Griffin and Repatriation Commission
[2008] AATA 821
•15 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 821
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1492
VETERANS’ APPEALS DIVISION ) Re GARY JAMES GRIFFIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton, Member Date15 September 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
VETERANS’ AFFAIRS ‑ pension at special rate – whether war‑caused conditions alone cause of inability to work – reason why applicant stopped working – decision affirmed
Veterans’ Entitlements Act 1986 ss 24(1)(a)(b)(c), 24(2)(a)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
REASONS FOR DECISION
15 September 2008 Regina Perton, Member 1. Gary Griffin, who is 63 years old, served in the Royal Australian Navy (the navy) from August 1962 to December 1977. Mr Griffin currently receives a service disability pension at 100 per cent of the general rate. He suffers from many medical conditions, of which lumbar spondylosis, bilateral sensorineural hearing loss, chronic solar skin damage, ischaemic heart disease and chronic simple bronchitis have been accepted by the Repatriation Commission (the Commission) as having been war‑caused. He has not worked for many years.
2. Mr Griffin is seeking a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his accepted disabilities alone.
3. Mr Griffin lodged a claim for special rate pension in May 2004 on the basis that he was suffering from post traumatic stress disorder (PTSD), which was a war‑caused condition. The claim was rejected by the Commission. Mr Griffin sought review of that decision and in July 2006, the Veterans’ Review Board (VRB) decided that Mr Griffin’s PTSD was a war-caused condition. However, the Commission decided that Mr Griffin’s rate of pension should remain at 100 per cent of the general rate and that he was not eligible for a special rate of pension because he did not cease work due to his accepted war-caused disabilities alone. The VRB agreed with the Commission. Mr Griffin then lodged an application for review of the VRB decision with this Tribunal on 24 April 2007.
4. In deciding whether Mr Griffin is eligible for pension at the special rate, the Tribunal needs to consider:
·Is Mr Griffin unable to work for more than 8 hours per week?
·When and why did Mr Griffin stop working?
·Do Mr Griffin’s accepted war-caused conditions alone prevent him from working?
Is Mr Griffin unable to work for more than 8 hours per week?
5. There is no dispute between the parties that Mr Griffin is totally and permanently incapacitated and is incapable of working for more than 8 hours per week.
When and why did Mr Griffin stop working?
6. Mr Griffin left school at the end of Grade 6. After leaving school, Mr Griffin worked as a general labourer on a dairy farm and as a telegraph boy. He completed his intermediate level of secondary education in the navy.
7. Mr Griffin served in the navy for 15 years, from 1962 until 1977. He performed operational service between February 1965 and September 1965 in Vietnamese and Malaysian waters. Mr Griffin’s naval roles included cook, seaman and a member of the naval police.
8. After leaving the navy, Mr Griffin worked in a steel mill as a coil storeman, a security guard, a sheet packer, and for a short time, a clerk. He stated that he was unable to continue with clerical duties because of back pain and a high error rate. He indicated that he left the steel mill because of a combination of back pain and anger-management issues.
9. Mr Griffin’s next job lasted about four months. He worked as a security guard for the Education Department at various schools around Hastings.
10. In 1981 Mr Griffin moved to Warrnambool, where he now lives. He obtained work as a chef at a hotel. He left this position after around 7 months. He told the Tribunal that he aggravated his back condition working in the hotel’s bistro. He said that he often got angry with customers, co-workers and management. At that time, he was drinking heavily. He no longer drinks alcohol.
11. Mr Griffin’s next job as a baker lasted only 6 months. He said that he quit due to a combination of back pain and poor anger management.
12. Mr Griffin moved back to Melbourne and worked as a security guard at a printing company for a few months but lost his job after a dispute with management.
13. Mr Griffin then worked as a trainee nurse at a psychiatric hospital in Warrnambool for about a year. Duties, which included lifting elderly patients, aggravated his back again and he stopped working as a nurse. He then worked as security guard at a factory in Warrnambool but lasted only three months. Mr Griffin said that he was sacked for assaulting his manager.
14. Mr Griffin’s last paid position was with the Warrnambool City Council, initially as a home-help gardener. After an injury, he had some months away from work and then returned to work on light duties. In his written statement, prepared in April 2007, Mr Griffin said that he had stopped working for the Council in 1991 because his duties aggravated his back pain.
15. Documents obtained from GIO Workers’ Compensation (Victoria) Ltd (GIO) indicate that Mr Griffin stopped working for Warrnambool City Council because of shoulder and arm injuries rather than an aggravation of his long-standing back injury. Mr Griffin started work with the Council in November 1989. Mr Griffin completed an accident compensation claim on 17 May 1990 indicating he had been injured in February 1990 and was suffering from neck pain and that his right side neck & shoulder & right elbow were affected. Mr Griffin’s then general practitioner, Dr B. Oppermann, provided medical certificates to GIO between May 1990 and November 1990, indicating that Mr Griffin was unfit for work or only limited light duties because of right shoulder and arm pain. No mention of back pain was made in the numerous certificates.
16. A report prepared by Dr John Bell, orthopaedic surgeon, for GIO on 18 June 1990 indicates that Mr Griffin told him that he ceased work for the City of Warrnambool 15th May, 1990 because of a right shoulder strain three months ago when lifting a mower into a utility. Dr Bell concluded that Mr Griffin had substantially recovered from a right shoulder strain which had been employment related. Dr Bell indicated that Mr Griffin was not fit to return to duties which involved heavy lifting or use of the arms above shoulder height and that he would be vulnerable to strains due to degenerative changes.
17. Mr Griffin returned to work in around October 1990 on light duties at Flagstaff Village, a tourist facility. Mr Griffin recalled that after a while his back worsened but said that his shoulder was no longer painful. Dr Oppermann’s notes showed that Mr Griffin’s next visit to him after October 1990 was in April 1991 when he was given two months off work and a referral to a physiotherapist. An entry in June 1991 indicated that Dr Oppermann had issued a medical certificate for the following month with the notation heavy work still causes right elbow pain. During cross-examination, Mr Griffin conceded that when he ceased work in 1991, his claims for time off work were all related to his neck, right shoulder and elbow. Mr Griffin indicated that he ended his work with the Council by mutual agreement.
18. After finishing with the Council in mid-1991, Mr Griffin qualified for an invalid pension (now called disability support pension) which he received for the next decade until he became eligible for a service pension.
19. Dr John Philpott, Mr Griffin’s current general practitioner, has been treating him since 1992 after taking over his care from Dr Oppermann. Both doctors were at the same clinic and Dr Oppermann’s notes were therefore available to him. In 1985, Mr Griffin told Dr Oppermann that the left side of his back was sore. Dr Oppermann speculated that this was due to a pulled muscle as his patient had told him he had no prev troubles. The clinic’s notes showed that in September 1989, Mr Griffin underwent a lumbar spine x-ray. There were no contemporary notes available but the x-ray report showed grade 1 spondylolisthesis at the lowest joint. The clinic’s medical notes showed that Mr Griffin had his cervical spine x-rayed in May 1990 and some isolated C5-6 degeneration was indicated. Dr Oppermann’s notes indicate that Mr Griffin lodged a claim for an invalid pension in late July 1991. Dr Oppermann also provided certificates in September 1991 and December 1991 concerning Mr Griffin’s shoulder, neck and right elbow. There were also a number of entries relating to medical certificates supplied to Hallmark Insurance during 1992 but Mr Griffin could not recall why this was so.
20. Dr Philpott stated that spondylolisthesis is one of the complications of spondylosis and provided some literature to that effect. Dr Philpott said that Mr Griffin does not complain of neck or shoulder pain at the present time.
21. Mr Griffin has been a volunteer for the Country Fire Authority for around 40 years. At present, his role is primarily to chat with other volunteers. He is unable to undertake any physical roles or cope with paperwork. A note to the CFA written by Dr Oppermann in November 1991 indicated that Mr Griffin could not lift or bend but could drive or hold a hose.
Do Mr Griffin’s accepted war-caused conditions alone prevent him from working?
22. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
(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…
(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…
23. Both parties agreed that Mr Griffin meets s 24(1)(a) and s 24(1)(b) of the Act. The Tribunal concurs. Mr Griffin receives a pension at 100 per cent of the general rate. The medical reports also indicate that Mr Griffin’s accepted war-caused conditions prevent him from working more than 8 hours per week. The Tribunal therefore finds that he meets s 24(1)(a) and s 24(1)(b) of the Act.
24. The parties disagree as to whether Mr Griffin meets s 24(1)(c) of the Act. Section 24(1)(c) and its qualifying provision, s 24(2)(a) state:
…
(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…
(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;
(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.
25. In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) in a series of questions:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
26. In respect of question 1, Mr Griffin’s work history is set out earlier in these Reasons for Decision. The Tribunal finds that the remunerative work undertaken by Mr Griffin included security guard, chef, baker, gardener, trainee nurse, labourer and storeman.
27. In respect of question 2, the Tribunal accepts the medical evidence that Mr Griffin is now prevented from working more than 8 hours per week due to his accepted war-caused disabilities, including PTSD. So the answer to question 2 is yes.
28. There are also other factors to be taken into account in relation to Mr Griffin’s employability, such as his age and the time out of the workforce. The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:
[39] …The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
[40] …it is possible that the war-caused condition may well 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.
29. The Tribunal heard evidence from two employers in the Warrnambool region, Paul Marshall and James Hewett, that Mr Griffin’s age would not prevent them from employing him. It was his PTSD and physical disabilities that they cited as the reasons they would not employ him. Mr Griffin had not actually applied for positions with them but had discussed such matters in general terms.
30. Mr Roger Westh, orthopaedic surgeon, examined Mr Griffin in November 2007. In his December 2007 report and his oral evidence to this Tribunal, Mr Westh was of the opinion that Mr Griffin’s accepted war-caused conditions alone prevent him from undertaking remunerative work for more than 8 hours per week. He stated that Mr Griffin’s long-standing spondylolisthesis can be considered to be part and parcel of his accepted condition of lumbar spondylosis. Mr Westh said that spondylolisthesis is often asymptomatic and the mere fact that it had showed up on an x-ray in 1989 did not necessarily mean that it was a cause of back pain for Mr Griffin at that time. Mr Westh had been told by Mr Griffin that he stopped work in 1991 due to his chronic low back pain and PTSD. He was unaware of the GIO evidence at the time of his report.
31. Dr Robyn Horsley, occupational physician, provided a report in November 2007. Dr Horsley is a specialist in occupational matters and what prevents people from working. She noted that Mr Griffin had told her that he stopped working due to his back condition. Dr Horsley commented that other factors that prevent Mr Griffin from returning to the workforce are his (then) 16 years out of the workforce, his low level of education, his acknowledged poor literary skills, his basic computer skills, his lack of formal qualifications, his manual working history and his age.
32. In respect of question 3, Mr Griffin asserts that the accepted conditions alone prevent him from working. However, the evidence from the GIO documents and from Dr Oppermann’s notes indicates that when Mr Griffin stopped work in 1991, the reasons were related to his shoulder, elbow and neck. He received an invalid pension from mid-1991 for the next decade, when he received a service pension.
33. The Tribunal is satisfied that Mr Griffin’s emphasis on his back problems rather than on other injuries as the cause of him ceasing to work do not necessarily arise out of a deliberate attempt to deceive the Commission and other decision‑makers. He appears to be a poor historian; perhaps, in part, because of his psychiatric condition and the lengthy period that has elapsed since he stopped work. The Tribunal also accepts Dr Horsley’s list of other reasons that would prevent Mr Griffin from obtaining work.
34. The Tribunal is not satisfied that Mr Griffin’s accepted war-caused disabilities are the only factors preventing him from working for more than 8 hours per week during the assessment period. The answer to the third Flentjar question is therefore no.
35. The Tribunal finds that Mr Griffin ceased work due to problems with his shoulders, neck and elbow, which are not war-caused conditions. The Tribunal prefers the contemporaneous notes of Dr Oppermann and the GIO documents to the poor recollection of Mr Griffin as to why he ceased work. After stopping work, Mr Griffin received an invalid pension (later disability support pension) for about a decade. The Tribunal finds that Mr Griffin fails to satisfy s 24(2)(a) of the Act.
36. The Tribunal is not satisfied that Mr Griffin genuinely sought work after his departure from the Council and his subsequent receipt of invalid pension and then service pension. A general discussion with friends who are employers does not meet the test for genuinely seeking work. The Tribunal finds that Mr Griffin does not meet any of the criteria set out in s 24(2)(b) of the Act.
37. Mr Griffin fails to meet the criteria in s 24(1)(c) of the Act. Mr Griffin is therefore not eligible for payment of a pension at a special rate.
DECISION
38. The Tribunal affirms the decision under review.
I certify that the thirty-eight [38] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Cassie Renfrew
Clerk
Dates of hearing: 20 May 2008 and 17 June 2008
Date of decision: 15 September 2008
Counsel for applicant: Mr G Chancellor
Solicitor for applicant: Williams Winter SolicitorsSolicitor for respondent: Mr K Rudge, Advocacy Section,
Department of Veterans’ Affairs
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