Grenfell and Repatriation Commission
[2007] AATA 1166
•23 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500532
VETERANS' APPEALS DIVISION ) Re JOHN GARNET GRENFELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr Gordon Hughes, Member Date23 March 2007
PlaceMelbourne
Decision The Tribunal sets aside the decision of the Veterans' Review Board dated 1 June 2005 and in substitution decides that the Applicant is entitled to pension at the Intermediate Rate from 15 January 2005 to 3 October 2005; and that the Applicant is entitled to pension at the Special Rate from 4 October 2006. (sgd) Gordon Hughes
Member
ADMINISTRATIVE APPEALS TRIBUNAL Nº V200500532
VETERANS’ APPEALS DIVISION
Re: JOHN GARNET GRENFELL
Applicant
And: REPATRIATION COMMISSION
Respondent
AMENDING DIRECTION [2007] AATA 1166
Tribunal: Dr Gordon Hughes, Member
Date:10 April 2007
Place:Melbourne
Dr Hughes made a decision under s 43(3) of the Administrative Appeals Tribunal Act1975 (the Act) on 23 March 2007.
The applicant advised the Tribunal in a letter dated 29 March 2007 that there is an error in the decision.
In accordance with s 43AA(1) of the Act the Tribunal directs that the Registrar alter the text of the decision, published 23 March 2007, by deleting the decision on page 1 and paragraph 30 and replacing it with the following:
The Tribunal sets aside the decision of the Veterans' Review Board dated 1 June 2005 and in substitution decides that the Applicant is entitled to pension at the Intermediate Rate from 15 January 2005 to 3 October 2006; and that the Applicant is entitled to pension at the Special Rate from 4 October 2006.
(sgd) Gordon Hughes
Member
VETERANS’ AFFAIRS – entitlement to Special Rate of disability pension – effect of non war‑caused injuries – effect of time out of work force – whether genuine attempt to seek remunerative work.
Veterans’ Entitlements Act 1986 s 23, 24, 120(4)
Repatriation Commission v Flentjar (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
23 March 2007 Dr Gordon Hughes, Member 1. This matter was heard by the Tribunal on 14 February 2007. Mr Dino De Marchi appeared for Mr John Grenfell (the Applicant) and Mr Kevin Herman appeared for the Repatriation Commission (the Respondent).
2. The Applicant was seeking review of a decision made by the Veterans' Review Board (VRB) on 1 June 2005. The VRB affirmed a determination made by the Respondent that the Applicant was entitled to the disability pension at 100 per cent of the General Rate, but he was not entitled to the Intermediate or Special Rate of pension.
3. The Applicant was 56 years of age at the date he lodged his claim with the Respondent. He had served in the Royal Australian Navy (the Navy) from July 1964 to July 1983, with periods of operational service in Malaya and Vietnam. It was not disputed that he was suffering war‑caused injuries in the nature of osteoarthritis of the right knee, internal derangement of the left knee, recurrent dislocation of the right shoulder, bilateral sensorineural hearing loss and bilateral tinnitus.
4. This case centred upon the Applicant's entitlement under s 24 of the Veterans' Entitlements Act 1986 (the Act) and, in particular, the following:
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(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
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
5. Mr Herman informed the Tribunal that the Respondent did not contest that the Applicant met the requirements of section 24(1) (a) and (b) of the Act.
6. The Respondent asserted, however, that the Applicant failed to satisfy section 24(1)(c) of the Act because his ongoing incapacity was attributable not only to his war‑caused injuries but also to other medical conditions including osteoporosis, crush fractures of the thoracic spine, thoracic spondylosis, cervical spondylosis, lumbar spondylosis, osteoarthritis of the hips, dyspnoea, thyroiditis, tachycardia, hypertension, tears of the right retina and sleeplessness.
7. The Applicant told the Tribunal that there were a number of factors – all related to his war-caused injuries – which affected his ability to continue to engage in remunerative work. He had constant pain in the right leg following a knee replacement in 2004; he had also suffered constant pain and swelling in the left leg due to a knee replacement in 2006; the ongoing pain contributed to difficulties in concentrating; he had aching and restricted movement in his right shoulder; and his hearing loss caused difficulty in communication, particularly when speaking on the telephone.
8. The Applicant described his other medical problems – problems which were not war-caused – as being relatively minor. He acknowledged that his back injury now caused some pain, although he observed that the osteoporosis had only been discovered 2 years ago. He told the Tribunal that he did not believe his back condition alone would prevent him from finding employment.
9. The Applicant described his work history to the Tribunal. After leaving the Navy in 1983, he was employed by the Commonwealth Employment Service until 1997 continuously, apart from an extended period of leave without pay which he took due to a heart condition, and during which time he worked in a motel in Bright for 10 months. He was made redundant by the Commonwealth Employment Service at the age of 49. He then conducted a mixed business until 1999 but had difficulty in carrying out post office work associated with that business, principally due to trouble in lifting articles caused by the pain in his shoulder and knees. In 2000 he purchased a chicken farm but found he had to employ others to carry out the more manual aspects of the work. In 2003 he purchased an interest in a motel in Bendigo but again found that he had to employ staff to carry out both the physical and administrative requirements of the job. He then purchased an interest in a business which operated serviced apartments in St Kilda but after 6 months he was unable to cope with his management role because of his restricted movement, hearing impairment and an inability to concentrate. The business engaged managers to do the work which the Applicant was unable to do, but in due course the managers left and could not be replaced.
10. The Applicant told the Tribunal that were it not for his war-caused injuries, he believed he could still be running the chicken farm. Certainly, he told the Tribunal, he would prefer to be still working and he believed he could do so if his osteoporosis were his only medical condition.
11. Two medical specialists, Dr Neville King and Dr Amanda Sillcock, gave evidence on behalf of the Applicant.
12. A report from Dr King dated 5 February 2007 (Exhibit A4) was tendered in evidence. Dr King told the Tribunal he had been treating the Applicant continuously since November 1983. He was of the opinion that the Applicant was unfit for work. He did not consider that the osteoporosis was playing a major part in the Applicant's ongoing disabilities. He was of the view that the Applicant's principal complaints related to his knees and shoulders. In recent times, at least, the Applicant's complaints had centred on his knees rather than his back.
13. Reports from Dr Sillcock dated 3 April 2006 (Exhibit A1) and 7 February 2007 (Exhibit A2) were tendered in evidence. In her report dated 3 April 2006 Dr Sillcock concluded (at p8):
…
You have asked if I will advise whether or not Mr Grenfell's accepted disabilities alone prevent him from working for more than eight hours per week. In my opinion, Mr Grenfell would have great difficulty doing any sort of physical work such as running a chicken farm and training horses. He would also experience difficulty running a business such as a mixed business where there would be a reasonable amount of lifting and physical work, particularly being on his feet. In my opinion he would not be capable of doing this sort of work at all because of his accepted disabilities of both knees and the right shoulder. However, he also worked in the public service for a number of years doing clerical-type work and in my opinion he would be fit to do this sort of work on a part-time basis for more than eight hours per week. However, when his other medical conditions are added in, then in my opinion he is totally and permanently unfit for all work.
14. In her report dated 7 February 2007 Dr Sillcock provided a response to a letter from the Applicant's solicitors dated 2 February 2007. Dr Sillcock commented as follows (on p2):
You state in your letter that Mr Grenfell has had further knee surgery on for October 2006 and that this has not been successful. However, I do not have any further details about this. If he is indeed in constant pain and now on antidepressant medication as a result of the surgery, then I believe that he is now unable to work for more than eight hours per week because of his accepted conditions.
15. Dr Sillcock elaborated on this point in her oral evidence. In particular, she noted that at the time of her last examination, the Applicant had not undergone his second knee operation. In any event, at the time she saw him, he was unable to work more than 8 hours a week because of his war‑caused injuries. Dr Sillcock acknowledged that it was difficult to distinguish between the effects of the Applicant's war‑caused injuries and his other medical conditions. At the time of her initial examination, she had formed the view that the Applicant might be fit for some part‑time work of a clerical nature but, since making that assessment, she noted that the Applicant's left knee pain had intensified and that he had undergone surgery, as a result of which he was now totally incapacitated. Dr Sillcock was of the view that if the Applicant were only suffering from his non war-caused back and hip problems, he could probably perform part‑time sedentary work.
16. Dr Robyn Horsley provided evidence on behalf of the Respondent. Reports from Dr Horsley dated 25 November 2006 (Exhibit R2) and 31 May 2006 (Exhibit R3) were tendered in evidence. In her report dated 25 November 2005 Dr Horsley stated (at p10):
…
On the basis of his right shoulder and bilateral knee condition, I believe that there is significant disability. Mr Grenfell is 57 years of age and lives in Bendigo. He is education to the level of year 10 and has minimal computer skills. I believe realistically that Mr Grenfell has come to the end of his working life.
I note in the materials attached, the suggestion of taking up a clerical position. For such to even be contemplated, he would need to upgrade his skills in the computer area. An administrative job would require computer skills. I believe that this is unrealistic. Increasing his computer skills from the avocational perspective may improve his quality of life but I believe in terms of increasing his employability, that this is an unlikely scenario.
Mr Grenfell is highly motivated. He has been self employed for a number of years. He worked in a mixed business and then later on a chicken farm. More latterly after 20 months of unemployment, he became self employed with a partner undertaking the managerial side of serviced apartments. Unfortunately because of his limited mobility, he has had significant difficulty coping with the workload required, in addition to the travelling to and from Bendigo which was probably not realistic anyway.
I believe on the basis of his clinical presentation that he has come to the end of his working life. He has significant disability related to both knees and his right shoulder. I believe that he has no realistic capacity for work.
17. In her report dated 31 May 2006, Dr Horsley stated (at p3):
…
His thoracic back pain does have an impact upon physical restrictions particularly over reaching, pushing, pulling and repetitive above shoulder work, however his right shoulder disability and right shoulder surgery with significant reduction in range of motion also requires the same restrictions.
18. Dr Horsley elaborated on this in her oral evidence. She acknowledged that it was difficult to differentiate between the effects of the Applicant's war-caused injuries and his other medical complaints. She acknowledged, however, that her assessment of the extent of the Applicant's incapacity was consistent with the effects of his shoulder injury alone. It remained the case that on the basis of his shoulder injury, it was not a realistic prospect for the Applicant to return to work. Dr Horsley considered that the Applicant's non war‑caused spondylosis would be a contributing factor to his general loss of movement but she also acknowledged that it was possible to be pain free with spondylosis. Under cross-examination, Dr Horsley stressed that she did not believe the Applicant's right shoulder was his major problem – given the effect of his other medical conditions – but she reiterated that the restrictions of which he complained were consistent with the right shoulder problem alone. She also acknowledged that she had not examined the Applicant since his left knee operation in October 2006.
19. Mr De Marchi submitted that but for the Applicant's war-caused injuries, he would have remained employed during the assessment period (this being the period between the date of the Applicant’s claim and the date of the determination). He pointed out that at the time he ceased work at his chicken farm, the Applicant had not even been aware that he was suffering osteoporosis. He emphasised that despite a strong work ethic, the Applicant had been incapable of any remunerative employment since his knee operation in October 2006.
20. Mr Herman said that looking at the medical evidence as a whole, the effects of the Applicant's back and hip injuries were clearly significant. It was impossible to attribute the ongoing pain to one source or another. It was simply not possible to conclude that the Applicant's ongoing inability to work was the consequence of a war-caused injury. Mr Herman also submitted that the Applicant's age was a factor which could not be ignored.
21. In assessing pensions, the Tribunal must have regard to s 120(4) of the Act. This requires the Tribunal to decide all relevant matters to its reasonable satisfaction, meaning that it must decide, on the balance of probabilities, the correct rate of pension to be paid.
22. In reaching its decision, the VRB concluded that the Applicant did not meet the requirements of section 24(1)(c) of the Act. It reached this conclusion on the basis that (p17):
…The evidence in this case does not show that Mr Grenfell was genuinely seeking to engage in work. He last registered [for] work with the Commonwealth Employment Services many years ago, and has not actively sought work in any sustained or realistic fashion since his mixed general store business ceased.
23. Based on its assessment of the evidence of the Applicant and the witnesses, the Tribunal has reached a conclusion different from the VRB in many key respects. Specifically, the Tribunal considers that the Applicant does in fact meet the requirements of s 24(1)(c) of the Act.
24. In evaluating the evidence presented to it, the Tribunal is assisted by the summary of relevant legislative requirements under section 24(1)(c) as set out in Repatriation Commissioner v Flentjar (1997) 48 ALD 1:
1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
25. For the purposes of determining whether the Applicant meets the requirements of s 24(1)(c), the Tribunal is first required to determine what remunerative work the Applicant would have been undertaking but for the effects of his war-caused injuries. This inevitably involves a degree of speculation and is clearly a "hypothetical exercise": Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. This does not involve reference to a particular job with a particular employer but rather it involves having regard to the substantive remunerative work which the Applicant has undertaken in the past. In the Applicant's case, nevertheless, it is difficult to even generalise about the nature of his previous substantive remunerative work. It is difficult to know what he would have done. Employment with the Commonwealth Employment Service was no longer an option after he was made redundant. In broad terms, however, the Applicant would most probably have been self-employed in a business involving a medium degree of manual work and a preponderance of administrative tasks.
26. Having established the type of work which the Applicant would most likely have been undertaking, the Tribunal is satisfied on the evidence that the Applicant is now prevented from undertaking such work due to the effect of his accepted disabilities. Following his departure from the Commonwealth Employment Service, the Applicant commenced work in a mixed business, being an occupation which was a logical progression given his educational background and vocational experience. The Tribunal accepts that the Applicant was ultimately unable to continue in this business, however, because of the physical impediments caused by the pain in his shoulder and knees. In addition, the Tribunal accepts that the Applicant continued to engage in genuine efforts to find suitable employment in a number of ways – through his attempt to become involved in a chicken farm, his attempt to operate a motel in Bendigo and through his attempt to participate in a serviced apartment business in St Kilda. In each instance, the Applicant's attempts to return to the workforce were thwarted by the effects of his accepted disabilities.
27. The Tribunal is of the opinion that the Applicant's war-caused injuries alone have prevented him from continuing to undertake remunerative work which he would otherwise have been performing – given his work ethic, and taking account of the medical evidence submitted to the Tribunal, the Tribunal considers that the Applicant would still be working if his only medical problems were his non war-caused injuries.
28. Based on the Tribunal's assessment of the medical evidence, there seems little doubt that the cause of the Applicant's incapacity, at least, since 4 October 2006 has been the ongoing problems experienced in his left knee. This injury, which is an accepted disability, has rendered the Applicant not only unfit for manual work but also, as a consequence of his psychological reaction to that injury combined with treatment for sleeplessness in the form of anti-depressants, has rendered him unfit for clerical duties as well.
29. The Tribunal nevertheless accepts that the Applicant may have had a limited capacity for employment prior to the operation on his left knee on 4 October 2006. Section 23 of the Act provides for the Intermediate Rate of pension in circumstances where a veteran's incapacity for work is restricted to a part-time basis, generally no more than 20 hours per week. It is the Tribunal's opinion that this accurately describes the effect on the Applicant of his war-caused injuries in respect of the period from the date of the Applicant's original claim for an increase in his disability pension, 15 January 2004, until the day prior to the operation on his left knee, 3 October 2006.
30. The Tribunal sets aside the decision of the Veterans' Review Board dated 1 June 2005 and in substitution decides that the Applicant is entitled to pension at the Intermediate Rate from 15 January 2005 to 3 October 2005; and that the Applicant is entitled to pension at the Special Rate from 4 October 2006.
I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision herein of
Dr Gordon Hughes, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing 14 February 2007
Date of Decision 23 March 2007
Advocate for the Applicant Mr D. De Marchi
Solicitor for the Applicant De Marchi and Associates
Advocate for the Respondent Mr K. Herman
Solicitor for the Respondent Department of Veterans’ Affairs
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