Johnson and Repatriation Commission
[2006] AATA 890
•20 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 890
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/258
VETERANS' APPEALS DIVISION ) Re KEVIN WILLIAM JOHNSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC
Dr K S Levy, Senior Member
Dr M L Denovan, MemberDate20 October 2006
PlaceBrisbane
Decision The Tribunal:
1. affirms the decision of the Commission made on 23 June 2004 to reject the claim for cervical spondylosis;
2. sets aside the decision of the Board made on 21 April 2005 in relation to the applicant’s rate of pension and makes a decision in substitution for it that:
(a) the decision of the Commission of 7 August 2003 which continued pension at 50 per cent of the general rate is set aside;
(b) the decision of the Commission of 4 March 2005 which continued pension at 50 per cent of the general rate is set aside;
(c) in lieu of those decisions there are substituted decisions that the applicant is entitled to pension,
(i) at 60 per cent of the general rate from 22 May 2003,
(ii) at 70 per cent of the general rate from 18 March 2004.
(3) decides that the application for a pension at a special rate under s 24(1)(c) is refused.
..............................................
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – cervical spondylosis not defence-caused – assessment of accepted disabilities – bilateral sensorineural hearing loss with tinnitus – epistaxis – deviated nasal septum-acquired – sleep apnoea – plantar warts – solar keratosis – haemorrhoids – no entitlement to pension at special rate – war-caused injury or disease not the only factor preventing the applicant from undertaking remunerative work – applicant refuses to have reasonable treatment – conscious choice not to return to work
Veterans’ Entitlements Act 1986 (Cth) ss 24(1)(a)(b)(c), 24(2)(b), 73, 120(4), 120B(3)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424; 76 ALD 47
Banovich v Repatriation Commission (1986) 69 ALR 395
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
20 October 2006 Deputy President P E Hack SC
Dr K S Levy, Senior Member
Dr M L Denovan, MemberIntroduction
3.Mr Kevin Johnson served in the Australian Regular Army between 1982 and 1990. As a consequence of that service he has certain conditions that have been accepted by the respondent Commission as being defence-caused.
4.In May 2003 Mr Johnson was receiving a disability pension at 50 per cent of the general rate. That was on the basis that each of bilateral sensorineural hearing loss with tinnitus, epistaxis, deviated nasal septum – acquired, and sleep apnoea were defence-caused conditions.
5.On 22 May 2003 Mr Johnson made a claim for an increase in the rate of pension on the footing that his accepted conditions had become worse. The respondent considered the claim and on 7 August 2003 determined to continue the pension at 50 per cent of the general rate.
6.A further claim was lodged by Mr Johnson on 29 August 2003 based upon a disability described by Mr Johnson as scar tissue damage and callus formation. Then on 1 October 2003 Mr Johnson made a claim for a disability occasioned by cervical spondylosis.
7.The claim for scar tissue damage was accepted by the Commission on 4 March 2005, apparently as “plantar warts and solar keratosis of face, back and right arm”. The pension was continued at 50 per cent of the general rate.
8.In the meantime on 23 June 2004 the Commission had refused the claim for cervical spondylosis on the ground that the condition was not defence–caused.
9.Mr Johnson was dissatisfied with both the 7 August 2003 decision to continue pension at 50 per cent of the general rate and the 23 June 2004 decision to refuse the claim for cervical spondylosis. He applied to the Veterans Review Board for a review of the decisions. On 21 April 2005 the Board:
· affirmed the decision of the Commission that cervical spondylosis was not defence-caused;
· set aside the Commission’s assessment of 50 per cent and substituted a decision that pension be assessed at the rate of 40 per cent from 22 May 2003.
10.Mr Johnson now seeks a review of these decisions. Moreover, Mr Bates, who appeared for Mr Johnson, invited us to “rebuke” the Board for what was claimed to be an error of law on its part. We should not do that in any circumstances even if persuaded that the Board fell into error. Our role is not to correct error, it is to undertake merits review; a fortiori, it is not our role to “rebuke” the Board.
The Issues
11.As the matter was argued before us the issues that we have to decide are:
(1) Is cervical spondylosis defence-caused?
(2) What is the proper assessment of Mr Johnson’s disabilities?
(3) Is Mr Johnson entitled to a special rate pension?
Cervical Spondylosis
12.There is no doubt that Mr Johnson suffers from cervical spondylosis, the issue is whether it is defence-caused. By virtue of s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) we must decide that question to our reasonable satisfaction. And, because of s 120B(3) of that Act, we can be reasonably satisfied that cervical spondylosis was defence-caused only if, (a) the material before us raises a connection between that condition and Mr Johnson’s defence service, and (b), where there is in force a Statement of Principles, that Statement of Principles upholds the contention that cervical spondylosis was connected with defence service.
13.As it seems to us Mr Johnson’s case fails on both these grounds.
14.The contention that he advances is that on two occasions in 1985 and 1986 (or 1986 and 1987 on some accounts) he suffered injuries to his face – the first a consequence of a “spear tackle” whilst playing sport in the Army, the other when he was hit in the face by an ammunition box weighing in excess of 50 kgs. Whilst there are aspects of Mr Johnson’s evidence about these events and their consequence that are unsatisfactory, we propose to assume that issue favourably to him for the purpose of dealing with the substance of his argument.
15.It is said that following these events Mr Johnson experienced pain in his neck and restrictions in neck mobility. Thus, it is said, there was a connection between the condition and defence service.
16.The first difficulty that confronts Mr Johnson is that his contention finds little support in the medical evidence. We have a report from Dr Occhino, Mr Johnson’s general practitioner, which speaks of the incident involving the ammunition box as one that “would cause hyperextension of his cervical spine …” Dr Occhino referred to x-rays showing narrowing of the C4/5 disc spaces which he said “may be due to his injury”. As against that evidence we have the evidence of Dr Williams, an orthopaedic specialist, who was of the opinion that the cervical spondylosis was not trauma related but was the consequence of a long term degenerative process. Dr Williams, who had the benefit of seeing the results of a MRI of Mr Johnson’s cervical spine, concluded that those results were not consistent with the “more focal area” that would be associated with a trauma.
17.Given the greater experience and expertise of Dr Williams and the opportunity that he had, which Dr Occhino did not, to view the results of the MRI, we prefer the evidence of Dr Williams and conclude that the cervical spondylosis that Mr Johnson suffers from is the consequence of long term degenerative processes rather than any trauma to the spine.
18.The contention advanced by Mr Johnson is, in any event, not upheld by the relevant Statement of Principles, Instrument No. 51 of 2002. The factor relied upon by Mr Johnson is that in paragraph 5(g) which refers to:
“suffering a trauma to the cervical spine within 25 years immediately before the clinical onset of cervical spondylosis”
The expression “trauma to the cervical spine” is defined as:
A discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These acute symptoms and signs must last for a period of at least 10 days following their onset …
19.The evidence of Dr Williams is that the condition is not consistent with a discrete injury to the cervical spine. In considering whether there was a trauma that answers that description it is significant, in our view, that there is no contemporaneous support for the account of events now given by Mr Johnson. He did not attend the regimental aid post nor is any injury to his neck recorded in his medical examination at discharge on 29 November 1989. We do not accept Mr Johnson’s evidence which seeks to explain away the absence of any record of this injury to the neck. We consider that the absence of any contemporaneous record is more likely attributable to the fact that, contrary to Mr Johnson’s evidence, he did not experience a trauma of the type described in the Statement of Principles. In saying this, we do not overlook the statement provided by Mr Steele, but we think it preferable to rely upon contemporaneous medical records.
20.It follows that in our view the decision to reject the claim for cervical spondylosis was correct and ought be affirmed.
The Assessment
21.It is now necessary for us to assess Mr Johnson’s incapacity, using the Guide to the Assessment of Rates of Veterans’ Pensions, 5th ed. The conditions which had been accepted at the time of the Board’s decision were fracture of the nose, deviated nasal septum, bilateral sensorineural hearing loss with tinnitus, epistaxis, sleep apnoea, solar keratosis of face, back and right arm and plantar warts.
22.After the hearing before the Board (which took place on 21 April 2005) Mr Johnson had two further conditions accepted. On 15 November 2005 the Commission accepted a fracture of the right hand with effect from 23 October 2005 although it seemed common ground that there was no impairment as a result of that condition. In addition, on 24 March 2006 the Commission accepted that the condition of haemorrhoids was service related with effect from 25 October 2004. The consequence of this acceptance of these conditions was that disability pension was increased to 70 per cent of the general rate with effect from 25 October 2004 and continued at that rate from 23 October 2005.
23.The parties are agreed that we ought consider the newly accepted conditions despite the fact that the Board did not consider them.
Credibility
24.Before considering the medical conditions we should record that we found Mr Johnson to be a generally unconvincing witness. We have already commented upon his explanation for the failure to remark upon his neck injury in the course of his discharge medical. We do not regard him as being a reliable or accurate historian when reporting to medical practitioners; rather we were left with the distinct impression that he has exaggerated his symptoms, particularly of recent times. We propose to treat his evidence, and his reporting of symptoms, with caution.
25.We have, as well, reservations about the evidence of Mrs Johnson which sought to lend support to her husband’s account of symptoms. It rather seemed to us that she was repeating something that she had learned rather than giving an account of matters of fact or observation. There were matters involving the termination of her employment with the respondent that we need not detail here but which do not inspire confidence in her truthfulness. Indeed, her credibility was seriously undermined by them.
Fracture of the nose, deviated septum
26.The parties are agreed that Table 7.2.2 of the Guide is the appropriate table. Mr Bates, who appeared for Mr Johnson, submitted that an assessment of 2 points ought be made; Mr Rudge, for the Commission, submitted that an assessment of nil was appropriate.
27.The basis of Mr Bates’ submission was that the condition caused symptoms of constant phlegm and post-nasal drip referred to by Dr Occhino in his assessment of 16 August 2005. We are unable to accept that evidence or the submission. We prefer the evidence of Dr Grant, Dr Sowby and Dr Kelly that these are not symptoms of the condition. We assess nil points for this condition.
28.Mr Bates also submitted that the deviated septum also warranted an assessment of 5 points under Table 17.1 dealing with disfigurement. We propose to look at all conditions said to cause disfigurement and social impairment and make an overall assessment.
Hearing loss / tinnitus
29.We accept Dr Grant’s assessment of 6 points for bilateral sensorineural deafness. There is a contest about the assessment for tinnitus.
30.Dr Kelly, an ear, nose and throat specialist, described Mr Johnson’s tinnitus as being mild when she saw him in April 2003. In March 2003 Ms Sally Smith, an audiologist, reported Mr Johnson as describing his tinnitus as intermittent in both ears “which he finds tolerable most of the time.” In July 2003 the tinnitus was described to Dr Goode as being “irritating and annoying” but Mr Johnson was unable to nominate any particular aggravating or relieving factors. In October 2004 Mr Johnson’s tinnitus was described as “constant” and “annoying.”
31.In August 2005 Mr Johnson underwent a further hearing test. He provided to the audiologist who conducted the test, and required her to sign, [1] a document that asserted that the degree of his tinnitus had been misreported in the past. The document continued:
As the Department of Veterans’ Affairs has contracted with you your primary loyalty would be to them rather than me and therefore, to make sure that a similar mis-reporting does not re-occur, please sign this document as evidence that:
1 – this is the only report that I have given to you concerning my tinnitus, and,
2 – my tinnitus is very severe, constant and is present everyday. My tinnitus is such that it causes me distraction, loss of concentration so that I am unable to enjoy reading or watching television and such severe discomfort that it interferes with my sleep.
[1] It is not clear whether Ms Hives, the audiologist, read this document before signing it but her signature is expressed to be no more than an acknowledgment of receipt of the document.
32.Mr Johnson did not give evidence of any of these claimed instances of misreporting. Indeed Mr Johnson did not give any evidence of the effect upon him of tinnitus, nor, when the matter was raised in submissions, was any application made to recall him to give further evidence. We proceed upon the basis that the accounts of the severity of tinnitus recorded by practitioners were recorded accurately and that Mr Johnson’s assertion to the contrary is false and deliberately so. Mr Johnson’s complaints in August 2005 of tinnitus that was so severe that he was unable to enjoy reading or watching television may be compared with the answers given by him in a Lifestyle Questionnaire in July the previous year in which he said:
I occasionally like to watch TV but I find that I tend to doze off during the programes. [sic] I can’t concentrate enough to read but do listen to music sometimes.
The tinnitus was otherwise mentioned in passing only in that document, for example, where, in describing his difficulties in using transport Mr Johnson referred to “the motion of the vehicle causing nasal pain or Tinnitus and tiredness.”
33.We note, for completeness, that in August 2005 Dr Occhino selected, from the range of descriptors of tinnitus:
Very severe tinnitus, present every day, causing distraction, loss of concentration and extreme discomfort, and regularly interfering with sleep.
34.Mr Johnson was obviously the source of that description and we place no weight on it. It is significantly greater than any other description. We consider that, on a generous view of the evidence, the applicant’s tinnitus warrants an assessment of 5 points on the footing that he has tinnitus every day but that it is bearable for much of the time.
35.In the result we would assess 6 points for hearing loss and 5 points for tinnitus.
Epistaxis
36.The parties are agreed that the condition of epistaxis falls to be assessed by reference to Chapter 15 of the Guide dealing with intermittent impairment. That involves a consideration of the severity, duration and frequency of attacks.
37.Mr Johnson described having constant nose bleeds that last for anywhere from 5 minutes to one hour and occur 5, 6, or 7 times per day. He described having had one episode lasting 45 minutes on the afternoon before the commencement of the hearing and another, lasting one hour, on the morning of the hearing.
38.On Scale 15.1, which measures severity, Levels II and III are relevant. They are in these terms:
II More severe symptoms, that are distressing, but prevent few everyday activities. Loss of efficiency is discernible elsewhere. Self-care is unaffected and independence is retained.
III Loss of efficiency is discernible in many everyday activities. Some elements of self-care are restricted but, in most respects, independence is retained. Bed – rest is often necessary during an attack.
39.Despite Mr Rudge being prepared to concede severity at Level III we do not accept that that adequately or accurately describes the evidence before us, particularly that of Mr Johnson. He did not describe to us any discernible loss of efficiency or any need for bed-rest. We were pressed by Mr Bates with Dr Occhino’s conclusion, expressed in his letter of 19 July 2005, that Mr Johnson was “Level 3.” We disagree. Even on the basis of the symptoms Dr Occhino describes in his assessment prepared in August 2005 Level III is not appropriate.
40.Consequently, in our view, the severity is Level II. The evidence supports a conclusion that the duration of attacks is medium, that is, lasting from 30 minutes to four hours. In conjunction with a severity rating of Level II that produces a grading of C on Scale 15.3 and, with a frequency of 100 plus, an assessment of 10 points on Table 15.4.
41.It is now necessary to make an assessment of the impairment resulting from the avoidance and preclusion of otherwise normal activities between activities using Table 15.5. We have very grave doubts about the general reliability and truthfulness of Mr Johnson’s evidence and his reporting of symptoms to medical practitioners. But even on the basis of an acceptance of his evidence of the frequency and duration of attacks we do not regard him as being prevented by fear of an episode from any significant activities. He is not, in our view, prevented form leading a normal life between episodes.
42.Mr Johnson did claim the need to avoid using public transport but this was out of fear of embarrassment from an attack of epistaxis not from fear of the attack itself. Matters of embarrassment fall to be determined under Chapter 17.
43.Thus, under Table 15.5, we assess nil points.
44.We should, as well, record that we are at a loss to understand why Mr Johnson does not get treatment for this condition. On the evidence before us the condition is capable of being repaired by a simple procedure, cauterisation, with few risks.
Sleep apnoea
45.There was controversy about the appropriate tables to be used for sleep apnoea. Mr Johnson’s case was that this condition was to be assessed by reference to the tables in Chapter 15 dealing with Intermittent Impairment. For the Commission it was submitted that the assessment ought be performed using Chapter 16, Activities of Daily Living.
46.Intermittent disorders are described in the Guide as conditions:
·that remain at a low level of impairment between discrete episodes of increased impairment; or,
·where there is one basic type of impairment on which is superimposed episodes of significantly greater impairment of another type.
The Commission’s preference was for use to be made of Table 16.3 (Other Impairments) covering, according to the Guide, “such non-specific indicators of disease as pain, lethargy and prognosis.”
47.We do not accept Mr Johnson’s argument. It is based upon an acceptance of the claim by Dr Occhino that the sleep apnoea causes dizziness and hypertension. We do not accept that evidence and prefer the overwhelming body of medical evidence, including that of Dr Kelly, that sleep apnoea does not cause dizziness or hypertension.
48.Having regard to the evidence we consider a rating of 10 points under Table 16.3 is appropriate.
49.Again we note that Mr Johnson is not undertaking treatment for this condition which, on the evidence, ought be undertaken. His stated reason for refusal, that he could drown in his own blood if required to wear a CPAP (Continuous Positive Airways Pressure Ventilation) mask, is patently nonsensical.
Solar keratosis/plantar warts
50.These conditions may both be regarded as skin disorders. Collectively they warrant an impairment rating of 5 points under Table 11.1. We do not accept Mr Bates’ contention that they warrant a rating of 10 points. The impairments, as described by Dr Occhino, are quite minor.
Haemorrhoids
51.The Commission assessed 5 points for this condition. We did not understand Mr Bates to suggest that any higher rating was warranted.
Disfigurement
52.The Guide makes it plain that:
only one rating may be determined by applying this chapter for any condition or combination of conditions.
53.Mr Johnson has two conditions that it is submitted need to be considered under Chapter 17 – a deviated nasal septum and the solar keratosis. Having had the benefit of observing Mr Johnson we would describe the former as slight and barely noticeable. Of itself, it would warrant a nil assessment. In combination with the solar keratosis we would assess the disfigurement at 2 points.
54.We note that Mr Johnson claims that his nose causes him significant embarrassment in ordinary social contacts. We do not regard that claim as either genuine or reasonable. To the extent that he suffers from embarrassment from nose bleeds we include that within the assessment of 2 points. Of itself, and even in combination with the deviated nasal septum, it would warrant a nil assessment.
Summary of Assessment
55.It is necessary, given the differing dates of acceptance, to make four assessments.
56.From 22 May 2003 we assess Mr Johnson’s impairment rating at 28 (rounded to 30) being the combined value of epistaxis (10 points), sleep apnoea (10 points), hearing loss (6 points) and tinnitus (5 points).
57.From 29 May 2003 we make the same assessment on the basis that plantar warts did not, of themselves, add any additional impairment.
58.From 18 March 2004 with the acceptance of solar keratosis we assess the impairment rating at 33 (rounded to 35) being the combined value of epistaxis (10 points), sleep apnoea (10 points), hearing loss (6 points), tinnitus (5 points), plantar warts/solar keratosis (5 points) and disfigurement (2 points).
59.From 25 October 2004 with the acceptance of haemorrhoids we assess the impairment rating at 37 with the addition to the rating in the proceeding paragraph of 5 points. We round this down to 35 points.
Lifestyle effects
60.There was little attention paid by the parties to the matters in Chapter 22 of the Guide which deals with the lifestyle effects of the accepted disabilities. Doing the best we can we determine these ratings.
From
22/5/03
From
29/5/03
From
18/3/04
From
25/10/04
Personal relationships
3
3
3
3
Mobility
2
2
2
2
Recreational/Community
3
3
4
4
Domestic or employment
4
4
5
5
Overall
3
3
4
4
Conversion
61.From 22 May 2003 an impairment rating of 30 and a lifestyle rating of 3 yields 60 per cent. From 24 May 2003 the rating continues at 60 per cent. From 18 March 2004 an impairment rating of 35 and a lifestyle rating of 4 yields 70 per cent. From 25 October 2004 the 70 per cent rating continues.
62.It follows that we would set aside the decision of the Board made on 21 April 2005 in relation to the rate of pension and make a decision in substitution for it that:
(a) the decision of the Commission of 7 August 2003 which continued pension at 50 per cent of the general rate is set aside;
(b) the decision of the Commission of 4 March 2005 which continued pension at 50 per cent of the general rate is set aside;
(c) in lieu of those decisions there are substituted decisions that the applicant is entitled to pension,
i.at 60 per cent of the general rate from 22 May 2003,
ii.at 70 per cent of the general rate from 18 March 2004.
Special Rate Pension
63.Given that we have concluded that from 18 March 2004 the applicant is entitled to pension at 70 per cent of the general rate the parties submitted that we ought consider whether the applicant was entitled to a special rate pension, that is, the pension referred to in s 24 of the Act. In light of our conclusion that Mr Johnson became entitled to a pension at 70 per cent of the general rate from 18 March 2004 we propose to treat that as the date at which Mr Johnson must satisfy each of the criteria in s 24(1) of the Act. The assessment period is from 18 March 2004 and continues until the making of our decision.
64.The requirement in s 24(1)(a) is satisfied by our earlier findings. Mr Rudge conceded that the requirement in s 24(1)(b) was satisfied having regard to the report of Dr Sowby dated 29 March 2006. That report concluded that:
… whilst [Mr Johnson’s] sleep apnoea remains untreated I would not anticipate him being able to readily cope with more than eight hours per week because of this condition.
65.The issue that we must determine is whether s 24(1)(c) of the Act is satisfied, that is:
·whether Mr Johnson is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking, and
·whether, in consequence, Mr Johnson is suffering a loss of wages or earnings on his own account that he would not be suffering were he free from that incapacity.
By virtue of s 73 of the Act Mr Johnson’s defence-caused injuries and diseases are taken to be war-caused.
66.There is no evidence that Mr Johnson was genuinely seeking to engage in remunerative work after his last employment is February 2003 and it is accordingly unnecessary to consider the ameliorating provisions in s 24(2)(b) of the Act.
67.Guidance in the application of s 24(1)(c) has been provided by the Full Court of the Federal Court in Flentjar v Repatriation Commission.[2] In that case Branson J, with whom Beaumont and Merkel JJ agreed, described the issues as being:
(1) What was the relevant remunerative work that the veteran was undertaking within the meaning of 24(1)(c) of the Act?
(2) Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
(3) If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
(4) If the answer to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
[2] (1997) 48 ALD 1 at pages 4-5.
Her Honour went on to say of question 4 that it threw up for consideration the question of what the veteran would have done if he had none of his service disabilities. And, in approaching that question, we required to “take into account any factor that plays a part or contributes to the veteran being prevented from continuing to engage in remunerative work”.[3]
[3] See Repatriation Commission v Hendy [2002] FCAFC 424; 76 ALD 47, 54 at [37].
68.The decision in Hendy identified time out of work before the assessment period, lack of recent work experience and increasing age as being relevant considerations saying:
The decision maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.
69.In considering the first question we are obliged to consider the type of work that Mr Johnson was undertaking rather than particular job; the phrase “remunerative work that the veteran was undertaking” refers to the type of work that the veteran was undertaking or his field of remunerative activity.[4]
[4]See Banovich v Repatriation Commission (1986) 69 ALR 395, 402; Starcevich v Repatriation Commission (1987) 18 FCR 221, 225.
70.It is necessary now to consider Mr Johnson’s work history. After he left the Army in 1990 he set up his own wholesale stationery business which he operated between February 1990 and June 1995. Thereafter for a period from February 1997 to October 1999 he was employed as the secretary/administrator for the Sherwood/Indooroopilly RSL Sub-Branch. He was then employed between August 2000 to January 2001 as a casual barman with the Western Districts Football Club and then between February 2001 and June 2001 as a night auditor at the Astor Metropole Hotel. After that employment he did not return to employment until August 2002 when he commenced employment with Torgas Incorporated as a senior field officer until February 2003. He has not been employed since then.
71.The parties are agreed that the type of remunerative work engaged in by Mr Johnson is in the clerical and administrative or barman category.
72.So far as the second question is concerned, that is, is Mr Johnson prevented from continuing to undertake work by reason of his war-caused injury or war-caused disease it seems to us to be appropriate to assume an answer favourable to Mr Johnson to that question although we do entertain some doubt as to whether that is a proper assumption. But in any event the third question must, in our view, be answered in the negative. That is to say it is not the war-caused injury or war-caused disease that is the only factor preventing Mr Johnson from continuing to undertake that work. What also prevents him from undertaking that work is his refusal to undertake quite simple and perfectly straight forward treatment for his epistaxis and sleep apnoea.
73.As to the first of these Dr Kelly, an ear, nose and throat surgeon, regarded the epistaxis as “readily treatable” by cauterisation, a simple procedure undertaken under local anaesthetic with a minuscule risk of perforating the septum.
74.The medical opinion is all to the effect that there is a potential for significant improvement to Mr Johnson’s sleep apnoea condition with a range of treatment options. Dr Sowby, a specialist in occupational medicine, put the matter in this way;
With treatment of his sleep apnoea condition there would be reasonable prospects of him being able to perform at least 8 to 20 [hours] per week in one of the lighter occupations that he performed over the years.
Dr Sowby reported that Mr Johnson remained averse to considering any treatment options. In his evidence before us and in his submissions Mr Johnson asserted that if he undertook treatment using a CPAP machine “he could drown in his own blood”. That fear is, as we have said, nonsensical. When asked about that prospect Dr Kelly rejected it out of hand as do we. In our view, if it be assumed, favourably to Mr Johnson, that his sleep apnoea prevents him from continuing to undertake remunerative work that he was undertaking, it is not the only factor preventing him from continuing to undertake that work. His unreasonable refusal to have perfectly straightforward treatment for sleep apnoea and epistaxis also prevents him from continuing to undertake that work.
75.Had it been necessary for us to consider question 4 we would have answered that question against Mr Johnson as well. Mr Johnson ceased work in February 2003. In July 2003 Mr Johnson told Dr Goode that he had no current plans at that time to return to work. He has been receiving disability support pension since June 2004. We think the respondent is correct in contending that Mr Johnson has no interest in returning to any remunerative employment, not as a consequence of his war-caused disabilities, but rather as a conscious choice on his part not to seek employment.
76.It follows that we are satisfied that the criteria in s 24(1)(c) is not satisfied and that the application for a pension at special rate ought be refused.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC, Dr K S Levy, Senior Member, Dr M L Denovan, Member.
Signed: .....................................................................................
Leisa Pendle, AssociateDate/s of Hearing 11 & 12 September 2006
Date of Decision 20 October 2006
For the Applicant Mr A Bates
For the Respondent Mr K Rudge, Department of Veterans’ Affairs
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