JOHN McQUEEN and REPATRIATION COMMISSION

[2009] AATA 900

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 900

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2097

VETERANS' APPEALS  DIVISION		)
Re		JOHN McQUEEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date25 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................[Sgd].....................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Special and intermediate rates of pension - Veteran prevented from undertaking remunerative work due to non war-caused conditions – Applicant not entitled to earnings related rate of pension – Decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 23, 24, 119(1), 120(4), 120(6)

Flentjar v Repatriation Commission (1997) 48 ALD 1

REASONS FOR DECISION

25 November 2009 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Mr John McQueen lodged a claim for a pension at the special rate.  He has a number of accepted disabilities.  The respondent assessed the rate of pension payable to Mr McQueen as 100% of the general rate.  I have to decide whether Mr McQueen is entitled to be paid an earnings related rate of pension.

MATTERS OF PROOF

2. This is an administrative proceeding and not a civil case where Mr McQueen bears any onus of proof: see s 120(6) of the Veterans’ Entitlements Act 1986 (“the Act”). I am required under the Act to determine this application to my reasonable satisfaction: see s 120(4). I am also required to make a decision in accordance with the substantial merits of the case: see s 119(1) of the Act.

OPERATIONAL SERVICE

3. I am satisfied that Mr McQueen has operational service under the Act. This is because from 25 February 1971 until 16 October 1971 he served in Vietnam.

ISSUES

4. In order to be entitled to be paid a pension at the special rate, Mr McQueen has to satisfy the requirements of s 24 of the Act.

5. I find that Mr McQueen satisfies the requirements of ss 24(1)(aab) and 24(1)(a)(i) of the Act. This is because he was under the age of 65 years on the application day and is in receipt of pension at 100% of the general rate.

6. The respondent has conceded that Mr McQueen satisfies the requirements of s 24(1)(b) of the Act. I am reasonably satisfied that this concession has been properly made.

7.      Mr McQueen has been examined by Dr Jennifer Barry, consultant psychiatrist, who stated in her report of 19 April 2005 that he is incapable of work on account of his conditions of posttraumatic stress disorder and alcohol abuse.  Both of these conditions have been accepted to be war‑caused injury or disease.  Also accepted in that way is the condition of lumbar spondylosis.

8.      Mr McQueen has been certified as being unfit for work by two general practitioners - Dr Richard Giese (in a report of 5 November 2002) and Dr Deon Rall (in a report of 8 July 2004) - by reason of the accepted conditions of lumbar spondylosis and posttraumatic stress disorder.

9. What is in issue in this application is whether Mr McQueen satisfies s 24(1)(c) of the Act.

MEDICAL EVIDENCE

10.     I will now outline the medical evidence that relates to Mr McQueen’s left foot drop condition.

11.     In early 1994, Mr McQueen experienced what has been referred to as his “foot drop” condition.  Dr Sid Selva-Nayagam reported on 27 January 1994 that the veteran “awoke one morning 10 days ago, and noticed that his left foot was numb and paralysed.”  At that time there was some improvement but Dr Selva-Nayagam reported that the veteran “finds difficulty ambulating, especially on uneven grounds.”  There was no symptom of back pain or urine or bowel dysfunction.  In the same report, Dr Selva-Nayagam diagnosed the veteran with a “left common perineal nerve injury, most probably from a neuropraxia to the nerve as it crosses the fibula.”  Dr Selva-Nayagam then opined that the most likely explanation was that the condition arose from sleep palsy.  Dr Selva-Nayagam made a prognosis that there would be a return to normality.

12.     There was certainly some improvement in the leg condition.  On 28 October 1994, Dr Selva-Nayagam reported that:

his left foot drop has improved over the months and he is now mobilising without the use of a splint … He still has some mild weakness pertaining to the left common peroneal nerve although much improved to the situation in January of this year.  I suspect that this mild weakness has contributed to his feeling of unsteadiness from time to time and I think the way to overcome this would be to give him some physiotherapy to try and build up the strength in his left foot.

13.     In that same report, Dr Selva-Nayagam reported that the veteran had a bout of Ross River Fever (RRF) in March 1994 when he presented with fever, rash and joint swelling with serological confirmation for RRF.

14.     In a later report of 24 November 1994, Dr Selva-Nayagam reported that the “nerve conduction test showed normal conduction velocities in the left common peroneal nerve, indicating complete recovery.  The slight residual weakness in the left leg would be consistent with poor muscle tone and atrophy rather than due to current nerve abnormality.”

15.     I am satisfied that the respondent took appropriate steps to investigate the Mr McQueen’s left foot drop condition.  The condition was investigated by Dr Peter Landy, OBE, consultant neurologist, who reported on the condition on 14 January 2004.  Dr Landy explored the possibility that the condition may have been sleep related and wrote of the history given by Mr McQueen: “He had been asleep for two hours and as far as he is aware there was no compression of his lateral popliteal nerve and he states that he had not any alcohol prior to that.”  Dr Landy reported that the veteran had recovered from his left foot drop condition and that no evidence existed of persisting disability as a result of that condition.  Dr Landy found no neurological problems.

16.     Dr Rall reported on 15 December 2008 that Mr McQueen had been a patient in his practice since 6 October 2003.  Mr McQueen made no complaint about the foot drop condition to him.  In his evidence, Dr Rall related the belief of the veteran that the left foot drop condition was related to an old back injury.  However, there is no evidence before me upon which I could base such a conclusion.  Certainly the treating doctor, Dr Selva-Nayagam, did not consider at the time the left foot drop condition arose that it was related to the back condition.  In considering the left foot drop condition, I rely upon the report of Dr Landy, a neurologist of some seniority in his profession who investigated that condition.  In his report, there is certainly no suggestion that it could be related to the back condition of the veteran.

RELEVANT REMUNERATIVE WORK UNDERTAKEN

17.     I am required by the decision of the Federal Court of Australia in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 to consider what was the relevant “remunerative work that Mr McQueen was undertaking” within the meaning of s 24(1)(c) of the Act.

18.     Mr McQueen worked as a concreter/paver/landscaper from 1981 until 1994.

19.     I consider that the relevant remunerative work that Mr McQueen was undertaking can fairly be regarded as that of a concreter and landscaper.

WHETHER WAR-CAUSED INJURY OR DISEASE PREVENTED THE VETERAN FROM CONTINUING TO UNDERTAKE THE REMUNERATIVE WORK

20.     I am next required by Flentjar (1997) 48 ALD 1 at 4-5 to consider whether the veteran was, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that remunerative work other than on a part-time basis or intermittently.

21.     On the evidence before me there is some uncertainty as to when the veteran ceased employment.  Mr McQueen has variously given the dates of 1994, 1998, June 1999 and November 1999 as when he ceased remunerative work.

22.     At the Veterans’ Review Board hearing, Mr McQueen stated that he worked in a partnership until 1994, when he suffered the foot drop condition (suspected at the time to be a minor stroke).  He then had to wear a prosthesis for a year, after which he recovered and worked “pretty well full-time” in the partnership until 1999.  In 1999, the partnership was dissolved due to difficulties with his partners over financial matters.  However, in evidence before this Tribunal, Mr McQueen stated that the partnership was dissolved at a much earlier date, in 1994.  The veteran had earlier advised the Board that he had “walked away” from the partnership.

23.     Mr McQueen in his evidence remarked that he had a partnership dispute in 1994 because he believed that the other partners were in breach of their obligations.  He stated that his solicitor had negotiated an agreement whereby the veteran would leave the partnership on the basis that the other partners would be responsible for the payment of all partnership debts.  The veteran was at this time unable to effectively work in the partnership because of his left foot drop condition.

24.     At the hearing, I thought that it would be appropriate to give Mr McQueen an opportunity to see if he could find any documents showing that the partnership had ceased, such as a deed of dissolution.  After the hearing, he submitted a letter dated 8 September 2009 from Cridlands MB Lawyers.  In that letter, it is stated: “We confirm receiving a request from John McQueen regarding our file … Re: Dissolution P/ship McQueen.  The file was opened 28/2/1994 and closed for archiving 21/8/1994.”  The veteran gave instructions to his solicitors in regards to the dissolution of the partnership a month after the left foot drop condition became apparent.

25.     My finding that the partnership ceased in 1994 is based on the letter from Cridlands MB Lawyers as well as a statement the veteran made on 12 July 1994 that the partnership ceased on 1 March 1994.  On the basis of this finding I cannot accept that the partnership continued after 1994.

26.     My finding that the partnership ceased in 1994 accords with the evidence before me concerning Mr McQueen’s rehabilitation.  During 1994, he undertook physiotherapy four days a week for seven to eight months at Darwin Hospital.  He was then referred to the Commonwealth Rehabilitation Service in January 1995 for return to work and began training in computer use.  He did not complete that retraining.

27.     Dr Ted Giblin has completed a number of reports on the veteran.  In one incapacity report dated 29 March 1995, he made the following remarks under the heading Claimant’s last occupation and reason for leaving:

Paving contractor – in partnership, with 11 employees. Had RRV [Ross River Virus] and L foot drop: unable to continue. Advised by specialist to cease.

28.     On the basis of this report, I find that in 1994 the veteran had ceased work because of his left foot drop condition and RRF.  Significantly, neither of these conditions are accepted as being a war-caused injury or disease.

29.     The veteran agreed in evidence before me that had he not suffered the left foot drop in 1994 he would have continued working.  The time of the partnership’s dissolution coincides with the time the veteran was recovering from the foot drop condition and RRF.  I should mention that the service medical records which are before me do not contain any reference to a complaint that may be related to the foot drop condition.

30.     I answer “no” to the second Flentjar question, which reflects the

first limb of

s 24(1)(c) of the Act. I conclude that the veteran was “prevented from undertaking remunerative work that the veteran was undertaking” due to the non war-caused conditions of left foot drop and RRF.

31. The first limb of s 24(1)(c) of the Act may be ameliorated by the operation of s 24(2)(b) of the Act. This latter provision applies if, during the assessment period, the veteran has been genuinely seeking to engage in remunerative work but has been unsuccessful, substantially because of his accepted disabilities. However, on the evidence before me, I am not reasonably satisfied that the veteran has been seeking to engage in remunerative work during the assessment period.

32.     The tenor of Mr McQueen’s evidence was that he was not able to obtain work insurance and that he was unable to work without that insurance.  That Mr McQueen was unable to work without insurance is also apparent from a form he signed on 2 November 2003. In response to a question in that form asking about whether he was seeking other employment and about details of any positions for which he applied, he answered "Non insurable": T4, folio 21.  In his signed statement dated 11 November 2008 (Exhibit B), Mr McQueen stated that the insurer “informed me that they would no longer be able to insure me”.  

33.     I accordingly find that the reason why the veteran did not continue in remunerative employment after his rehabilitation was his inability to obtain work insurance.  The veteran had, in 1994, received a payout from Tower Insurance in respect of his disabilities.  This, no doubt, affected his ability to obtain other insurance.

34.     I should mention that the veteran stated in evidence before me that he had a 50% share in a workshop and that from 1995 until 1999 he maintained the tools he kept in the workshop.  Although this activity was an interest of the veteran, it was not an attempt to engage in remunerative employment.  There is no evidence that the veteran ever gained income from his interest in this workshop.  Certainly, the assessments from the Australian Taxation Office disclose that the veteran had a nil taxable income for the tax years ended 30 June 1996 and 30 June 1997.

INTERMEDIATE RATE

35. At the hearing, I raised for consideration whether the veteran had an entitlement to payment of pension at the intermediate rate. Ms Smith, advocate for the veteran, quite properly did not claim for a pension at the intermediate rate. I am satisfied that the veteran does not come within the terms of s 23 of the Act. He was not, by reason of incapacity from war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake the remunerative work that he was undertaking.

CONCLUSION 

36.     In my opinion, the veteran does not meet the requirements for the payment of pension at either the special rate or intermediate rate.

DECISION

37.     I affirm the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed:.......................[Sgd]...........................................

Mátyás Kochárdy, Research Associate

Date of Hearing  2 September 2009
Final Submissions received      27 October 2009
Date of Decision  25 November 2009
Advocate for the Applicant       Ms Helena Smith
Advocate for the Respondent   Mr Bruce Williams