Heapy and Repatriation Commission
[2001] AATA 590
•27 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 590
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/698
VETERANS' AFFAIRS DIVISION )
Re NEIL FREDERICK HEAPY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr. I.R. Way, Member
Date27 June 2001
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................Signed.............................
I.R. WAY
MEMBER
CATCHWORDS
VETERANS' AFFAIRS – Disability Pension – sensori-neural hearing loss, lateral myocardial infarction, lumbar disc degeneration – Special Rate – bandsman - whether applicant entitled – whether pension correctly assessed – degree defence service contributed to incapacity
Veterans' Entitlements Act 1986: s24(1), (2)
Repatriation Commission v Smith (1987) 7 AAR 17
Starcevic v Repatriation Commission (1987) 76 ALR 449
Cavell v Repatriation Commission (1988) 9 AAR 539
REASONS FOR DECISION
Mr. I.R. Way, Member
This is an application by Neil Frederick Heapy (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 23 May 2000, which affirmed the decision of the Repatriation Commission (the respondent) dated 26 October 1999 which continued the applicant's disability pension at 100% of the General Rate. In his application to the VRB for review the applicant said he was unhappy with the respondent's decision because he thought he had been under-assessed and should be paid pension at the Special Rate.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T28). The Tribunal also had before it documents accepted into evidence at the hearing as follows:
APPLICANT:
Letter from Mr. Heapy with attachments, dated 20 January 2001 (Exhibit A1)
Letter from Mr. Heapy with attachments, dated 12 September 2000 (Exhibit A2)
RESPONDENT:
Report of Dr. Hall dated 2 November 2000 (Exhibit R1)
Report of Professor Zwi dated 2 November 2000 (Exhibit R2)
Report from Writeway Research dated 26 May 2001 (Exhibit R3)
The applicant was self-represented and gave oral evidence.
BACKGROUND
Mr. Heapy was born on 22 February 1935 and served in the Australian Regular Army from 9 April 1968 to 15 May 1988. His period of eligible defence service was from 7 December 1972 to 15 May 1988. Prior to 24 September 1999 Mr. Heapy had accepted disabilities of sensori-neural hearing loss, lateral myocardial infarction, hypertrophic obstructive cardiomyopathy and non-melanotic malignant neoplasm of the face. Disabilities of hiatus hernia, lumbar spondylosis and cervical spondylosis had not been accepted.
Disability pension assessment on 26 October 1999 took into account all of the applicant's accepted disabilities as stated above and included lumbar disc degeneration which the Administrative Appeals Tribunal determined on 24 September 1999 to be an accepted disability with effect 4 November 1996. The respondent re-assessed the applicant's impairment rating following this decision at 60 points and four for lifestyle.
The VRB on review determined that these ratings, attributed to the veterans' accepted disabilities, should not be disturbed. The VRB also determined that the applicant did not meet some of the essential criteria for Special Rate of pension.
The applicant's initial claim was made on 4 February 1997 at which time he was 61 years old.
ISSUESThe principal issues in this matter are whether or not the applicant is entitled to a pension at the Special Rate and whether or not the applicant's pension has been correctly assessed.
LEGISLATIVE FRAMEWORK
"24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either;
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."
This matter is to be decided pursuant to section 124 (4) to the Tribunal's reasonable satisfaction. In Repatriation Commission v Smith (1987) 7 AAR 17 the Court said that this standard equates to proof on the balance of probabilities.
APPLICANT'S EVIDENCE
Mr. Heapy told the Tribunal that he left school at age 16 and spent five years completing his indentures as a baker before joining the railways where he worked in a semi-clerical position. Prior to joining the regular Army, he served in the CMF as a bandsman for some 15 years and his initial employment in the regular Army was as a bandsman.
Mr. Heapy said that after 20 years service in the regular Army he accepted voluntary redundancy and was discharged at the rank of Corporal in 1988. He said he left the Army at this stage after conferring with Major Chadwick, an Army medical officer, because of his heart problems and chronic back and neck pain. A further contributing factor, he said, was the stress he was suffering as a result of disagreements he was having with his supervisor about his duties. Prior to this he had been employed since 1977 in the Lismore area on sedentary type duties as a member of the Army Recruiting Unit. During this period he initially had an Army medical classification of "Home Only" following heart surgery, being subsequently upgraded to "Communication Zone Everywhere" which was his classification on discharge. The Tribunal notes that the Army did not discharge the applicant on medical grounds.
He said that on discharge he was approached by several bakeries in the Lismore area about employment as a baker and that he briefly tried working in a bakery but after one day he found he could not continue because of his back and neck problems. He said he made no other attempts to gain employment as the only job he knew was as a baker; there was no scope for anything else and because of his disabilities he could not work. He said he could get a job tomorrow if he was fit.
Mr. Heapy said he tries to keep active in retirement, particularly with respect to music and that shortly after discharge from the Army he was elected bandmaster of Ballina Shire band for about 12 months and also spent about 12 months as drum-major. He said he is still involved with the band, attends meetings once per month and occasionally has conducted music seminars. He still goes around the golf course with a friend in a buggy and on occasions "tries to swing a club". He told the Tribunal he is seeing a physiotherapist and having hydrotherapy twice a week.
It was the applicant's evidence that he has been in receipt of a defence force retirement benefit pension since his discharge from the Army and also now receives part age pension and a veterans' disability pension.
The Tribunal notes the following matters contained in the T documents.
T28/119 - In answer to Question G the applicant stated the reason for his discharge was chronic back pain and completion of 20 years service in the Army.
T22/82 - In answer to Question 33 "Did your disabilities stop you working in any way?", the applicant stated "due to heart condition chronic back, neck pain".
T1/B - In his request for review by this Tribunal the applicant stated:
"When stating my case to the Board in writing, I did not elaborate very well what I intended to get across and that is my duties before the new Centre Commander was posted to our Centre allowed me movement and mobility which alleviated some of the pain from my back and neck which helped a great deal.
My medical condition was passed on to the new Centre Commander by the outgoing Centre Commander and the rest was left to me to explain his duties as he did not attend a Career Counsellors Course. As stated to the Board he had me typing letters which I had no right to be doing, not only for medical reasons, but also all letters had to be typed by the Unit Typing Pool situated in Headquarters Brisbane and proof read as most of the letters were to professional people or organizations. I explained this to him and also the fact that the typing position was aggravating my back and neck. This was to no avail. I next phoned our Commanding Officer in Brisbane explaining to her my predicament. She phoned my Centre Commander back and informed him she would be visiting the Centre the next day, which she did. What eventuated I do not know but life was starting to get very miserable and the typing still remained as part of my daily duties until I could take no more. I reluctantly elected discharge as a way out of a painful situation."T16/41 - The locum for Dr. Chadwick notes that the applicant had seen Dr. Chadwick since 1977. First mention of back pain is in June 1980 and the applicant consulted Dr. Chadwick for neck pain in April 1987 when Feldene was tried. There was another consultation in August 1988 for neck and back pain.
T16/45 - The applicant states that cervical spondylosis was his main reason for his discharge from the Army.
The applicant states inter alia that the Commonwealth had accepted liability for injury to his neck and lower back.
T5/M - Department of Defence notification to the applicant accepting liability for compensation for "injury to lower back resulting in degenerative change". No mention is made in this notification of accepting liability for cervical spondylosis.
T12/24,25 - Dr. Langley records a history of neck injuries in 1984 and 1986, treatment being anti-inflammatory drugs in 1984 and no treatment in 1986 – physiotherapy for neck commenced in 1990 – at least 30 times a year.
Dr. Langley opines "I believe that this man has a definite history of injuries to his neck and his lower back whilst serving in the Army. He has had ongoing treatment and he has developed degenerative changes as a result of these injuries and will require conservative treatment in the future mainly with physiotherapy for his neck and his back".
T11/21 - On 21 April 1997 Northcoast Radiology reported C4/5 and C5/6 disc degeneration with disc volume loss at both levels; and mild degenerative changes throughout the lumbar spine with no disc volume loss, no abnormality in the facet and neuro central joints and no signs of lumbar spondylolysis.
Exhibit R1 – Dr. Hall, occupational physician and consultant physician, in a report dated 2 November 2000 states:
"He would be capable of clerical employment and could certainly perform this on a part-time basis. Neither HOCM, nor lumbar disc degeneration would preclude this type of activity provided that he was able to sit or stand at will and would not be required to do any heavy lifting or frequent and repeated bending.
The accepted disabilities would not prevent Mr Heapy from working more than eight hours per week but he might now have difficulty working more than 20 hours per week. At the time of his resignation from the army Mr Heapy was working full normal hours and I can see no reason why he would not then have been able to work full normal hours. The reason for his resignation was not related to any of his accepted disabilities."
T24/96,97 - Dr. Sambrook, Professor of Rheumatology opined on the facts presented to him that it would appear that the episode described as occurring in 1973 (trying to lift a box of heavy musical instruments) would not appear to satisfy the criteria in the relevant Statement of Principles for lumbar spondylosis.
And at 96 gives a GARP assessment rating of 10 points for the lumbar spine.
The Tribunal notes that Writeway Research Service has provided a report about the applicant's claim about management difficulties he experienced at the time of his discharge from the Army (Exhibit R3). This report casts considerable doubt on the applicant's recollection of events, however, it is hearsay and in any event was not put to the applicant at the hearing. As such the Tribunal has given this report no weight in considering this matter.
CONSIDERATIONA preliminary issue arises in this matter with respect to whether or not the applicant's neck condition is causally related to his eligible defence service. There were no submissions made by either party with respect to the question of whether or not the applicant's neck condition fitted the template laid down by the relevant Statement of Principles. The Tribunal notes that the applicant, in applying for review, raised his cervical spondylosis as an issue but did not pursue the matter at the hearing. The Tribunal is mindful that the decision of the Veterans' Review Board under review only canvassed the validity of assessment of accepted conditions and whether the applicant could satisfy the criteria for Special Rate of pension. The Tribunal also notes that the applicant assumed in his application for review that the Commonwealth had accepted liability for compensation for his neck condition. The Tribunal finds that this assumption is wrong.
The Tribunal therefore is satisfied that consideration of this matter should proceed on the basis of current accepted disabilities.
With respect to the assignment to the applicant of an impairment rating of 60 points and a lifestyle rating of four, the Tribunal after careful consideration of all the material before it, is satisfied that the respondent's rating is correct and so finds.
Turning then to the question of Special Rate. The respondent contends that the applicant needs to meet all of the criteria in section 24 for his claim for Special Rate to succeed and that the applicant in this matter failed to meet the criteria provided for in section 24 (1)(b) and 24 (1)(c) and therefore the decision under review should be affirmed.
The respondent does not dispute and the Tribunal accepts that the applicant satisfies section 24(1)(a) in that his degree of incapacity of 100% exceeds the required level of 70%.
With respect to section 24 (1)(b), in addressing the question of whether or not the applicant's incapacity from defence service caused injury or disease is of such a nature as of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week, the matters which need to be considered are:
The applicant's vocational trade and professional skills, qualifications and experience;
The kinds of work a person with those skills, qualifications and experience might reasonably undertake; and
the degree to which the applicant's condition has impaired his capacity to undertake those kinds of work.
After consideration of all the material before it, the Tribunal finds that the applicant has skills and experience in general, clerical and office work and trade skills as a baker although he has not exercised the latter for some 30 years; and that based on those skills, qualifications and experience that the applicant could reasonably be expected to undertake work in the clerical/office duties field or in a bakery.
With respect to the degree to which the applicant's defence service caused conditions impaired his capacity to undertake those kind of work, the Tribunal in it's consideration notes the applicant's accepted disabilities and also relies on the evidence of Dr. Hall, Occupational Physician. The Tribunal is satisfied that the applicant's accepted disabilities do not render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours and as such the applicant does not satisfy the criteria in section 24(1)(b) for Special Rate pension. Turning then to section 24(1)(c), the tests to be met are set out in Starcevic v Repatriation Commission (1987) 76 ALR 449, where the Court said:
"Section 24(1)(c) when read with 24(2) of the Veterans' Entitlements Act 1986 requires three conditions to be satisfied. The veteran must be prevented from continuing to undertake remunerative work that he or she was undertaking. This must be by reason alone of the veteran's war-caused injury or disease referred to in section 24(1)(b). This must also result in the veteran suffering a loss of salary or wages or earnings on his or her own account."
Central to consideration of section 24(1)(c) in this matter is whether the applicant can meet the "alone" test. The applicant must be able to establish that:
It is "by reason of incapacity from that war-caused injury or war-caused disease, or both, alone" that the veteran is "prevented from continuing to undertake remunerative work that the veteran was undertaking"; and
That has led to "loss of salary or wages, or of earnings on his account".
With respect to considering these matters, the Tribunal adopts the approach in Cavell v Repatriation Commission (1988) 9 AAR 539 where the Court said that the Tribunal's task is:
"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."
Section 24 (2)(a)(i) narrows the first matter. Under this section a veteran will not be able to meet the "alone" test if either of the following applies:
The veteran has ceased to work for non defence service related reasons; or
the veteran is prevented from working for non defence service related reasons.
After consideration of all of the material before it, the Tribunal is satisfied that the applicant ceased employment with the Army for a number of reasons, including reasons not related to his accepted disabilities. The Tribunal is satisfied that significant and relevant factors not related to his accepted disabilities were that the applicant was eligible for DFRDB pension at the time of his discharge after completing 20 years service and that neck pain was also a very significant factor in his decision to cease work. Further, under section 24 (1)(c), the Tribunal finds that the applicant's time of eight years out of the work force at the time of application and his advanced age of 60 years at the time of application are relevant non defence service factors which militate against successful compliance with the "alone" test.
Insofar as the ameliorating provisions of section 24(2)(b) defence caused disabilities need only be the "substantial cause" and not the sole cause for the applicant stopping work, provided the applicant is genuinely seeking work.
This provision comes into active consideration if the applicant is unemployed and has been genuinely seeking work. In this case the Tribunal is satisfied that the applicant did not test the full range of skills he has in the employment market and that he has not genuinely sought work since his discharge from the Army and so finds. It follows from the findings given above that the Tribunal is satisfied that the applicant does not meet the criteria for Special Rate of pension pursuant to section 24(1)(c).
The Tribunal affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. I.R. Way, Member
Signed: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 1 June 2001
Date of Decision 27 June 2001
Applicant Mr. Heapy, himself
Respondent Mr. J. Marsh
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