Higgs and Repatriation Commission
[2008] AATA 233
•26 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 233
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/748
VETERANS' APPEALS DIVISION ) Re NORMAN HIGGS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott RFD Senior Member Date26 March 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Norman Higgs is entitled to be paid a pension at the special rate under section 24 of the Veterans’ Entitlements Act 1986 : this decision to have effect from 19 April 2004. .................[Sgd].........................
Senior Member
CATCHWORDS
VETERANS’ APPEALS – Veterans’ entitlements – disability pension – application for special rate of pension – accepted disabilities include bilateral sensorineural hearing loss with tinnitus and lumbar spondylosis – applicant’s war caused injuries or diseases the cause alone, of his being unable to work – decision under review set aside.
Veterans’ Entitlements Act 1986 ss 19, 24
REASONS FOR DECISION
26 March 2008 Dr P McDermott RFD Senior Member INTRODUCTION
1. Mr Norman Higgs, a veteran, has sought the review of a decision made on 27 July 2006 by the Veterans’ Review Board. The Veterans’ Review Board had decided that Mr Higgs was not eligible to be paid a pension at the special rate. I have to decide whether Mr Higgs meets the eligibility criteria for the payment of an “earnings-related” rate of pension at the special rate under s 24 of the Veterans’ Entitlements Act 1986 (the Act).
BACKGROUND
2. Mr Higgs served in World War II with the Royal Australian Navy. He has recognised operational service from 22 May 1945 to 24 March 1947. He also has a number of accepted disabilities: bilateral sensorineural hearing loss with tinnitus; non melanotic malignant neoplasm of the skin (right arm); gastro-oesophageal reflux disease and lumbar spondylosis. Mr Higgs has been assessed as eligible for payment of pension at 90% of the general rate.
ISSUES AND LEGISLATION
3. Section 19(5C)(a) of the Act requires the rate of pension to be determined during the “assessment period”. That term is defined in s19(9) of the Act to mean, in relation to a claim or application relating to a pension, the period starting on the application day and ending when the claim or application is determined.
4. The application day in this case was 19 July 2004 when the veteran made a claim and the assessment period runs from that day.
5. An “earnings-related” rate of pension may be provided to a veteran provided that the applicant meets the requirements of s 24 of the Act. I refer to some relevant provisions from that section.
6. The degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, must be determined under section 21A to be at least 70% or has been so determined by a determination that is in force: see s 24(1)(a)(i). This requirement is satisfied by the veteran who is in receipt of pension at 90% of the general rate.
7. There is also a requirement that the veteran must be 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: see s 24(1)(b). This requirement is certainly in issue and is a matter that I am required to consider: see s 24(2A)(c).
8. In view of the fact that the veteran had turned 65 years of age before his claim was made, it is also necessary that I consider s 24(2A) of the Act.
9. The respondent at the hearing conceded that the veteran satisfies the requirements of s 24(2A) (f) to (g) of the Act.
10. What is in clear contention is whether the veteran satisfies s 24(2A)(d) and s24(2A)(e) of the Act. I will outline the effect of those provisions.
11. To qualify for the grant of pension at the special rate it is necessary that the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was undertaking before he made the claim or application: see s 24(2A)(d).
12. For Mr Higgs to succeed in his application, it is also necessary that I be reasonably satisfied that because the veteran is so prevented from undertaking his last paid work, the veteran is 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: see s 24(2A)(e).
MEDICAL CONDITIONS OF VETERAN
13. Evidence of the medical conditions of the veteran was provided by two medical practitioners: Dr Greg Steel, who is the general practitioner of the veteran, and Dr John Sowby, an occupational physician.
14. Dr Steel has compiled a number of reports and letters concerning the medical conditions of the veteran. On 3 November 2004 Dr Steel completed a “Capacity to Work – Ceased or Ceasing Work” form in which he gave the following reason why Mr Higgs ceased employment: “Self employed owner/operator printing company.-sold business aged 77 – Got too OLD!!! & infirm to continue business – i.e. difficulty hearing customers and being able to stand”[1]. In a letter dated 27 May 2005 Dr Steel explained:” “My reference “got too old” in relation to the abovementioned veteran referred only to the fact that .. due to his age Mr Higg’s Lumbar Spondylosis and Hearing loss were going to significantly worsen. My advice to him was to cease work due to his hearing loss and lumbar spondylosis alone. I was not referring to Mr Higgs being “too old” to work”[2].
[1] T12, fol 65.
[2] T26, fol 120.
15. Dr Steel also gave evidence by telephone. Dr Steel stated that he had advised Mr Higgs to resign because of his accepted disabilities. The tenor of the evidence of Dr Steel was that he had emphasised the age of Mr Higgs in the capacity to work form because he was “astounded” that “they expect a 77 year old man to keep working”. Dr Steel also emphasised that his remark in the form concerning the age of Mr Higgs was a “throwaway line”.
16. Dr John Sowby, an occupational physician, on 7 March 2007 completed an occupational medical assessment of Mr Higgs which was admitted into evidence[3]. In his report Dr Sowby opined that Mr Higgs had the capacity to work up to 20 hours per week. Dr Sowby reported: “In my opinion, Mr Higgs would be fit to perform between 8 and less than 20 hours per week in his former role as manager of the printing business. However, due to the full-time demands of running a small business this would not be a realistic business option for him. Likewise, outside this work environment he would not be competitive in securing alternative part-time employment of this nature, realistically limiting his capacity to less than eight hours per week”[4].
[3] Exhibit D.
[4] Exhibit D, at 10.
CONSIDERATION OF THE ISSUES
17. Having regard to s 24(2A)(c) of the Act I am required to consider whether this veteran satisfies s 24(1)(a) and s 24(1)(b) of the Act.
18. I have already mentioned that s 24(1)(a)(i) of the Act applies to Mr Higgs.
19. I must next consider whether s 24(1)(b) of the Act applies to Mr Higgs. This is a requirement that the veteran must be 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. This requirement is certainly in issue.
20. The evidence of Dr Steel is that Mr Higgs is now unable to work because of his accepted disabilities. Dr Steel has explained that Mr Higgs was unable to continue to work because of his hearing and spinal conditions. I accept his evidence in that regard. I am reasonably satisfied that Mr Higgs is unable to continue to work because of his hearing and spinal conditions.
21. I should mention that there was evidence before me from Dr Sowby that Mr Higgs could work up to 20 hours per week. Dr Sowby gave his opinion upon the assumption that the veteran could work in a hypothetical managerial situation in which he could work flexible hours of between 2 to 6 hours per day. The situation that Dr Sowby has referred to is a situation where the veteran as the proprietor of the business could decide when he could work. I appreciate that Dr Sowby in his report has, quite properly, recognised that “the full-time demands of running a small business … would not be a realistic business option for him”.
22. I am reasonably satisfied that Mr Higgs is not able to undertake remunerative work aggregating 8 hours per week: this is the aggregate period which is prescribed by s 24(1)(b) of the Act. The veteran has long management experience which I have taken account of under s 28(a) of the Act. I am also required by s 28(b) of the Act to consider “remunerative work” which Mr Higgs “might reasonably undertake”: I accept the evidence of Mr Higgs that his hearing and lumbar condition now preclude him from performing management work. I also do not consider that an employer would employ him for a management role, albeit in a part-time capacity (if such a position was available) having regard to his hearing difficulties and his spinal condition. I also considered that his lumbar condition has deteriorated since Dr Sowby examined the veteran[5].
[5] See [30] of these reasons
23. I will consider whether s 24(2A)(d) of the Act applies to Mr Higgs. I must determine whether this veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake the “last paid work” that the veteran was undertaking before he made his claim or application. The “last paid work” that is envisaged by s 24(2A)(d) of the Act was his work in the printing business which was sold on 1 July 2004. The assistance that Mr Higgs gave the new owner of the printing business after the business was sold was not paid work and so does not qualify as the “last paid work” of the veteran. His claim for pension was made on 19 July 2004 and so the veteran satisfies the temporal requirements of s 24(2A)(d) of the Act.
24. I will consider the two main war-caused conditions of bilateral sensorineural hearing loss with tinnitus and the lumbar spondylosis. It is because Mr Higgs has those conditions that he was advised by Dr Steel to cease work in the printing business.
25. I will first consider the war-caused condition of bilateral sensorineural hearing loss with tinnitus.
26. Dr Sowby in his report of 7 March 2007 to the Department of Veterans’ Affairs had reported that his hearing condition limits Mr Higgs “with free communication, especially when there are groups of people or significant background noise”[6].
[6] Exhibit D, report at 9.
27. Mr Higgs in his evidence had mentioned that he had hearing difficulties which were caused from background noise when machinery is operating. Mr Higgs and Dr Steel stated that a hearing aid only magnifies the background noise. Dr Steel has also reported that his hearing condition caused difficulties in his communicating with clients in person and by phone[7].
[7] T12, fol 67.
28. I accept the opinion of Dr Steel that the hearing condition affected the capacity of Mr Higgs to work. Dr Sowby has also recognised that the hearing condition of Mr Higgs affects his capacity to work[8].
[8] Exhibit D, report at 9.
29. I will now consider the lumbar spondylosis condition of Mr Higgs. Dr Sowby has reported that the lumbar condition of Mr Higgs has “limited his ability to tolerate full-time work”[9]. Dr Steel has reported on the fact that Mr Higgs could not stand and had constant aching of his back[10]. Mr Higgs in his evidence has mentioned that he had difficulties in standing in the printing factory. If Mr Higgs was looking at a job whilst standing he would find it difficult to stand for any length of time.
[9] Exhibit D, report at 9.
[10] T12, fol 67.
30. When Dr Sowby interviewed Mr Higgs in March 2007, he was informed by Mr Higgs that he could stand for a maximum of 10 minutes in any spot[11]. When Mr Higgs gave evidence before me at the hearing (which was 12 months after Dr Sowby reported), Mr Higgs mentioned that he could not tolerate standing for 5 minutes. I regard Mr Higgs as a truthful witness and his evidence certainly appears to suggest a worsening of his condition since he was interviewed by Dr Sowby. This is entirely consistent with the evidence of Dr Steel who believes that his condition would deteriorate with time.
[11] Exhibit D, report at 6.
31. Mr Higgs also mentioned that he has difficulties in walking around the factory and attending trade fairs. When Dr Sowby interviewed Mr Higgs in March 2007; he was informed by Mr Higgs that he could walk for 100 metres before requiring a rest[12]. At that time he could walk for up to 400-500 metres[13]. When Mr Higgs gave evidence before me at the hearing (which was 12 months after Dr Sowby reported), Mr Higgs mentioned that at most he could walk for 150 metres. This reduction is also consistent with a worsening of the lumbar condition that Dr Steel has mentioned would occur over time.
[12] Exhibit D, report at 6.
[13] Exhibit D, report at 6.
32. Mr Higgs has also mentioned that his lumbar condition causes difficulties in sitting in a chair. When Dr Sowby interviewed Mr Higgs in March 2007, he was informed by Mr Higgs that he in a “bad” chair he could only sit for 5 minutes[14]. At the hearing he stated that he could sit in a supportive chair for up to ¾ hour after which he would need to “move around”.
[14] Exhibit D, report, p. 6.
33. Mr Higgs stated that on each occasion when he advised Dr Steel of his lumbar difficulties whilst standing, he was advised by Dr Steel that he should cease work. Mr Higgs was also advised that his general health would suffer if he did not cease work.
34. The respondent in cross-examination of Dr Steel sought information concerning the cervical and thoracic spine condition and the adjustment disorder of the veteran. However, I should mention, in fairness to the veteran, that these conditions have never been investigated by the Department of Veterans’ Affairs. These conditions are not referred to in the respondent’s facts and contentions.
35. I will comment upon the cervical and thoracic spine condition of the veteran. Dr Steel completed a capacity to work form on 9 May 2006 which was received by the Veterans’ Review Board on 23 June 2006[15]. On that form Dr Steel had mentioned on that form that Mr Higgs had a 50% restriction in movement in his cervical and thoracic spine[16]. Dr Steel was closely cross-examined about these comments that he made on the form. I should mention that Dr Steel made two pertinent observations about the cervical and thoracic spine. The first observation of Dr Steel was that Mr Higgs does not experience pain from his cervical and thoracic spine. The second observation of Dr Steel was that, unlike the case of the lumbar spine of Mr Higgs, there has never been any radiological investigation of his cervical and thoracic spine. In these circumstances I decline to make a finding that the condition of the cervical and thoracic spine of Mr Higgs affects his work capacity.
[15] T28, fols. 140-144.
[16] T28, fols. 141.
36. Dr Steel was also closely cross-examined about an adjustment disorder of Mr Higgs. Dr Steel prescribed some medication to assist the veteran to sleep: this medication appears to have been occasionally taken. I do not regard this adjustment disorder as being relevant to my enquiry under s 24(2A)(d) of the Act. This is because, as Dr Steel pointed out in cross-examination, the adjustment disorder arose some 1-2 years after Mr Higgs ceased his work. I also mention that there is no evidence from a specialist on this condition. This condition has not been investigated by the Department of Veterans’ Affairs.
37. I should also mention that the Department of Veterans’ Affairs asked Dr Sowby to report on what are the “active” conditions contributing to his incapacity to work. In his report of 7 March 2007, Dr Sowby reported: “The primary medical conditions contributing to his incapacity include his lumbar spondylosis and sensorineural hearing loss”[17]. Dr Sowby did not report that the cervical and thoracic spine condition and the adjustment disorder of the veteran contributed to the incapacity of Mr Higgs to work. Dr Sowby in his report did not make reference to the adjustment disorder.
[17] Exhibit D, report, at 9.
38. Mr Higgs is mentally alert and undertakes computer courses and plays bridge with his wife. He also endeavours to keep active by hydrotherapy exercises with buoyancy equipment. It was indeed his state of fitness which made an accelerated course of chemotherapy for the treatment of his recent lymphoma condition. Fortunately, Mr Higgs was advised in November 2007 that he was in remission from the lymphoma condition. The mental alertness of Mr Higgs and his endeavours to keep fit, to some extent, corroborate his evidence that he would have continued to work but for the effect of the war-caused conditions.
39. I find that the bilateral sensorineural hearing loss with tinnitus and lumbar spondylosis condition of Mr Higgs have prevented him from continuing to undertake the “last paid work” (which was the work at the printing press before the business was sold on 1 July 2004) he was undertaking before he made his claim. I am reasonably satisfied that these war-caused conditions prevented the veteran from continuing his last paid work. The hearing condition of Mr Higgs makes communication difficult when machinery is operating[18]. I also consider that the lumbar spondylosis condition has effectively prevented Mr Higgs from working in his last paid work as he was unable to sit in a chair for any length of time, he had difficulties in moving around the factory and he had difficulties in standing[19]. In my view the hearing condition and the lumbar condition of the veteran “alone” have prevented the veteran from continuing to work at his last paid work. I am also reasonably satisfied that he ceased work on the advice of his general practitioner.
[18] See [26] – [28] of these reasons.
[19] See [29] – [33] of these reasons.
40. I now have to consider whether s 24(2A)(e) of the Act applies to this veteran. For that provision to apply, I need to be reasonably satisfied that because the veteran is so prevented from undertaking his last paid work, the veteran is 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: see s 24(2A)(e).
41. I am reasonably satisfied that this veteran had a desire to continue to work but that he was prevented from undertaking that work by his accepted conditions. I do not consider that this was a case where the veteran had reached the end of his working life. I accept the submission of Mr Harding, of counsel, that Mr Higgs was “a man who really wanted to work”.
42. From 1975 until 1982 Mr Higgs had been in management positions in the paper industry[20]. Mr Higgs in his evidence had mentioned that he had made a conscious decision in 1982 to resign from a management position from which he would have had to retire at the age of 65 years. Mr Higgs was then 56 years of age[21]. Mr Higgs had then purchased a printing business in a country town. I appreciate that this would have been a major career change in his life.
[20] Exhibit B, at 2 incorrectly refers to his then age of 55 years.
[21] Exhibit B, at 2.
43. Mr Higgs has explained that the printing business was purchased so that he could work after the normal retirement age and provide for the educational expenses of his children. Mr Higgs had in his evidence stated that he had married a much younger wife and a priority was to ensure that his children had a good education. As Mr Higgs lived in a country town, these educational expenses included board and accommodation away from home. Mr Higgs stated that he was anxious to continue to work to make adequate provision for the retirement of himself and his much younger wife who had a larger life expectancy than himself. I accept his evidence in that regard which was not challenged in cross-examination. I am reasonably satisfied that s 24(2A)(e) of the Act applies to this veteran.
44. I can appreciate why the advocate for the Commission, quite properly, made the submission that the intention of the legislation was not to provide for a special rate of pension for a person who had long held a management business and sold a business. However, I consider that this is a case where only the war-caused conditions of the veteran have prevented him from earning a living. There is no evidence that any other condition has prevented him from earning a living. In my opinion the veteran is entitled under the Act to receive a pension at the special rate.
45. For the sake of completeness, I should mention that at the commencement of the hearing I mentioned to counsel who appeared for the veteran that the service medical records disclosed that the veteran had suffered from broncho-pneumonia during World War II[22]. I was then advised that the case of the veteran was not based on that occurrence.
[22] T3, fol 18.
Decision
46. I set aside the decision under review and substitute a decision that Mr Norman Higgs is entitled to be paid a pension at the special rate under section 24 of the Veterans’ Entitlements Act 1986: this decision to have effect from 19 April 2004.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD Senior Member
Signed: .....................................................................................
E. Young, Research AssociateDate/s of Hearing 5 March 2008
Date of Decision 26 March 2008
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Hede Byrne & Hall Solicitors
Respondent Mr T Thrupp, departmental advocate
0
0
0