Groves and Repatriation Commission
[2003] AATA 381
•29 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 381
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/585
VETERANS' APPEALS DIVISION )
Re ASHLEY JOHN FRANKLIN
GROVESApplicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date29 April 2003
PlaceBrisbane
Decision The decision under review is affirmed. This means Mr Groves' application for review is unsuccessful. ...................(Sgd)...........................
EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – whether rate of pension properly assessed – special rate – whether the applicant is entitled to pension at the special rate – whether the applicant’s accepted disabilities alone prevented him from working – ameliorative provision – whether accepted disabilities were the “substantial cause” for the applicant being unable to obtain or continue in remunerative work
Veterans’ Entitlements Act 1986 ss 6C, 23(1)(c), 23(3)(b), 24(1), 24(2)(b), 120(4)
Forbes v Repatriation Commission (2000) 101 FCR 50
Flentjar v Repatriation Commission (1997) 48 ALD 1Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564Cavell v Repatriation Commission (1988) 9 AAR 534
Hornery and Repatriation Commission [1998] AATA 602
Fox v Repatriation Commission (1997) 45 ALD 317REASONS FOR DECISION
29 April 2003 Dr EK Christie, Member 1. This is an application by Ashley Groves for a review of a decision by the Veterans’ Review Board (“VRB”) made on 1 May 2001 that decided to affirm the decision under review that his pension continue at 100% of the General Rate.
2. In reaching its decision, the VRB concluded:
“21. In summary, the Board finds that it is not the veteran’s accepted disabilities alone, which prevent him from working or continuing to work, and it does not accepted [sic] that he has been genuinely seeking to engage in remunerative work since leaving his last paid employment. It also does not accept that he left his last paid employment because he was unable to continue solely because of his accepted war caused disabilities.” (T4, Folio 80)
3. At the hearing, Mr D O’Gorman of Counsel represented Mr Groves. The respondent was represented by Mr D McAninly, a Departmental Advocate.
4. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) and the various documents tendered by the parties.
5. Oral evidence was given on behalf of the applicant, by Mrs Helen Coles, an Occupational Therapist in private practice, Dr Julie Conway, a General Practitioner and Dr Ivan Yaksich, Director, Back Rehabilitation and Pain Management, The Noosa Hospital and Specialist Centre. The respondent called no witnesses.
Facts
6. Mr Groves rendered service as a member of the Defence Force from 22 October 1962 to 21 October 1966. Mr Groves’ four months service in Vietnam, from 31 May 1966 to 15 August 1966, is regarded as operational service under section 6C of the Veterans’ Entitlements Act 1986 (“the Act”).
7. Mr Groves has the following accepted service-related disabilities:
(a) Flat feet with chronic sprain ankles
(b) Osteoarthritis right knee
(c) Bilateral sensori-neural hearing loss
(d) Osteoarthrosis of right shoulder
(e) Cervical spondylosis
(f) Diabetes mellitus(g) Ischaemic heart disease.
8. The following conditions are non-service-related disabilities:
(a) Supraspinatus tendonitis of right shoulder
(b) Osteoarthrosis of right first metatarsophalangeal joint
(c) Osteoarthrosis of left knee
(d) Lumbar spondylosis(e) Rotator cuff syndrome of right shoulder.
Issues To Be Decided
9. The issue for the Tribunal to decide was whether Mr Groves received the correct pension entitlement. Specifically, whether he was entitled to be paid at either the Special Rate or the Intermediate Rate. Subsection 24(1)(a) was not in issue. However, subsections 24(1)(b) and 24(1)(c) were the relevant provisions of the Act in dispute. Mr O'Gorman stated at the commencement of the hearing that in relation to the latter provision, the applicant would be relying on the “ameliorating provision”, subsection 24(2)(b).
Examination of Evidence
· Ashley Groves, Applicant
10. Mr Groves said he joined the Army in 1962, aged 18. He had no pre-service qualifications. On leaving the Army in 1966 he commenced work with Woolworths as a storeman and worked his way up to a store manager. He left this job in 1972 in order to become self-employed.
11. During the period 1972 to 1980, he said that he was self-employed, working as a truck driver, as well as local taxi-truck work, some tip truck work and domestic fencing work. Mr Groves said that he decided at the end of this time to move to salaried employment.
12. Mr Groves said he then commenced work with Cobbity Farm Bakeries in a role combining managing and overseeing vendor runs. This work involved a great deal of heavy physical work; lifting and carting of bread crates gave him a great deal of shoulder and neck problems. Other physical problems he had undertaking bread runs related to knee problems and getting into and out of trucks, as well as difficulties standing due to his feet and ankles.
13. Because of the work stress and some coronary concerns and his physical problems, he decided to leave this job. From 1993 to 1996 the only job he could find was truck driving – notwithstanding that the nature of the work led to orthopaedic problems with his shoulders, neck and knees.
14. His next job was to manage a landscape business in 1997/98. Because of the physical nature of the work and his orthopaedic complaints, he could only continue this work for four months and left this job in January 1998.
15. Mr Groves stated that he had no formal or business qualifications, that he was not computer literate and that he could only work in jobs which required labouring or truck driving. However, he did not believe that he could continue this style of work because of his orthopaedic conditions. Particular problems he identified were:
(a) tying down a load;
(b) operating the accelerator and brakes;
(c) climbing into and out of trucks; and(d) pivoting of his neck whilst driving.
16. Mr Groves gave the following account of his efforts to find paid work:
(a)He went to Centrelink Gympie around mid-1998 but stated that Centrelink were disinterested in him because he was seeking work – rather than the dole; he could see no point in the dole. Eventually, Centrelink provided him with a job search number which enabled him to register with employment agencies.
(b)He first registered with CHR Employment, Gympie and had applied through them for a number of sales rep jobs. He completed job application forms, as well as some training in interview skills. However, he was unsuccessful in finding any position.
(c)He registered with Employment National, Gympie but was unsuccessful in jobs for which he had submitted applications. Nor was he recommended for any position by this group.
(d)He had also registered with Wide Bay Training [now Skill Share] Gympie but was not referred to interviews for any of the jobs for which he had applied.
(e)He had unsuccessfully applied, independently, for a number of other (four to five) sales rep jobs but could not remember the specific details.
(f)He visited all of the above job network providers and Centrelink each week to check out the availability of job vacancies.
(g)He had responded to an advertised position as a factory hand at Nestle but was unsuccessful and referred back to his job/network provider (Skill Share). He had also left his details with the Works Department at Gympie Shire Council – but without any success.
17. During cross-examination, Mr Groves gave the following responses:
(a)He had bought 30 acres of land at Gympie as a place to live but could not look after it and so sold the property and now lived in Gympie.
(b)He could no longer do jobs around the home such as lawn mowing and climbing up a ladder.
(c)Because of problems getting into “low” motor cars, he drove an automatic 4WD [with cruise control] because he found it easier to get into and out of.
(d)He acknowledged that he went caravanning with his wife, but that they shared the driving; that his physical conditions required regular stops each hour.
(e)He acknowledged “a deteriorating back condition” that he had first noticed prior to enlistment. Notwithstanding this back condition, he had passed all Army training.
· Dr Julie Conway, General Practitioner of Applicant since August 1999
18. Dr Conway had prepared two reports on Medical Impairment Assessment (Exhibit R1, Folio 15-27 and Folio 41-46). She acknowledged that Mr Groves had surgery to the rotator cuff of his shoulder. Dr Conway agreed with the proposition that Mr Groves’ ankle disability would create employment difficulties for him in the labour market.
19. Dr Conway was referred to the Stress ECG undertaken by Mr Groves (Exhibit R1 - Dr Karrasch, 29 October 1998, Folio 5) in which Dr Karrasch had stated:
“In short then, I think we can reassure Mr Groves that he does not have significant coronary artery disease at this stage…”
Dr Conway stated that she was still “certain” Mr Groves has angina and it was possible for him to have coronary disease – even though the stress ECG test was normal.
20. Dr Conway acknowledged that in her Medical Assessment Report (Exhibit R1, Folio 25: 5 April 2000) that she had recorded, in terms of the “range of movement” in Mr Groves’ right and left ankles and right and left knees, that there was no, or minor, loss.
21. Dr Conway stated that since 2002 she had treated Mr Groves with a “range of treatments” for his lumbar spondylosis and the condition imposed limits on what he could do.
22. When asked by Mr O’Gorman, in reply, whether Mr Groves could engage in paid employment if he did not have lumbar spondylosis, Dr Conway replied:
“I am not certain that he would be able to do so.”
23. Dr Conway agreed with the proposition that Mr Groves’ ankle problems and right shoulder problem would prevent him from working.
24. In response to a Tribunal question, Dr Conway conceded that she had not taken diagnostic films into account in providing her opinion. On reviewing Dr Blue’s summary in 1986 and 1999 (Exhibit R1, Folio 57), Dr Conway conceded that degenerative disease in the lumbar spine was consistent with this diagnosis.
· Dr Ivan Yaksich, Director – Back Rehabilitation and Pain Management, The Noosa Hospital and Specialist Centre
25. Dr Yaksich acknowledged in relation to the lumbar spondylosis condition of Mr Groves that there may have been some degeneration at L5/L6 but on his investigation of the diagnostic tests, it was his opinion that “it was the L4/L5 level which I thought where there was significant degenerative change”.
26. Dr Yaksich stated that spondylosis, in itself, does not prevent people from working. Rather, it was the soft-tissue degeneration which occurred associated with this, due to an activity or some form of injury, which caused the pain and the disability.
27. Dr Yaksich was then asked by the Tribunal whether the pain and disability associated with lumbar spondylosis would preclude Mr Groves from undertaking paid employment. Dr Yaksich responded:
“Yes, if he’s got pain associated with those changes on the x-rays, then that makes them significant and that’s likely to stop him being able to do any sort of worthwhile work.”
28. In reply to a question in re-examination by Mr O’Gorman, Dr Yaksich stated that, notwithstanding pain and disability, it may be possible for Mr Groves to engage in “very light part-time work” and that he “had a good look at [Mr Groves] and did not regard him as being fit to return to…worthwhile work that would…be more than 8 hours per week”.
29. When asked by Mr O’Gorman in respect of which condition or conditions this statement was made, Dr Yaksich replied:
“Well, I think it’s a mixture of conditions in his case. He’s got… the shoulder problem, he’s got osteoarthritis of his knees and he’s got the lumbar spondylosis.”
30. Finally, Mr O’Gorman asked Dr Yaksich whether there were some types of work Mr Groves could still engage in, assuming that lumbar spondylosis was Mr Groves only disability. Dr Yaksich replied:
“Oh, certainly with back pain you can still do, you know, various types of work if you’ve got the skills to do lighter work. But it is unlikely that he would be employable on a – you know, on a remunerative sort of gainful basis.”
· Helen Louise Coles, Occupational Therapist
31. Ms Coles stated that whilst Mr Groves could carry out some tasks, he had the potential for some form of work. However, getting a paid job in the labour market was unrealistic. It was her opinion that Mr Groves’ combination of accepted disabilities could be expected to be a disadvantage for him to obtain, and to continue, in paid work. Ms Coles said that Mr Groves would be able to do any work that required lifting and repetitive flexion i.e. some bending of the whole body.
32. Ms Coles stated that her assessment of Mr Groves’ potential for paid work was an holistic assessment which considered his whole background – his disabilities, past work experience, educational level and identification of skills that may be transferable to other industries.
33. During cross-examination by Mr McAninly, Ms Coles gave the following responses:
(a)She could not recall having access to any x-rays in preparing her report.
(b)In reference to her statement in her report (Exhibit A3, page 10) that “[Mr Groves’] back condition would prevent him doing heavy lifting”, Ms Coles stated that she had assessed his upper limit of bilateral lifting from floor level at 12 kg; that his method of lifting was asymmetrical [to accommodate his right shoulder and right knee pain and his reported lower back pain and discomfort]; that Mr Groves was able to lift 10 kg with his right hand and left hand individually.
(c)With respect to the opinion expressed in her report (Exhibit A3, page 11) that Mr Groves’ “upper limb operational efficiency was indicated to be adequate for requirements of light tasks of a short duration within each reach”, Ms Coles stated that the tasks he could perform:
“could be of [a] work related nature or even just tasks in activities of daily living. He has the ability to reach within his immediate – or to carry out, grasp and release light objects, within his immediate reach just for short periods on and off.”
(d)That in performing tests, such as Mr Groves’ grip strength, that it was based on actual instrument measurement, as well as observations on whether “he was performing to the best of his ability” together with the extent of variation or consistency in the measures recorded.
34. Ms Coles gave the following respects to questions raised by the Tribunal:
(a)That her approach to assessment was to take a history from Mr Groves, to carry out a clinical examination and to then undertake a series of tests from the perspective of an occupational therapist.
(b)That, as far as predicting long term capabilities in relation to functional capacities, she was “really dependent on the orthopaedic prognosis because that is the role of the orthopaedic surgeon or neurologist, so in staying within my own area of discipline, I’m really assessing the person as I see them”.
(c)In terms of Mr Groves’ lumbar disc degeneration being a factor affecting Mr Groves’ work capacity, Ms Coles stated:
“Well, I suppose I really can’t answer that strictly because I don’t have access to the – any x-ray reports that … may have been provided because I know I wouldn’t have the x-rays, so I suppose I can’t answer that strictly.”
Contentions and Submissions of the Parties
35. Mr O’Gorman commenced by addressing the issue whether subsection 24(1)(b) of the Act was satisfied – whether Mr Groves was capable of undertaking remunerative work of more than 8 hours per week. Mr O’Gorman submitted that the opinion expressed by Dr Yaksich and Ms Coles indicates that the case for Mr Groves was that he could not work more than 8 hours per week. He referred to the opinion of Dr Doughty (Exhibit R6) that suggested that Mr Groves could work 8, perhaps 20 hours, but a work trial was required to resolve this issue. Mr O’Gorman then referred to Dr Yaksich’s opinion in which he had stated that he regarded Mr Groves “as being totally and permanently disabled for the purpose of returning to gainful employment as he was doing previously in his last occupation”.
36. Mr O’Gorman contended that Mr Groves satisfied the subsection 24(1)(c) requirement as it was the accepted war-service disabilities alone that prevented him from continuing to undertake the remunerative work that he had been undertaking.
37. To support this contention, Mr O’Gorman relied on Ms Coles’ opinion that it was the combination of Mr Groves’ accepted disabilities that prevented him from obtaining and therefore maintaining himself in remunerative work. Mr O’Gorman further contended that the specific tests Ms Coles had performed to evaluate Mr Groves’ lifting ability, with respect to his right and left hands, as well as bilateral lifting from floor level, were indicative that his lumbar spondylosis was not a condition that would interfere with his ability to engage in remunerative work. In addition, Mr O’Gorman referred to Dr Yaksich’s opinion that Mr Groves was totally and permanently disabled with respect to returning to gainful employment.
38. Mr O’Gorman then addressed the ameliorative provision of section 24(2)(b) and contended that this subsection was satisfied. He stated that, over time, Mr Groves had sought employment through Centrelink, Employment National, Wide Bay Training [Skill Share], as well as applying for other positions that he had seen advertised elsewhere. Throughout the time he was registered with the various employment providers he had remained in weekly contact with them. It was Mr O'Gorman’s contention that Mr Groves was genuinely trying to find alternative work.
39. Mr O’Gorman submitted that the explanation for Mr Groves’ lack of success in finding employment was because his accepted disabilities, alone, prevented him from engaging in remunerative work – given his wide cross-section of experience in the work force and benefits for prospective employers. In addition, whilst acknowledging Mr Groves’ non-accepted disabilities of lumbar spondylosis and rotator cuff syndrome, Mr O’Gorman submitted that Mr Groves could find remunerative work in other occupations because of his work experience – but which did not involve repetitive bending and lifting. The limitations imposed by lumbar spondylosis in this regard, for work, could be so avoided.
40. In terms of eligibility for Intermediate Rate, Mr O’Gorman stated “that the submissions I’ve made in relation to Special Rate would be equally applicable to the Intermediate Rate”.
41. Mr McAninly submitted that Mr Groves did not satisfy the “alone test” as there was a combination of conditions – rather than his accepted war-caused injuries or disease, solely, that prevented him from working. He contended that the medical opinion evidence before the Tribunal was that Mr Groves’ lumbar spondylosis was a substantial disability. Furthermore, Ms Coles’ opinion was that it was a combination of Mr Groves’ back, knees, ankles and possibly his shoulder that prevented Mr Groves from working. Furthermore, he submitted that Dr Yaksich’s oral evidence was “that a mixture of conditions – cervical spondylosis, lumbar spondylosis and osteo of the knees that prevented Mr Groves from obtaining or continuing in work”.
42. In terms of Mr Groves’ continuing, or seeking to engage, in paid employment, Mr McAninly submitted:
(a)Mr Groves had resigned from his job with Cobbity Farm Bakeries in 1993 because of his angina. However, he submitted the medical evidence before the Tribunal was that the angina condition was now “very, very mild and not having great effect on [Mr Groves]”.
(b)Mr Groves had worked 60 hours a week as a landscape supply manager for four months [1997/1998] but had taken no time off during this period.
(c)Mr Groves had moved to a 30 acre farm in Gympie in 1998 where he ran a small number of livestock (6 beasts) and “planted some pumpkins”.. He had also restored the home on the property.
43. Mr McAninly contended that Mr Groves had “basically retired” and that he had not genuinely been seeking work. Furthermore, Mr McAninly submitted that Mr Groves would not be entitled to pension at the Intermediate Rate because he was not prevented from working between 8–20 hours a week because of his accepted disabilities alone.
44. Finally, Mr McAninly submitted that notwithstanding Mr Groves accepted and non-accepted conditions, Mr Groves could still do “any sort of light work even working in a hardware store or something like that where he doesn’t have to lift too much heavy weights…and somewhere where he had an opportunity to rest…take the weight off his knees or his ankles…”.. Mr McAninly then referred to the need for some form of structured work test, as referred to in Dr Doughty’s report.
Consideration of the Issues
45. The role of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Veterans’ Entitlements Act 1986.. The Tribunal has applied the following legal principles in its evaluation of the factual evidence.
(a) Legal Principles
46. The following approach was used in Forbes v Repatriation Commission (2000) 101 FCR 50 at 52 and 53 by RD Nicholson FCJ, to interpret and to apply the provisions of subsection 24(1)(c):
“That approach [ss 24(1)(c)] is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s 24(2).
The first limb of s 24(1)(c) reads:
‘(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…’
That limb must be read subject to the application of s 24(2)(b) which reads:
‘(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 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.’
The second limb of s 24(1)(c) reads:
‘(c)…..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’
This is to be read in conjunction with s 24(2)(a) which provides:
‘(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 reasons 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…’”
47. With respect to the requirements of subsection 24(1)(c), Nicholson J referred to the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 where the Court said that the issues before the Tribunal were:
“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?”
48. The above matters must be satisfied to the reasonable satisfaction of the Tribunal in accordance with the standard in subsection 120(4): Re Starcevich and Repatriation Commission (1986) 10 ALN 202; Re Doyle and Repatriation Commission (1986) 47 ALD 187. That meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’..”
49. The question of a combination of war service conditions and non-war caused conditions and undertaking remunerative work, was also considered by Nicholson J in Forbes v Repatriation Commission (supra) at page 57:
“The applicant’s case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). 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. The possibility of combination is recognised in the third conceptional environment identified in the applicant’s case. Furthermore, it is consistent with the application by a Tribunal of a common sense approach ‘with an eye to reality’.
As in the case of the present applicant, it is possible that the war-caused condition will be 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. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made.. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration” [Tribunal emphasis].
50. With respect to the third question identified in Flentjar, Burchett FCJ in Cavell v Repatriation Commission (1988) 9 AAR 534 agreed with the following statement by the Tribunal, in terms of it clearly revealing an application of the statutory test, in an unexceptional manner, to the material in evidence before the Tribunal:
“that it followed from the use of the word ‘alone’ in s.24, that any factor having employment consequences which played a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate” (Tribunal emphasis).
51. Section 24(2)(b) has long been interpreted as an ameliorative provision, as compliance with this subsection would excuse a veteran from having to meet the “alone” test as provided in subsection 24(1)(c).
52. In Re Hornery and Repatriation Commission [1998] AATA 602 (11 August 1998), the Tribunal stated [at para 41]:
“If a veteran falls within s.24(2)(b), the veteran is relieved from the ‘alone’ requirement in s.24(1)(c). In order to fall within s.24(2)(b) the veteran must satisfy the Commission (and now the Tribunal standing in the shoes of the Commission) that he or she ‘has been genuinely seeking to engage in remunerative work …’ and the Tribunal must also be satisfied that the veteran would, but for the incapacity, be continuing so to seek to engage and that war caused incapacity ‘is the substantial cause of his or her inability to obtain remunerative work’.” [Tribunal emphasis]
53. The meaning of the term ”substantial cause” was considered in Fox v Repatriation Commission(1997) 45 ALD 317. Kiefel J noted that this term “requires that, if the incapacity is not of itself productive of an inability to obtain work, it is nevertheless the operative factor which, more than any other explains it. That something might be a ‘substantial cause’ has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as ‘substantial’...”. (Tribunal emphasis).
(b) Evaluation of the Evidence
54. The first substantive issue the Tribunal has to consider is whether subsection 24(1)(c) is satisfied. The standard of proof is the reasonable satisfaction standard in accordance with the requirements of subsection 120(4): see Jackman’s case.
55. Following Flentjar’s case, the first step is for the Tribunal to identify the relevant remunerative work that had been undertaken. In Mr Groves’ case the remunerative work undertaken, over time, involved work as a truck driver, fencing contractor, “sales representative” with a commercial bakery and managing a landscape supply company.
56. In her report on the impacts of Mr Groves’ accepted and non-accepted disabilities and his ability to undertake work, Ms Coles, an Occupational Therapist, concluded (Exhibit A3, page 16 at paragraphs 8, 9):
“8. Because of his accepted disabilities, Mr Groves could be expected to have difficulty as follows:
· working with his right arm in extended reach;
· working with his right arm at or above shoulder level;
· working with his right arm in ongoing unsupported elevation;
· standing for extended periods;
· lifting heavy loads;
· lifting from low heights;
· repetitive lifting and carrying;
· driving a vehicle for extended periods;
· climbing in and out of a high vehicle or machinery;
· walking far on flat ground;
· negotiating other than flat ground.
9. His non-accepted disabilities alone restrict him from:
· bending or stooping for an extended period;
· heavy lifting under circumstances where appropriate postures could be utilised, deep bending through his knees;
· repetitive lifting under circumstances where appropriate postures could be utilised, deep bending through his knees;
· moderate to heavy work or arduous work placing considerable strain on his lower back.”
57. Based on an evaluation of all the evidence and information before the Tribunal, and applying the principles in Forbes’ case and Cavell’s case, the Tribunal can make no other conclusion than to find that it is a combination of accepted and non-accepted conditions that prevent Mr Groves from continuing to undertake remunerative work that he was previously undertaking. Specifically:
(a)The oral evidence of Dr Yaksich that it was a mixture of conditions – shoulder problem, osteoarthritis of the knees, lumbar spondylosis with respect to his ability to work (see paragraph 29).
(b)Dr Blue’s opinion, based on a chronological history of diagnostic x-rays from 1986 to 1999, that Mr Groves suffers from a well-established multi-level cervical and lumbar disc degeneration (Exhibit R1, T4, Folio 57). Dr Yaksich in his oral evidence also acknowledged significant degenerative change at L4/L5 of the lumbar spine.
(c)Dr Doughty’s report (Exhibit R6, 3 October 2001, page 5) that Mr Groves “does have marked lumbar spondylosis” and that this represents a “significant impairment for work”.
(d)Dr Conway’s evidence that she had been treating Mr Groves’ lumbar spondylosis condition since 2002 and that it imposed limits on what he could do.
(e)The concession by Ms Coles that her predictions of long term capabilities with respect to functional capacity was dependent on the orthopaedic prognosis. In addition, her oral evidence that she could not “strictly answer” whether Mr Groves’ lumbar disc degeneration was a factor affecting his work capacity.
58. The next substantive issue for the Tribunal to decide is whether the ameliorative provision of subsection 24(2)(b) is satisfied in Mr Groves’ circumstances. This ameliorative provision has two elements, or preconditions, that must both be satisfied: whether the accepted service-related disabilities are the “substantial cause” of Mr Groves’ inability to obtain remunerative work in which to engage. In addition, whether Mr Groves has been genuinely seeking to engage in remunerative work, but for his accepted service-related disabilities he would be continuing to seek to engage in remunerative work. Both elements (or pre-conditions) must be satisfied.
59. The Tribunal firstly considers the “substantial cause” element of subsection 24(2)(b) by evaluating the factual evidence against the interpretation of “substantial cause” applied in Fox’s case.
60. The history Mr Groves has given to medical/allied health professionals is one in which pain and disability is a common feature:
(a)Dr Yaksich refers to Mr Groves ceasing work because of his pain disability and incapacity (Exhibit R1, T4, Folio 73) and Dr Yaksich’s oral evidence on pain and disability, lumbar spondylosis and ability to undertake remunerative work is also relevant (paragraph 27).
(b)Dr Blue refers to a complaint of flat feet causing Mr Groves problems when standing when he develops pain in his right hip and back (Exhibit R1, T4, Folio 56).
(c)Ms Coles’ report contains the following history:
“iv) Lumbar spondylosis: He has had lower back pain ‘for years off and on, mainly when something happens to it’.. It is aggravated by standing for long, walking on rough ground and ‘lifting wrong’, lifting asymmetrically to protect the right leg and then it comes across from the right hip. He has to alternate between sitting and standing because of pain. He needs to keep moving to minimise back pain but this in turn aggravates his flat feet and ankles.” (Exhibit A3, page 4)
61. In addition, a letter from RW & G Johnston Pty Ltd (trading as Morayfield Landscape Supplies Pty Ltd) stated that Mr Groves resigned because of constant pain which made it difficult to carry out and perform his every day duties (Exhibit R1, T4, Folio 74).
62. In his oral history to Ms Coles, in relation to his resignation from Morayfield Landscapes Pty Ltd, Mr Groves makes reference to “persever[ing] as long as he could [in this job] but realised he simply could not cope because the pain intrusion was having a significant negative impact on his physical and emotional functioning” (Exhibit A3, page 9).
63. Dr Yaksich’s oral evidence to the Tribunal was that it was the pain and disability associated with soft tissue degeneration, because of spondylosis, that prevented people from working. Moreover, Dr Yaksich stated that in Mr Groves’ circumstances, pain and disability associated with lumbar spondylosis would be likely to prevent him from doing any worthwhile work (see paragraphs 27, 30).
64. In regard to this evidence, the Tribunal concludes that it is reasonably satisfied that an analysis of the sources of Mr Groves’ pain and disability with respect to his lumbar spondylosis/lower back pain is not wholly confined to lifting and repetitive flexion activities or tasks, as a number of additional activities or tasks cause the problem - as can be clearly adduced from his oral history given to medical/allied health professionals.
65. In terms of some of Mr Groves’ other accepted disabilities, the Tribunal concludes:
(a)that his ischaemic heart disease (angina pectoris) is not significant at this stage (Dr Karrasch, Exhibit R1, T4, Folio 5; Dr Doughty, Exhibit R6, page 4);
(b)that his diabetes mellitus is satisfactorily controlled by diet, and that he has not developed any side effects or long-term complications; nor has he had any acute complications in the preceding twelve months (Dr Conway, Exhibit R1, T4, Folio 22);
(c)that Mr Groves has no, or minor loss, in the range of movement in both knees and ankles (Dr Conway, Exhibit R1, T4, Folio 22; Dr Blue, Exhibit R1, T4, Folio 57); and
(d)that his tinnitus condition is very mild (Dr Conway, Exhibit R1, T4, Folio 15).
66. Based on the above assessments and professional opinion, the Tribunal can make no other finding than to conclude that it is reasonably satisfied that Mr Groves’ accepted service-related disabilities are not the “operative cause” for his inability to obtain or to continue in remunerative work. Rather, it is the combination of factors associated with his non-accepted service disabilities, specifically the pain and disability associated with his lumbar spondylosis, that is, the “substantial cause” of Mr Groves’ inability to obtain, or to continue in, remunerative work.
67. Given the above finding, Mr Groves cannot succeed with the ameliorative provision, subsection 24(2)(b), as the “substantial cause” element is not satisfied. Accordingly, the Tribunal has no need to consider the second element: whether Mr Groves was genuinely seeking to engage in remunerative work.
68. Accordingly, for all of the above reasons, Mr Groves is not entitled to pension payment at the Special Rate.
69. Finally, the Tribunal considers whether Mr Groves is entitled to pension payable at the Intermediate Rate.
70. There are three criteria which must all be established for eligibility for pension payable at the Intermediate Rate. The central issue in this case is whether subsection 23(1)(c) and 23(3)(b) are satisfied. These statutory provisions are equivalent to the statutory provisions, subsection 24(1)(c) and 24(2)(b), that apply to Special Rate applications. Accordingly, in order to satisfy the first criteria for Intermediate Rate, Mr Groves must be able to establish:
(a)that it is “by reason of incapacity from war-caused injury or war-caused disease, or both, alone” that prevents him “from continuing to undertake remunerative work that he had been undertaking”; and
(b)that he is continuing to seek to engage in remunerative work and that incapacity is the substantial cause of his inability to obtain remunerative work in which to engage.
71. The “alone” test [subsection 23(1)(c)] and the first element of subsection 23(3)(b) – the “substantial cause” test - have been subject to evaluation and findings by the Tribunal with respect to Mr Groves’ application for Special Rate (section 24).
72. Given the Tribunal’s earlier reasoning and findings in this regard, the Tribunal is reasonably satisfied that Mr Groves cannot succeed in the “alone” test and the “substantial cause” test at the requisite level of proof imposed by subsection 120(4). As all three criteria imposed by subsection 23(1)(a), (b) and (c) must be satisfied, the Tribunal can make no other finding than to conclude that Mr Groves is not eligible for pension payable at the Intermediate Rate.
73. For all of the above reasons, the Tribunal decides to affirm the decision under review. This means Mr Groves’ application for review is unsuccessful.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .......................................................................................
AssociateDate of Hearing 12 December 2002
Date of Decision 29 April 2003Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Messrs Gilshenan and Luton
Solicitor for the Respondent Mr D McAninly, Departmental Advocate
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