Harrison and Repatriation Commission
[2004] AATA 774
•22 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 774
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/297
VETERANS' APPEALS DIVISION ) Re KENNETH JAMES JOHN HARRISON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date22 July 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS - disability pension - rate of pension payable - special rate - type of remunerative work that the veteran had previously undertaken - applicant not prevented from continuing to undertake remunerative work for war-caused reasons alone - non war-caused reasons for ceasing remunerative work - decision affirmed.
Veterans’ Entitlement Act 1986 (Cth) s 24(1)(c), s 120(4)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Banovich v Repatriation Commission (1986) 69 ALR 395
Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96
Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47
Wiegand v Comcare Australia (2002) 72 ALD 795
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Re Laugher and Repatriation Commission (1985) 11 ALN N56
REASONS FOR DECISION
22 July 2004 Deputy President D G Jarvis 1. The applicant, Kenneth James John Harrison, is a Vietnam veteran. He currently suffers from the accepted disabilities of giaria lamblia infection, dermatitis, irritable bowel syndrome, chronic bronchitis, emphysema, post traumatic stress disorder (“PTSD”), gastro-oesophageal reflux, and alcohol dependence or abuse. He also suffers from various conditions that have been rejected as war caused. These latter conditions are internal derangement right knee, an asserted left knee condition (where, however, no incapacity was found), osteoarthritis of both knees, gout and localised osteoarthritis of the right and left knees.
2. On 8 June 2001 the applicant lodged an application for an increase in his disability pension for his accepted conditions. On 15 October 2001 the respondent refused the application for an increase and continued to pay the pension at 90% of the general rate. On 5 November 2001 the applicant lodged an application for review of that decision with the Veterans’ Review Board (“VRB”). On 6 March 2002 the applicant lodged a claim for acceptance of further conditions that were diagnosed as chronic bronchitis and emphysema. These latter conditions were accepted as war caused on 23 April 2002 and, in conjunction with the previously accepted war-caused conditions, the respondent decided that the applicant was eligible to be paid at 100% of the general rate from and including 6 December 2001. In a reviewable decision dated 17 June 2002, the VRB set aside the decision of the respondent dated 15 October 2001 and substituted its own decision that the pension be assessed at 90% of the general rate from and including 8 June 2001 to 5 December 2001 and at 100% of the general rate from and including 6 December 2001. The applicant applied to this Tribunal for review of the decision of the VRB.
3. At the hearing before me the applicant was represented by Mr C Swan, solicitor, and the respondent was represented by Mr G Doube, an advocate employed by the respondent. The applicant and Professor Krishnan gave evidence to the Tribunal. The applicant tendered the documents that were initially provided under s 37 of the Administrative Appeals Tribunal Act 1975 (exhibit A1) and the respondent tendered additional s 37 documents that were later provided to the Tribunal (exhibit R1). A number of other documents were also tendered and will be referred to as appropriate in these reasons. The Tribunal has carefully considered all of the evidence and documents submitted by the parties.
Issues for Determination
4. The applicant’s entitlement to the special rate of pension is to be determined under s 24 of the Veterans’ Entitlement Act 1986 (Cth) (the “VE Act”). It was common ground that the applicant satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70% of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in s 24(1)(a)(i) and s 24(1)(b) respectively of the VE Act.
5. The issue before the Tribunal is whether the applicant satisfies s 24(1)(c) of the VE Act, that is:
· whether he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking; and
· whether in consequence he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
The applicant agreed that the ameliorating provision contained in s 24(2)(b) does not arise for consideration.
6. I have reached the conclusion that the applicant does not satisfy the requirements of s 24(1)(c) in that he is not prevented by reasons of his war-caused injury or disease alone from continuing to undertake remunerative work that he had been undertaking. I have also decided that in any event, the applicant ceased to engage in remunerative work for reasons other than his incapacity from his war-caused conditions and, accordingly, he fails the deeming provision contained in s 24(2)(a)(i).
Legislation
7.Section 24(1)(c) and s 24(2)(a) of the VE Act provide 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
…
(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; … .”
8. If s 24(1) of the VE Act applies to a veteran, he or she will be entitled to a pension at the special rate provided for in s 24(4).
Background and Evidence
The Applicant’s Evidence
9. The applicant gave oral evidence to the Tribunal and provided a signed statement (exhibit A4). In the course of examining the applicant’s work history I have had regard to the career history that is recorded at exhibit R1, page 31.
10. The applicant was born in Adelaide on 17 February 1944 and was educated to intermediate level at Unley High school. Upon leaving school he obtained an apprenticeship with Perry Engineering as a fitter and turner. He was employed in this position for five years. The applicant obtained his trade qualifications when he was 21 and relocated to Western Australia where he worked for Coppers Clough for 12 months.
11. After marrying in 1967, the applicant joined the Army and was posted to Kapooka for basic training for three months. In the course of that training he injured his right knee resulting in medical treatment and hospitalisation for approximately one week. The applicant was subsequently posted to Puckapunyal, where he remained until March 1970. While at Puckapunyal the applicant underwent knee surgery followed by rehabilitation and physiotherapy, and later further rehabilitative treatment was provided when the applicant aggravated his knee injury. He was then posted to Canungra, certified as medically fit and then sent to Vietnam where he was based at Nui Dat.
12. In Vietnam the applicant served as a gunner. He was engaged in operational duties, including contact with the enemy. While the applicant was in Vietnam, his marriage came to an end. In August 1970, after six months in Vietnam, the applicant returned to Adelaide and was admitted for two weeks to the Repatriation General Hospital with a skin disease. He was released to the Keswick barracks and was subsequently discharged as mentally unfit on 2 December 1970.
13. After his discharge, the applicant obtained work as a commission based salesman with Peter F Burns. After three months the applicant left because he was unable to secure any commissions. He then worked for Adelaide Motors selling Datsun cars, on a salary plus commission, but he reports in his statement that he was unsuccessful in that position too. He left that job after witnessing an anti-Vietnam protest walking past his workplace.
14. Following a period of unemployment, the applicant obtained a position with Long Year Australia in Queensland as a driller’s offsider. He walked out of this job after about three months and returned to Adelaide. After a further period of unemployment, the applicant was employed for 12 months at Kentucky Fried Chicken. This position came to an end after the applicant argued with his manager. He then worked for 12 months with Firestone Tyres where he had some “problems” and was asked to leave when that business closed down. In about November 1978, the applicant married for a second time and remained married for 13 years.
15. In 1979 the applicant was employed by Mobil Refinery in Adelaide. He remained with that company as a refinery operator until 1989. His duties included quality control, and running occupational, health and safety training. The failure of the applicant’s second marriage affected the quality of his work and led him to give up this job. He was unemployed for about one year following his decision to quit as a refinery operator.
16. In 1989 the applicant married again and moved to Queensland. Initially he operated a lawn mowing and garden landscaping business but reports in his statement that he was unsuccessful in this endeavour and the business collapsed. The applicant was subsequently employed by Petroleum Fuels and Lubricants at Underwood, a fuel distributor with some 300 employees. He was initially employed as a salesman but eventually became a health and safety officer until he was retrenched in 1992. At the time of his retrenchment he was having disputes with the management of Petroleum Fuels. I note that the applicant’s career history, contained in exhibit R1, records that he was employed with Petroleum Fuels before he commenced the gardening business, but the exact order of these positions is not crucial to my findings and any confusion on the applicant’s part is understandable after more than 10 years.
17. After Petroleum Fuels, the applicant gained part-time work as a driving instructor and left that in February 1994 to take up full-time work with the Bradken Foundry. The applicant worked for the Bradken Foundry at Ipswich as an occupational health and safety officer and rehabilitation trainer for a little over a year but was retrenched after disputes with the managers. During this time the applicant was drinking heavily and his third marriage came to an end. Between 1995 and 1996 he worked for about 12 months for G James Glass and Aluminium at Eagle Farm. This position involved fabrication of aluminium window frames and came to an end when the applicant left to become a correctional officer in August 1996. The applicant was employed by Borallon Prison as a correctional officer until he was assaulted by some prisoners in January 1997. After a period on workers’ compensation, the applicant was unemployed for around three months and then commenced employment as a bread slicer in Dances Bakery. That position lasted for around five months but came to an end because the applicant was unhappy in that work; he said he kept to himself and he wanted to improve his position.
18. From 1 July 1997 to 2 April 1998, the applicant was employed as a plant operator, on a shift work basis, by Oil Recyclers Australia (“Oil Recyclers”). After five or six months, until March 1998, the applicant was transferred to a service station run by Oil Recyclers where he was responsible for the day-to-day running of the station. That station was sold and the applicant was transferred back to the Oil Recyclers plant where he was employed as the off-sider to the maintenance fitter. That position involved climbing towers and ladders, turning valves, loading and unloading goods, walking around the plant and monitoring equipment, and required a moderate level of fitness. The applicant reports that he was involved in a number of conflicts with management and other employees while he was employed with Oil Recyclers. The manager, Mr Peter Maher, eventually told the applicant that the plant was going to be shut down and shortly afterwards, on 2 April 1998 the applicant was retrenched due to a “lack of work”. In a letter dated 8 February 2000, Mr Maher states that the applicant had “many and varied difficulties, including relationship problems, interacting with other staff members, and showed signs of an increasing drinking problem. He consistently had difficulty carrying out tasks requested of him … .” (exhibit R1, page 114). Page 3 of exhibit R1 records that the reason for the applicant leaving that position was that the business collapsed. He subsequently discovered, through a conversation at the local hotel, that the plant continued to operate for a period of some years after he was dismissed. In a facsimile dated 31 January 2003 to the applicant’s solicitors, Mr Etchells, replying on behalf of Mr Maher to a facsimile from them to Mr Maher, confirmed that Oil Recyclers ceased operations and closed in May 2003, but employed plant operators up until that time (exhibit A2). The applicant has not worked since this employment ceased in 1998.
19. The applicant attended at Palmbeach Centrelink and applied for a number of jobs but was not successful. He does not know why he was not successful. In his statement, the applicant says that in about June 1998 he began to experience swelling in his left and right knees and sought treatment from Dr Carlyle at Elanora in Queensland. In November 1998, the applicant moved from Hattonville to the Gold Coast to live with his mother. While living with his mother, the applicant attempted an Information Technology course but stopped after three months as he found it “very stressful” (exhibit A4 page 5). The applicant explained that he drinks alcohol and that causes him to be irritable, upset and inclined to stagger.
20. With respect to his health at the time that the applicant ceased to work for Oil Recyclers, the applicant said that whilst he had some symptoms of gouty arthritis, he was able to get around Oil Recyclers and do his job. He said that about a month or two after leaving Oil Recycles, his knees swelled up and he required crutches for a little while, and a walking stick for a period of time. The applicant put this deterioration down to swelling of the knees due to gout brought on by the applicant’s increased drinking. It was during the period when he required walking aids that he saw Dr Carlyle and completed a claim for a pension from Centrelink. As for the present state of his knees, the applicant said that he takes Vioxx for his arthritis in various joints, and the medication appeared to be keeping the swelling down. He said he was able to get around despite his knees, just as he had with his work at Oil Recyclers, but during cold nights the applicant’s knees become more painful and can seize up. He agreed that he suffers from sleep apnoea and that this causes him disturbed sleep, leading to tiredness during the day. He said that he could work despite his knees if he held a position in which he could sit down to work.
Professor Jegan Krishnan’s Evidence
21. Dr Darby was the applicant’s treating orthopaedic specialist but, by the date of the hearing of this matter, he had retired. Following the conclusion of the hearing, Professor Krishnan provided a report dated 26 August 2003 (exhibit A7) which extracted information from the medical notes of Dr Darby held by the Repatriation General Hospital. Following a directions hearing the Tribunal granted leave to re-open the matter and receive evidence from Professor Krishnan. To that end the applicant underwent a consultation with Professor Krishnan on 18 November 2003. On 2 April 2004, a resumed hearing was held in the course of which Professor Krishnan gave evidence, and a further report dated 26 November 2003 was tendered in evidence (exhibit A8).
22. In exhibit A8, Professor Krishnan records that in the mid 1980’s the applicant had a right knee reconstruction which was unsuccessful, and that the applicant stated to Professor Krishnan that he has no cartilage in the right knee joint and feels “bone on bone”. The Professor records in his report that although the applicant has a full range of motion in both knees and has a good gait, the knee condition affects the applicant in the following ways:
(a) he is unable to walk distances over approximately 500 metres;
(b) he cannot walk down stairs unless he takes great care and moves slowly;
(c) he is unable to squat and bend down;
(d) his legs feel weak all the time;
(e)he is unable to stand for long periods of time without sitting or walking to rest his knees; and
(f) he cannot partake of any sporting activities.
In his report of 26 November 2003, the Professor also reports that “I feel that [the applicant’s] knee condition does not prevent him from undertaking remedial work” (emphasis added).
23. When the Professor was asked what he meant by “remedial” work, he replied that he was unsure whether that was a typographical error and that he actually meant to record the word “remunerative” instead. He further explained that he understood remedial duties in a WorkCover context and it meant that the applicant would not be prevented from undertaking modified duties in flexible conditions in a suitable position. In any event, he said, that the reference to remedial work was correct in its context because he did not think that the applicant would be able to perform remunerative work, if remunerative work meant making a significant living from a job. Specifically, Professor Krishnan reported that the knee condition caused the applicant discomfort, pain, swelling and restricted movement to a degree. He also said that the knee condition caused a secondary problem in the ankle. Professor Krishnan was of the view that the applicant could not perform heavy manual labour or work involving long periods of walking and standing and would require periods of rest. As for climbing, Professor Krishnan said the applicant could do so intermittently but he warns against climbing ladders because of knee weakness and the risk of falling. The Professor was asked whether the applicant could perform the duties of a bread slicer and he replied that if it was for a prolonged period then it would be a struggle. The Professor also explained that, from his experience with other patients who are correctional services officers, he believed that the applicant would require modified duties in order to carry out the work of a correctional services officer. He believed that a position involving a fair degree of standing or manual work would be difficult for the applicant, as would a position in which he had to kneel, or get in and out of vans, or sit for an extended period of time in a car. In particular, he said that sitting in a car would make the applicant’s knees stiff and cause them to ache. He said it may or may not cause a significant level of discomfort. In summary, the Professor confirmed that of the various types of work that were put to him in the course of his evidence, the applicant’s knees were a factor contributing to his inability to work.
Other Evidence Concerning the Applicant’s Health
24. At the time that the applicant ceased work at Oil Recyclers he was a patient of Dr Burrell. The medical notes of Dr Burrell record that the applicant saw Dr Burrell on 12 May 1988 for a right foot problem (exhibit A3). The applicant confirmed that at that time he was suffering from gout and that he was prescribed Voltaren.
25. In a “Lower Limb (Multiple Joint) Condition Medical Impairment Assessment” dated 14 August 1998, Dr Carlyle, the applicant’s subsequent treating doctor, reported that the applicant constantly experienced pain when he put weight on the affected joint, being the knee, required crutches and the applicant “avoids stairs because of knee pain” (exhibit R1, page 15). He further reported that the applicant’s knee pain “restricts walking to five metres” (page 16).
26. The Tribunal also has before it a treating doctor’s report from Dr Carlyle for the purposes of an application for a disability support pension from Centrelink. That report is dated 22 September 1998 and records that the applicant has osteoarthritis of both knees with a “long history of injury to [the] Right Knee” (exhibit R1, page 83). In Part B “work ability” the doctor ticked the box indicating that the applicant was unable to “lift, carry and move objects” (page 86). There is no reference to PTSD in this medical report.
27. On 23 September 1998, the applicant completed an “Income Support Pension Claim” form to which the career history referred to above was attached (exhibit R1, pages 29 – 33). That form records, at question 3, that the applicant could not, at that point, “stand/walk without the aid of crutches”, and he was prone to “stress out frequently” (exhibit R1, page 29). The first page of that form also records that the applicant’s knee condition was degenerating and that he could not drive more than 5 to 10 minutes (page 29).
28. In a “Medical Permanent Incapacity” form also completed by Dr Carlyle on 1 December 1998, the doctor reported that the applicant suffered from a permanent knee disability with a good prognosis provided there was “reconstruction or replacement” (exhibit R1, page 35). The applicant confirmed in cross-examination that he had not undergone either of these procedures since seeing Dr Carlyle. Dr Carlyle also records that the applicant was in middle management and was unable to “mobilise” (page 36). In cross-examination, the applicant said that at the time he was on crutches and was mobile to that extent, but he agreed that he was not performing sedentary middle management work at Oil Recyclers.
29. In an “Ability to Work” form dated 6 January 2000, Dr Farmer, a departmental medical officer, reported that the applicant suffered from, amongst other things, gout and osteoarthritis of both knees and internal derangement of the right knee, as well as osteoarthrosis in his hands, wrists, shoulders, elbows, hips and mid spine. Dr Farmer also reported that the applicant’s joints affected his ability to work in the following way:
“Joints. Apparently a major limitation on work ability. Walking much curtailed, cannot readily bend, lift + twist, cannot lift and even minor loads [are] difficult.” (exhibit R1, page 57).
30. Repatriation General Hospital records dated 23 July 2001 indicate that, at that time, the applicant’s knees were chronic, especially on the right side, and that he had been told he needed a new knee joint. The notes also record that at that time, the applicant suffered with lower back, hip, knee, shoulder and ankle problems, but that a wrist problem was improved since seeing Dr Goldblatt. Dr Walker, the author of the notes, opines that the ankles and feet are most probably symptomatic of gout and referred the applicant to a combined multidisciplinary clinic (see exhibit A5). The Repatriation General Hospital notes also contain a report dated 24 July 2001 from Dr Walker, rheumatology registrar, to Dr Klaveniek in which Dr Walker reports that:
“His main concern is of chronic pain in both knees, more prominent on the (R). He has had (R) knee pain for some 32 yrs now following an Army-related injury. In the past he has been told that he will require a knee replacement and had been reluctant to consider this therapy. However, it is something that he is becoming more open towards.
…
In summary, this man has wide-spread Osteoarthritis, particularly involving the (R) knee and probable gout. I have arranged for his referral to the Combined Clinic for consideration of knee replacement … .”
31. A note from the combined clinic dated 14 December 2001 records that the applicant’s right knee is worse at night, and that his walking limitation is 300 yards resulting in pain. It further records that the applicant will eventually require a knee replacement.
32. An entry by Dr Gabb, a heart specialist, dated 25 June 2003 records in the Repatriation General Hospital notes that the applicant suffers from various conditions, amongst which the doctor lists obstructive sleep apnoea. Another entry dated 28 July 2003 by K Ridley, an occupational therapist, records that the applicant is experiencing functional difficulties with his left wrist resulting in difficulties in “towelling himself dry, opening jars, placing pressure through objects, turning steering wheel, turning on taps” (see exhibit A5).
Evidence Concerning the Reasons for the Applicant Ceasing Work
33. On 8 July 1998, the applicant completed a “Claim for Disability Pension and Medical Treatment” form in which he said, in answer to question 22 that his reason for ceasing work on 21 April 1998 was because he was retrenched (see exhibit R1, page 9). In a career history document filed with an “Income Support Pension” claim dated 23 September 1988, the applicant recorded that he ceased work with Oil Recyclers because the business collapsed (exhibit R1, page 31).
34. In his report dated 6 January 2000, Dr Farmer records that the applicant’s reasons for ceasing work were:
“Could not cope with pressure and decision making. V[ery] poor communication with others. Lack of confidence. Knees swollen and painful, arms and hands v[ery] weak and painful – could not write or use a keyboard.” (see exhibit R1, page 56).
I note that Dr Farmer does not refer to the applicant’s retrenchment. He does, however, report that the applicant stated that the “limb problems alone would have stopped him working” (exhibit R1, page 56). In answering a question from the Tribunal as to whether these answers, as recorded by Dr Farmer, were likely to be correct the applicant replied that at the time they were probably correct, but he only left Oil Recyclers because of his retrenchment.
35. The first of two medical reports from Dr Ewer, a psychiatrist, dated 7 January 2000, records that the applicant ceased work as a plant operator in 1998 because he was retrenched. This was followed by a period of unemployment and then bankruptcy. Notably, Dr Ewer does not report that PTSD was present or involved in the applicant’s retrenchment (exhibit R1, page 67).
36. On 11 July 2000 Dr Wright, an occupational physician, wrote that:
“[The applicant] was retrenched from his last employment. He was given no particular reasons other than that the firm was “making cut backs”, but he now understands, on the basis of a discussion with a plant manager and a letter provided by the plant manager, Peter Maher, dated 8/2/00, that he was behaving in ways that were considered unacceptable. Consistent with this, the advice that he was given that the plant was reducing its activity did not occur, and people who were laid off were rehired.
I asked him how his knee conditions affected his ability to work at the time of retrenchment. He said that he was able to physically do his work. He had some difficulty climbing ladders, and he had to take his time doing this, but there was nothing he could not do. His knees, particularly his right knee, ached in cold weather, and he had to get up and move from time to time if he was seated for long periods, perhaps after an hour or so.
…
In my opinion, non accepted disabilities are not preventing a return to work. His application for Disability Support Pension was based on complaints about his knees, but these do not seem to be now relevant to his disabilities. His reasons for leaving work will need to be confirmed with his last employer, but on the basis of the history presented to me, it appears that he was retrenched from his work because of behaviour caused by Post Traumatic Stress Disorder.” (exhibit R1, pages 117 – 119).
37. In a second report dated 20 November 2000 (I note that there is a third report dated 27 September 2001 at exhibit R1, page 8), Dr Ewer wrote that:
“Mr Harrison talked to me a little more about his last employment as a Plant Operator. He told me that his job involved controlling pumps and valves. He was climbing ladders but he managed this work despite his leg pain. Mr Harrison told me the problems he was having in the workplace were primarily as a result of his psychiatric problems. In particular he was in conflict with others and he had difficulty controlling his temper. His poor memory and concentration also interfered with his ability to work.” (exhibit R1, page 141).
38. A report from Dr Klaveniek, the applicant’s general practitioner for some three and a half years, dated 12 August 2003, states that he had first treated the applicant in late September 2000 and that the applicant was retrenched in 1988 “due to a down turn in business activities” (see exhibit A6).
Applicant’s Submissions
39. On the issue raised by s 24(2)(a)(i), Mr Swan, for the applicant, submitted that the applicant ceased to engage in remunerative work with Oil Recyclers because his PTSD and alcohol consumption caused him to be irritable, difficult to work with and argumentative with management. Mr Swan contended that this made the applicant susceptible to retrenchment, whereas the applicant’s colleagues would have been more likely to have kept their positions or enjoy subsequent reappointment. Whilst Mr Swan did concede that the state of the evidence on this issue was unsatisfactory, he urged the Tribunal to accept the events as recounted by the applicant.
40. It was also submitted on behalf of the applicant that he does not fail the alone test in s 24(1)(c). Mr Swan pointed out that the applicant has had a very long history of joint and knee pain however, despite his discomfort, this has not prevented the applicant from working. Mr Swan invited the Tribunal to find that while there was evidence, particularly from Professor Krishnan, that the applicant would struggle to engage in the types of work he had previously undertaken, and any work would have to be remedial and modified, that did not amount to evidence that the knee condition prevented the applicant from engaging in the remunerative work.
Respondent’s Submissions
41. Mr Doube, for the respondent, submitted that the applicant failed to meet the test set out in s 24(2)(a)(i) because he ceased to engage in remunerative work with Oil Recyclers due to his retrenchment (a non war-caused reason) as, at best, the applicant was displaying symptoms of PTSD, but non war-caused reasons, namely economic factors, contributed to his cessation of work. The respondent further submitted that the applicant fails the alone test contained in s 24(1)(c) in that the medical evidence indicates that the applicant’s non war-caused knee condition is a factor in his inability to continue to engage in remunerative work of the type he has previously undertaken.
Consideration
42. In making my decision, I must have regard to the assessment period. Under the definition of that phrase in s 19(9) of the VE Act the assessment period commences on the date of the applicant’s claim and continues until the date of my decision.
43. In considering the application of s 24(1)(c) of the VE Act, I refer first to the very helpful analysis of Branson J with whom the other members of the Full Court of the Federal Court agreed in Flentjar v Repatriation Commission (1997) 48 ALD 1 at page 4.9. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four 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 account that he would not be suffering if he were free of that incapacity?”
44. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues 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 19(1)(g)).
45. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Banovich v Repatriation Commission (1986) 69 ALR 395. Accordingly, the loss of a particular job for reasons unrelated to the war-caused condition is immaterial to this issue: per Lindgren J in Doig v Repatriation Commission, Federal Court, 18 December 1996, 1106/96. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221; 76 ALR 449 per Fox J. In the present matter, I find on the evidence before me that the relevant types of remunerative work that the applicant had previously undertaken was largely unskilled, and can be described as follows:
(a)fitter and turner;
(b)salesman, including commission based sales;
(c)driller’s offsider;
(d)fast food and bakery attendant;
(e)petroleum refining and industrial production, maintenance and operational duties;
(f)garden maintenance and landscaping;
(g)occupational health and safety officer and rehabilitation trainer;
(h)correctional services officer;
(i)tyre fitter and service station operator; and
(j)driving instructor.
46. The second question in Flentjar entails a simple factual decision, and if s 24(1)(b) is satisfied it is unlikely to be an issue. In the present matter the respondent acknowledges that s 24(1)(b) has been satisfied, and I find that the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work referred to in paragraph 45 above.
47. The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case and referred to in Forbes v RepatriationCommission (2000) 101 FCR 50 at [33], the word “alone”, in the absence of ambiguity, should not have substituted for it other words. The word “alone” as it appears in s 24(1)(c) requires a practical decision as to whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well. Any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment is sufficient to displace the veteran’s case for pension at the special rate.
48. In Cavell, Burchett J said at 539 that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was:
“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.”
In Forbes, RD Nicholson J said at [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”.
49. The potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [37] as follows:
“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. … [H]aving 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.”
50. I will now address whether the applicant meets the alone test in accordance with s 24(1)(c). Much of the medical material referred to in paragraphs 24 to 32 relates to historical observations, while the alone test requires me to consider whether during the assessment period non war-caused conditions were factors in the applicant’s incapacity for remunerative work. I note that there is generally consensus between the doctors to the effect that the knee condition is a deteriorating condition, and that the applicant will eventually need a replacement. This prognosis is consistent with the applicant’s apparent deterioration between the report of Dr Wright in 2000, and the evidence of Professor Krishnan in 2004.
51. In his report of 26 November 2003 Professor Krishnan seems to have approached the issue of incapacity from the point of view of whether the knee condition prevents the applicant from working, rather than (as s 24(1)(c) requires) whether the knee condition is a factor contributing to his inability to engage in remunerative employment. Where an expert witness expresses his or her opinion on the ultimate issue before a tribunal or court, it is important to ensure that the correct legal test and factual material has been applied in reaching that opinion (Wiegand v Comcare Australia (2002) 72 ALD 795, at [30]). Keeping in mind that the correct legal test was put to Professor Krishnan in the course of his evidence, and his understanding of the limitations imposed by the applicant’s knee condition was thoroughly explored by the parties and the Tribunal, I am of the view that Professor Krishnan’s opinion is highly relevant, and his observations of the applicant’s work place restrictions are particularly pertinent to the issues before me. I prefer the evidence of Professor Krishnan concerning the applicant’s knee condition to that of Dr Wright (see paragraph 36 above), as Dr Wright’s report is some 4 years old and Professor Krishnan had the benefit of examining the applicant on 18 November 2003.
52. While I believe that the applicant’s knees were not a reason for his ceasing work with Oil Recyclers and that his condition has varied and has, at times, been more debilitating than at others times, I am of the view that the applicant’s knee condition is a factor in his inability to perform the duties required of a person engaged in physical labour or duties involving prolonged periods of standing, walking or constant sitting.
53. I find that the applicant’s knees impact upon his capacity to undertake the types of remunerative work I have outlined in paragraph 45 above. In particular, I find that the applicant’s knees are a factor in his inability to undertake the work identified in paragraph 45(a), (c), (d), (e), (f), (h) and (i) owing to the physical nature of those types of remunerative work. I further find that the applicant does not presently possess the skills of a salesman (paragraph 45(b)), having been unsuccessful in sales positions previously and also having not worked in that type of position for many years. The applicant’s knees are also a factor in his incapacity to engage in driving instructor work, and I also find that his 10 years absence from that industry is a further factor is his incapacity for that type of work, as identified in paragraph 45(j). Similarly, taking into account the evolving nature of occupational health and safety, and the applicant’s lack of recent training and knowledge in that field, I find that a lack of training and recent experience are factors in the applicant’s present incapacity to undertake the type of work identified in paragraph 45(g). Accordingly , I find that the applicant does not meet the first requirement of s 24(1)(c) in that the applicant is not, by reasons of incapacity from war-caused conditions alone, prevented from continuing to undertake the types of remunerative work that he was undertaking.
54. In light of my above finding on the alone test, it is not necessary for me to make a further finding regarding the fourth question in Flentjar, but for the sake of completeness I will also address this last issue. The fourth question in Flentjar (that is, the “loss” issue, being the second aspect of s 24(1)(c)) entails a consideration of whether the veteran is suffering a loss of income that he or she would not have been suffering if not affected by the war-caused disability. The Tribunal is also mindful of the deeming provision in s 24(2)(a) which requires an assessment of the reason or reasons that a veteran is incapacitated or prevented from engaging in remunerative work and the reason or reasons that a veteran has ceased to engage in remunerative work.
55. In Repatriation Commission v Van Heteren (2003) 75 ALD 703 Finn J considered the relevance of the deeming provisions of s 24(2)(a)(i). His Honour said at [25]:
“This question is not answered simply by finding that, in the assessment period, the veteran is unable to engage in any remunerative work. It in fact presupposes that he or she may well not be: cf 24(1)(b). And because of the deemed ‘no loss’ provisions of s 24(2)(a)(i) which apply where the veteran has ceased to engage in remunerative work for reasons other than his or her war-caused conditions, it requires an examination of the reasons why the veteran ceased work.”
I also refer in this regard to Re Laugher and Repatriation Commission (1985) 11 ALN N56, which indicates that under s 24(2)(a) the veteran’s own reasons for ceasing work may be relevant, unlike the more objective test imposed by s 24(1)(c).
56. The applicant gave various reasons for leaving various jobs. As to his more recent work history, the applicant quit work for Mobil Refinery after his marriage failed; he was retrenched from Petroleum Fuels and the Bradken Foundry; the gardening business failed; he left the aluminium business to become a correctional services officer; he ceased working as a correctional services officer after he was assaulted, and he chose to leave the bakery to pursue a better position. Whilst the applicant’s marriage failure may have been contributed to by his war-caused conditions, there is no evidence before me to that effect. It is clear that there were various non war-caused reasons that led the applicant to cease to engage in the remunerative work identified above.
57. Regarding his last position as an offsider to the maintenance fitter at Oil Recyclers, the applicant’s counsel urged the Tribunal to find it was the applicant’s war-caused PTSD that affected his employability and thus made the applicant more vulnerable to redundancy. It appears that the applicant had a fairly long history of difficulty with management and other staff, and it may well be that the applicant’s PTSD contributed or even caused the applicant to be argumentative. In this regard I note that as far back as when the applicant was employed for Kentucky Fried Chicken he was involved in disputes with management. However, even if Oil Recyclers chose to make the applicant’s position redundant partly because of his PTSD caused difficulties with management, I find on the evidence before me that economic factors were also operative reasons leading to his retrenchment. The letter from Mr Maher dated 8 February 2000, referred to in paragraph 18 above, only demonstrates that the applicant’s PTSD and alcohol abuse were impacting upon his ability to work in that position, not that they caused his retrenchment. The evidence detailed in paragraphs 33 to 38 demonstrates that the applicant was of the view that he was retrenched (and even if new employees were hired or old ones rehired, that does mean that the applicant’s position was refilled). Further, other people appear to have been laid off, and eventually the business ceased operations. I therefore find that the applicant has ceased to engage in remunerative work for reasons other than his incapacity from war-caused conditions, namely economic factors that led to the applicant’s retrenchment.
Decision
58. For the reasons provided above, the decision under review is affirmed.
I certify that the 58 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 14 July 2003, 13 August 2003 and 2 April 2004
Date of Decision 22 July 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr G Doube
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