Hogg and Repatriation Commission
[2007] AATA 1434
•18 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1434
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/798
VETERANS' APPEALS DIVISION ) Re ROBERT HOGG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms R Hunt, Senior Member;
Dr S Toh, MemberDate18 June 2007
PlaceSydney
Decision The decision under review is set aside and remitted to the respondent to determine the earliest date of effect.
…........................................
R Hunt
Presiding Member
CATCHWORDS
VETERANS - General Rate pension – claim to increase to Special Rate pension – incapacity to work 8 hours a day- level of disability entitles applicant to special rate.
LEGISLATION
Veterans’ Entitlement Act 1986, s 24.
CASES
Christine Wodianicky-Heiler as Legal Personal Representative of Anthony Wodianicky-Heiler v Repatriation Commission [2007] FCA 834
Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
18 June 2007 Ms R Hunt, Senior Member;
Dr S Toh, MemberIntroduction
1. The applicant, Mr Robert Hogg, served in the Royal Australian Air Force from 1960 until 1981. His eligible service was from 7 December 1972 until 30 January 1981. He currently receives 60% of the General Rate pension and is seeking a Special Rate pension under section 24 of the Veterans’ Entitlement Act 1986 (“the Act”).
The Statutory Framework
2. The Act relevantly provides that the pension is to be paid in accordance with the level of disability suffered by the veteran. It may be paid at the General Rate – s 22, the Intermediate Rate – s 23, or the Special Rate – s 24.
3. Section 24 provides that a veteran qualifies for Special Rate pension if:
· the veteran’s degree of incapacity from war caused injury/disease is at least 70% - s 24(1)(a)(i); and
· the veteran’s incapacity from war-caused injury/disease, of itself alone, renders the veteran incapable of undertaking remunerative work for more than 8 hours per week – s 24(1)(b); and
· the veteran is by reason of incapacity from war-caused injury/disease alone, prevented from continuing to undertake remunerative work that he/she was undertaking and for that reason is suffering a loss of salary, wages or earnings – s 24(1)(c).
4. As can be seen, section 24(1)(c) contains a requirement that incapacity from war-caused injury or war-caused disease, or both, “alone” prevents a veteran from continuing to undertake remunerative work that the veteran was undertaking. This requirement was discussed in Repatriation Commission v Hendy (2002) 76 ALD 47 where the Full Court of the Federal Court held at [37] that:
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.
(Emphasis in original)
Issues
5. For a Special Rate pension claim to be successful, section 24(1)(a) requires that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, as determined under section 21A, is at least 70%. The parties agree to the impairment rating of a number of conditions suffered by the applicant according to the Guide to the Assessment of Rates of Veterans’ Pensions. These are:
(a)Hearing: agreed 7 impairment points
(b)Tinnitus: agreed 10 impairment points
(c)Spine and Limbs: agreed 10 impairment points
(d)Resting Joint Pain: agreed 5 impairment points
(e)Skin Disorders: agreed 5 impairment points.
6. It is also agreed that the applicant has a lifestyle rating of 3. In dispute is the impairment rating in respect to Mr Hogg’s spine. We have been asked to allocate an impairment rating to the applicant’s spinal impairments, based on the evidence presented to us.
7. If we find an incapacity or general rate assessment of 70% or more, then we must turn to the tests for determining whether the veteran is totally and permanently incapacitated. The parties agree that section 24(1)(c) is satisfied, in that the applicant ceased work as a carpenter as a result of war-caused injury or war-caused disease, or both, alone and that he is suffering a loss of earnings that he would not be suffering if he were free from that incapacity. While this was contested in the papers, at the hearing counsel for the respondent conceded that the section was satisfied.
8. The next issue which arises is whether the applicant is unable to work for 8 hours or more in the type of work for which he is suited pursuant to section 24(1)(b). In determining that issue, we will have regard to section 28, which requires that we identify the applicant’s skills, qualifications and experience before determining what types of remunerative work he could effectively do and whether he could sustain this work for 8 hours per week or less.
9. If we find the applicant does not satisfy the work test in section 24(1)(b), we must have regard to the Intermediate Rate of pension under section 23 of the Act, specifically section 23(2)(b). The question arises whether the applicant is capable of undertaking work of a particular kind for 20 or more hours per week in light of his condition.
Consideration of Medical Evidence
10. Accepted disabilities include thoracic spondylosis, lumbar spondylosis, spondylolisthesis, sensori-neural loss, tinnitus, non-melanotic malignant neoplasm of the skin of the right ear, and solar keratosis. We heard oral evidence from Mr Hogg about the effect of these accepted conditions on his work ability. We also had medical reports before us and heard from medical specialists who had treated Mr Hogg or examined him. In forming our opinion of Mr Hogg’s appropriate impairment rating in respect to his spine. We have summarised the evidence below.
Thoracic and Lumbar Spondylosis and Spondylolisthesis
11. Mr Hogg gave evidence that he had to stop work as a carpenter because physically he could not go on. He was having “pretty constant back pain” and this was causing him to take too long to finish a job. He said he was like a prowler at home. He would sit for 5 minutes at the desk and would start to feel pain, then he would have to go and lie down. On standing, he felt burning pain in the mid back and sitting down was never comfortable as he would have pain in his lower back. He had to change his position every few minutes and found it difficult to concentrate on doing any task. He said he had pain when he was bending over at the table even for a short time, when trying to build model planes. This was a hobby.
12. He gave evidence that he saw both Dr Dryson and Professor Sambrook for opinions. His wife drove him to the appointment to see Dr Dryson in Newcastle. In order to see Professor Sambrook, he had to take the train and travel for 2 hours to see the professor in St Leonards. He said that he was able to move around on the train and was able to rest before going to see Professor Sambrook for the examination. He thought that the trip did not cause his back to be worse than usual because he had been able to get up and move around.
Expert Medical Evidence
13. From Dr Moses, GP, we had clinical notes dated 20 July 2005. Dr Moses wrote that Mr Hogg had to stop his carpentry due to pain and stiffness in the mid back within 20 minutes of commencing this activity. He noted Mr Hogg has permanent low back pain and lifting and twisting was too painful. His pain also interfered with his sleep.
14. In his report dated 11 October 2005, Dr Gill, Orthopaedic Surgeon, stated that Mr Hogg suffers lumbar spondylosis, thoracic spondylosis and mild degenerative spondylolisthesis on L4/5 but no spondylolysis. Both Dr Moses and Dr Gill made no documentation of any measurements of the range of movements of the spine.
15. Both Dr Dryson and Professor Sambrook agree that Mr. Hogg suffers from thoracic-lumbar spondylosis and spondylolisthesis, which is permanent. They further agree Mr Hogg suffers from constant severe back pain that prevents him from working as a carpenter.
16. In his report dated 20 December 2006, Professor Sambrook wrote that Mr Hogg told him that, progressively over the years, he had to decrease the scale of work of the projects he had been working on due to increasing restriction from his back condition. His back pain was always present and he constantly had to shift his position within a few minutes to alleviate the pain. Professor Sambrook also took note of the report of Dr David Gill, the above orthopaedic surgeon, dated 29 July 2005 and the notes of Dr Moses, GP, dated 1 June 2004 and 9 February 2005.
X-ray Findings
17. Plain x-rays of the lumbar spine were taken on 4 September 2003 and showed moderate narrowing of T12/L1, L1/2 and L4/5 discs with osteophyte spurring of the opposing vertebral body margins. Dr Hugh Scotton found vertical trabeculation in L5 that was suggestive of angioma (T8). Degenerative changes were present in the lower lumbar spophyseal joint and there was slight forward displacement of L4/5. Dr Scotton regarded the spondylolisthesis as degenerative in nature, not congenital.
MRI Findings
18. MRI scans of the lumbasacral spine on 26 August 2005 showed early loss of signal in the L5/S1 disc with a small annular fissure but no frank disc protrusion. Professor Sambrook observed significant facet joint arthropathy. In addition, he noted a haemangioma in L5 vertebral body and minimal forward slip of L4 on 5. As well, Professor Sambrook saw a small annular fissure at L1/2 with no disc protrusion.
Professor Sambrook’s Opinion
19. Professor Sambrook, in his report dated 20 December 2006, made a diagnosis that Mr Hogg had thoracic spondylosis, lumbar spondylosis and degenerative spondylolisthesis at L4/5 that from the history, the x-ray findings and his examination. He stated that this was sufficient cause and the sole cause of Mr Hogg‘s inability to work as a carpenter.
20. Professor Sambrook gave oral evidence by telephone, in the course of which he told us he used a goniometer to measure Mr Hogg’s movements recorded in his report because this was a more accurate and objective method of assessment.
21. On examination of thoraco-lumbar spine movements, Professor Sambrook found forward flexion was possible to 80 degrees (compared to normal range of 90 degrees), extension was 15 degrees (compared to normal range of 30 degrees), and lateral flexion was 15 degrees (compared to normal range of 30 degrees). Using Table 3.3,1, Professor Sambrook estimated Mr Hogg had an impairment rating of 20, age adjusted to 18 (according to Table 3.6.1) since he had loss of about half of the normal range of movement in extension and flexion. From Table 3.3.2, Professor Sambrook estimated his functional impairment rating at 15.
22. Professor Sambrook also noted in his report dated 20 December 2006, that Mr Hogg’s “spondylosis, lumbar spondylosis and degenerative spondylolidthesis at L4/5 are sufficient and the sole cause of his inability to undertake remunerative work as a carpenter”. He concluded that Mr Hogg was not capable of undertaking any remunerative work due to his physical condition.
Dr Dryson’s Opinion
23. Dr Dryson wrote two reports dated 22 September 2006 and 7 March 2007. Dr Dryson acknowledged in his first report that Mr Hogg could not work as a carpenter due to the accepted back conditions. He considered Mr Hogg had a loss of one quarter of range of movement and accorded him a rate of 10 (Table 3.3.1) adjusted to 9 (Table 3.6.1). In giving oral evidence, Dr Dryson said that, when he made his examination of Mr. Hogg’s back, he did not use the goniometer to measure the degree of limitation of movement and his measurement was “done visually”. When asked if he would be able to quantify the range of movements set out in table 3.5.1, as used by Prof Sambrook, Dr Dryson reported that, if flexion were mildly reduced with fingertips reaching the mid shins on both sides, this would mean reduction by 20 degrees, but allowing a margin for error, it could be 15 degrees or 25 degrees. He added that, if lateral flexion were mildly reduced, this would also mean reduction by 20 degrees but could also mean 15 degrees or 25 degrees allowing a margin for error.
24. From his evidence, we consider Dr Dryson did not make a clear determination of Mr Hogg’s loss of movement and whether the loss was one quarter or one half of the range of Mr Hogg’s movements. Thus we were not assisted by this information and prefer the evidence of Professor Sambrook as to his findings. It follows that we accept, on balance, that Mr Hogg’s loss of muscular skeletal function of spinal movement is most accurately rated according to table 3.6.1 at 18.
Sensorineural Deafness
25. The respondent accepted Mr Hogg’s impairment rate of deafness as Loss of Function of 7. Mr. Hogg said that he could not hear in a noisy environment. As well, if his surroundings were too quiet, his tinnitus also made him uncomfortable.
Tinnitus
26. Mr. Hogg gave evidence that he suffers from severe tinnitus which is present all the time and worse in quieter conditions. He wakes up through the night because of buzzing and bell ringing sounds and lately he said he also felt clicking sounds. He said the tinnitus makes him feel very uncomfortable and is an annoyance all the time, preventing him from concentrating. Both parties accept that the tinnitus is correctly determined at Loss of Function of 10.
Skin Disorders
27. Mr. Hogg said that he has had various cancers burnt or cut off. In Dr Moses’ clinical notes there is an entry dated 30 July 2003 which states, “inclined to frequent skin cancers treated at Skin Cancer clinic in Newcastle” and a histopathology report dated 07/07/98 showed “right ear – basal cell carcinoma completely excised”.
28. Mr. Hogg told us that, in September 2006 and again in March 2007, he went to the Warner’s Skin Cancer Clinic to have six or more of his skin lesions treated. Both parties agreed to attribute Loss of Function of 5, according to Table 11.1
29. Both parties accepted the following impairment rating before the hearing:
Table 3.2.2 Spine and Limbs 10
Table 3.4.1 Resting joint pain 5
30. The parties further agreed to the following impairment ratings during the hearing:
Table 7.1.1 Hearing 7
Table 7.1.11 Tinnitus 10
Table 11.1 Skin Disorders 5
31. We have set out below a table showing the impairment assessments reached, including the assessment of Dr Sambrook under table 3.6.1, which we already have found is accurate.
GARP TABLE IMPAIRMENT RATING 7.1.1 Sensori-neural deafness 7 7.1.11 Tinnitus 10 3.2.2 Spine & Limbs 10 3.3.2
(Age adjusted under Table 3.6.1)Thoraco Lumbar Spine 18 3.4.1 Resting Joint Pain 5 11.1 Skin Disorders 5 TOTAL 55 Table 2.2.1 Lifestyle rating: 3
Conversion to degree of incapacity: 90 %
32. We therefore find, on balance, that the applicant suffers from a 90% degree of incapacity from war caused injury/disease under section 24(1)(a).
Ability to Undertake Remunerative Work
33. Dr Dryson in his report dated 22 September 2006 stated that Mr Hogg would be unable to work as a carpenter. He stated that the degenerative disease of his spine is such that Mr. Hogg would be unable to undertake work which involves significant standing, bending, twisting and lifting. Additionally he is unable to work outside in the sun.
34. However in oral evidence he said that Mr. Hogg could work more than 20 hours in a suitable sedentary type of work in an indoor environment. He defined sedentary from the Department of Labour’s Handbook for Analysing Jobs to mean
”Exerting up to ten pounds – which is 4.5 kilograms of force occasionally or a negligible amount of force frequently to lift, carry, push, pull. Otherwise move objects, including the human body. Sedentary work involves sitting most of the time, may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.”
35. Dr Dryson mentioned a list of “suitable“ occupations that Mr. Hogg could do such as: picture framer, furniture fixer, leather goods maker, car park attendant, hand packer, mail clerk although he shouldn’t carry heavy bags. We have consulted the Australian Standard Classification of Occupations (ASCO) Second Edition, 1997 and note that the tasks undertaken by a picture framer include:
·Consults customers to determine style, size, materials and cost for frames
·Cuts frame pieces to size and prepares corner joints
·Determines location, size and angle of holes to be drilled
·Clamps pieces in vices and glues mitred ends
·Fits and fastens frame pieces
·Mounts backing materials and subjects for framing
·Butt mitres pieces of moulding
·May cut glass to size
·May fit prints, photographs or paintings to ready-made frames
36. We note the definition of “sedentary work” Dr Dryson referred us to involves “sitting most of the time and may involve walking or standing for brief periods of time. As well, according to the definition, “(J)obs are sedentary if walking and standing are required only occasionally”. Mr Hogg told us he has had to give up carpentry partly because he cannot stand and lean over a bench for long. Picture framing activities require just this sort of posture for much of the time. It follows that we find Mr Hogg is not suited to picture framing even whether or not it is considered sedentary.
37. While Dr Dryson was mindful that Mr Hogg has severe constant back pain which necessitates him constantly having to change his position, the list of occupations which he thought Mr Hogg could perform is unrealistic in our view. Mr Hogg is unable to work bending over a table for more than a few minutes. He is deaf and cannot hear in a noisy atmosphere. He also suffers from tinnitus which is uncomfortable and impacts on his concentration. He suffers from skin cancers and thus cannot work outdoors. These restrictions make his opportunity to seek gainful employment quite limited.
38. We also heard evidence from Mr Hogg that, apart from being a carpenter, he has always worked in physical and labouring jobs and has no skills in paper work or the use of a computer. Dr Sambrook, in his report dated 20 December 2006, stated
“I think it is reasonable to assert that by reason of the incapacity suffered from his service related disease, Mr Hogg is prevented from continuing to undertake remunerative work which has resulted in suffering a loss of salary or wages that he would not be suffering if he were free of the thoracolumbar incapacity.”
39. We prefer the opinion of Dr Sambrook to that of Dr Dryson for the reasons we have expressed above. We therefore find, on balance, that the applicant’s war caused injury/disease renders him incapable of undertaking remunerative work for which he is suited for more than 8 hours per week in accordance with section 24(1)(b) of the Act.
40. As we have found that the applicant does satisfy the work test in section 24(1)(b) of the Act, we need not have regard to the applicant’s eligibility for the Intermediate Rate of pension under section 23 of the Act.
Findings
41. We find that the applicant suffers from a 90% degree of incapacity from war caused injury/disease, which renders him incapable of undertaking remunerative work for which he is suited for more than 8 hours per week. This means the veteran’s degree of incapacity from war caused injury/disease is at least 70% and satisfies section 24(1)(a)(i). Further, the applicant’s incapacity from war-caused injury/disease, of itself alone, renders him incapable of undertaking remunerative work for more than 8 hours per week, which means he satisfies section 24(1)(b).
42. Lastly, section 24(1)(c) is satisfied, in that the applicant, by reason of incapacity from war-caused injury/disease alone, is prevented from continuing to undertake remunerative work that he/she was undertaking and for that reason is suffering a loss of salary, wages or earnings. We are satisfied that all of the elements of section 24 of the Act have been met and find that the applicant accordingly is entitled to a Special Rate pension.
43. We note that the parties are not agreed on the earliest date of effect of Mr Hogg’s entitlement. From the material before us we see that Mr Hogg made his application on 12 August 2003 and claims the date of effect is 7 June 2005. The respondent has set out in the facts and contentions that the date of effect is 25 April 2004. We remit the matter back to the respondent to determine the correct date at which Mr Hogg is entitled to receive the Special Rate pension under section 24 of the Veterans’ Entitlements Act 1986.
decision
44. The decision under review is set aside and remitted to the respondent to determine the earliest date of effect.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt
Signed: [Talaishia Collis]
AssociateDate/s of Hearing 17 May 2007
Date of Decision 18 June 2007
Counsel for the Applicant Mr C. Colborne
Solicitor for the Applicant Ms K. Hodgkisson – Wyatt AttorneysRepresentative for the Respondent Mr N. Bunn – Department of Veterans Affairs
0
2
0