James and Repatriation Commission (Veterans' entitlements)

[2022] AATA 2476

James and Repatriation Commission (Veterans' entitlements) [2022] AATA 2476 (4 August 2022)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2020/2617

Re:Bryan James

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:4 August 2022

Place:Sydney

The reviewable decision is set aside and in substitution it is decided that Mr James is entitled to the special rate of pension.

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Deputy President B W Rayment OAM QC

CATCHWORDS

VETERANS’ AND MILITARY COMPENSATION – whether the Applicant is entitled to the special rate of pension – provisions of the Veterans’ Entitlements Act 1986 (Cth) considered – relevant cases considered – relevant material considered – decision under review set aside and substituted.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

CASES

Repatriation Commission v Richmond [2014] FCAFC 124; (2014) 226 FCR 21
Repatriation Commission v Watkins [2015] FCAFC 10; (2015) 228 FCR 573

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

4 August 2022

1. This review concerns an application made by a veteran for the special rate of pension.

2. He has a number of accepted war-caused conditions, including lumbar spondylosis. He retired when the pain he suffered caused him to retire from his employment as an electrician, which he carried on together with three workmates with whom he had worked since about 1973.  He retired in February 2018. He enjoyed the work and the company of his workmates.

3. He had intended to keep working about ten years after the age of 65, that is, until his 75^th birthday. In fact, he retired when he was 70 years old. The condition on which he blamed his retirement was lumbar spondylosis, from which he said he had suffered since he was 35 years old. It still affects him today in retirement.

4. The case has been contested by the respondent and it particularly relates to three legal issues, upon which the parties have each called specialist medico-legal evidence. Those issues are: whether the applicant satisfies paragraph 24(1)(b) of the Veterans’ Entitlements Act 1986 (Cth) (the Act) (which applies to him under paragraph 24(2A)(c)) of the Act); whether he satisfies paragraph 24(2A)(d); and whether he satisfies paragraph 24(2A)(e) of the Act. The applicant must succeed on all three issues.

5. Section 24 provides so far as relevant:

   (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.

   …

   (2A)  This section applies to a veteran if:

   (a)  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

   (b)  the veteran had turned 65 before the claim or application was made; and

   (c)  paragraphs (1)(a) and (1)(b) apply to the veteran; and

   (d)  the veteran is, because of incapacity from war‑caused injury or war‑caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and

   (e)  because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

   (f)  the veteran was undertaking his or her last paid work after the veteran had turned 65; and

   (g)  when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and

   (h)  section 25 does not apply to the veteran.

   (2B)  For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war‑caused injury or war‑caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

   (a)  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

   (b)  the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.

6. It is important to note some of the provisions of section 19. Its effect is that over the assessment period of some years, commencing on 15 February 2019, when he applied to increase the pension to the special rate, and ending on the date of these reasons, if he was at any time in that period entitled to the pension at the special rate, he is entitled to receive it permanently. That section is beneficial to veterans. For example, if a veteran had a comorbid condition after his retirement and that would, for a time, have made him unable to satisfy paragraph 24(2A)(c), but treatment has resolved the condition before the expiry of the assessment period, the condition will not affect his or her claim.

7. It is also relevant to note that section 28 of the Act (which arises because of a suggestion of Dr Chase that the applicant may work in an administrative capacity) provides as follows:

   28  Capacity to undertake remunerative work

   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).

8. The applicant was represented by Mr Saunders of counsel instructed by Kemp & Co Lawyers, and the respondent was represented by Ms Maud of counsel, instructed by the Australian Government Solicitor.

9. It will be better to analyse the evidence relevant to each of the issues mentioned in [4] above in turn, discussing the provisions at the commencement.

10. Paragraph 24(1)(b) speaks of “remunerative work” which is very broadly defined to include any remunerative activity. It is not confined to any particular period. It includes the words “of such a nature” which do not appear in paragraph 24(2A)(d). Those words have not so far occasioned discussion in the leading cases, so far as I can see. Like paragraph 24(2A)(d), the word “alone” is used. If other causes, stemming from non-accepted conditions, contribute to the state of being totally and permanently incapacitated described in the paragraph, then the state described in the paragraph will not have been reached. A few hours work will not deprive the veteran of the entitlement, with an eight hour limit. It is the word “alone” which becomes important if the veteran has comorbid conditions, at any rate if they last for the entirety of the assessment period specified in section 19.

11. It Is not sufficient for the war-caused condition to be the main cause or predominant cause of the total and permanent incapacity. No non-accepted condition which contributes to the total and permanent incapacity must contribute to the incapacity.

12. Mr James’ case is that the cause of the incapacity was his lumbar spondylosis, accepted as war-caused, I assume, because during his service in Vietnam he was required to go out on patrol carrying heavy weights of up to 80 kg. He also has a hearing loss which was also accepted as war-caused, which may also have contributed to his incapacity to a minor extent.  The respondent contends that other causes were present but does not dispute that the lumbar spondylosis was the main cause of his incapacity for work in 2018 and today.

13. He was affected by pain caused by his lumbar spondylosis from the age of 35, and it gradually worsened, culminating in his retirement in 2018. The retirement day is not required to be focused upon for the purposes of paragraph 24(1)(b), and the retirement day was about a year before the assessment period began. In 2019, the lumbar spondylosis from which Mr James suffered had been affecting him for about 36 years. Today, that period is about 39 years.

14. The respondent issued summonses to obtain medical records, which have been put into evidence. The comorbid conditions, none of which are accepted conditions which have been examined in the evidence, including in cross-examination of the applicant are as follows: bilateral shoulder pain; rheumatoid arthritis; neck pain; peripheral neuropathy; and peripheral vascular disease.

15. As to the bilateral shoulder pain, his left shoulder was operated upon in May 2019, a few months after the beginning of the assessment period.  He had an arthroscopy and his rotator cuff was repaired. By 20 November 2019 his left shoulder condition had settled. The right shoulder was cured at about the same time by exercise involving pulleys. The shoulder pain may have briefly recurred from time to time during 2020, but he had a full range of motion in both shoulders. If the shoulders ever contributed to any incapacity, that ceased during the assessment period.

16. As to rheumatoid arthritis, which led to wrist pain, that was treated with medication and for a time by the use of a wrist band. The condition was noticed by the general practitioner in August 2019, and in September and October of that year, cortisone injections were applied as an initial treatment.  Then he saw a doctor who put him on medication for the rheumatoid arthritis, and by June 2020 the problem had resolved. For a short period he went off his medication and the symptoms returned moderately, so he resumed the medication which “resolved it all”.

17. The neck pain may have never disabled him from working since it only affected him if he looked upwards for a sustained period or if he quickly looked right or left, as one might do when a loud sound occurred. He said he virtually did not do any overhead work.  He had no occasion to crawl around under machines, because his back prevented him from doing that. Asked to imagine that he had no problem with his back, he said that the problems with his neck would have prevented him from crawling around underneath machines, he said he did not think so.  He said “[i]t might limit me to a little bit but it wouldn’t prevent me from doing it.” He said that at the present time he had no neck pain. He gets neck pain only if he turned sharply to the right or left. I generally accept that Mr James gave his evidence to the best of his recollection.

18. The peripheral vascular pain was reported to his general practitioner in 2020 and he was referred to a vascular surgeon in September 2020. In October 2020 three stents were inserted into his external iliac arteries, with good results. This condition affected his walking ability, but no longer does so.

19. Dr Buckley was asked about all these matters and accepted that for short times (such as a period of six weeks after his shoulder surgery) he was unable to work for reasons unrelated to his lumbar spondylosis but said that more generally he did not think that any of them caused any serious physical impairment which would have prevented him working.

20. Because of the consequences of section 19 of the Act to which I referred in [6] above, most of the matters just mentioned do not prevent Mr James recovering under paragraph 24(1)(b). Section 19 considerations do not affect the neck pain question, which I reject as relevant conditions under paragraph 24(1)(b) both on the applicant’s evidence to which I have referred in [18], and I also take into account the evidence of Dr Buckley about the effect of the CT scan which is in evidence.

21. Dr Buckley’s qualifications were as follows:

    ·Past President of the Australasian Faculty of Rehabilitation Medicine (RACP)

    ·Former Director and John Sands Medallist of the Royal Australasian College of Physicians

    ·Complaints Committee Chairman of the Medical Council of NSW

    ·Senior Appointee at the Royal North Shore Hospital and Motor Accidents Authority of NSW

    ·Previous Senior Appointee at Greenwich Rehabilitation Hospital, the Price of Wales-Prince Henry Hospital Group, Mt Wilga Private Hospital and other hospitals and the Lifetime Care and Support Authority of NSW. 

22. Dr Buckley expressed his views about the “alone” test in paragraph 24(1)(b) in his first report dated 19 July 2021 as follows:

    In my opinion, Mr James meets this definition, because his total and permanent incapacity and the cause of his retirement from work, was indeed his back pain caused by lumbar spondylosis.

    His sensory neural hearing loss (not my particular expertise), and tinnitus (not my particular expertise), would have had some part in his retirement, but I doubt whether he would have required to retire as a result of this injury if he had not had the low back pain caused by lumbar spondylosis.

    Even now, examination of his shoulders reveals a full range of motion on both sides, with only minor crepitus, and would even today be highly unlikely to cause him an incapacity in work as an electrician. He could reach up and put his hands together over his head (almost), and the only other restriction was a very small restriction in internal and external rotation, all of which would be quite consistent with his age, and of themselves very unlikely to affect employability.

    The osteoarthritis, apparently of elbows and wrists and feet, are also, today, of no consequence.

    I do note that subsequent to his retirement he has been diagnosed with a more wide spread and active form of arthritis, requiring specific treatment, but this is a post retirement circumstance, and was not present prior to his retirement, as far I am able to ascertain. [Even] this diagnosis is well controlled on medication and there was no physical evidence of an active arthritis disorder, and no sign of an arthritis which would interfere with his work as an electrician.

23. By contrast Dr Chase, called by the respondent, while he asserted that the comorbid conditions contributed to the incapacity of Mr James, appears to me not to have taken into account the section 19 consequences to which I have referred. He did note, in agreement with Dr Buckley, that the rheumatoid arthritis was well controlled. He also treated the lumbar spondylosis as the reason Mr James retired.

24. The report of Dr Chase also suggested that Mr James was able to work in an administrative capacity for 20 hours per week. This is a matter on which Dr Chase did not apparently take a detailed history. It is true that in a time before his retirement Mr James prepared quotes for work to be done by him and his workmates.

25. However that was no longer the case when computers were used for that purpose, and he ceased to be involved at that point.  His work took estimates based upon the customers’ specifications and estimated a cost base don those materials.  From time to time he was asked to help with quotes prepared by his colleagues, verbally, but generally his involvement was minimal. He was not equipped to reduce any quotes to computerised communications and did not do so.  At no time did the “administrative work” done by Mr James extend beyond the things related to his work with which he was familiar over his entire work as an electrician.

26. In his oral evidence Dr Chase said that the applicant was capable of training apprentices.  Training apprentices should be understood as a job requiring demonstration as well as language and demonstration would involve much of the same work that he was no longer able to perform in the employment from which he retired, because of his lumbar spondylosis.

27. Paragraph 28(a) restricts consideration of this matter to the particular activities in which the applicant actually engaged during his employment years. In the case of Mr James, he was not fit, in my opinion for 20 hours of administrative or clerical work, or anything approaching eight hours of such work.

28. The respondent’s factual submissions about paragraph 24(1)(b) relied mainly on the suggestion of Dr Chase that the applicant could have worked more than eight hours in an administrative capacity, or training apprentices.

29. I reject those submissions and conclude that the applicant succeeds on paragraph 24(1)(b).

30. As to paragraph 24(2A)(d), instead of the general expression “remunerative work” the sub-paragraph directs attention to the last paid work of the veteran. That was work which he simply could not do at all times during the assessment period, because of his lumbar spondylosis. At times other conditions contributed to that inability, and a good example is the period of six weeks immediately after his shoulder surgery. His rheumatoid arthritis was treatable and was treated during the assessment period, so that his hands and wrists were in good order after the treatment and then did not contribute to his inability to perform his last paid work. The consequence is that findings about the hypothetical question whether, in the hypothetical world in which he had no lumbar spondylosis, for some time he would have been prevented from performing his last paid work need not be made. The paragraph speaks of the veteran being prevented from continuing to undertake that work.  A person who needs treatment and anticipates that the treatment will or may be successful, and who undertakes the treatment is not necessarily prevented from continuing to undertake his employment.  A person who needs to take sick leave, and does so, does not need to retire.

31. I am somewhat uncomfortable with concentration upon a hypothetical world in which the lumbar spondylosis did not occur. In Repatriation Commission v Richmond [2014] FCAFC 124; (2014) 226 FCR 21, the Full Court (Middleton, Murphy and Rangiah JJ) approved a statement of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 that the Tribunal’s task was “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”. A test, so stated does not require the imagination of a hypothetical world, which may possibly invite speculation for the “alone” tests. The position may be different under paragraph 24(2A)(e), because it contains the words “if he or she were free from that incapacity”.

1. In my opinion, for substantially similar reasons as mentioned in the discussion of paragraph 24(1)(b), the applicant is entitled to succeed on paragraph .24(2A)(d).

2. The respondent in submissions placed emphasis on paragraph 24(2A)(e). Mr James made his living from his work as an electrician from the age of 17 except for his period of war service. As soon as he retired his income was reduced.

3. None of the other conditions examined in relation to paragraph 24(1)(b) affected all of the assessment period. For example, Dr Buckley’s examination in 2021 found no bar to his working other than the lumbar spondylosis. Shoulder pain had settled by November 2019, a few months after surgery. A brief recurrence of some shoulder pain in the following year may well have played no role in contributing to his inability to work.

4. A need to take sick leave for surgery, followed by a resumption of work occurring during the assessment period will not prevent a veteran from satisfying paragraph 24(2A)(e). Since, as Repatriation Commission v Watkins [2015] FCAFC 10; (2015) 228 FCR 573 at [46] shows, the language of s.24(2A)(e) necessarily and expressly directs attention to the hypothetical situation described by the words “if the veteran were free of that incapacity”. This veteran was never during the assessment period free from incapacity arising from his lumbar spondylosis. Thus, a return to work following sick leave must be considered against the same counterfactual.

5. The respondent submitted that the applicant’s retirement on the hypothesis that one disregards the reasons for his actual retirement and also the condition which gave rise to the actual retirement, must take account of all of the comorbid conditions from which he suffered. So long as the comorbid conditions persisted throughout the assessment period, that submission is correct.  However, that circumstance did not occur.

6. Dr Buckley summarised the comorbid conditions of which he was aware in 2021 when he examined Mr James in 2021. He expressed the view that there was then no reason why he could not be working still, apart from the lumbar spondylosis.  It should be added that at that time Dr Buckley was unaware of the peripheral vascular disease or the peripheral neuropathy. Dr Buckley said that the peripheral vascular disease was treated by the stents.  The peripheral neuropathy (a feeling of pins and needles in the feet) was noticeable to Mr James but not disabling. It was a common consequence of his diabetes. None of the comorbid conditions in Dr Buckley’s opinion caused any serious physical impairment or concerned him with respect to Mr James’ ability to work as an electrician. I accept Dr Buckley’s evidence.

7. As to the submission that the comorbid condition would have caused him to retire on those grounds alone, there is no such evidence before me. In any event, unless a need to retire on other grounds affected the whole of the assessment period, Mr James would not fail paragraph 24(2A)(d).

8. In my opinion, Mr James also satisfies paragraph 24(2A)(e).

9. The reviewable decision should be set aside and in substitution it is decided that Mr James is entitled to the special rate of pension.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 4 August 2022

Date(s) of hearing:	17 & 18 May 2022 and 8 June 2022
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Applicant:	Mr A Kemp, Kemp & Co Lawyers
Counsel for the Respondent:	Ms Z Maud
Solicitors for the Respondent:	Mr W Evans, AGS