Iliffe and Repatriation Commission

[2024] ARTA 5

Iliffe and Repatriation Commission (Veterans’ entitlements) [2025] ARTA 5 (1 November 2024)

Applicant/s:  Larry Iliffe

Respondent:  Repatriation Commission

Tribunal Number:                2023/1449

Tribunal:General Member A. Maryniak KC

Place:Melbourne

Date:1 November 2024

Decision:The Tribunal affirms the reviewable decision.

................................[SGD]........................................

General Member A. Maryniak KC

Catchwords

VETERAN’S AFFAIRS – application for increase to special rate of pension – veteran in receipt of pension at 100% of the general rate – whether non-accepted injuries prevented veteran from undertaking remunerative work – whether alone test satisfied – consideration of the substantial cause – reviewable decision affirmed

Legislation

Veterans’ Entitlements Act 1986 (Cth)

Cases

Barnes v Repatriation Commission [2019] FCA 1685
Fox v Repatriation Commission [1997] FCA 176
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Woodall [2015] FCA 1267

Smith v Repatriation Commission (2014) 220 FCR 452; [2014] FCAFC 53

Statement of Reasons

1. The Applicant seeks review of a Veterans Review Board decision under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) dated 8 December 2022 which affirmed an earlier decision, contrary to a claim dated 11 October 2021, to maintain the Applicant’s pension at 100% of the general rate of pension. At the date of the claim the Applicant was under 65.

2. The Applicant served with the Australian Army between 1974 and 1977, the Australian Air Force between 1977 and 1986 and the Army Reserve between 1994 to 1999. The Applicant had other full-time employment between and after these periods of time. He stopped working full-time in March 2013 and worked as a casual at the University of Canberra for approximately eight months in 2015.[1]  

   [1] Exhibit R1 T34, p 146.

3. The Tribunal has considered the testimony of the Applicant and Dr Douglas, expert witness engaged by the Respondent, both of whom were cross-examined. The Tribunal has also considered the documentary material before it, including the T-Documents (Exhibit R1) together with various pages of the summonsed material referred to during the hearing. The Tribunal has also considered the written and oral submissions of the parties. The Tribunal finds the Applicant to be a truthful witness and accepts that he is experiencing significant health challenges and has a substantial history of health issues.

4. The Tribunal is required to assess whether at any time during the assessment period the special rate (or intermediate rate) was payable. The entitlement may increase or decrease during that period but, provided that a pension was payable at some time during the assessment, a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.[2] Whilst the Applicant’s claim is for a special rate pension, the Tribunal has also considered any intermediate rate pension entitlement.

   [2] Smith v Repatriation Commission (2014) 220 FCR 452 at [40].

5. In respect of the special rate, it is necessary to consider the cumulative requirements of section 24(1) of the Act to determine any such entitlement. The threshold requirements of sections 24(1)(aa), (aab) and (a) are agreed as between the parties as met, and the Tribunal so finds on the material before it. A similar finding applies to section 24(1)(d). At issue is whether section 24(1)(b) is met, and if so, whether section 24(1)(c) is also met. If not, the Applicant’s claim fails.

6. The first question for the Tribunal to determine is whether section 24(1)(b) is satisfied, namely, is the Applicant ‘totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, [accepted conditions] 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’. The relevant assessment period for this determination is from 11 October 2021 to the date of this decision. A reasonable satisfaction standard of proof pursuant to section 120(4) of the Act applies in respect of an assessment of the entitlement.

7. If there was a ‘non-war caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied’.[3]

   [3] Repatriation Commission v Richmond [2014] FCAFC 124 at [65] (‘Richmond’).

8. In summary, the Applicant submits that ‘in keeping with the beneficial nature of [the Act] [the Applicant’s] accepted conditions must be given far greater weight than his non-accepted conditions’.[4] The Tribunal notes that the Applicant submits that the “medical opinion” before the Tribunal ‘holds that it is the Applicant’s accepted conditions which the Respondent agrees gives him a degree of incapacity of 100 per cent is the predominant reason the Applicant ceased work’ (emphasis added).[5]

   [4] The Applicant’s Statement of Facts, Issues and Contentions dated 6 September 2024 [12].

   [5] Ibid [13].

9. The Applicant’s accepted conditions are osteoarthritis affecting both knees, lumbar spondylosis, bilateral tinnitus, bilateral sensorineural hearing loss, haemangioma of right ankle (excised) and varicose veins in both legs (together the ‘VEA accepted conditions’).[6] The relevant focus is upon the impact, if any, of the Applicant’s non-accepted conditions. The Applicant was cross-examined as to aspects of his past and present medical conditions. As at 1 May 2017 and 28 November 2017, Dr Coulshed noted the Applicant required dialysis.[7] The Applicant testified that such treatments were approximately 4 1/2 to 5 hours three times per week, beginning in around January/February 2017 and continuing until he received a kidney transplant on 27 May 2021. The Applicant also developed renal bone disease sustaining the need for knee surgery in 2018. On 26 March 2019 Dr Coulshed advised the Applicant that ‘it would be difficult for him to work’.[8]

   [6] Exhibit R1 T38.

   [7] T39, T40. 

   [8] T43.

10. On 14 March 2019 Dr Pahn assisted the Applicant with completing a veterans disability claim form. On it the Applicant noting ‘because of some accepted conditions and [his then] kidney problems [pre-transplant] … forced to stop working and prevents me from working or looking for work in any capacity…’.[9]

    [9] T42, p 197.

11. On 27 May 2021 the Applicant underwent a kidney transplant and was then required to attend daily appointments for three months.[10] The Applicant testified that the borderline kidney transplant rejection developed soon after and that issue was continuing until late August 2021 when he was discharged.

    [10] T53.

12. As at August 2021 the Applicant was receiving ongoing daily treatment regarding the kidney transplant and early rejection concerns, and was advised, upon being discharged from hospital in late August 2021, to avoid public places, including workplaces, with his suppressed immune system. He is now on immunosuppressants for life.

13. On 2 November 2021 Dr Pahn reported that the Applicant was permanently incapacitated for work due solely to a combination of accepted conditions. Dr Cronin reached a similar conclusion on 14 February 2022.

14. The Applicant relies, inter alia, upon two reports of Dr Cronin, Consultant Veteran Health Practitioner, dated 10 August 2022 and 20 June 2023. On 10 August 2022 Dr Cronin noted that ‘[p]ost-transplant, the veteran still needs to attend multiple specialist appointments and take immuno-modulating medications which increase risk of infection. He is advised to avoid workplaces where he may get infections from other members of that workplace’.[11] Around that time, the Applicant also suffered from ocular migraines with Dr Cronin noting that they were ‘incapacitating he is unable to work due to being unable to concentrate and needing to rest in a dark room well as (sic) the need to avoid other members of the workplace’.[12]

    [11] T72, p 426.

    [12] Ibid p 427.

15. The Applicant testified that he had not had an ocular migraine for at least the last year. Dr Cronin concluded that ‘[s]ince 2013, the veteran has been unable to work due to a combination his injuries suffered whilst in the military and his kidney disease’.[13] In his supplementary report dated 20 June 2023, Dr Cronin noted that the Applicant’s ‘symptoms of his non-accepted conditions of his kidney disease have stabilised to the extent that [the Applicant] would be able to return to the workforce if his only conditions were related to his kidneys. [The Applicant] is unable to work mainly due to his accepted conditions’.

    [13] Ibid p 429.

16. The Tribunal further notes that in a report of 9 February 2024, Dr Gupta, the Applicant’s treating Nephrologist, noted that since his transplant in 20­­21 the Applicant had ‘lost 20kg including muscle loss. [The Applicant was] physically quite deconditioned with poor exercise tolerance and shortness of breath on exertion. He has muscle pain as well. He can barely walk 200 [metres] in one stretch. He has ongoing physiotherapy support’.[14] The Applicant testified that since physiotherapy he had improved somewhat.

    [14] Summonsed records of Dr Alok Gupta.

17. The Respondent contends that it is not by reason of the Applicant’s incapacity from his VEA accepted conditions alone that the Applicant is prevented from continuing to undertake the remunerative work that the Applicant was undertaking.[15] The Respondent submits that conditions other than the VEA accepted conditions contribute to the Applicant being prevented from continuing to undertake such work.

    [15] The Respondent’s Statement of Facts, Issues and Contentions dated 8 August 2022 [4.19].

18. The Respondent relies upon the testimony of Dr Douglas, and her two reports dated 5 September 2023 and 9 July 2024 (Exhibit R2). As a foundation to her first report, Dr Douglas considered documentary material showing a very complete medical history of the Applicant. In her expert opinion, Dr Douglas concluded that due ‘to a combination of multiple medical conditions including the musculoskeletal accepted conditions and the non-accepted conditions [the Applicant] has no current capacity for work and there is a permanent restriction’.[16]

    [16] Report of Dr Ki Douglas dated 5 September 2023, p 20.

19. Dr Douglas also set out in a table each of the medical conditions and, in her opinion, their impact on work capacity. Relevantly in respect of “renal cancer/renal transplant/renal failure”, Dr Douglas stated that the Applicant ‘has a relatively normal haemoglobin which would not be sufficient to cause fatigue. However, fatigue is common in people with chronic kidney disease. [The Applicant’s] eGFR is 29 which is consistent with stage 4 renal disease and is reflected in his loss of protein through urine. For patients not on dialysis one study found that 70% report fatigue. Renal failure also leads to muscle wasting and weakness’.[17] Importantly, Dr Douglas also diagnosed fatigue of chronic illness and observed that the Applicant ‘is profoundly fatigued based on his fatigue score of 2/52. His symptoms are not compatible with working’.[18] She concluded that ‘in relation to being able to work less than 8 hours per week, it is the non-accepted conditions of renal failure and the fatigue of chronic illness that have further reduced the work capacity to less than eight hours per week from 2021 after the renal transplant surgery’.[19]

    [17] Ibid p 21.

    [18] Report of Dr Ki Douglas dated 5 September 2023, p 22.

    [19] Ibid p 30.

20. In her subsequent supplementary report, Dr Douglas corrected “cosmetic” errors in her original report and maintained that the Applicant’s ‘capacity for work is affected by a combination of his multiple medical conditions both accepted and not accepted as service-related to which [she] would add obstructive sleep apnoea as diagnosed by Dr Lee Rafter, Respiratory Physician in his letter of 25 October 2023 and it Is also affected by chronic renal failure (chronic kidney disease) despite renal transplantation. There is no change to my assessment of [the Applicant’s] incapacity for work’.[20] Dr Douglas reiterated her opinion that it is the Applicant’s fatigue of chronic illness which is the main reason that he cannot work, and it is the combination of his medical conditions, being both the VEA accepted conditions and non-accepted conditions, inter alia, which contribute to his incapacity.

    [20] Supplementary report of Dr Ki Douglas dated 9 July 2024, p 7.

21. Upon questioning by the Tribunal, Dr Douglas confirmed that her opinions expressed regarding the Applicant and his multiple medical conditions, and their impacts on finding remunerative work, were in respect of the period since his kidney transplant in May 2021.

22. On balance, the Tribunal gives greater weight to the expert opinion of Dr Douglas who concludes that it is not the Applicant’s VEA accepted conditions alone which are responsible for his incapacity for work. In one sense, Dr Cronin agrees in that he states in his supplementary report that the Applicant ‘is unable to work mainly due to his accepted conditions’.[21] The Tribunal prefers the opinion of Dr Douglas, which is soundly based upon a comprehensive analysis of the materials she was provided with and was not critically undermined by either cross-examination or questions from the Tribunal. The Tribunal finds that the Applicant’s fatigue of chronic illness is a reason the Applicant is prevented from working more than eight hours per week, being a non VEA accepted condition. On this basis the Tribunal finds that section 24(1)(b) is not satisfied and hence, due to its cumulative nature, section 24(1) is not satisfied. Therefore, the Applicant has no entitlement to a special rate pension.

    [21] Supplementary report of Dr Andrew Cronin dated 20 June 2023, p 7.

23. With respect to any intermediate rate of pension entitlement, section 23 of the Act is the operative section. The parties agree and the Tribunal accepts that the requirements of sections 23(1)(aa), (aab), (a) and (b) are met by the Applicant. In light of the findings above section 23(1)(d) is also satisfied. The Tribunal is to determine whether section 23 is otherwise satisfied on the evidence before it, namely is the ‘alone test’ in section 23(c) met.

24. Of this test, the Full Federal Court stated ‘… that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remuneration work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied’.[22]

    [22] Richmond (n 3) at [65].

25. Again, on the evidence, parts of which are discussed above, the Tribunal is not satisfied that it is due to his VEA accepted conditions alone that the Applicant is prevented from continuing to undertake the remunerative work he was previously undertaking. It is clear from Dr Douglas’ evidence, which the Tribunal accepts, that fatigue of chronic illness, and for completeness, chronic kidney disease, muscle wasting, and muscle weakness contributed to the Applicant being prevented from working. Hence the VEA accepted conditions alone were not and are not the sole reason, and the Tribunal so finds. To a lesser extent, the Applicant’s hypertension, anxiety/depression, sleep apnoea, motivation, self-esteem, and age may also make some contribution, but it is not necessary for the Tribunal to assess these in light of the preceding finding. 

26. Section 23(3) is an ameliorating provision and by its terms must also be considered in assessing whether section 23(1)(c) is satisfied. Three key relevant elements must be established for this ameliorating section to apply to the Applicant. The Tribunal must first determine whether the Applicant has been genuinely seeking to engage in remunerative work. Upon consideration of the evidence, including his testimony and the spreadsheet produced on the second day of the hearing (Exhibit A1), the provenance of which was not seriously challenged by the Respondent and which the Tribunal accepts as authentic in any event, the Tribunal finds that this element has been made out and the Tribunal finds accordingly.

27. The second element is whether the Applicant would be continuing to seek to engage in remunerative employment but for his war caused incapacity. Again, based upon the material as referred to with respect to the first element, the Tribunal is satisfied that the Applicant has satisfied the second element and the Tribunal so finds.

28. The third element is whether the war-caused incapacity is the substantial cause of the inability to obtain work. The meaning of “the substantial cause” has been examined by the Federal Court. In Fox v Repatriation Commission [1997] FCA 176, Kiefel J (as she then was) stated that the expression required that, ‘…if the incapacity is not of itself productive of the inability to obtain work, it is nevertheless the operative factor which, more than any other, explains it’. However, she went on to say of the expression “a substantial cause” that this ‘…has regard to the situation where there may be a number of factors operating which are of sufficient causal significance to qualify as “substantial”’.[23]

    [23] See also Repatriation Commission v Woodall [2015] FCA 1267 at [27] and Barnes v Repatriation Commission [2019] FCA 1685 at [42].

29. Again, preferring the evidence of Dr Douglas to that of Dr Cronin for the reasons discussed above, the Tribunal accepts her opinion that fatigue of chronic illness was either “the substantial cause” and if not “a substantial cause” in addition to the chronic kidney disease which was at least “a substantial cause” of the Applicant’s inability to obtain remunerative work.

30. Dr Douglas is of the opinion that the Applicant is too unwell to work.[24] In her supplementary report she maintains her opinion that the Applicant’s ‘fatigue of chronic illness is the main reason that he cannot work’ and the Tribunal accepts her expert opinion on this point. Hence, the Tribunal is not satisfied that the Applicant’s war-caused incapacity is the “substantial cause” of his inability to obtain remunerative work.

    [24] Report of Dr Ki Douglas dated 5 September 2023, p 29 [4.11].

31. As a consequence, the third element of section 23(3)(b) is not made out and thus section 23(1)(c) is not satisfied.

32. For the reasons discussed above, the Tribunal affirms the reviewable decision.

1.       I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC

................................[SGD]........................................

Associate

Dated: 1 November 2024

Dates of hearing:	10 and 12 September 2024
Advocate for the Applicant:	Mr James Wain, Veterans Support Centre
Advocate for the Respondent:	Ms Kellie Latta
Solicitors for the Respondent	Sparke Helmore