Kies and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 96

Kies and Repatriation Commission (Veterans’ entitlements) [2016] AATA 96 (23 February 2016)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2013/5948
Re	Paul Kies
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard McCabe
Date	23 February 2016
Place	Brisbane

The decision under review is set aside. In substitution, the Tribunal decides the applicant is entitled to the pension paid at the special rate.

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Senior Member McCabe

Catchwords

VETERANS’ AFFAIRS – special rate pension – whether applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours – “alone test” – applicant unlikely to experience reduction in pain – decision under review set aside

Legislation

Veterans’ Entitlements Act 1986 (Cth) s 24(1)(b)

REASONS FOR DECISION

Senior Member McCabe

23 February 2016

1. Mr Paul Kies currently receives a pension paid at the intermediate rate. He has asked for the pension to be increased to the special rate. The criteria governing eligibility for payment at the special rate are set out in s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). The Repatriation Commission concedes Mr Kies is able to satisfy all of the criteria save the one imposed by s 24(1)(b).

2. The concessions were plainly appropriate. Mr Kies suffers from a number of accepted conditions that render him incapable of undertaking full-time work. There is no evidence to suggest other non-service-related factors play a role in his incapacity for work, and he clearly has experienced a reduction in remuneration as a consequence. Put simply, the Commission accepts – as do I – the applicant would still be in the workforce earning an income but for his accepted conditions. The dispute between the parties comes down to whether the applicant’s accepted conditions “render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week”. The Commission says the medical evidence suggests the applicant can do up to 20 hours of work per week with appropriate medical treatment and assistance. The applicant’s medical experts say Mr Kies cannot work.

3. I am satisfied Mr Kies cannot do more than 8 hours of work per week. That means he is eligible to be paid a pension at the special rate. I explain my reasons below.

   Background to the application

4. Mr Kies served in the Army between 1974 and 1987. Upon discharge he operated a carpet cleaning business. The business was successful but he said he was unable to continue with it because of his service-related conditions. He also worked in a convenience store, in a security firm, as a bus-driver, a labourer, and as a retail assistant at a Bunnings hardware store. He has not worked since July 2007.

5. The applicant has a number of conditions that have been accepted as service-related. He has three conditions of particular relevance to these proceedings: degenerative changes to his right ankle which cause constant pain, depression which is secondary to the chronic pain in the ankle, and alcohol abuse disorder. I have already noted the Commission accepts those conditions prevent the applicant working for more than 20 hours per week. On that basis, the applicant is paid a pension at the intermediate rate. But Mr Kies says the medical evidence establishes he cannot work on a part-time basis. He says he is totally and permanently incapacitated. To resolve the dispute, I need to consider the medical evidence.

   What the medical experts say

   Dr Greg Stirling

6. Dr Stirling was the applicant’s treating orthopaedic surgeon. Two of his reports were reproduced in exhibit one. In his report dated 29 April 2013 (exhibit one at p 157), he noted the applicant experienced continuing pain from the right foot and ankle condition  and opined:

   …I feel there are no further surgical options available to him. I would envisage that this condition will worsen with time, particularly with regards to the pain in the hind foot as the degenerative change worsens. He walks with a permanent limp and is very unsteady. I have suggested that he uses a walking aid.

   It is my opinion that since July 2007 he would not have been able to seek further employment due to his service related disabilities and is fully incapacitated for work permanently. …

7. Dr Stirling was not called to give evidence at the hearing but the substance of his opinion is clear enough: Mr Kies’ ankle condition prevents him from working at all and nothing can be done to change that.

   Dr Ivan Holm

8. Dr Holm provided three reports (exhibit one at pp 25ff and exhibits 4 and 6) and gave telephone evidence at the hearing at the request of the applicant. He is the applicant’s treating psychiatrist. Dr Holm said the applicant’s depression was chronic and has been quite severe at times. In his report dated 17 May 2014 (exhibit 4), he noted:

   His depression is predominantly related to the chronic and at times severe pain from which [the applicant] suffers which is largely due to his ankle.

9. Dr Holm repeated the substance of that view in his oral evidence. He said there was no reason to doubt the applicant experienced chronic pain, and that it was a cause of the depression. Mr Williams, for the Commission, asked Dr Holm whether the applicant would be capable of working at least part time if he were to receive treatment that relieved the pain in his ankle. Dr Holm agreed the applicant’s psychiatric symptoms would improve if he obtained pain relief – but added he saw no basis in the medical evidence he had seen for believing there were any treatments available that would achieve a reduction in pain. Dr Holm pointed to advice from a pain management specialist, Dr McCallum, who wrote on 19 March 2013 that the applicant’s pain “is going to be extremely difficult to treat pharmacologically and interventionally…”: exhibit 4. Dr Holm also referred in cross-examination to the opinions of Dr Sterling about the applicant’s poor prognosis.

   Dr Tim Anderson

10. Dr Anderson is an occupational physician. Dr Anderson saw Mr Kies on 13 February 2014 and prepared a report (exhibit 5) at the request of the respondent. Dr Anderson also gave evidence at the hearing.

11. Dr Anderson focused on the applicant’s orthopaedic problems. He agreed further surgery was not indicated but said it was possible Mr Kies would benefit from a graduated exercise program that involved becoming:

    …physically very much more active in the water. This does not seem to be part of his clinical management. All of the physical conditions of which he complains at the moment would benefit from this. I would also expect that he would be a good bit happier as well.

12. Dr Anderson enlarged on these remarks about the benefits of exercise in water in the course of cross-examination. He agreed he was not a psychiatrist, but Dr Holm’s opinion – that the applicant’s psychiatric symptoms would improve if he could obtain pain relief – offers some support for Dr Anderson’s view. The real issue is whether the sort of treatment Dr Anderson describes is likely to achieve a meaningful reduction in the applicant’s pain.

    Resolving the disagreement between the specialists

13. Dr Holm pointed out he would prefer the view of Dr Stirling, an orthopaedic surgeon, as to the applicant’s prognosis because an orthopaedic surgeon is better qualified to make that call. I also note Dr Anderson did not refer to any evidence or studies in support of his opinion that the applicant would experience any benefit from an exercise program. Dr Anderson relied on his own experience and on general conversations he had with other medical practitioners.

14. I am satisfied that as between the different specialists, Dr Stirling is better qualified to comment on the applicant’s orthopaedic problems. Dr Anderson did not cite any evidence or studies that would justify me preferring his opinion. I am fortified by the opinion of Dr McCallum, the pain specialist, who saw Mr Kies and whose opinion was quoted by Dr Holm. While Dr McCallum did speculate about benefits from a spinal cord stimulator, there was no suggestion that a program of exercise would be of any benefit.

15. I also note Dr Anderson’s evidence did not appear to take account of the limitations imposed on the applicant by his depressive conditions. Dr Anderson focused instead on the impact of the orthopaedic conditions; he did not squarely address whether the applicant’s psychiatric symptoms might make it harder for him to undertake an exercise program in any event.

16. I am satisfied the medical evidence establishes the applicant is unlikely to experience any significant reduction in his pain. Chronic pain will make an ongoing contribution to his depression.

    The work the veteran was undertaking

17. The work the applicant was undertaking was all semi-skilled physical work. I have already mentioned he worked as a labourer, a security officer, a bus driver and a sales assistant. All of those roles involve standing and walking around. Mr Williams questioned whether the applicant might be capable of undertaking sales work that did not require him to stand for long periods – perhaps as a cashier. But Mr Kies never worked as a cashier and all of the sales roles he undertook did require him to be reasonably mobile. I am satisfied in light of the medical evidence I have described that Mr Kies would be unable to undertake the work he was doing for more than 8 hours each week.

    Conclusion

18. The applicant is able to satisfy the criteria in s 24 of the Act. He is eligible to be paid a pension at the special rate.

19. There was a brief discussion at the hearing about the date of effect. I note Mr Kies’ alcohol use disorder was not accepted until recently. The date of effect of that decision was 20 January 2015. Dr Holm acknowledged the alcohol condition contributed to the applicant’s inability to work. His claim for a special rate pension was likely to founder because of the so-called ‘alone test’ until that condition was accepted. I am satisfied the date of effect of my decision should therefore be fixed with reference to the date of effect of the decision to accept the alcohol use disorder.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 23 February 2016

Dates of hearing

7 October 2015
8 September 2015
10 February 2016

Solicitors for the Applicant

Counsel for the Applicant

Terence O’Connor Solicitor

Mr A Harding

Advocate for the Respondent

Mr B Williams, Department of Veterans’ Affairs