Irving and Repatriation Commission
[2013] AATA 904
•18 December 2013
[2013] AATA 904
Division VETERANS' APPEALS DIVISION File Number
2012/4069
Re
Alan Irving
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 18 December 2013 Place Brisbane (Heard in Townsville) The decision under review is affirmed.
....................[Sgd]....................................................
Senior Member Bernard J McCabe
CATCHWORDS
VETERANS' AFFAIRS – Pensions and Benefits – Pension at the special rate – Back condition – Whether applicant incapable of working for more than eight hours per week – Decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) s 24
REASONS FOR DECISION
Senior Member Bernard J McCabe
18 December 2013
Mr Alan Irving has a bad back. His back condition is accepted as being related to his service in the Navy. He now says he is unable to work. He applied for a pension paid at the special rate under s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). Special rate pensions are only available to veterans who are completely incapacitated as a result of their service-related conditions. The Repatriation Commission believe Mr Irving is able to work more than eight hours each week. In those circumstances, the Commission said the applicant cannot satisfy the requirements of s 24 – specifically
s 24(1)(b). Mr Irving has asked the Tribunal to re-visit the issue.
While the applicant’s evidence is obviously important, the outcome of the dispute turns on the medical evidence, provided by two specialist orthopaedic surgeons in particular.
I am satisfied after hearing all of that evidence the applicant is, in fact, able to work more than eight hours per week. It follows he cannot satisfy all the requirements of s 24 of the Act. I explain my reasons below.
MR IRVING’S WORK HISTORY
The applicant’s work history was set out in his statement (exhibit 2) and in somewhat more detail in exhibit 8, and it was referred to in the course of his oral evidence.
Mr Irving worked as a clearance diver in the Navy. He had an accident at work in 1977. He said he has lived with constant pain and restricted movement since that date.
He was discharged from the service in 1980 with the rank of lieutenant and commenced working in the private sector.
The applicant initially worked as a commercial diver in the Whitsunday islands.
He conducted a cylinder test station (used to test the integrity of diving equipment) and provided services to dive companies. But he said he began to experience increasingly serious back pain in the early 1980’s that made the work more difficult. He obtained some treatment in 1984 that permitted him to resume his business of testing cylinders and other equipment used in diving and running a recreational dive business. He also did casual work as the skipper of a boat (the applicant held a Master - Class IV qualification). He continued to develop his equipment testing and supply business over the next few years. He expanded his activities to include testing of cylinders and breathing apparatus used in mines and other industries. He experienced back problems all the while.
Mr Irving said he had to sell out of most of the business around 2000 because he could not cope with the physical demands. Even so, he busied himself with a number of activities, including supervising commercial diving operations for a big tour operator in 2004-2005. He also began to develop a website marketing dive trips to visitors to the Great Barrier Reef. In 2005, he began to work for another dive operator who had taken over the company that acquired his cylinder testing assets a few years before. He left in September 2006 because of his back condition. He said he was simply taking too much time off work. I note that company went out of business a little while later, but that is irrelevant for present purposes.
The applicant continued working on his website, which was starting to show real promise. He explained it took a good deal of painstaking work to optimise the site so that it featured prominently in response to Google search queries. He said in exhibit 8 that he started to “make a good living from it” during this period. Even so, he said he was concerned about his financial future and applied to the respondent for a pension. He also tried his hand at a few other occupations after 2007.
He began working for a paint business in 2008. He initially confined himself to paperwork and managing accounts, and enjoyed some success in that role. Too much success, in fact: he soon had the work done and was deployed elsewhere in the business where he was expected to manhandle cans of paint. He did not last long because of his back, he said. He had to give it up.
He took a job delivering newspapers out of a newsagent in Airlie Beach a few weeks later in 2008. He said he initially liked the work and thought he could handle it because he could work at his own pace. But the bundles he had to deliver were heavy and he said he soon became unable to continue.
In 2008, as his Master - Class IV ticket was about to expire, he took a position as skipper of a barge around Hamilton Island. He said it quickly became clear he could not do the work because he had poor balance and could not handle the cargo, or the fire-hoses in an emergency drill. He left after less than a week without even collecting his first pay.
Mr Irving also served in the Naval Reserve. He said he declined to take further tasks from the Reserve because of his back condition after about 2006. He cited the example of an offer to form part of the crew on a vessel travelling to Asia. He said he very much wanted to accept the assignment but could not because of his back condition.
The applicant says he has not sought further work in the last three years because of the restrictions and pain connected with his back injury. The condition prevented him from meeting the physical requirements of work and forced him to take too much time off, to the chagrin of his employers.
These days, the applicant makes a small amount of income out of his website. He says he is unable to devote the time required to make the site as prominent as it used to be.
He says he cannot sit at a desk for hours each day to do the work required to market the site. He also continues to service some diving equipment, although he is unable to do any heavy work. In his oral evidence, he referred to Dr Emery’s opinion as confirmation for his belief he was unable to work more than seven hours per week.
Mr Irving’s account of his difficulties at work appears to be consistent with the statement provided by Mr Smith, who saw the applicant experience difficulty when he tried to make a comeback as a skipper in 2008: exhibit 6. I also note the applicant’s evidence about the demanding nature of some of the work involved in being a diving technician is corroborated by Mr Ken Sharpe, a dive shop owner in Airlie Beach: exhibit 5.
I note the applicant’s Master - Class IV qualification has now lapsed. He was also unable to maintain his diving certification because he was unable to pass the medical.
His general practitioner, Dr Squires, examined the applicant and concluded the loss of flexion and stability consequent upon his back condition meant he was not fit to hold a commercial diving licence: exhibit 4.
THE MEDICAL EVIDENCE
Dr Squires referred the applicant to see Dr Emery early in 2013. Dr Emery is a consultant orthopaedic surgeon who provided a report but did not give oral evidence. Dr Gibberd, who is also an orthopaedic surgeon, saw Mr Irving at the request of the respondent.
Dr Gibberd provided a report and gave oral evidence at the hearing.
Whereas Dr Squires had observed the applicant “has extremely limited range of movement” and had difficulties with “straight leg raising” and stability, the two orthopaedic surgeons did not observe significant problems on clinical examination.
Dr Emery’s report (exhibit 3) is very brief. In his report, he observed “Nothing much to find clinically except some lumbosacral spine stiffness” and found there was no neural compromise. But he noted the radiological imaging suggested some “obvious issues” and concluded:
I believe that Alan is unfortunately suffering from back pain probably as a result of disc disruption but also facet joint symptoms which are quite limiting and I do believe that it is as a result of the injury he suffered in the past and as a direct result his work capacity now is also limited to seven hours a week.
The respondent does not say any of those signs and symptoms suggest the applicant is suffering from a condition other than the accepted conditions of lumbar intervertebral disc prolapse at L4-L5 and lumbar spondylosis. (The applicant suffers from several other accepted conditions including tinnitus, but there is no suggestion they play any role in his inability to work.)
Dr Emery’s report is very short. It does not offer an extensive or detailed explanation for Dr Emery’s conclusion that the applicant is unable to work more than ‘seven hours a week’. That is surprising, given the limited clinical findings. In fairness to Dr Emery, it is clear his report was prepared for the applicant’s general practitioner rather than for use in proceedings. If Dr Emery had been asked to provide a more extensive report, he would presumably have done so. I also acknowledge the report supported the conclusions of
Dr Squires, although I do not think I should give as much weight to the observations or opinion of Dr Squires, a general practitioner, when compared with the opinions of specialist orthopaedic surgeons with expertise in conducting clinical examinations.
Dr Gibberd reached a different view in relation to the applicant’s capacity for work.
Dr Gibberd said Mr Irving should be able to work full-time, at least in a reasonably sedentary position. He said the applicant’s complaints of pain were not consistent with clinical findings or the radiological reports (although I note Dr Gibberd agreed he did not examine the radiological evidence himself, preferring to rely instead on the reports).
Dr Gibberd performed a number of objective tests in search of the so-called “Wardell signs”. He made several positive findings that suggested to him the applicant’s limitation of movement and serious pain might not be explained by his accepted and observable conditions.
I had some reservations about Dr Gibberd’s evidence. He did not see the radiological evidence himself; more importantly, it was apparent from the oral evidence that he was unconvinced by the applicant’s account of his condition. I worried that his firm view might have unduly coloured his assessment of the applicant’s capacity for work.
The evidence from all of the experts is not entirely satisfactory, for reasons I have explained. But I must make the best of it. While both of the specialist orthopaedic surgeons appear to be experienced and well-credentialed, I am inclined to favour the opinion of Dr Gibberd. Dr Gibberd offered a clearer explanation of his views about the extent of the applicant’s inability to work. His evidence was, in that sense, more compelling than the briefly-expressed assertion of opinion of Dr Emery. I acknowledge Dr Emery’s evidence is consistent with the conclusion of Dr Squires and the evidence of the applicant himself, but answers given in cross-examination suggest it is possible the applicant’s evidence is at least partially influenced by Dr Emery’s view, and Dr Squires is in any event not a specialist and his clinical observations were inconsistent with either of the orthopaedic surgeons. I do not think the evidence of Dr Squires and the applicant change my preference for the opinion of Dr Gibberd. He simply offered a better, more carefully explained and credible opinion to the effect that the applicant was capable of doing more than seven or eight hours of work each week. That finding means the applicant is unable to satisfy the requirement in s 24(1)(b) of the Act. As such it is unnecessary to consider the other requirements contained within s 24 of the Act.
CONCLUSION
The decision under review must be affirmed.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe .................[Sgd].......................................................
Associate
Dated 18 December 2013
Date of hearing 4 November 2013 Counsel for the Applicant Mr D Honchin Solicitors for the Applicant Purcell Taylor Lawyers Advocate for the Respondent Mr B Williams
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