Hobson and Repatriation Commission
[2007] AATA 1233
•16 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1233
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600153
VETERANS' APPEALS DIVISION ) Re EDWIN JOHN PATRICK HOBSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date16 April 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – rate of pension payable – special rate – combination of war-caused and non war-caused conditions – PTSD – alone test – degenerative condition of the spine – inconsistent prior statements made by applicant as to his medical condition – objective evidence points to back condition as a contributing factor to his decision to retire – not entitled to pension at the special rate – decision affirmed
Veterans’ Entitlements Act 1986 s 24
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Hendy (2002) 76 ALD 47REASONS FOR DECISION
16 April 2007 Senior Member L Hastwell introduction
1. Edwin John Patrick Hobson (the applicant), is a veteran who served in the Australian Army (the Army) while undertaking national service. Between 1965 and 1967 he served in the armed forces in Malaysia. He currently suffers from the following accepted war-caused disabilities:
·bilateral sensorineural hearing loss
·bilateral tinnitus
·post-traumatic stress disorder (PTSD) with alcohol abuse (in remission)
·tinea
He also suffers from the following non war-caused disabilities:
·chronic solar skin damage
·lumbar spondylosis
·spondylolisthesis
·rotator cuff syndrome of both shoulders
·cervical spondylosis
·intervertebral disc prolapse at L4 – L5
·osteoarthrosis of the right knee
·stomach and gastro problems
2. On 5 March 2003 the applicant lodged a claim with the respondent (the Commission) for an increase in his pension rate and he claimed for the further disabilities of lumbar spondylosis, intervertebral disc prolapse at L4-L5, spondylolisthesis and knee problems to be accepted as being war caused.
3. On 1 July 2003 a delegate of the Commission rejected the claim that the additional disabilities were war-caused and increased the rate of pension payable to 100 percent. Upon review, the Veterans’ Review Board (VRB) in a reviewable decision dated 12 May 2006 varied the decision in relation to the claim for knee problems by substituting a diagnosis of osteoarthrosis of the right knee in lieu of “no incapacity found”. The VRB affirmed the decision under review in relation to all claimed disabilities and in relation to the assessment. Effectively, this left unchanged the original decision of the Commission.
4. The applicant has applied to this Tribunal for review of the Commission’s decision insofar as it relates to the rate of assessment. The applicant does not seek a review of the decision insofar as it rejected his claim that certain disabilities were war-caused. The hearing proceeded on that basis. The applicant asserts that he is entitled to the special rate of pension for his accepted disabilities.
5. It is agreed between the parties that the assessment period is from 5 March 2003 until the date of the hearing. After evidence had been called and in closing, the applicant’s counsel submitted that if the applicant is successful and pension is granted to him at the special rate, then the date of commencement of the increased pension should be the date of the hearing before the Tribunal. This was based on what appeared to be an implicit acceptance by his counsel that the applicant’s back problem was a factor in his capacity to work for some or all of the assessment period.
legislative provisions
6. The applicant’s entitlement to the pension at the special rate is to be determined under s 24 of the Veterans’ Entitlements Act 1986 (the VE Act).
7. Sub-sections 24(1)(a), (b) and (c) and s 24(2)(a) of the VE Act relevantly provide as follows:
“24(1) This section applies to a veteran if:
…
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or 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
…
(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; …”
If s 24(1) of the VE Act applies to the applicant he will be entitled under s 24(4) to a pension at the special rate therein provided.
8. The Commission acknowledges that the applicant satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70 per cent of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, 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.
issue for determination
9. 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-cased 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.
It was common ground that the applicant had not sought to engage in remunerative work, and so the ameliorating provisions of s 24(2)(b) are not applicable.
10. I have reached the conclusion that the applicant has not satisfied the requirements of s 24(1)(c) of the VE Act and so is not entitled to a pension at the special rate at any stage during the assessment period for the reasons set out below.
the hearing and evidence
11. The applicant was represented by counsel. He attended the hearing and gave evidence. Dr Adrian Munyard, an orthopaedic surgeon, gave evidence for the applicant. The T documents were received into evidence. Other exhibits will be referred to where relevant.
12. The applicant was 61 years of age at the date of the hearing. He adopted his statement (Exhibit A2) as part of his evidence and at page 2 states as follows:
“I assert that I ceased work, not because of any physical impairment, but because I couldn’t deal with patients as a consequence of PTSD symptoms.”
13. He has not worked as a chiropractor since June 2001 when he voluntarily ceased to be self-employed in this occupation. He had substantially reduced his work load in the years prior to his ultimate retirement and for some years prior to 2001 he was working from home. By 2001 he had only a few patients and he was consulting for only around 4 hours per week. He described himself as becoming “aggressive” with patients, arguing with them and swearing at them. He said he could no longer handle patients and this precipitated his decision to retire.
14. The applicant acknowledged that when he lodged his application in March 2003 (T4) his claim was for back, shoulder and knee problems to be accepted as war-caused conditions. In the same application he also claimed worsening of his already accepted condition of PTSD.
15. He acknowledged that when he lodged an earlier claim in 2001 (T5) he had also included a claim for back, shoulder and neck problems.
16. In his evidence before the Tribunal, the applicant resiled from his earlier stated position in his claims to the Commission that his back, neck and shoulder problems were war-caused, and he told the Tribunal that he “was lying” in those earlier applications. He now denies having a service related back problem in either 2001 or 2003 when he lodged his claims. He also denies having any back problem that has affected his ability to engage in remunerative work in any way during the assessment period. His explanation for including back problems in the application was:
“Everyone else had put down back problems and I thought it was the thing to do. I was lying.”
17. In summary, the applicant’s evidence about his back was as follows:
·He had an upper back problem while in the Army, but it had not worried him too much.
·His back problem is irrelevant in terms of his ability (or inability) to work.
·He treated himself over the years for any perceived back difficulties because of his expertise as a chiropractor. He would tell doctors that he had a back problem so that he could obtain back x-rays to enable him to treat himself. He was “checking his spine”. This was his explanation for the frequency with which he spoke to doctors about his back.
·He had no back problems in 2001. His back “was fine”.
·When he first saw Dr Munyard in 2001 (for the purposes of his claim) he was on crutches. He told Dr Munyard that his back problems were war-caused. He did not disclose to him that the real cause of his acute back difficulties at that time was that he had recently collided with the second baseman while playing baseball and he had injured his “4th and 5th discs”. He may have had some restricted turning in 2001, but it improved soon thereafter. The lower back pain associated with the collision also resolved promptly.
·Later he told the Tribunal that the collision with the baseman in baseball occurred early in 2003. He suffered an intervertebral disc prolapse and could not play for 2.5 months.
·Generally his back status was good between 2001 and 2005 and there were not times when it was poor during these years.
18. A number of documents in the T documents were put to the applicant which contained assertions by the applicant in forms or in history given to doctors that he had a significant and disabling back problem during the assessment period and from the time that he lodged the first claim in 2001.
19. With respect to responses in his Lifestyle Questionnaire (T23) relating to his back and its alleged significantly disabling effects on his life, which was signed by the applicant on 9 April 2003, he commented:
·that he was advised to write an incorrect statement in the Lifestyle Questionnaire;
·“I do not know why I said that”;
·“You got to make it look good - you know what I mean?”;
·“Yes, I exaggerated the truth”;
·“Yes, I was trying to maximise benefits then”; and
·it was “not correct” for him to state that his back problems and PTSD symptoms had completely ruined his life.
20. The applicant asked the Tribunal to accept that his evidence to the Tribunal was truthful.
21. The applicant’s attention was drawn to comments that Dr Milton Lewis, Occupational Physician, reported him as having made in his report of 22 May 2003. In that report the applicant had reported back pain which he related to diving into a gun pit while serving in Malaysia. He had described in some detail to Dr Lewis the pain that he was suffering in May 2003 (T28/115-116). The applicant's response was to deny that he said that his knee or back had any negative effect on his work and he denied that he had made the comments contained at page 115 of the report. He commented that he had “embellished it a bit”. He denied that his pain was as bad as described in the report and commented that he would be a “hospital case” if it was as bad as described by Dr Lewis. He agreed that there would have been some pain at the time.
22. He told the Tribunal that he had played baseball until 2003. He played the summer and winter season. He believed it was during the final season that he had been involved in the collision which caused an intervertebral disc prolapse. He had difficulty recalling statements he had made to various doctors.
23. Dr Adrian Munyard, an orthopaedic surgeon, was called to give evidence on behalf of the applicant. There were also a number of reports of Dr Munyard in evidence. When he first saw the applicant in April 2001 he told the Tribunal that the applicant was on crutches and having great difficulty walking and standing. X-rays were available that had been taken the previous day. They showed some chronic degenerative changes in the lumbar spine. A protrusion was evident at level L4/5. The applicant told him on that occasion that he started to have problems with his back soon after he left the Army. However, he could not remember any specific injury to his back whilst in Army. Dr Munyard considered at the time that the applicant was suffering an acute exacerbation of an underlying back problem. He said that at the time he was a little suspicious because of the applicant’s presentation on crutches and his claim that he could not sit or stand. He said that the x-rays did not match the severity of the symptoms from which he complained.
24. Dr Munyard saw the applicant on a second occasion in August 2006. His report of 21 August 2006 summarises what occurred on that occasion (Exhibit A3). The applicant told Dr Munyard on that occasion that he was having no trouble with his back and that his problems in 2001 related to “running into a second baseman whilst playing baseball”. He told the doctor that he hurt his knee when he jumped into a pit in Malaysia when confronted by a tiger. On this occasion he did not mention any back involvement in this incident.
25. More recent x-rays showed multi-level intervertebral disc degeneration particularly at the same L4/5 level. Based on the history given to him that day by the applicant Dr Munyard had expressed the view in his report that the applicant did have problems with his back and knees, but not of such severity that it caused him to retire prematurely from his occupation of being a chiropractor. He told the Tribunal that he relied on the history given to him by the applicant. He said that the x-rays of 2006 did not show any significant change from the x-rays of 2001. He described the applicant as having multi-level pathology in his spine. However, he said that the response to such pathology is very individual.
26. Dr Munyard was asked to consider the report of Dr Lewis (T28). He commented that it is possible for spondylolisthesis to appear and disappear. He agreed that there was a degree of contradiction between what the applicant had told him in 2001 and what was reported to Dr Lewis in 2003.
27. The Tribunal also considered the other medical evidence on the file. This included the radiological examinations at T7 and T22.
28. The applicant saw Dr Lewis in May 2003. Dr Lewis is an occupational physician. His report is contained at T28 and is dated 22 May 2003. The applicant gave Dr Lewis a history of suffering significant pain in the lumbar region which gave him 20 minutes to an hour of severe sharp pain every day.
29. Dr Lewis reported that the applicant had told him:
“… approximately 2½ years ago he was treating only 1-2 patients per day, after which the pain became unbearable. The pain was in his lower back, radiating into his legs.”
30. He considered that the applicant was in severe pain at the time. He found that his spinal range of movement was markedly reduced in all directions and he noted restrictions on straight leg raising on both sides which he considered was imposed by pain in the lumbar spine. He also considered x-rays and CT scans. His opinion was that the two interacting principal causes for the applicant's inability to work were PTSD and degenerative disease of the lumbar spine.
31. Dr Owen Watson, who is the applicant ‘s general practitioner, in a report dated 25 February 2003 (T20) said that he had seen the applicant seven times in the previous two years specifically for back problems which he believed was due to the chronic degenerative nature of his back condition. He commented in that report that the applicant had complained for many years of back pain and that radiologically he had multiple spinal problems.
discussion of the evidence
32. The applicant was an unreliable witness. He had made many previous statements that were inconsistent with the case that he was now putting to the Tribunal. The Tribunal has already outlined the responses he gave when confronted with prior inconsistent statements. He made it clear that he had no hesitation in lying when it suited his purposes. The Tribunal had no reason to believe that he was telling the truth. The Tribunal was left to rely on the available objective and historical evidence to reach its conclusions.
33. Although the Tribunal accepts that Dr Munyard is a reputable and skilled practitioner in his field, the Tribunal considered that his evidence was by no means conclusive of the applicant’s case. Dr Munyard was entirely reliant on the reliability of the account of events as given to him by the applicant.
34. The available x-rays and medical evidence supported a conclusion that the applicant had a degenerative back problem that was periodically disabling throughout the assessment period.
findings of fact
35. The applicant suffers from the war-caused disabilities as set out in paragraph 1 of this decision.
36. The work that the applicant is skilled to do is that of a chiropractor.
37. The applicant reduced his working hours to part-time during the 1990s and then retired in 2001.
38. At the time that he retired, the applicant was working only a few hours a week as a chiropractor. He had a number of health problems at the time which included degenerative problems of the back.
39. The applicant's back problems are not war-caused.
40. Despite his numerous health problems the applicant continued to play and enjoy competitive sport until at least 2003. He regularly sought advice from his doctor with respect to his back problems. However, on the whole he was able to manage his back himself because of his chiropractic skills.
41. The applicant actively pursued a claim with respect to his back problems and in a hearing before the VRB on 12 May 2006 the applicant continued to assert that he suffered from a back condition that was war-caused.
42. The applicant told Dr Williams in April 2003 that he ceased work because of PTSD and low back pain.
43. In May 2003 the applicant told Dr Ewer that one off his reasons for ceasing work was because of his back pain.
44. Dr Lewis reported on 22 May 2003 that the principal causes for his inability to work were his PTSD and degenerative disease of the lumbar spine
45. The applicant suffers from degenerative disease of the spine that periodically causes him pain and disability and is one of the factors that impacted adversely on his ability to carry out chiropractic work.
46. The applicant is 61 years of age and chooses to be retired because of his multiple health problems, including back problems and PTSD.
47. The applicant’s back problems are of a degenerative nature which will continue to trouble him over time and impact on his ability to perform remunerative work as a chiropractor.
consideration of the law
48. In considering the application of s 24(1)(c) of the VE Act, I refer first to the 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 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?”
49. 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 119(1)(g)).
50. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Rehabilitation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996. As to this issue, in Jackman, Tamberlin J said:
“A presumption of continuance is not appropriate to the determination the AAT has to make under s 24(1)(c). It is well accepted that the relevant date of assessment is the date of application, not retirement: Banovich v Repatriation Commission (1986) 69 ALR 395. The AAT must make its determination as at the time of application, taking into account all considerations relevant to the specific case in question. Where the application date is close to the retirement date the weight to be given to the applicant’s circumstances at the time of retirement will be greater than in cases, such as the present, where there is a lengthy period of time between the dates. In such cases other significant factors such as age and time out of the workforce can become important and relevant considerations: Repatriation Commission v Wilson (1996) 43 ALD 77; Repatriation Commission v Braund (1991) 23 ALD 591. It is not sufficient for the AAT to be satisfied that at the date of retirement the applicant satisfied s 24(1)(c): Braund at 595. This is not the question before the AAT.”
51. 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: It was agreed in this case that the applicant had for many years prior to his retirement engaged solely in the occupation of chiropractor and that is the type of work that the Tribunal is to have regard to when making its determination under s 24 of the VE Act.
52. The second question in Flentjar is whether the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work which I have found is relevant. As mentioned above, the Commission has conceded that s 24(1)(b) is satisfied in this case and that the applicant’s accepted disabilities, and in particular PTSD, are sufficient to preclude him from working for more than an aggregate of 8 hours per week as a chiropractor.
53. 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 the case of Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and 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.
54. In Cavell, Burchett J said further, 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”.
55. The correct approach to the “alone” test, and 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:
[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(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 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.”
56. The Tribunal refers to the findings of fact. The Tribunal is satisfied, on the balance of probabilities, that war-caused conditions alone were not the sole reason for the applicant ceasing remunerative work. The applicant’s degenerative back condition was also a significant factor in his decision to cease work and remains an ongoing problem for him. A combination of the applicant’s war-caused and non war-caused conditions, combined with his age and his desire to remain retired, are the reasons he is no longer in the work force.
57. The applicant's counsel has asked the Tribunal to accept, based on Dr Munyard's evidence, that the back problem has ceased to be a factor that impacts in any way on the applicant's ability to work. The Tribunal does not accept this contention. The evidence is that the applicant has a long-standing back condition of a degenerative nature. The objective x-ray evidence and a consideration of the longitudinal history leads the Tribunal to find, on the balance of probabilities, that the applicant’s back problem has not resolved and is ongoing.
58. In the circumstances the Tribunal affirms the decision under review .
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ...........J Coulthard..........................................
AssociateDate of Hearing 31 January 2007
Date of Decision 16 April 2007
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan LawyersAdvocate for the Respondent Mr A Crowe (DVA)
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