Ignacy Kwiatkowski and Repatriation Commission
[2013] AATA 849
[2013] AATA 849
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1016
Re
Ignacy Kwiatkowski
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms J Toohey, Senior Member
Dr Hadia Haikal-Mukhtar, MemberDate 29 November 2013 Place Sydney The Tribunal sets aside the decision under review and substitutes a decision that, with effect from 9 September 2010, Mr Kwiatkowski qualifies for the intermediate rate of pension.
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Ms J Toohey, Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – special rate of pension – intermediate rate – whether applicant’s accepted conditions alone rendered him totally and permanently incapacitated – whether applicant prevented from continuing remunerative work by accepted conditions alone – Tribunal satisfied that applicant capable of remunerative work for eight or more but not 20 or more hours per week –Tribunal satisfied applicant qualified for intermediate rate – decision under review set aside
LEGISLATION
Veterans Entitlements Act 1986; ss 23, 24, 28, 120(4)
REASONS FOR DECISION
Ms J Toohey, Senior Member
Dr Hadia Haikal-Muktar, Member29 November 2013
BACKGROUND
Mr Ignacy Kwiatkowski served in the Royal Australian Navy from November 1964 to November 1973. He served in Vietnam in October and December 1972, which periods are operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).
Mr Kwiatkowski is aged 65. He suffers from bilateral sensorineural hearing loss with tinnitus, bilateral pterygium, osteoarthritis of the right ankle and lumbar spondylosis, all of which the respondent has accepted are related to his service.
In September 2010, Mr Kwiatkowski claimed a pension in respect of alcohol dependence, adjustment disorder with anxious mood, sleep apnoea and asthma. In January 2011, the respondent rejected his claim. At the same time, the respondent decided Mr Kwiatkowski was entitled to a pension at 90 per cent of the general rate but subsequently increased this to 100 per cent of the general rate.
The Veterans Review Board (the Board) varied the diagnosis of Mr Kwiatkowski’s adjustment disorder to posttraumatic stress disorder (PTSD), and the diagnosis of asthma to emphysema. It otherwise affirmed the respondent’s decision.
Mr Kwiatkowski does not press a claim in relation to his sleep apnoea or asthma in these proceedings and nor does he maintain that his psychiatric condition and alcohol dependence are related to his service. He maintains, however, that he qualifies for the special rate of pension or, alternatively, the intermediate rate. The respondent disagrees.
THE ISSUES
We have to determine whether Mr Kwiatkowski qualifies for the special rate of pension; alternatively, whether he qualifies for the intermediate rate. The standard of proof is to our reasonable satisfaction: s 120(4) of the Act. It is agreed that, if successful, Mr Kwiatkowski will be entitled to the increased rate (special or intermediate) from 9 September 2010.
RELEVANT LEGISLATION
To qualify for the special rate of pension, Mr Kwiatkowski must satisfy the criteria in s 24(1) of the Act. The only criteria in dispute are those in s 24(1)(b) and (c).
Section 24(1)(b) requires that Mr Kwiatkowski be totally and permanently incapacitated, meaning that his war-caused incapacity, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
Section 28 sets out the only factors which may be taken into account in determining whether s 24(1)(b) is satisfied. They are:
(a)the veteran’s vocational, trade and professional skills, qualifications and experience;
(b)the kinds of remunerative work which a person with those skills, qualifications and experience might reasonably undertake; and
(c)the degree to which the impairment the veteran suffers as a result of his or her injury or disease has reduced his or her capacity to undertake that kind of remunerative work.
Section 24(1)(c) requires that Mr Kwiatkowski be, by reason of war-caused incapacity alone, prevented from continuing to undertake remunerative work that he was undertaking, and be suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering were it not for that incapacity. He will not be taken to be suffering such loss of salary, wages or earnings if he has ceased to engage in remunerative work for reasons other than the war-caused incapacity, or if he is incapacitated, or prevented, from engaging in remunerative work for some other reason: s 24(2)(a).
The criteria for qualification for the intermediate rate of pension mirror those for the special rate except that a veteran needs be incapable of undertaking remunerative work otherwise than on a part-time or intermittent basis: s 23(1)(b). Mr Kwiatkowski will not satisfy this test if he is capable of undertaking remunerative work for 20 or more hours per week: s 23(2)(b). In respect of the intermediate rate, only s 23(1)(b) and (c) are in dispute.
The respondent contends that:
(i)Mr Kwiatkowski is capable of remunerative employment for 20 or more hours a week and so does not satisfy s 24 (1)(b) or s 23 (1)(b); and
(ii)he is not prevented from continuing to undertake remunerative work that he was undertaking on the ground of his accepted disabilities alone and so does not satisfy s 24 (1)(c) or s 23(1)(c).
MR KWIATKOWSKI’S EMPLOYMENT HISTORY
Mr Kwiatkowski completed year 11 at a high school. While waiting to join the Navy, he worked for New South Wales railways for approximately four months in a clerical assistant position. After joining the Navy, he was posted to HMAS Albatross where he trained as a photographer. Over the next nine years until his discharge in 1973, he served as a photographer, ship’s diver and, occasionally, postman, on various ships.
In about 1967, Mr Kwiatkowski was serving at Jervis Bay when a helicopter crashed, killing all on board including a friend with whom he had spent the previous evening. He was sent to photograph the scene and had to photograph the charred body of his friend. Not surprisingly, he found that incident deeply distressing and still thinks about it. In January 2011, Dr Graham Altman, psychiatrist, diagnosed Mr Kwiatkowski as suffering from severe chronic PTSD with associated major depression and alcohol dependence as a result of this incident, which he thought had aggravated pre-existing PTSD associated with events in Vietnam.
In March 1974, Mr Kwiatkowski started work as a photographer in the scientific section of the ACT police. He was medically discharged in 1979 after injuring his back in a fall. He gave evidence that, had he not had service-related problems with his back and ankle, he would still be there. He and his wife moved to Sydney and he started studying at TAFE but left when an opportunity came up to work as a courier for a local newspaper. In that position he did “copy runs”, picking up and delivering publications.
In the late 1980s, a friend asked Mr Kwiatkowski to work on his thoroughbred stud in the Hunter Valley. Mr Kwiatkowski worked there for about a year in what he described as a clerical position “like a personal assistant”, organising catalogues and displays at venues for the sales. He returned to Sydney after his wife bought a newsagency and asked him to come home. She ran the business. He did deliveries seven days a week and occasionally relieved her in the shop for an hour or so.
When Mr Kwiatkowski was first helping his wife in the newsagency, there were morning and afternoon papers to be delivered. It took him about an hour and a quarter in the morning, and an hour of the afternoon. After a time, there was only a morning paper, and deliveries took him about an hour and three quarters each morning, and about two and a half hours on weekends. He worked seven days a week for 14 years until 2003 when his wife sold the business.
After Mr Kwiatkowski’s wife sold the newsagency, she bought a real estate business. He “got a bit bored” and, when his sister offered him a part-time position, he took it. He had two “small runs” distributing pamphlets in bundles to “walkers” who delivered them. He would bundle pamphlets together and drive to where the walkers collected them. Each run took him about four hours, twice a week, which he was able to spread each time over two days. He was paid $600 a week.
Other than the year he spent in the Hunter Valley (and even that was “basically part-time”), Mr Kwiatkowski has not worked full-time since his medical discharge in 1979. He gave evidence that he could not get a full-time job because he was “hobbling” on his foot, and there was “no way in the world” that anyone was going to hire him. There is no evidence, however, that he actually tried to get work, perhaps understandably enough as he had part-time work that suited him for many years.
Mr Kwiatkowski stopped working in 2008 after two falls on driveways due to problems with his ankles. Dr Richard McGuigan, the rheumatologist he was seeing at the time, told him to stop work or he would have a serious injury. Mr Kwiatkowski gave evidence that, had he not had problems with his ankles, he would probably still be doing the runs two days a week; it was “a really good job” and “very easy” and he thought he would do it until he retired at about 65 or 66, although he might have cut back to one day a week. He does not like sitting at home and “staring at the wall”. He now does some volunteer community work driving buses. The evidence as to the hours he drives each week is not clear but it seem not in dispute that it might vary from once to twice a week, for one or two hours each time.
Mr Kwiatkowski gave evidence that he uses a computer to search the internet, and he sends emails two or three times a week to relatives. He does not type documents because he can only type with one finger, and he has “clubs for hands” and keeps hitting two keys at once. Someone else did the typing for him when he was in the ACT police.
MR KWIATKOWSKI’S MEDICAL HISTORY
Mr Kwiatkowski has suffered a number of accepted and non-accepted medical conditions over the years. In about 1966, he injured his back while on service and, in 1977, underwent lumbar laminectomy. In 1967, he fractured his right ankle playing football while stationed in New Guinea. He was returned to Australia where he underwent surgery. He has had increasing problems with his ankle since, and he eventually had it fused in July 2012. He gave evidence that the surgery has enabled him to stand “properly” without falling over, and has decreased his pain by about 30 per cent. His lumbar spondylosis and osteoarthritis of the right ankle are accepted conditions (as are his bilateral hearing loss and bilateral pterygium).
Mr Kwiatkowski has also suffered from a psychiatric condition, asthma, sleep apnoea, hypertension, deep-vein thrombosis (DVT), atrial fibrillation, diabetes, and osteoarthritis in his wrist and thumbs.
Mr Kwiatkowski drank heavily for many years; he cut down in about 1987 but his drinking slowly increased after Dr McGuigan told him to give up work and he was “sitting around doing nothing”. He managed to cut down again after about six months at his wife’s insistence, although he was still drinking up to eight bottles of wine a week. Asked whether his drinking affected his capacity to do things, Mr Kwiatkowski said “yes and no”; if he had to work, he made sure he was not “full of grog”, and he mainly drank at home. That evidence seems not to be in dispute. Dr Robert Lewin, who gave evidence (see below), expressed doubts that such level of drinking would not cause problems but could not point to any evidence that it had.
On 25 July 2008, Dr McGuigan reported to Mr Kwiatkowski’s general practitioner, Dr Tran, that Mr Kwiatkowski “was not keen” on having an ankle fusion and he may have to give up work because it was “really impossible for him to do courier work with this degree of problem with his ankle.” By courier work, it is clear that Dr McGuigan meant the work Mr Kwiatkowski was doing at the time rather than the more active courier delivery work he was previously doing for his wife’s newsagency.
As a result of his lack of mobility because of his ankle injury, combined with his diet and drinking, Mr Kwiatkowski put on weight over time. His weight went up to 183 kilograms but, since gastric sleeve surgery in November 2011, he has lost approximately 54 kilograms and is still losing weight.
Mr Kwiatkowski’s psychiatric condition has been diagnosed at different times as adjustment disorder, chronic post-traumatic stress disorder, major depression and chronic alcoholism. His treating psychiatrist, Dr Graham Altman, diagnosed him in January 2011 as suffering severe chronic posttraumatic stress disorder with associated major depression and alcohol dependence. Dr Lewin, who saw him in November 2012 for assessment and who gave oral evidence before the Tribunal, was of the view that he showed evidence of chronic posttraumatic stress disorder, major depression, and chronic alcoholism. Any variation in the diagnosis is not material in these proceedings.
Dr Rosenthal’s evidence
Dr Thomas Rosenthal, occupational physician, saw Mr Kwiatkowski in July 2012 and May 2013 for assessment. He has provided written reports and gave oral evidence.
In his first report, dated 17 July 2012, Dr Rosenthal took a history that Mr Kwiatkowski stopped work on Dr McGuigan's advice after two falls due to his ankle. He thought that, at the time he stopped work, Mr Kwiatkowski was mainly affected by the severe osteoarthritis in his right ankle. He noted that his “PTSD and alcohol dependence appeared not to be affecting him at the time he stopped work in 2006 (sic) but certainly have an impact on his capacity to work now”. He concluded that Mr Kwiatkowski stopped work due to his accepted disability alone and could not have worked eight hours or more a week at that time. He did not think rehabilitation would improve his functional capacity.
Giving oral evidence, Dr Rosenthal confirmed his opinion that, with his “significant problems” with his right ankle, and his back, Mr Kwiatkowski could not work more than eight hours a week. He thought Mr Kwiatkowski’s obesity and sleep apnoea may have had an impact on his capacity, but both had now been dealt with and neither would have any continuing effect. He thought Mr Kwiatkowski’s obesity could have affected his ankles and back but, without knowing more about how obese he was at the time, there was “a little bit of conjecture” to his view.
Dr Rosenthal gave evidence that he was aware, from the various reports provided to him, of Mr Kwiatkowski’s asthma, DVT, diabetes and sleep apnoea, but not of his atrial fibrillation and hypertension. He did not appear to think that any affected his capacity for work. He thought Mr Kwiatkowski’s PTSD and alcohol abuse may have done so but he would defer to his psychiatrist on that matter.
Dr Chase’s evidence
Dr Robin Chase, occupational physician, saw Mr Kwiatkowski in August 2012 for assessment. For reasons which do not matter here, they were unable to complete that consultation and Dr Chase saw him again on 15 November 2012.
Dr Chase reported that Mr Kwiatkowski was, on balance, no longer able to work as a photographer or helping his wife in the newsagency. He thought Mr Kwiatkowski an intelligent man and capable of undergoing rehabilitation or retraining. In particular, while he no longer had the skills to work as a photographer because of changes in technology, he thought he could be retrained in digital photography.
Dr Chase said his only real difference with Dr Rosenthal was that Dr Rosenthal thought Mr Kwiatkowski unable to work more than eight hours a week whereas he (Dr Lewin) thought him capable or working between eight and 20 hours a week. He took into account that Mr Kwiatkowski had recently had surgery on his ankle, “with substantial pain relief”, and it was likely to improve in the future, and he had lived with his back pain for many years. (We note, however, that Mr Kwiatkowski was using a walking stick at the hearing). Dr Chase thought Mr Kwiatkowski had “transferable skills” and saw no reason he could not work in “any sort of supervisory, administrative or clerical roles”. He agreed that he could no longer work as a “general courier”.
In Dr Chase’s view, eight hours work a week is “very minimal” and many people with substantial disabilities can work those hours. In his view, if duties are appropriate the hours are irrelevant, and he saw no reason Mr Kwiatkowski could not perform suitable duties, such as in a library greeting people, for 16 hours a week.
Dr Chase was asked to comment on a report dated 29 November 2012 from Dr A Breslin, consultant thoracic physician. Dr Breslin saw Mr Kwiatkowski for assessment in November 2012 and diagnosed chronic obstructive pulmonary disease due to smoking, and obstructive sleep apnoea. Dr Chase thought the degree of symptoms documented by Dr Breslin somewhat surprising, given his own observations of Mr Kwiatkowski, but he did not dispute them. He thought that level of cardiorespiratory symptoms probably would mean that Mr Kwiatkowski was not capable of working but he agreed they probably would not affect getting in and out of cars, as Mr Kwiatkowski described his last employment.
Given that Mr Kwiatkowski had worked for many years, apparently with PTSD, Dr Chase did not think it had “any great impact” on his ability to work. Nor would his drinking affect his ability to work during the week if he was binging on weekends; it would depend on his pattern of drinking. He thought Mr Kwiatkowski’s obesity would have affected every aspect of his life but he worked for many years even when morbidly obese. He did not think Mr Kwiatkowski’s osteoarthritis of the thumbs would substantially affect his driving, especially with power steering in most vehicles.
Dr Lewin’s evidence
Dr Lewin, psychiatrist, saw Mr Kwiatkowski for assessment in November 2012. His assessment was for the purposes of diagnosis and any relationship of any diagnosed conditions to his service. Dr Lewin reported that Mr Kwiatkowski had a “complex medical history”. He concluded that he had chronic PTSD, major depression and chronic alcoholism.
Giving oral evidence, Dr Lewin said he thought Mr Kwiatkowski’s drinking of more relevance to his capacity for work than his other psychiatric disorders because of the effects of alcohol dependence on a person’s perceptions of their drinking and the tendency for it to assume greater importance than, for example, safety while driving. He did not offer an opinion as to what effect Mr Kwiatkowski’s drinking had while he was employed and said he only had a history for the past year or so.
Dr Lewin gave evidence that Mr Kwiatkowski’s PTSD and depression were probably more to the mild, rather than severe, end of the spectrum, and they were probably relatively mild over many years with a fluctuating pattern of “short, sharp, acute symptoms”.
Dr Lewin thought it “conceivable” that Mr Kwiatkowski’s depressive problem or drinking problem “might have interfered with his capacity to discharge [his] duties at least some of the time” but he did not put it higher than that.
DOES MR KWIATKOWSKI’S WAR-CAUSED INCAPACITY, OF ITSELF ALONE, RENDER HIM INCAPABLE OF REMUNERATIVE WORK FOR MORE THAN 20 HOURS PER WEEK ORMORE THAN EIGHT HOURS?
On balance, we are not satisfied that Mr Kwiatkowski’s war-caused incapacity, in the form of his accepted back and ankle impairments, of itself alone, renders him incapable of undertaking remunerative work for periods aggregating more than eight hours per week, but we are satisfied that it renders him incapable of more than 20 hours per week.
We have come to this conclusion for the following reasons.
Section 28 provides that, in assessing Mr Kwiatkowski’s capacity for remunerative employment, we are to have regard only to the kinds of remunerative work that a person with his skills, qualifications and experience might reasonably undertake. It is not to the point that, with retraining, he might be capable of performing work he has not undertaken in the past.
We accept the submission made for Mr Kwiatkowski that his claim should be assessed by reference to the kind of remunerative work he was doing since 2003. It is clear on the evidence that he is not capable of working as “general courier” in the kind of role he was performing in his wife’s newsagency. Dr Chase – who thought he could perform other work with retraining – agreed with Dr Rosenthal that Mr Kwiatkowski could no longer work as a “general courier”. Both agreed that his accepted conditions alone prevented him from doing so.
We are satisfied that Mr Kwiatkowski’s skills, qualifications and experience as a photographer have, in effect, been rendered obsolete by changes in technology. Dr Chase thought he could “probably” work as a photographer but he would need retraining, and he would not be able to do the kind of work he did during service or in the police force. We are satisfied that is so.
We also accept Mr Kwiatkowski’s evidence that he has virtually no skills qualifications and experience that would enable him to undertake administrative, clerical or supervisory work without retraining. His remunerative work for the past 28 years or so has involved driving and various forms of delivery. More recently, since 2003, is has largely been driving, with less demanding deliveries.
We accept that Mr Kwiatkowski’s computer skills are extremely limited. We accept his evidence that others did typing for him when he was employed as a police photographer. We accept that his typing skills now are very limited. Without retraining, he could not reasonably be expected to perform administrative or clerical work, and there is nothing to suggest that he has the skills, qualification and experience relevant to supervising others.
Where Dr Rosenthal and Dr Chase differ is as to the hours of work that Mr Kwiatkowski is capable of performing. Dr Rosenthal believes he is not capable, by reason of his ankle conditions alone, of performing eight or more hours per week. Dr Chase’s evidence was that, while he could not do forms of courier work requiring exertion such as running up and down stairs, if it involved mostly driving and delivering parcels, lifting very light weights, and if he did not have to get in and out of the car all the time, and could pace himself, then on balance, he could do that for up to 20 hours a week.
Leaving aside what he said about retraining, on balance, we prefer Dr Chase’s evidence to that of Dr Rosenthal as to the hours of remunerative work that Mr Kwiatkowski is capable of undertaking. Dr Chase distinguished the different kinds of courier work that Mr Kwiatkowski could and could not do. His evidence was measured and he readily acknowledged the limitations on Mr Kwiatkowski’s capacity. We are satisfied that Mr Kwiatkowski is capable of performing remunerative work in the nature of driving and light deliveries, or driving alone, for eight hours or more per week, although not for 20 or more hours per week.
The fact that Mr Kwiatkowski is driving a community bus for periods of one to two hours, one or two times a week, lends weight to Dr Chase’s opinion. It is not clear why he works these particular hours but he has not suggested that he could not do at least some more each week. It was submitted for Mr Kwiatkowski that voluntary work lacks the rigours of paid employment but we are not persuaded that it makes any real difference to his capacity whether he is driving voluntarily or being remunerated.
While we are not satisfied as to the special rate, we are satisfied that Mr Kwiatkowski satisfies section 23(1)(b) as to the intermediate rate of pension.
IS MR KWIATKOWSKI PREVENTED BY HIS WAR-CAUSED INCAPACITY ALONE FROM ENGAGING IN REMUNERATIVE WORK THAT HE WAS UNDERTAKING?
There is the evidence already referred to of the range of medical conditions Mr Kwiatkowski has suffered. The issue is whether any of these – or any other factor –prevents him from continuing remunerative employment.
We are satisfied that, were it not for the falls that led Dr McGuigan to advise him to give up work, Mr Kwiatkowski would more probably than not have been doing the delivery work he was doing in 2008 when the assessment period commenced on 9 September 2010. We accept his evidence that he liked the work and it was relatively well-paid, and he could arrange it flexibly to suit himself. Even if he was contemplating retirement before too long, we accept that he does not enjoy “sitting around” and would probably have continued working for some time.
We are satisfied, on the medical evidence, that none of Mr Kwiatkowski’s non-accepted conditions prevented him from continuing in remunerative employment. Mr Kwiatkowski gave evidence about the conversation when Dr McGuigan advised him to stop work, that “everything” had come to a head, by which we understand him to mean that the combination of his medical conditions had to be dealt with. However, we are satisfied from Dr McGuigan’s report to Dr Tran, referred to above, that it was only his ankle conditions that were preventing him from working.
The report of Dr Breslin about Mr Kwiatkowski’s respiratory problems raises the possibility that that condition could have played a part but Dr Breslin did not say so, and we have not had the opportunity to hear further from him, and Dr Chase did not observe symptoms that he thought significant. Nor is there any other evidence that this condition affected Mr Kwiatkowski in his work.
There is no evidence that any of Mr Kwiatkowski’s other non-accepted conditions prevented him from engaging in remunerative work. They are either controlled with medication or have no apparent effect. Although Dr Lewin thought it “conceivable” that Mr Kwiatkowski’s depressive disorder and drinking problem might have interfered with his capacity to discharge his duties “at least some of the time”, he did not put it higher than that, and there is no evidence to that effect. Nor is there evidence that Mr Kwiatkowski’s PTSD had prevented him from engaging in remunerative employment. If anything, he has worked, albeit part-time, for 28 years without any evidence that his non-accepted conditions affected his capacity for employment.
Although it is not clear just how much Kwiatkowski weighed when he stopped work, and at the commencement of the assessment period, we are satisfied that it did not play a part in preventing him continuing to work at that time. The fact that his weight went up later does not preclude him. It is reasonable to assume it would have affected him generally but the fact is he is still driving the bus at his present weight, and apparently was even able to when his weight increased. This supports the conclusion that it played no part in him ceasing employment.
CONCLUSION
We set aside the decision under review and substitute a decision that, with effect from 9 September 2010, Mr Kwiatkowski qualifies for the intermediate rate of pension.
I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr Hadia Haikal-Mukhtar. .......................[sgd].................................................
Associate
Dated 29 November 2013
Date(s) of hearing 11 and 13 September 2013 Counsel for the Applicant Mr C Colborne Solicitors for the Applicant KCI Lawyers Solicitors for the Respondent Mr T O'Reilly, Department of Veterans Affairs
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