. In her referral letter, she reported a history that Mr Butcher was complaining of a painful left shoulder with pain going down to his elbow and pins and needles into his hands, that his movements were limited and he was driving one-handed, and that there was a past history of a shoulder injury in the Army.
41. On 17 June 2003, after she had received a report from Dr Angel, Dr Lettberg, in accordance with his recommendation, referred Mr Butcher to the spinal unit of the Royal Adelaide Hospital, and in the referral form she described the current problem as “pain down L arm on moving shoulder & neck. Present for several months.” (exhibit R6, page 74).
42. The only subsequent references in the case notes to the shoulder are on 7 July 2003, which records “sore (L) shoulder, and (L) leg” (exhibit R6, page 39), and 22 March 2004, which appears to relate to a discussion about repatriation entitlement for damage to the acromio-clavicular joint.
43. Dr Lettberg completed an ability to work form for the Department of Veterans’ Affairs dated 3 December 2003 (exhibit R1, T31, page 179). This form had apparently been partially filled in by the Department, and referred to a disability that had been determined not to be war-caused or defence-caused, namely osteoarthritis of the left acromio-clavicular joint. In answer to a request on the form to describe how this disability affected his ability to work, Dr Lettberg said “his shoulder problems limit his ability to do manual work … he has problems lifting his (L) arm above his shoulder and currently is awaiting an arthroscopy to evaluate the degree of change.” (exhibit R1, T31, page 181).
44. Dr Lettberg was called by the Commission. Notwithstanding a contrary opinion expressed by Dr Angel, to which the tribunal refers below, she gave evidence that in her opinion, Mr Butcher’s left shoulder problem was due to the after-effects of the dislocation of the shoulder in 1978, and of the surgery to repair it. She also said in effect that her notes were not complete, and that her practice was to note what her patients came to see her about, but other things would also be discussed that she would not necessarily note. She said that in Mr Butcher’s case she would have discussed his other problems, including his shoulder and arm problems, at various consultations, but without noting those other problems. However, her memory had been affected by a recent medical problem, and she was unable to recall details of particular consultations.
45. Dr Angel: In his report back to Dr Lettberg of 10 June 2003 (exhibit A11), Dr Angel said that he had obtained a history that Mr Butcher was then complaining of trouble with pain at the back of his left shoulder which he had had for three or four years, and which settled for a while but had returned. We accept the correctness of Dr Angel’s account of this history. Dr Angel reported that Mr Butcher’s then current complaints were of pain around the shoulder and at the elbow and tingling in the arm, forearm and fingers. He further reported that on examination, the range of movement of the cervical spine was normal, but left lateral flexion gave some pain in the left shoulder and the tingling down the arm. He found that neurologically there was no significant abnormality, and the range of movement of the shoulder was good. Dr Angel suggested an MRI scan or in the meantime a referral to the Spinal Clinic at the Royal Adelaide Hospital. However, Mr Butcher could not afford to have an MRI, and although an appointment was made with the Spinal Assessment Clinic, it appears that nothing eventuated from that referral.
46. Dr Angel provided a subsequent report dated 9 September 2004 to Mr Butcher’s solicitor (exhibit A2). In that report, after repeating the substance of his earlier report, Dr Angel added that it appeared that at the time of his earlier report to Dr Lettberg, he felt that the most likely problem was brachialgia from the cervical spine and that this had nothing to do with the left shoulder. He further reported that when he examined Mr Butcher again on 6 September 2004, Mr Butcher had said that for the past month he had felt normal and had shifted two truck loads of furniture with no significant increase in pain in the left shoulder. Mr Butcher further reported that he “does get a bit of discomfort in both shoulders partly because of his psoriasis.” The report continues:
“On examination, the range of movement of the left shoulder is exactly the same as on the right with no discomfort complained of. There is no localised tenderness in the region of the left acromio-clavicular joint.
It is my belief that the left acromio-clavicular joint pathology from the past would not prevent him working.”
47. Dr Angel gave evidence at the request of the applicant both in the earlier proceedings and at the remitted hearing. He confirmed his opinion as to the cause of the pain and neurological symptoms in the left arm. He said that Mr Butcher had reasonably significant degenerative changes to his cervical spine and that the brachialgia and the resulting pain was something that could fluctuate, depending on “a lot of things, and in particular generally speaking the way a person will move their neck – very often there is a certain movement that will clearly aggravate which puts more pressure on the particular nerve.” (transcript, 7.04.09, page 79, line 45).
48. Dr Angel said that when he saw Mr Butcher, there was no evidence of active psoriatic arthropathy, and he attributed Mr Butcher’s symptoms to the degeneration of his cervical spine. Dr Angel said that brachialgia can recover with time, whether patients have treatment or not, and that if Mr Butcher’s symptoms had later resolved that was consistent with his diagnosis (transcript, 7.04.09, page 72, line 21).
49. In the course of his evidence, Dr Angel was asked whether Mr Butcher’s brachialgia would play a part in his inability to undertake the relevant remunerative work. He said that it could, depending on how bad the brachialgia was and whether or not it responded to various treatments. When pressed, he said “Well anything is possible. I mean it depend – as I said before, twice, it depends on the extent and the exact effect that the brachialgia is having.” (transcript, 7.04.09, page 78, line 34). In his earlier evidence, Dr Angel agreed that building work which (as he understood it) involved a lot of overhead work and twisting and turning activities, both of all areas of the spine and lifting, could well cause an exacerbation of the symptoms that Mr Butcher had presented to him with (transcript, 11.07.05, page 67, line 23).
50. It was apparent from Dr Angel’s evidence that he was very confident that Mr Butcher’s symptoms were not related to the shoulder or the earlier shoulder injury. He said that as an orthopaedic surgeon, he had operated on the acromio-clavicular joint many times, and that it was a “very good operation” (transcript, 7.04.09, page 90, line 1).
51. At the earlier hearing, Dr Angel explained that he did not even bother looking for psoriatic arthropathy other than to consider it as a differential diagnosis, because Mr Butcher was being looked after by a competent rheumatologist and there were no complaints of specific arthropathy-type symptoms. He was asked whether Mr Butcher would be physically capable of working as a labourer, without his psychiatric problems, and answered:
“That would also depend on the state of psoriatic arthropathy at the time, which could incapacitate him far more than his other physical problems.” (transcript, 11.07.05, page 62, line 7)
52. Dr Gardiner: Mr Butcher moved from Hamley Bridge to Delamere in (he thought) about the middle of 2004. He then stopped seeing Dr Lettberg. He lived in Delamere for a short time, and then moved again to Second Valley, and then to Normanville. After leaving Hamley Bridge, he consulted another general practitioner, Dr Lyn Gardiner of the Southern Fleurieu Family Practice, Yankalilla. That practice’s notes were produced under summons, and are exhibit R14. The notes cover a period from 21 August 2004 to 7 September 2007. An entry dated 18 July 2005 apparently by Dr Gardiner refers to episodic and activity-related left arm pain from the medial epicondyle to the ulnar fingers, postulated to be the result of ulnar neuritis from the elbow and separate referred pain to the anterior shoulder (exhibit R14, pages 61 – 62). There is a further entry on 2 August 2005 where Dr Gardiner records that there was no ulnar neuritis at or below the elbow, and no carpal tunnel syndrome bilaterally. Finally, an entry by Dr Ireland of 11 August 2006 refers to a sharp muscular pain in the left chest four days previously that was getting worse, with pain in the left shoulder blade. Those three entries appear to be the only record of any consultations that related to the left arm or shoulder over the three-year period covered by the notes. Neither Dr Gardiner nor Dr Ireland were called.
53. Ms Holman: The Commission also tendered handwritten notes from a physiotherapist, Ms Bridget Holman of Yankalilla. These notes indicate that Mr Butcher received treatment for intermittent cervical pain on six occasions between 15 August and 29 September 2005, and treatment for neck and other complaints on a number of occasions after that. Mrs Holman was not called, and whilst the tribunal finds it difficult to decipher her notes, some references, including the history she took at the first consultation, appear to be relevant, and Dr Wilson said that he relied on some references in her notes in formulating his opinion.
54. Ms Holman apparently arranged for an x-ray of the left shoulder and cervical spine, and the report dated 18 August 2005 of that x-ray (exhibit R8) is prefaced with clinical information reading “left shoulder injury 30 years ago, left upper arm pains variable over last 2-3 years. C4/5 and C5/6 degenerative changes.” A later entry on 24 January 2007 in Ms Holman’s notes appears to refer to the right cervical/scapula “for 2 days” perhaps due to shovelling, and there is an entry dated 14 February 2007 which appears to indicate that Mr Butcher was still sore in the low cervical spine. An entry dated 7 March 2007 reads “Neck ok, numbness down L arm & coldness post L leg”. Ms Holman’s notes also appear to refer to other problems, namely the back, chest and leg. None of the medical witnesses who were called commented on these other entries.
55. In the course of his evidence in the remitted hearing, Mr Butcher said that he had also been to a chiropractor at Yankalilla because he had had trouble with his left arm. He thought this was around 2006 to 2007. He said that after five appointments or thereabouts the chiropractor fixed the problem and he had not had a problem since (transcript, 6.04.09, page 51, line 9). Dr Gardiner’s notes contain references to a chiropractor in entries dated 14 and 16 August 2006 apparently in the context of muscular chest pain (exhibit R14, pages 68 and 69), and it seems likely that the visits to the chiropractor occurred at about that time, following the earlier consultation with Dr Ireland of 11 August 2006. Neither Ms Holman nor the chiropractor were called.
56. Ms McIntosh’s first examination: Mr Butcher was examined by Dr Wilson from Jobfit on referral by the Commission’s solicitor on 15 October 2007. Earlier that day he was examined by an occupational therapist also from Jobfit, a Ms McIntosh. She carried out a functional capacity evaluation which is the subject of a report dated 17 December 2007 (exhibit R2). She explained that the functional capacity evaluation comprised “an assessment of the client on the day”, and entailed testing muscle fitness and endurance and range of motion, although she added that the person making the evaluation would want to know how the medical history impacted on the current function (transcript, 8.04.09, page 163, line 36). Ms McIntosh said that before examining Mr Butcher she read the report of Dr Angel and took into account his diagnosis, but did not pay particular regard to other information relating to Mr Butcher’s past medical history, because she knew that he was to be assessed by an occupational physician.
57. Ms McIntosh examined Mr Butcher again on 21 January 2009, and reported to the Commission’s solicitor on 22 January 2009. Each of her reports includes a table of self reported tolerances relevant to Mr Butcher’s everyday activities; a symptom description recording his description and assessment of his symptoms; self-assessment questionnaires; objective information relating to such matters as height, weight and body mass index, and blood pressure and heart rate readings; clinical assessment of posture and active range of motion of the joint and spinal region; strength tests of hand strength; and static push/pull tests and postural tolerances involving standing and high level reach tests.
58. Ms McIntosh said that she was not a psychological occupational therapist, and her assessment was based on Mr Butcher’s physical capacity. In her first report, she acknowledged that the presence of the psychological conditions rendered the conduct of the evaluation extremely difficult.
59. Following her first evaluation, Ms McIntosh rated Mr Butcher as having capacity to perform part-time work at a sedentary physical demand level, and that rating was based on range of motion, attempts at postural tests, static pushing/pulling tests and self-reported activities. Her reference to sedentary work was based on a dictionary of occupational titles prepared by the US Department of Labor, which (she explained) is included in a category of occupations entailing lifting, carrying, pushing and pulling. Ms McIntosh thought that that category was most appropriate to a consideration of Mr Butcher’s capacity to undertake the relevant remunerative work, and she thought that the description of the subcategories of sedentary work, light work and medium work were appropriate to that assessment.
60. Dr Wilson’s first examination: Dr Wilson also considered the effects of the degenerative change of the neck, the left shoulder disorder and the right shoulder condition in his report of 13 December 2007. He obtained a history of pain in the right shoulder, sensory change in the ulnar aspect of the left arm extending from the elbow to the two or three ulnar fingers, swollen feet and knee problems, morning stiffness, getting pain in the shoulders and neck, having an issue with gripping with the left hand and having a limit of a couple of hours in his ability to drive. He conducted an examination and found limitations in the movement of the neck and both shoulders, a minor sensory loss in the left little finger, a slight visible wasting of the small muscles of the left hand with some reduction of function, and tenderness around the left medial epicondyle and of the ulnar nerve at the left elbow.
61. On pages 11 to 13 of Dr Wilson’s report, he answered a number of specific questions put to him by the solicitor for the Commission. He reported that he was mindful that Mr Butcher’s capacity to undertake the relevant remunerative work had to be assessed as at three “mile posts”, namely the date of ceasing work at Comit Farm (which was in 1998), the date of the application for pension at the special rate, namely 31 March 2003, and the date of his examination of Mr Butcher, namely 15 October 2007, but said that he also understood that in assessing Mr Butcher’s work capacity “… not only must we try and examine his capacity at those points in time, but also gain an impression of his work capacity in the intervening period.” (exhibit R4, page 10). When giving evidence, he said that in expressing his opinion as to the non-accepted conditions that impact on Mr Butcher’s capacity, he was “generally talking about the time that (he) conducted the examination”, but added “in combination with the medical history, it has allowed me to draw certain conclusions on Mr Butcher’s capacity prior to the time of my examination.” (transcript, 8.04.09, page 209, line 10).
62. After discussing Mr Butcher’s hearing loss, Dr Wilson concluded that all of the other non-accepted physical conditions that he had identified, when viewed in combination, would render Mr Butcher unfit to do the relevant remunerative work. In relation to the three conditions referred to in paragraph 34 above that are now under consideration, Dr Wilson expanded on his conclusion as follows:
“The bilateral shoulder problem restricts all manual handling activity, and is a particular concern if using upper limbs above shoulder levels, or in sustained elevated positions.
The neck condition will restrict upward gaze, and is also a problem where neck rotation is critical. These actions are particularly appropriate to forklift work, but also have relevance in most other occupations.” (exhibit R4, page 7)
63. Professor Ahern: The tribunal referred in paragraph 39 above to a report from Professor Ahern dated 3 June 2008. Mr Butcher had been referred to him by a dermatologist to determine whether he had psoriatic arthritis and to determine whether he could access certain medication on the PBS Scheme. Professor Ahern reported:
“Mr Butcher describes pain in his feet, wrists, shoulders and elbows, which are episodic [sic]. He describes numbness in his left hand affecting the 3rd to 5th fingers, radiating proximally. He has had psoriasis since the age of 19 and occasional aching of his knees. He is on no treatment for his arthritis. He has had Cyclosporin previously for his psoriasis but this had to be ceased because of hypertriglyceridaemia, and an application for access to Raptiva was proceeding.
Examination showed he had bulbous swelling of his DIP joints with extensive psoriasis and psoriatic nails. There was pain on the limits of abduction of both shoulders, his knees and hips were normal, his lumbar spine showed a good range of movement. There was good movement of his cervical spine but pain on the limit of extension.
In summary I thought he had mild psoriatic arthritis. He had normal grip strength and was able to make a full fist, suggesting minimal functional disability from his psoriatic arthritis. He has mild cervical spondylosis clinically.
I have reassured him about the nature of his psoriatic arthritis and explained that his arthritis was not sufficiently severe to allow him access to new biological drugs on the PBS scheme.” (exhibit A8)
64. Dr Mills: On 16 October 2008, another occupational physician, Dr Mills, provided a medico-legal report to Mr Butcher’s solicitor. Dr Mills provided a somewhat laconic report, in which he recorded that Mr Butcher’s description of his present symptoms of the neck, right shoulder, elbows, mid back, low back, hips, knees and ankles was, in each case “fine” (exhibit A10, pages 3 – 4). He reported that on examination, Mr Butcher’s cervical spine, shoulders, elbow and wrist were “unremarkable and consistent with age” (exhibit A10, page 4) and, further, that his hips, ankles and knees were unremarkable. He concluded that Mr Butcher had no physical disability that would preclude a return to work, and that the matters revealed by the x-ray of 18 August 2005 of the left shoulder were consistent with his motorcycle accident in 1978, but did not affect his capacity for work. He explained that the examination he conducted was a standard physical examination, and looked at the range of movements of the neck, shoulder, elbow, wrist, low back, knees and ankles in their various planes, and then a neurological assessment, involving touch sensation, reflexes, power and tone.
65. When giving evidence, Dr Mills made it clear that whilst he considered that Mr Butcher did not suffer from any spinal, neck or left shoulder problems that would affect his ability to undertake the relevant remunerative work, and did not suffer from any other clinically significant condition, apart from his accepted disabilities, he made that assessment only as at the date of his examination. He added that in his opinion that position would have obtained in the “indefinite immediate past”, because in his experience, patients refer to pain they have had for the last few weeks. In cross-examination, he said that it was unlikely that in the two weeks before his examination he had any physical disability that would preclude a return to work (transcript, 07.04.09, page 113, line 38). Subject to that, he was unable to say what Mr Butcher’s condition would have been prior to that short period, or in particular, during the remainder of the assessment period. Dr Mills’ opinion is therefore of little value in assisting the tribunal to consider the “alone” test during the duration of the assessment period, but it follows from his assessment that in his opinion, Mr Butcher would not have been affected by his non service-related conditions from and after say 1 October 2008.
66. Dr Wilson’s second examination: Dr Wilson examined Mr Butcher again on 19 January 2009, and reported to the Commission’s solicitor on 5 February 2009 (exhibit R5). He reported that on that occasion, Mr Butcher gave a history that his neck, back and shoulders were not a problem, and that there had been a significant change to his medication for his psoriasis. He then reported on his examination of Mr Butcher. He described his own examination findings on this second occasion as “supporting a near normal function of the upper limb and cervical regions” (exhibit R5, page 3), although he also commented that Mr Butcher was in effect pushing himself or straining when asked to demonstrate certain aspects of the range of movement of the neck. He expressed the following “global opinion” relevant to the conditions now under consideration:
“On the recent round of testing, there is minimal evidence of disability affecting the cervical spine and the left shoulder. Presently there is no evidence of a right shoulder condition and the left ulnar neuritis.
Certainly, with respect to all of the above, Mr Butcher has performed much better than when he was previously examined. By his own assessment at the time, he believed that he was much better.
I believe that the recent examination findings do not invalidate the earlier examination findings. They do however support that Mr Butcher’s condition may be episodic as suggested by Professor Ahern.
It is outside my field of expertise to speculate on whether the Raptiva therapy has had a beneficial impact on the above conditions.
…
Mr Butcher’s obesity and general physical condition remain an issue. This has been reflected in the recent functional capacity assessment determining that he has part-time capacity only for light physical demand work.” (exhibit R5, pages 4 – 5)
67. Dr Wilson went on to comment on the report provided by Professor Ahern, and commented that the clinical picture he described in June 2008 was in step with the clinical picture that he observed in his recent examination, and that observed by Ms McIntosh in her recent functional capacity assessment (which she had conducted on 21 January 2009). He therefore agreed with Professor Ahern that Mr Butcher’s joint pains were episodic in nature.
68. Dr Wilson then revisited the specific questions that the Commission’s solicitor had asked previously, and concluded that the non-accepted conditions that then impacted on Mr Butcher’s capacity were:
“1. Hearing loss
2. Divarication of the abdominal rectus muscles.
3. Obesity and general physical de-conditioning
4. There is a minor impact due to his left shoulder condition, and the degenerative change of the neck.
The left ulnar neuritis appears to be presently not a problem.” (exhibit R5, page 6)
69. Mr Wilson’s second report then includes the following question and answers:
“c) Has the applicant suffered from any clinically significant conditions other than the accepted conditions at any time during the assessment period? Do those conditions contribute to any incapacity to undertake remunerative work?
My approach to this question is to consider the situation if I was doing a pre-employment medical assessment on Mr Butcher and disregarding the accepted conditions and basing my assessment on my recent examination, the functional capacity assessment report of 22 January 2009 and having regard to the history of prior disabilities.
For the purpose of this exercise I am working on the basis that Mr Butcher would be an applicant for a position of general labouring duties involving unskilled work, process work and general driving duties but the latter not requiring a commercial vehicle licence. There are two conditions that would require me to make a recommendation for modified duties. The first is the left shoulder.
My own examination of the left shoulder indicated minor abnormalities and these have been confirmed in the recent functional capacity assessment. Specifically in the latter, crepitus was detected when abduction was undertaken, and there was a restriction of the ability to internally rotate the shoulder (scratching the shoulder blade).
Having regard to the history, particularly the prior history of Mr Butcher needing to drive with one hand, I would make the recommendation that he would not be suitable for work that required sustained or repeated use of the left upper limb above shoulder level.
The second issue to consider is Ms McIntosh’s recommendation that Mr Butcher is fit to do light physical demand level work for 20 hours per week. However I acknowledge that Mr Butcher’s hypertension was a limiting factor when the functional capacity assessment was conducted.
On the basis of my recent examination and the recent functional capacity assessment I am of the opinion that the following are not currently limiting Mr Butcher’s capacity. The right shoulder, the cervical spine and the left ulnar neuritis.” (exhibit R5, page 7)
70. When giving evidence, Dr Wilson said that there were broadly two points of difference in Mr Butcher’s presentation on the two occasions that he had seen him, namely:
“One is that he was obviously very eager to demonstrate to me that he had an increased capacity or range of movement, and secondly, it was quite evident that the restricted ranges of movement which I had observed previously were vastly improved with respect to most regions.” (transcript, 8.04.09, page 209, line 18)
71. Ms McIntosh’s second examination: Ms McIntosh also saw Mr Butcher for a second time, namely on 21 January 2009. In a report following that examination, Ms McIntosh rated Mr Butcher as then having capacity to perform part-time work at a light physical demand level for four hours per day, five days per week, and considered that he could improve on this rating enough to sustain a full-time job for 35 hours per week at a sedentary/light level. She said:
“The major variation in status from the 2007 testing is that Mr Butcher was no longer experiencing/reporting pain or discomfort in the neck, shoulders or ankles: this improvement was reflected in range of motion, strength tests, (hand grip, push/pull), overall endurance and his reduced ‘pain focus’ all combined to show his ability to complete tests without dissembling.” (exhibit R3, page 9)
When she gave evidence, Ms McIntosh said that although he did not fit into the category of “medium work” following the second assessment, the factors that excluded him from that category were his blood pressure and heart rate, and his de-conditioning (transcript, 8.04.09, page 183). She added in re-examination that she could not say exhaustively the factors that prevented him from getting into a higher rating, but did not suggest that any specific non service-related factors so prevented him.
72. There is a remarkable contrast between the two evaluation reports by Ms McIntosh. The first evaluation report refers to Mr Butcher providing significant assessments of limitations on his everyday activities, significant levels of discomfort when he described his symptoms and disabilities, and significant limitations in strength tests and postural tolerances, and in a number of instances, a less than normal range of movement. In contra-distinction, following her later assessment on 21 January 2009 she reported that Mr Butcher had no issues in respect of limitations in everyday activities or in Mr Butcher’s self-assessment of symptoms, and her clinical assessment resulted in an assessment of normal range in relation to virtually every objective test. The only qualification was that grip strength in the left hand was slightly below normal, and that certain tests were curtailed because Mr Butcher’s blood pressure was being periodically checked, and Ms McIntosh became concerned that these further tests would have resulted in an increased cardio-vascular demand.
Conclusions as to degenerative change of neck, left shoulder disorder, and right shoulder condition
73. Based on the evidence before the tribunal in the earlier proceedings, the tribunal decided that until 31 July 2004, Mr Butcher’s non-accepted degenerative condition of the cervical spine would have been a factor in his having been prevented from undertaking any of the kinds of remunerative work which he had undertaken in the past. In the remitted proceedings, the tribunal must of course consider the “alone” test by reference to the relevant remunerative work, and not by reference to the particular jobs that Mr Butcher had undertaken in the past. Further, the tribunal has received some further evidence as to Mr Butcher’s condition and treatment up to the date of the earlier hearing, and a considerable amount of evidence and documentation in relation to the period between then and the re-hearing. The tribunal has carefully reviewed all of the evidence now before it.
74. The tribunal prefers the diagnosis of Dr Angel to that of Dr Wilson and Dr Lettberg, to the effect that the symptoms in the left arm, left shoulder and neuritis and sensory loss of the left arm are due to degeneration of the cervical spine, and not due to the after-effects of the dislocation of the left shoulder sustained in 1978 (although of course on either view, the left shoulder problem is not service-related). Dr Angel is an experienced orthopaedic surgeon and said that he had performed the operation to repair a dislocation of the acromio-clavicular joint on many occasions. Further, the tribunal is satisfied from his evidence (notwithstanding the brevity of his medical report and Dr Wilson’s criticism of this) that Dr Angel carried out an adequate clinical examination of Mr Butcher on the two occasions that he saw him, and that his clinical findings were inconsistent with continuing problems from the acromio-clavicular joint. Dr Angel’s opinion is further supported by his finding of a good range of movement of both shoulders and no significant abnormality neurologically, and by his observation that symptoms in the left shoulder and tingling down the arm were produced by certain specific movements of the neck; and there is of course radiological evidence of degenerative changes in the cervical spine that are consistent with Mr Butcher’s symptomatology.
75. Further, on the basis of Dr Angel’s evidence, the tribunal further finds that the dislocation of the left shoulder in the 1978 motorcycle accident and its subsequent surgical repair have not prevented him from working or resulted in any ongoing problems, and have not contributed to Mr Butcher being prevented from undertaking the relevant remunerative work.
76. However, the tribunal also finds that Mr Butcher’s neck condition was a factor that prevented him from undertaking the relevant remunerative work as at the commencement of the assessment period on 31 March 2003, and that this continued to be the position at the time when Mr Butcher was first examined by Dr Angel in June 2003, when the effect of his symptoms included being forced to drive with one arm. It appears likely that shortly before and for a number of months after the commencement of the assessment period Mr Butcher experienced significant pain in both shoulders, and that this was the result of the nature of his physical activity when he was assisting his friend to construct a house, as this entailed a lot of lifting above his head and neck.
77. It further appears that this acute episode of symptoms and resulting incapacity persisted for many months. Reference was made in paragraph 43 above to Dr Lettberg’s report to the Department of Veterans’ Affairs of 3 December 2003 in which she says that the “shoulder problems” limit his ability to do manual work. The tribunal finds that the shoulder and arm problems to which she refers were the symptoms in the left shoulder and arm which the tribunal has found were due to his cervical spine condition. This report provides further evidence that that condition was affecting Mr Butcher’s capacity for work at that time.
78. After Dr Lettberg’s report to the Department, there are periodic references to Mr Butcher having sought treatment for, or having made reference to, symptoms in either or both shoulders, as appears from the tribunal’s above narration of the evidence before it. There are no such references in the notes of Dr Lettberg or the Southern Fleurieu Family Practice between 7 July 2003 and 18 July 2005 (although the tribunal notes Dr Lettberg’s evidence that she might not have recorded complaints of neck or shoulder pain that Mr Butcher could have mentioned during a consultation that was principally for another condition). The tribunal has referred above to Ms Holman’s notes in relation to the physiotherapy on Mr Butcher’s neck in August and September 2005, and he had treatment from a chiropractor that appears likely to have occurred in August 2006 (see paragraphs 52 and 55 above), and further physiotherapy for his neck commencing early in 2007. The next references by clinicians appear from the reports of Dr Wilson and Ms McIntosh of their examinations conducted on 15 October 2007.
79. The tribunal has some reservations about the conclusions drawn both by Dr Wilson and Ms McIntosh from their examinations on 15 October 2007. Ms McIntosh commented that at the time of her first examination Mr Butcher did not look very well at all, mainly because of psoriasis and an apparent eye infection, and that he was uncooperative and “fairly obstreperous” (transcript, 08.04.09, page 171, line 9). She further reported that he was very agitated and reluctant to participate in the assessment. Nevertheless, Ms McIntosh also said that he was reasonably cooperative when describing his symptoms, that at interview these related primarily to the left arm, and that his self-assessment of how neck/thoracic pain had affected his ability to manage everyday activities indicated a perceived severe disability rating and a moderate disturbance in activities of daily living (exhibit R2, page 6). The tribunal finds on the basis of Ms McIntosh’s record of Mr Butcher’s self-assessment and the history he provided to her that as at 15 October 2007, Mr Butcher’s symptoms and resulting difficulties were likely to have played a part in preventing him from undertaking the relevant remunerative work as at that date, and (from the history she obtained) for some reasonably significant indefinite period prior to that date.
80. In cross-examination, Mr Butcher denied that he had made a number of the statements that Ms McIntosh recorded in her first report in response to questions relating to self-reported tolerances, symptom description and self-assessment questionnaires. He also denied that Dr Wilson and Dr Lettberg had correctly reported a number of aspects of the history he reported. However, the tribunal does not accept those denials. Ms McIntosh was a careful witness who gave considered responses to questions asked of her in evidence. The tribunal accepts that she, Dr Wilson and Dr Lettberg accurately recorded the substance and effect of the information that Mr Butcher provided to them.
81. Whilst the tribunal regards it as possible that Mr Butcher over-stated his symptoms and complaints at the examinations by Dr Wilson and Ms McIntosh on 15 October 2007, and that the neck and left arm problems had ceased to play a part in the relevant incapacity at an earlier date than 1 October 2008 (being the date when, on the basis of Dr Mills’ examination, Mr Butcher was not affected by those problems) the tribunal is not reasonably satisfied that that was the case. Even if that were the case, there is no satisfactory evidence before the tribunal of any earlier date from which it could find that those problems had ceased to play a part in the relevant incapacity.
82. Of course, the fact that Mr Butcher periodically consulted his general practitioners about his non service-related conditions and received physiotherapy or chiropractic treatment for those conditions does not of itself indicate that Mr Butcher was prevented from undertaking remunerative work, either at the time of the consultations or treatments or throughout the period between such consultations or treatments. The occasions when symptoms in the left shoulder, arm or hand are recorded are infrequent. Further, it is not uncommon for workers to experience periods of ill health or disability, and as a result, to seek medical or physiotherapy treatment, to have sick leave, or to undertake modified duties, but such matters do not necessarily indicate that they are incapacitating, or that they play a part in preventing those affected from undertaking their customary work. However, the history provided by Mr Butcher to various clinicians whom he consulted indicates that he was having ongoing problems with his neck, left arm and shoulder, and this was during a period when he was not working. Further, Mr Butcher did not give evidence as to his own assessment of his capacity to undertake the relevant remunerative work during the assessment period.
83. Having regard to all the evidence before it in relation to Mr Butcher’s three non service-related conditions now being considered, including the references in Ms Holman’s notes to symptoms in the cervical spine in 2005 and again in January 2007, and the information and history provided to Ms McIntosh on 15 October 2007, the tribunal is not reasonably satisfied that Mr Butcher, by reason of his incapacity from service-related conditions alone, was prevented from undertaking the relevant remunerative work in the period from the commencement of the assessment period at least until the date of the first examination by Ms McIntosh and Dr Wilson, namely 15 October 2007.
84. Counsel for Mr Butcher, Mr Swan, contended that Mr Butcher’s musculo-skeletal symptoms were due to psoriatic arthritis, and so were service related. The tribunal referred above to Dr Sheppeard’s opinion that Mr Butcher was not suffering from psoriatic arthritis as at March 2003, and to Professor Ahern’s opinion that as at June 2008, Mr Butcher was suffering from mild psoriatic arthritis. Professor Ahern also refers to a history of symptoms of pain not only in the shoulders, but also in the feet, wrists and elbows, which were episodic. Further, the tribunal notes that on occasions, according to various clinical reports, Mr Butcher has complained of pain in his legs, ankles and knees. The tribunal referred above to Dr Angel’s opinion that psoriasis could cause episodic pain in the shoulders. Dr Wilson acknowledged this, and that the problems from psoriasis could cause intermittent flare-ups of symptoms, depending on the severity of the psoriasis (see transcript at page 220).
85. Nevertheless, psoriatic arthritis was not diagnosed until the time of Professor Ahern’s report on 3 June 2008, and in view of Dr Sheppeard’s earlier report, the tribunal does not think it appropriate to infer that the problems that Mr Butcher had previously had with his shoulders, neck or left arm were caused by psoriatic arthritis. It is possible that that was so, or that psoriatic arthritis affected the degenerative condition of the neck so as to cause symptoms of pain that would otherwise not have occurred at all. That might have been the case (and might continue to be the case in the future). However, on the evidence before it as to the problems with his neck, shoulders and left arm and the relevance of psoriatic arthritis to those problems, the tribunal is not reasonably satisfied that Mr Butcher was incapacitated by reason of his accepted conditions, alone, from undertaking the relevant remunerative work during the period from the commencement of the assessment period until 15 October 2007. Mr Butcher does not therefore satisfy the “alone” test during that period.
86. In relation to the period after the first assessments made by Dr Wilson and Ms McIntosh, the tribunal notes that Dr Mills provided a very different assessment following his examination on 15 October 2008. In addition there was a very marked change in the presentation described and the opinions expressed by Ms McIntosh and Dr Wilson following their second examinations in January 2009.
87. At his examination on 19 January 2009, Dr Wilson found that there was no effect on Mr Butcher’s capacity from the right shoulder, and found only minor abnormalities in the left shoulder. His reservation in relation to the left shoulder was based on the prior history of needing to drive with one hand, but that situation occurred many years earlier, and the tribunal accepts that Mr Butcher recovered from the symptoms he was then experiencing, and there is no evidence of any subsequent need to drive with one hand. Further, there is no evidence that the relevant remunerative work would involve sustained or repeated use of the left upper limb above shoulder level, being a further reservation to which Dr Wilson referred as far as the left shoulder was concerned, and an activity which triggered the episode of severe symptoms that Mr Butcher suffered in 2003.
88. In referring to the suite of asserted non service-related disabilities referred to by Dr Wilson, counsel for Mr Butcher said that he acknowledged that Mr Butcher was not a perfect human specimen, but urged the tribunal to approach this matter from a common-sense point of view. The tribunal accepts that that is the correct approach and that it should apply the alone test using common sense and with an eye to reality: Cavell (supra) at 539.
89. The tribunal considers that Dr Wilson was somewhat over-meticulous or conservative in his review of issues that might have an impact on Mr Butcher’s capacity to undertake the relevant remunerative work (including the asserted conditions of the neck, left shoulder and left arm), and in some respects adopted a somewhat theoretical, rather than common-sense, approach. He referred to a number of the non-accepted conditions that he identified as minor. In addition, Dr Wilson appeared to approach the question of capacity by reference to determining a recommended regime of modified duties, rather than the issue which must be determined under s 24(1)(c), namely whether Mr Butcher’s neck, shoulder or arm conditions played a part in the incapacity that prevented him from returning to the relevant remunerative work (see Dr Wilson’s comments on page 7 of R5).
90. Counsel for the Commission criticised the evidence of Dr Mills on the grounds that he had not sought to form an opinion about Mr Butcher’s capacity for employment during the assessment period, but that does not necessarily affect the relevance or weight of his findings and opinion as to Mr Butcher’s condition as at the date of his examination. Indeed, Ms McIntosh made it clear that her assessments only related to Mr Butcher’s performance on the relevant day, and Dr Wilson appeared to acknowledge the difficulty in considering the position during the period prior to his assessments, in that he said that he could only do so by reference to his findings on examination, and an “impression” from the prior medical history (see paragraph 61 above).
91. The tribunal’s task is difficult in this matter because the assessment period is unusually long due to the unfortunate history of the proceedings in this tribunal. Having carefully considered all of the evidence before it, the tribunal finds that from and after 1 October 2008, Mr Butcher was prevented by reason of incapacity, from his service-related conditions alone, from continuing to undertake the relevant remunerative work notwithstanding the three accepted non service-related disabilities now being considered. The tribunal thinks that this date is supported by the findings and opinion of Dr Mills following his examination on 15 October 2008 (which the tribunal accepts), and Dr Mills’ opinion as to the period prior to his examination during which Mr Butcher would not have been affected by any non service-related disabilities. The tribunal further finds that that situation continued until the examinations by Dr Wilson and Ms McIntosh in January 2009, and thereafter until the date of the hearing.
(e) Divarication of the abdominus rectus muscles
92. This condition results from a separation of the big muscles of the abdomen. It was reported by Dr Wilson in his two reports. No other clinician referred to a finding of this condition on examining Mr Butcher.
93. Dr Wilson accepted that the condition had not progressed between the dates of his two examinations. In his first report, he said that this would require a work restriction to avoid lifting weights of more than 10 kg, and straining activity such as pushing and pulling. In evidence he said that this condition required a “work restriction” largely because it was “probably going to turn into a hernia eventually”. (transcript, 8.04.09, page 194, line 46). He said further that this would not necessarily occur, but it was a risk (transcript, 8.04.09, page 218, line 21). He did not elaborate on the consequences of a hernia developing, or say whether any hernia could be surgically repaired, or if so, the capacity to undertake the relevant remunerative work after any such repair.
94. Dr Mills said that divarication was quite common. He said it was a presumed developmental weakness, although he could not say when it might have developed in Mr Butcher’s case. He said that he would have examined Mr Butcher’s abdomen, but did not record that Mr Butcher had divarication, and if he did see the divarication, it did not concern him. He said that this was “not really” a bit of an alarm bell for manual labour (transcript, 07.04.09, page 118, line 40).
95. The issue before the tribunal is not whether there should be a work restriction, as found by Dr Wilson, but whether this condition contributes to Mr Butcher being prevented from undertaking the relevant remunerative work during the assessment period. The tribunal finds on the evidence of Dr Mills that the divarication was of a minor degree and that it did not contribute to Mr Butcher’s being prevented from undertaking the relevant remunerative work during the assessment period.
(f) Obesity and general physical de-conditioning
96. Dr Wilson referred to Mr Butcher’s obesity causing difficulties with lifting, because an individual handling manual loads would not be able to get the load closer to the centre of gravity of the body, thus causing a disadvantage with manual handling. However, Dr Wilson acknowledged in cross-examination that that would not prevent Mr Butcher from “undertaking work” (transcript, 8.04.09, page 220, line 11). It was not suggested that this condition was relevant to any other activity involved in the relevant remunerative work.
97. Dr Wilson explained that physical de-conditioning was a lack of capacity of the muscles for exertional activity and endurance and put strain on the joints due to the poor muscle tone that would normally be required to stabilise the joints. In his first report, he commented that this would prevent any employment that required “sustained or bursts of exertional activity” (exhibit R4, page 7). However, there is no evidence that the relevant remunerative work would require sustained bursts of such activity. In the course of his evidence, Dr Wilson said that the de-conditioning meant that there would “certainly need a graduated approached to work” (transcript, 8.04.09, page 175, line 18). However, it does not follow from this that de-conditioning would play a part in preventing Mr Butcher from undertaking the relevant remunerative work.
98. When Dr Mills was asked to comment on obesity and general physical de-conditioning as reported by Dr Wilson, he did not agree that they constituted restrictions from work, and commented that “half the community wouldn’t be working if that were so” (transcript, 07.04.09, page 116, line 30). He also questioned what the definition of obesity was, from which the tribunal infers that he was not satisfied that Mr Butcher was obese. The tribunal notes, in the context of Dr Mills’ comments, that Ms McIntosh had assessed Mr Butcher as being in the 51st percentile for men of his age and height (exhibit R2, page 7). No other persons who provided opinions as to his conditions or impairments have commented on obesity or de-conditioning.
99. On this state of the evidence, the tribunal is satisfied that obesity and de-conditioning have not contributed to Mr Butcher’s incapacity to undertake the relevant remunerative work during the assessment period.
100. In any event, the tribunal considers that the de-conditioning is service-related, because it has been brought about by Mr Butcher’s extremely severe accepted conditions, which have prevented him from undertaking physical activity and which led to his having to give up the various jobs that he had after leaving the Army. His last such employment was the work at Comit Farm which Mr Butcher gave up because of his service related conditions in 1998, more than four years before the commencement of the onset of the episode of neck problems that arose from the house building activities. According to Ms McIntosh, inability to work is the primary cause of de-conditioning, and in the tribunal’s view, that is a sufficient period to have caused de-conditioning.
101. Dr Wilson suggested that de-conditioning was also the result of lifestyle decisions. In the case of Mr Butcher, the tribunal finds that decisions that Mr Butcher might have otherwise made about his lifestyle, insofar as it was relevant to his physical condition, were almost certainly affected by his accepted conditions, in that they have prevented him from continuing in his past employment and undertaking other activities that might otherwise have assisted him to remain physically fit.
(g) Left ulnar neuritis and sensory and motor impairment of the left upper limb
102. In his report of 13 December 2007, Dr Wilson found on examination a minor sensory loss of the left little finger to light touch, slight visible wasting and some reduction of the small muscles of the left hand, and tenderness around the left medial epicondyle and of the ulnar nerve at the left elbow. He considered that the left ulnar nerve dysfunction, whilst minor, would impact on Mr Butcher’s ability to do fine or repetitive left hand function. In his later report he concluded that the left ulnar neuritis was not a problem as at the date of his examination, and did not then limit Mr Butcher’s capacity to undertake remunerative work.
103. Dr Mills reported no disability relevant to Mr Butcher’s left elbow or hand following his examination on 15 October 2008. There was no indication from Ms McIntosh’s second report that this was an issue. There was no evidence that the relevant remunerative work would entail fine or repetitive left hand function, and the tribunal finds that this should not be inferred. The tribunal notes that Mr Butcher is right handed.
104. Having regard both to Mr Butcher’s condition from and after Dr Mills’ examination on 15 October 2008, and the nature of the relevant remunerative work, the tribunal finds that any condition of left ulnar neuritis that he may have been suffering from at some stage in the past did not during the assessment period contribute to Mr Butcher’s incapacity to undertake the relevant remunerative work.
Other contentions
105. Counsel for the Commission contended that the non-war caused/service-related conditions would fluctuate from time to time, and that as a result, they contributed to Mr Butcher being prevented from undertaking the relevant remunerative work. The tribunal accepts that the conditions have fluctuated from time to time during the assessment period, and are likely to do so in the future. However, following the diagnosis by Professor Ahern in June 2008 of mild psoriatic arthritis, the tribunal finds that any such fluctuations are likely to have been caused at least in part by that condition. In any event, if the degenerative condition of the neck deteriorates in the future to the point where it plays a part in preventing Mr Butcher from undertaking the relevant remunerative work, the Commission is empowered to review Mr Butcher’s pension entitlement pursuant to s 31 of the VE Act.
106. As mentioned above, reference is made in the Commission’s Statement of Facts, Issues and Contentions to Mr Butcher’s time out of the workforce. At the commencement of the assessment period, Mr Butcher had been out of the workforce for more than four years, and the tribunal has found that his last employment, at Comit Farm, ceased as a result of his accepted conditions. There is no evidence that the nature of the relevant remunerative work was such that Mr Butcher would have been prevented or in any way disadvantaged in seeking to take up that work by reason of his time out of the workforce. However, the Commission did not pursue that point at the re-hearing. The tribunal finds that this was not a factor that prevents him from satisfying the “alone” test.
107. Counsel for the Commission also contended that the non-accepted conditions would, in combination, play a part in preventing Mr Butcher from undertaking the relevant remunerative work. The tribunal has carefully considered the effects of each of the asserted non service-related conditions in turn. The tribunal has found in effect that those conditions have not, during the period from and after 1 October 2008 or (in the case of some of the asserted conditions) at any time during the assessment period, played a part in Mr Butcher’s incapacity to undertake the relevant remunerative work, that the difficulties said to arise are not relevant to the relevant remunerative work, or that they are caused solely by Mr Butcher’s accepted conditions. The tribunal finds that the asserted non service-related conditions have not, in combination, played a part in preventing Mr Butcher from undertaking the relevant remunerative work on and from 1 October 2008, up to the date of the hearing, and the tribunal assumes, in the absence of any application to re-open the hearing to adduce updated evidence, that that state of affairs has continued to the date of this decision.
Decision
108. The tribunal sets aside the decision under review, and in place of that decision:
1.decides that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (Cth) with effect on and from 1 October 2008; and
2.remits the matter to the respondent to assess the applicant’s entitlement to pension in accordance with the tribunal’s reasons for decision.
I certify that the 108 preceding paragraphs are a true
copy of the reasons for the decision herein of Deputy President D G Jarvis and Senior Member L HastwellSigned: .....................................................................................
L. Staker AssociateDate/s of Hearing 6, 7, 8 and 9 April 2009
Date of Decision 12 May 2009
Counsel for the Applicant Mr N Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Dr C Bleby
Solicitor for the Respondent Australian Government Solicitor
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