Jacobs and Repatriation Commission
[2000] AATA 810
•13 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 810
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1881
VETERANS' APPEALS DIVISION )
Re DAVID WINDERMERE JACOBS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date13 September 2000
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely THAT: the Respondent, Repatriation Commission, is to pay to DAVID WINDERMERE JACOBS pension for incapacity occasioned by the war-caused disease of lumbar spondylosis at the following rates:- as and from 23 October 1999 to 24 February 2000 inclusive at 60% of the General Rate of pension; and at 70% of the General Rate of pension as and from 25 February 2000.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether lumbar spondylosis war-caused. Definition of trauma. Contribution sufficient to comply with SoP. Rate of pension – Special Rate denied as under 65 and not seeking work.
Veterans' Entitlements Act 1986 - subs24(1) and (2); s28; subs120(1), (3) and (6); s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Smith 15 FCR 327
Jebb v Repatriation Commission 8 AAR 285
Cavell v Repatriation Commission 9 AAR 534
REASONS FOR DECISION
13 September 2000 Senior Member M D Allen
Pursuant to an application lodged with the Tribunal on 24 December 1998 the Applicant sought review of a decision of the Respondent made 23 January 1998 and confirmed by a Veterans' Review Board on 1 September 1998 that his condition of lumbar spondylosis was not war-caused.
The said application for review came on for hearing before me at Sydney on 23 February 2000 and resumed on 24 July 2000. At that hearing the following documents were taken in as exhibits and marked as follows, namely:
T1 – T15: The documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1: Applicant's Statement of Facts and Contentions
Exhibit A2: Report of Dr M Benanzio dated 30 March 1999
Exhibit A3: Report of Dr M Benanzio dated 16 July 1999
Exhibit A4: Report of Dr M Baz dated 25 February 1999
Exhibit A5: Report of Dr M Baz dated 19 July 1999
Exhibit A6: Report of Dr M Baz dated 24 February 2000
Exhibit R1: Respondent's Statement of Facts and Contentions
Exhibit R2: Report of Professor P N Sambrook dated 29 April 1999
Exhibit R3: Report of Dr Mark Burns dated 4 September 1999
Exhibit R4: Copy of the Applicant's Naval medical documents.
As the Applicant had operational service as that term is defined in s6D of the Veterans' Entitlements Act 1986 (the VEA), such service being aboard HMAS Quadrant in the periods 2 March 1956 to 10 April 1956 and 21 September 1956 to 7 October 1956, the provisions of subss120(1) and (3) of the VEA constitute the relevant standard of proof in this matter. As the application to the Respondent for pension was made post 1 June 1994, any reasonable hypothesis raised by the Applicant in support of his claim must meet the applicable so-called Statement of Principles (SoP) issued by the Repatriation Medical Authority (see s120A of the VEA). As was pointed out in Repatriation Commission v Keeley [2000] FCA 532, the SoP to be applied is that SoP in force at the time the Respondent made its initial determination in the Applicant's case.
In Repatriation Commission v Deledio 83 FCR 82 the Full Court of the Federal Court set out the process by which the Tribunal must match the evidence adduced in the matter to the appropriate standard of proof and the applicable SoP (if any). At p97 the court said:
"1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
As was pointed by Finn J in Harris v Repatriation Commission [2000] FCA 873, it is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio supra, was concerned not with the proof or disproof of the various SoP factors but whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed so permitting the SoP to uphold the Applicant's hypothesis. As his Honour said at para 37 of his judgment:
"… Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'."
See also Dixon v Repatriation Commission 29 AAR 235 where Wilcox J held that it was erroneous for the Tribunal to consider the truth of an applicant's evidence at the stage of addressing the reasonableness of the hypothesis since this should have been left to the final stage of its reasoning process when it was deciding pursuant to subs120(1) whether it was satisfied beyond reasonable doubt that a claim which fitted the factors in a relevant SoP was without justification.
Also relevant to consideration of this matter is subs120(6) of the VEA which provides that there is no onus of proof upon either party to this application for review and para 119(1)(h) of the VEA which provides inter alia that in hearing and making a decision in relation to a claim the Repatriation Commission, and hence this Tribunal, shall take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance including any reason attributable to the absence of or deficiency in relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran was not reported to the appropriate authorities.
In this matter I specifically take into account that record keeping aboard one of HMAS ships on operational service may not have been as accurate or as thorough as in a shore establishment in peacetime. The Applicant gave sworn evidence as to injuring his back whilst on operational service and I accept his evidence on this point.
Additional to the Applicant's claim to the Tribunal that his lumbar spondylosis was war-caused was a claim that he was entitled to pension for incapacity arising from that disease at the Special Rate. So far as is relevant the criteria for the grant of Special Rate are set out in s24 of the VEA and read:
"24 (1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(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
(d)section 25 does not apply to the veteran.
(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; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."
Section 23 of the VEA is in similar terms and provides that pension shall be granted at the Intermediate Rate if the veteran is incapable of undertaking work for 50% or more of the time ordinarily worked by persons engaged in work of a particular kind engaged in by the veteran or for 20 or more hours per week.
In considering the tests laid down in both ss23 and 24, s28 of the VEA is to be applied. It reads:
"In determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."
Further, as was pointed out by Davies J in Jebb v Repatriation Commission 8 AAR 285 and given statutory force by subs19(5) of the VEA, the Tribunal must assess entitlement to pension from the application day up to the date of its decision. That is to say, regard must be had to what Davies J, in Jebb supra at p289, referred to as the "continuum of decision making".
As to the "alone" test postulated by both s23 and s24, the classic explanation of that term was by Burchett J in Cavell v Repatriation Commission 9 AAR 534 at 539, namely that the true task of the Tribunal is 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.
The Applicant, who was born on 23 December 1935, enlisted in the Royal Australian Navy at age 17. Document T3 gives the date of his enlistment as 24 August 1953. Prior to enlistment he had left school at age 14 and, after one year as an apprentice to a jeweller, he had held a succession of unskilled jobs until enlisting in the Navy. In the Navy he was trained as a cook.
On the night of 15 November 1953, whilst still undergoing recruit training, he fell some 20 feet down a companion way and injured his back and shoulder. He was also unconscious for a time. He was then taken by ambulance to Flinders Naval Depot Hospital where he remained for two days before being discharged to duty.
After this incident the Applicant's back remained sore for some 20 days. He then began to experience pain on and off, particularly in his right buttock radiating down his right leg. This pain was treated with analgesics.
In 1956, whilst a crew member of HMAS Quadrant, the crew were called to action stations and the Applicant attended to his position to load anti submarine torpedoes ("squids"). Whilst hauling on a chain in order to load a squid into the firing tube, it jammed and the Applicant was subjected to what he described as a "whipping motion". This caused pain to his back of such severity that he dropped to the deck and could not move for some time. After being stood down from actions stations the Applicant made his way to the sick berth where he was seen by a medical officer.
Having been prescribed analgesics by the medical officer, the Applicant returned to his quarters. He remained there for two to three days, lying on a hard bench. His pain was so severe that he did not shower (although in the tropics), did not go to meals but ate (lying down) sandwiches brought to him by his shipmates and urinated into a bottle which was then disposed of by his shipmates.
On the fourth day the Applicant returned to his duties as a cook but did not do any bending or lifting. He stated that he remained in pain for one month and could not lift anything for that period of time.
After approximately one month the Applicant's level of back pain returned to its previous level. He was cross-examined regarding this and conceded that post the 1956 incident, his back pain was not much different to previously but used to "hang on much longer".
Immediately after discharge from the Navy on 22 December 1959, the Applicant began chicken farming with his brother-in-law. This only lasted for 12 to 18 months as he found he could not pull his weight in the business because of his bad back.
At the time of his discharge from the Navy the Applicant signed a form (T3 p9) stating that he was not suffering from any disease or injury as a result of his service. He explained this by stating that the said form was handed to him at the completion of his discharge procedure and he was told that if he claimed any injury, his discharge would be delayed for a week until he was examined by a medical officer. As he had a position to go to, he did not want his discharge delayed so he answered "no" to the question asking about injuries.
After his unsuccessful attempt at chicken farming the Applicant obtained employment with the Commonwealth Serum Laboratories in Melbourne as a laboratory technician. Whilst working there he suffered an exacerbation of back pain and, on the recommendation of his father's general practitioner upon whom he attended, a claim was made to the Respondent for medical treatment and pension. This claim was rejected on the basis that the Applicant "was not entitled" and his papers returned to him.
No record of that claim has been provided to the Tribunal in the documents prepared for it pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
The Applicant remained with the Commonwealth Serum Laboratories in Melbourne for some seven years then moved to Western Australia and changed the focus of his duties from technical type work to caring for laboratory animals.
Whilst in Western Australia, he had two periods of hospitalisation because of back pain. One incident was occasioned by lifting bags, the other had no precipitating cause.
In 1978 the Applicant moved to Tasmania as "curator" of the University of Tasmania Collection of Laboratory Animals.
The Applicant's back condition continued to affect him and impinge upon his work performance whilst he was employed by the University of Tasmania. During this period he was also hospitalised on three occasions because of back pain. On one of these occasions he was prepared to undergo surgery upon his back but his wife vetoed the proposed surgery when informed it had only a 50-50 chance of success.
Duties performed by the Applicant at the University of Tasmania included the care and management of various animals kept by the University for research purposes. The Applicant was responsible for three other staff and performed simple administrative tasks such as the ordering of supplies, the preparation of monthly reports and maintenance of an inventory.
Because of his back problems the Applicant had periods of absence from work and when at work avoided lifting, for example cages or bags of food. His tasks, which he stated occupied about one quarter of the working day, were administrative. If he had back pain he used to lie down on the floor of his office.
Although the Applicant's co-workers supported the Applicant by undertaking the physical activities he could not, his disabilities came to the attention of University authorities. There was also a change of professorial staff and the new academics were not as supportive of the Applicant and, in addition, considered that a qualified Veterinary Scientist should be employed in his position. The net result was that the Applicant was offered a redundancy package which he felt under compulsion to accept. He last worked in November 1997.
The Applicant's wife, who was also employed by the University of Tasmania at that time, was also questioned as to the Applicant's motives for accepting the redundancy package. What I deduce from the evidence of the Applicant and his wife, and so find, is that the Applicant was aware that he was not performing adequately in his job because of his back problems, and his non-performance was known to University authorities. Co-existent with this state of affairs was a desire by those Authorities to have the Applicant's position filled by a qualified Veterinary Scientist. Had the Applicant been performing in his job, the University administration would have been content to let him serve out the balance of his tenure to age 65, the Applicant then being aged 62, but his back disabilities gave the University Authorities the excuse needed to offer him a redundancy. Because of his knowledge that he was not performing fully the requirements of his position, the Applicant felt constrained to accept the redundancy package offered even though it resulted in a considerably lower superannuation payment to him than if he had stayed to age 65.
After retirement from the University of Tasmania, the Applicant applied for a similar position with the University of Western Australia and was interviewed but not selected. He is of the opinion that his non-selection was because information regarding his back condition was conveyed to the University of Western Australia. As the Applicant put it "everyone talks in the academic world". The Applicant also applied for a position with a Tasmanian supermarket chain but was unsuccessful. Again, the Applicant believes his non-selection for that position was because he felt constrained to reveal his back problem when asked if he had any disabilities. Had he not revealed his back problem I have no doubt, given the small community in Hobart, enquiries by a prospective employer would have readily ascertained the existence of the Applicant's back problems.
Following the failure of the Applicant to obtain the two positions outlined above, he and his wife decided to move to a warmer climate. In late 1998 they settled at Bellingen which is a small town on the Northern New South Wales coastal strip some 38 kilometres south and inland from Coffs Harbour. The Applicant and his wife have now returned to Tasmania and reside in Hobart. Whilst at Bellingen the Applicant and his wife enrolled in a programme of adult education known as the "University of the Third Age". Classes were conducted at Coffs Harbour, some 40 minutes drive from Bellingen. The Applicant attended two classes, one of which on Tuesdays lasted for two hours, the other on Thursdays lasted one hour. As I understand his wife's evidence, the Applicant did not attend all classes as at times he was incapable of attending because of back pain.
Dr Benanzio is an orthopaedic surgeon. In his first report dated 30 March 1999 (Exhibit A2) he took a history of the Applicant injuring his back on two occasions, namely in 1953 whilst in training, and in 1956 aboard HMAS Quadrant. In that report Dr Benanzio opines:
"As a consequence of the accident of 15th November 1953 the patient sustained a low back contusion/strain and developed low backache radiating to the posterior aspect of the right thigh.
…
The lifting accident that occurred sometime in 1956 significantly aggravated the complaints, and on this occasion the patient was again seen by the medical officer onboard."
And, on the final page of his report, Dr Benanzio opines:
"In my opinion, it can be concluded that the accident of 17th November 1953 precipitated symptoms in the lumbar spine, with aggravation caused by the nature and conditions of the patient's duties, and with a further frank aggravation caused by the lifting accident that occurred sometime in 1956."
In his second report dated 16 July 1999 (Exhibit A3) Dr Benanzio states:
"The history satisfies the Statement of Principles concerning Lumbar Spondylosis, Instrument No. 27 of 1999, Factor 5(s) 'suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis'.
I must also point out that at the time of the accident which occurred sometime in 1956, when the patient was serving on patrol duty, his back was jarred when handling a 'submarine device', with aggravation of the existing lumbar discomfort. The matter was reported and he was seen by a medical officer onboard. It is my opinion that this episode of aggravation corresponds to what is described as ''trauma to the lumbar spine' meaning 'a discrete injury' to the lumbar spine that caused the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness……. These acute symptoms and signs must last for a period of at least 7 days following their onset………'."
Before the Tribunal Dr Benanzio opined that the Applicant's second injury, that is to say the injury which occurred in 1956, conformed with Factor 5(s) of SoP No 27 of 1999. That SoP being referred to Dr Benanzio as the Full Court decision in Repatriation Commission v Keeley supra had not been delivered at the time Dr Benanzio gave his evidence.
Dr Benanzio opined before the Tribunal that the second incident made the Applicant's back condition worse than it otherwise would have been. In his opinion the question of whether an aggravation has occurred can be answered by asking whether, after the incident, the patient's back pain when present is more intense, more frequent or continues for a longer period of time.
I note that in cross-examination the Applicant stated that after the second incident his back pain, after the initial pain from the actual incident itself had settled, was not much different to previously except that it "used to hang on much longer". That is to say it conformed to the third of Dr Benanzio's tests.
The Applicant was also examined by Dr Baz, Occupational Physician. In evidence to the Tribunal Dr Baz said that she thought the 1956 accident was the cause of his current back condition, it being more significant than the 1953 event notwithstanding that there is always some contribution from everything you do. In Exhibit A4 Dr Baz opines that the Applicant satisfies Factor 5(h) as he suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.
Professor Sambrook, Rheumatologist, examined the Applicant on behalf of the Respondent. In his report of 29 April 1999 (Exhibit R2) Professor Sambrook opines that the incident in 1956 was no more than a temporary aggravation, however, in evidence to the Tribunal, Professor Sambrook stated that he could not exclude the 1956 incident as having contributed to the Applicant's lumbar spondylosis.
As stated above, Dr Benanzio had addressed himself to the current SoP regarding lumbar spondylosis. By the time Professor Sambrook gave evidence, he was able to address himself to the applicable SoP, namely Instrument No 165 of 1996. There is no doubt, see for example Professor Sambrook's report, that the Applicant does suffer from lumbar spondylosis and, as for factors, Factor 5(g) of Instrument No 165 of 1996 reads:
"suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;"
This factor is in the same terms as Factor 5(h) of Instrument No 27 of 1999. In oral evidence to the Tribunal, Dr Benanzio stated that Factor 5(h) of Instrument No 27 of 1999 was the applicable factor and, in Exhibit A3, where he refers to Factor 5(s) that is an error on his part.
So far as "trauma" is concerned, that term is defined in "Goulds Medical Dictionary" Fourth Edition in the following terms, namely "An injury caused by a mechanical or physical agent". It seems to me abundantly clear that the injury which the Applicant suffered when his back was subjected to a whipping motion whilst attempting to load the squid aboard HMAS Quadrant in 1956, comes within the definition of trauma and, having regard to the definition of trauma to the lumbar spine in Instrument No 165 of 1996, the circumstances deposed to by the Applicant, namely where he was seen by a medical officer and lay on his bunk for several days etc, conforms with that definition.
The material before me shows that the hypothesis contended for by the Applicant, namely that he suffered a trauma to his lumbar spine whilst aboard HMAS Quadrant, conforms to the template in the relevant SoP, namely Instrument No 165 of 1996 and there is no evidence before me which disproves the facts upon which that hypothesis is based beyond reasonable doubt. So far as a contribution is required, as was pointed out by the Full Court of the Federal Court in Treloar v Australian Telecommunications Commission 26 FCR 316, all that is required is that the events add their measure to the creation of the condition, its aggravation or acceleration. As was conceded, even by the Respondent's witness Professor Sambrook, the incident aboard HMAS Quadrant cannot be excluded as having contributed to the Applicant's lumbar spondylosis.
The assessment of rate of pension to be paid is rendered more difficult in that the original decision in this matter was in January 1998 and the Applicant's condition has deteriorated since he was first reviewed, see for example Dr Baz's report of 19 July 1999 (Exhibit A5).
When examined by Professor Sambrook on 29 April 1999, the Applicant demonstrated a loss of between one quarter and one half of the normal range of movement of his lumbar spine. On 25 February 1999 Dr Baz assessed the Applicant as having lost one quarter of his normal range of movement. This assessment agrees with the report of Dr Burns, Occupational Physician, who examined the Applicant on 2 September 1999 (Exhibit R3). On 24 February 2000, Dr Baz reported:
"Loss of ½ normal range of movement was recorded in July 1999. This reflected Mr Jacobs report of increased problems due to his back condition. Dr Sambrook reports between ¼ and ½ loss of movement …"
After noting that a rating of 15 decided by Professor Sambrook cannot be applied to the lumbar region using Table 3.3.1 of the Guide to the Assessment of Repatriation Pensions, Dr Baz opined that the combined impairment rating as at 24 February 2000, resulting from the Applicant's lumbar spondylosis, was a figure of 41. Then taking into account lifestyle factors, she obtained a degree of incapacity at 80% of the General Rate.
As at 2 September 1999, Dr Burns determined that the Applicant's incapacity equated to 50% of the General Rate. Dr Baz, on the other hand, as at 25 February 1999 found that the Applicant's degree of incapacity equated to 70% of the General Rate.
Having regard to the evidence which was given to the Tribunal and also having regard to the reports of the occupational physicians, it seems to me that some reassessment is necessary regarding the lifestyle effects pertaining to the Applicant.
In her report of 24 February 2000 Dr Baz assessed the Applicant's personal relationships as rating at 2. This agrees with the report of Dr Burns dated 4 September 1999.
Regarding mobility, both Drs Baz and Burns, in reports dated 24 February 2000 and 4 September 1999 respectively, gave a rating of 3 for this aspect. As for community and recreational activities, although Dr Baz refers to the Applicant not being able to participate in formerly favoured recreational pursuits, for example golf and was unable to play bowls because of back pain, less physical activities were possible, for example limited part-time study. Dr Burns also refers to this and it seems to me that a rating of 3, namely unable to continue some accustomed recreational pursuits and community activities, is appropriate.
Both Drs Burns and Baz agree that a rating of 4 is appropriate for domestic activities.
On the figures above, the Applicant has an average lifestyle rating of 3 which, if combined with Dr Baz's report of 25 February 1999, gives an incapacity at 60% of the General Rate (impairment rating 32, lifestyle rating 3). As at 24 February 2000, accepting as I do Dr Baz's combined impairment rating for lumbar spondylosis at 41 and combining with a lifestyle factor of 3, the degree of pension will be 70% of the General Rate.
Whereas once assessed at the degree of incapacity that entitled him to receive pension at 70% of the General Rate, the Applicant is entitled to have his entitlement to either a Special Rate or Intermediate Rate pension assessed, in this matter I am not reasonably satisfied, that is to say satisfied on the balance of probabilities (see Repatriation Commission v Smith 15 FCR 327), that the Applicant meets the criteria for the grant of pension at the Special Rate.
As at 24 February 2000 the Applicant had, after failing to obtain the two jobs for which he applied for while still in Tasmania, moved to Coffs Harbour and in effect adopted a retired lifestyle. The Applicant did state in evidence that he did not apply for any jobs in New South Wales as he did not think he could do any. However, even if he had so applied, age would have been a factor in his not being selected for employment and, in addition, he had moved to an area of high unemployment. As the Applicant has not sought to test his potential on the labour market, the ameliorating provisions of paragraph 24(2)(b) of the VEA do not apply to him. Therefore, I am not reasonably satisfied that incapacity from war-caused injury or disease alone is the cause of the Applicant's failure to find, and if found undertake, remunerative work, consequently he is not entitled to the grant of pension at the Special Rate.
The decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant is entitled to pension for war-caused lumbar spondylosis at the rate of 60% of the General Rate from 23 October 1997 to 24 February 2000 inclusive and thereafter at 70% of the General Rate.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong .....................................................................................
AssociateDates of Hearing 23 February 2000 and 27 July 2000
Date of Decision 13 September 2000
Solicitor for the Applicant Mr B Winship, Rockliffs
Solicitor for the Respondent Ms S Breuer, Department of Veterans' Affairs
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