Johnson and Repatriation Commission

[2004] AATA 1163

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1163

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1363

VETERANS'     APPEALS       DIVISION

Re:         DARYL WILLIAM JOHNSON

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             8 November 2004

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 29 May 2001.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - knee injury - hearing loss ‑ ability to work ‑ whether special rate applies

Veterans’ Entitlements Act 1986 s 24, 120(4)

Flentjar v Repatriation Commission (1997) 48 ALD 1

Magill v Repatriation Commission [2002] FCA 744

REASONS FOR DECISION

8 November 2004  G.D. Friedman, Member

1.      This is an application by Daryl William Johnson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 26 June 2002.  The VRB set aside a decision of a delegate of the Repatriation Commission (the respondent) dated 11 October 2001 to increase the applicant’s disability pension to 80 per cent of the general rate, and increased the pension to 90 per cent of the general rate.

2.      At the hearing of this matter on 8 December 2003 and 28 October 2004 Mr D. De Marchi, solicitor, represented the applicant, and Mr K. Herman, advocate with the Department of Veterans’ Affairs, represented the respondent. 

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T33), with 16 exhibits (Exhibits A1 to A16) lodged by the applicant and 4 exhibits (Exhibits R1 to R4) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 3 September 1956.  He left school in 1972 after completing the NSW School Certificate, and began working as an apprentice painter.  He served in the Australian Army (the army) from 6 November 1974 to 6 November 1994, and rendered operational service as defined in the Veterans’ Entitlements Act 1986 (the Act).  He reached the rank of sergeant in the Infantry Corps.

5.      After his discharge from the army he moved to the Philippines, where he has remained as a permanent resident.  He is married and has three children.   In 1997 he was employed as General Manager at the Coconut Grove Beach Resort, La Union.  He worked there until 30 April 2001.  He has not worked since.

6.      On 29 May 2001 the applicant lodged a claim for an increase in disability pension for his sensorineural hearing loss and fracture right patella with cruciate ligament injury right knee, which the respondent had previously accepted as being war-caused disabilities.  On 11 October 2001 a delegate of the respondent increased the applicant's disability pension to 80 per cent of the general rate with effect from 29 May 2001.  On 4 December 2001 the applicant applied to the VRB for review, and following the decision of the VRB, the applicant lodged an application with the Tribunal on 29 July 2002 for review of the decision.

7.      The issue before the Tribunal is whether the applicant should be assessed as eligible for pension at the special rate. 

EVIDENCE

8.      In a written statement dated 29 January 2003 (Exhibit A1) the applicant outlined his employment history.  He stated that his employment with Coconut Grove Beach Resort required considerable physical activity including walking and standing, and that his right knee deteriorated to a point where he was unable to walk more than 250 metres without pain.  He stated that the duties of the position aggravated his pre-existing knee injury, which he sustained in March 1977 during an infantry training exercise.  The applicant said that his employment was terminated as a result of his recurring knee problems.  He provided details of numerous applications for jobs (Exhibit A3), and said that he has been unsuccessful in getting a job because of his hearing and knee problems.  He expressed the belief that, but for these conditions, he would still be employed on a full-time basis.

9.      In oral evidence by telephone the applicant stated that his original treating doctor was Dr R. Guzman of Angeles City, who referred him for physiotherapy.  He said that in January 2000 he became aware that Dr Guzman was not properly qualified, so he did not consult Dr Guzman again.  The applicant told the Tribunal that his knee condition has become worse and his limp is more pronounced.  He said that he requires a walking stick.  He stated that he consulted Dr E. Chiu, orthopaedic surgeon, who has prescribed medication for the knee injury.  He noted that he will require surgery for a total hip replacement in several years’ time.  The applicant told  the Tribunal that, after completing a report dated 28 November 2001 (T25), Dr R. Sibayan, rehabilitation physician, had sought additional payment, which the applicant was unable to make, and he therefore ceased consulting Dr Sibayan.  He said that subsequently Dr Sibayan wrote a report dated 12 March 2003 (Exhibit R2) in which he included adverse material about the applicant, despite not having examined the applicant since the earlier report.   

10.     Under cross-examination the applicant said that he leads a sedentary life because of his knee injury, and faces additional difficulties in seeking employment because of this injury, his hearing problem and his inability to speak the local language, although he stated that his hearing problem, particularly relating to tones and the sound of women’s voices, would, in practical terms, prevent him from obtaining clerical employment.  He explained that part-time work is not a feasible option, and told the Tribunal that he has two young children and a stepson who rely on him for financial support. 

11.     In a written statement dated 17 November 2003 (Exhibit A9) Mr M. Witherage, a British citizen and resident of the Philippines, said that he has known the applicant for about 10 years, and employed him in July 1994 as night manager of a bar for 3 months.  He said that even at that time the applicant’s problems with his hearing and right knee were apparent and those problems have deteriorated over the last 4 years.  Mr Witherage said that he had had constant dealings with the applicant at the time of the applicant’s employment at Coconut Grove Beach Resort, and that the applicant experienced severe physical problems, such as an inability to move around the resort properly, and communication difficulties because of his hearing condition.  He said that the applicant has made numerous attempts to find work but has been unsuccessful.

12.     In oral evidence, by telephone, Mr Witherage noted that the applicant’s inability to find work was having a significant impact on his ability to support his family financially.

13.     In a written statement dated 30 October 2003 (Exhibit R3) Mr A. Walsh, assistant director, National Fraud Control Unit, Department of Veterans’ Affairs, stated that he visited the Philippines in 2003 to investigate claims by the applicant for reimbursement under another scheme administered by the Department.  He said that the applicant produced documentation claiming that he had received medical treatment from Dr Esmeraldo De Guzman, physician, of Angeles City, the Philippines.  Mr Walsh stated that he made a comprehensive search of the address given by the applicant for Dr De Guzman, and made local and national enquiries.  He concluded:

My inquiries revealed Dr Guzman does not exist and that the address given was a bar.

14.     In oral evidence Mr Walsh stated that he had interviewed the applicant as part of his inquiries, and was satisfied that his search for Dr Guzman’s surgery was thorough.  He said that he was unable to find any evidence that Dr Guzman was a registered medical practitioner. 

15.     Under cross-examination Mr Walsh agreed that Dr E. De Guzman (Jnr) does,  in fact, exist, and stated that when searching for the address listed on Dr De Guzman’s letterhead he was relying on the assistance of a guide who had local knowledge.  Mr Walsh agreed that the applicant had been co‑operative during the investigation

16.     In a written report dated 6 October 2003 (Exhibit A15) Dr R. Lapid, Department of Physical Medicine and Rehabilitation, Philippine Academy of Rehabilitation Medicine, Angeles City, the Philippines, referred to the applicant’s right knee problems, and stated that constant pain and swelling have markedly affected the applicant’s overall activity level including walking, sitting, and climbing stairs.  In oral evidence, by telephone, Dr Lapid confirmed her opinion that he was not capable of working for eight hours per week.  Under cross-examination Dr Lapid said that the applicant would have difficulty in performing sedentary tasks because of problems sitting for periods beyond one hour.

17.     In a written report dated 23 July 2001 (T10) Dr J. Dychioco, orthopaedic surgeon, Angeles Medical Center, Angeles City, the Philippines, diagnosed Advanced Degenerative Arthritis with Post-Traumatic Arthritis, Right Knee.  He said that the condition of the applicant’s knee had deteriorated to the point where the applicant had to be terminated from his employment at the Coconut Grove Beach Resort.  In a written report dated 2 July 2003 (Exhibit A5) Dr Dychioco stated:

…The patient is unemployed because of the constant pain on his right knee.  He can tolerate walking for only 200 metres with the aid of a cane.  His condition will definitely progress despite physical therapy and medication.  His prognosis for gainful employment is poor….

In oral evidence, by telephone, Dr Dychioco said that the applicant would not be capable of working eight hours per week.  Under cross-examination he stated that the applicant would be unlikely to be able to undertake sedentary work because of his bilateral hearing problem.

18.     In a written report dated 8 April 2002 (Exhibit A4) Dr De Guzman (Jnr) stated that he has treated the applicant since July 2001 for advanced degenerative arthritis with post-traumatic arthritis (right knee) and severe bilateral sensineural deafness.  He said because of these service‑related conditions the applicant is able to undertake only part-time clerical work of not more than eight hours per week.  He also stated that the applicant’s clerical ability is severely limited by his inability to speak the local language.  In oral evidence, by telephone, Dr De Guzman stated that the applicant wants to work because he needs to support his family, but in addition to his knee pain, his hearing problems makes communication with other people extremely difficult.

19.     Under cross-examination Dr De Guzman said that the applicant’s inability to work has led to frustration and depression, but the two physical disabilities have deteriorated, and he would no longer be able to work, even in a quiet office environment.  He explained that, although the language problem is an issue, the applicant’s communication difficulties caused by his hearing loss are significant. 

20.     In a written report dated 28 November 2001 (T25) Dr Sibayan stated that in practical terms the applicant has no prospects of employment in positions similar to his previous employment at Coconut Grove Beach Resort.  He also noted that the applicant has no knowledge of Tagalog, the national language, which Dr Sibayan considered to be vital.  In a letter dated 12 March 2003 (Exhibit R2) Dr Sibayan stated:

…Nevertheless, with respect to the case of Mr Daryl William Johnson, it is clearly stipulated in my certification that he have some restrictions but not to the point of ABSOLUTE incapability of working to even 4 hours per day only.  Hence, it is to my personal clinical opinion that Mr Johnson can still return back to work provided appropriate modification of work station has been properly instituted.

21.     In a letter to the applicant dated 6 February 2001 (Exhibit A16) the Australian Ambassador in Manila thanked him for agreeing to become a Consular Liaison Point for Australian citizens living in and around La Union.  A consular Liaison Point is a voluntary position that aims to improve coordination and dissemination of information between the Embassy and Australian citizens.  The Ambassador also thanked the applicant for assistance he provided previously to the Embassy and Australian citizens. 

CONSIDERATION OF THE ISSUES

22.     Section 24 of the Act provides for a special rate of pension for a veteran who satisfies the following criteria:

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.

23.     Mr De Marchi submitted that on the medical evidence the applicant’s accepted conditions relating to his right knee and his hearing loss will prevent him from working again, although the applicant has made genuine attempts to find work within his capabilities.  He said that the respondent had not contradicted the applicant’s evidence, other than to suggest that the applicant’s language limitation might be a contributing factor.  Mr De Marchi said that the Tribunal should disregard the report dated 12 March 2003 from Dr Sibayan because the adverse material had been included without the applicant being examined, and because Dr Sibayan had not been called to give evidence that could be tested under cross-examination.  

24.     With regard to investigations by Mr Walsh, Mr De Marchi noted that the concern about Dr Guzman was soundly based as that person was not a registered medical practitioner, and the applicant had ceased consulting him as soon as he became aware of this.  Mr De Marchi emphasised that under cross‑examination Mr Walsh agreed that Dr De Guzman (Jnr) does exist, and no inference could be drawn that the applicant had acted improperly.  Mr De Marchi referred to the letter from the Australian Ambassador as an indication that the applicant is a person of good character whose evidence was credible.

25.     Mr Herman submitted that, in relation to s 24(1)(c) of the Act, as affected by s 24(2)(b), the Tribunal should be cautious about accepting the medical evidence at face value, as the doctors in the Philippines do not necessarily have the required expertise or experience in matters affecting veterans’ applications under the Act.  He said that Dr De Guzman and Mr Witherage had both suggested that the applicant could perform part-time clerical work.  Mr Herman said that factors other than the accepted conditions need to be taken into account, and referred to the evidence from Dr De Guzman and Dr Sibayan that the applicant’s inability to speak the local dialect would affect his ability to find employment.  

26.     In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.  There was no dispute that the applicant satisfies s 24(1)(a) and s 24 (1)(b) of the Act.   

27.     In respect of s 24(1)(c) of the Act, the Tribunal notes that in Flentjarv Repatriation Commission (1997) 48 ALD 1 the Federal Court set out the issues in a series of questions:

1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 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 answers 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?

28.     The Tribunal accepts Mr De Marchi’s submission that Mr Walsh’s investigation did not contain any conclusion adverse to the applicant, particularly as Dr Guzman was found not to be a registered medical practitioner, but Dr De Guzman Jnr does exist.  The Tribunal takes into account the letter from the Australian Ambassador and finds the applicant to be a truthful and credible witness who has made every effort to support his family by attempting to find employment. 

29.     The Tribunal finds that the applicant satisfies the first three questions outlined in Flentjar.  The relevant remunerative work he was undertaking was the work at Coconut Grove Beach Resort and he was unable to continue that work because of his right knee problems and hearing loss.  The Tribunal accepts the medical evidence that the applicant‘s incapacity for work is due to the accepted conditions.  Although the applicant does not speak the local dialect, on balance the Tribunal accepts his evidence that his hearing loss affects his ability to communicate with other persons to such an extent that this limitation, rather than his language restrictions, would prevent him from obtaining clerical or other employment.    

30.     In relation to question 4 in Flentjar, the Tribunal finds that the applicant’s inability to work has resulted in a loss of salary, wages or earnings that was caused by his accepted conditions of right knee pain and hearing loss, and not by other factors.

31.     For these reasons the Tribunal finds that the applicant, by reason of being prevented from continuing his work, suffered a loss of salary, wages or earnings on his own account that he would not have suffered if he were free of that incapacity.  He therefore satisfies s 24(1)(c) of the Act and there is no requirement for the Tribunal to consider the ameliorative provisions of s 24(2)(b) of the Act (Magill v Repatriation Commission [2002] FCA 744) . Under s 120(4) of the Act, the Tribunal is reasonably satisfied that the applicant meets the requirements for eligibility for special rate of pension.

DECISION

32.     The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to pension at the special rate with effect from 29 May 2001.

I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  8 December 2003, 28 October 2004

Date of decision:                   8 November 2004

Advocate for applicant:         Mr D. De Marchi

Solicitor for applicant:           De Marchi & Associates

Advocate for respondent:      Mr K. Herman

Solicitor for respondent:        Advocacy Section, Department of Veterans’ Affairs