Lawrence Hughes and Repatriation Commission

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[2013] AATA 373

Division VETERANS' APPEALS DIVISION

File Number

2012/0797

Re

Lawrence Hughes

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Miss E A Shanahan, Member
Date 4 June 2013
Place Melbourne

The Tribunal sets aside the decision under review and substitutes its decision that the Applicant qualifies for the disability pension at the special rate.

[sgd]........................................................................

Miss E A Shanahan, Member

VETERANS’ AFFAIRS – Special Rate – farmer – war-caused conditions of osteoarthrosis of the knees and ankles and lumbar spondylosis – no impact of non-accepted conditions on the Applicant’s work capacity – criteria for Special Rate satisfied – decision set aside

Legislation

Veterans’ Entitlement Act 1986 sections 24 and 28

Cases

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 48 ALD 1

Forbes v Repatriation Commission (2000) 58 ALD 394

Hall v Repatriation Commission (1994) 33 ALD 454

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

Miss E A Shanahan, Member

4 June 2013

  1. Mr Hughes has been receiving a disability pension at the rate of 100 per cent of the general rate since 2 July 2007. On 29 June 2009 he lodged an application for an increase in the rate of his disability pension to the special rate. The Repatriation Commission has accepted that Mr Hughes has the following war-caused disabilities:  osteoarthritis of both ankles, oesteoarthrosis of both knees, bilateral sensorineural hearing loss with tinnitus, alcohol dependence or alcohol abuse, lumbar spondylosis and hypertension.  He also has arthritis of the right wrist but has not submitted a claim for this condition as being war‑caused.

  2. Mr Hughes’ application for special rate was denied by a delegate of the Commission on 25 September 2009. He applied to the Veterans’ Review Board (the VRB) for a review of the decision. On 4 January 2010 the VRB affirmed the decision. Mr Hughes lodged an application for review of the VRB decision by the Administrative Appeals Tribunal on 2 March 2012. At the time of his original application for special rate, he was aged 63. At the hearing Mr Hughes was represented by Ms Fiona Ryan, instructed by Williams Winter solicitors. The Commission was represented by Mr Adrian Crowe, instructed by the Department of Veterans’ Affairs (DVA). The Tribunal was provided with the documents lodged pursuant s 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents, Exhibit R1).  Both parties tendered further documentation which is annexed to this decision.  Mr Hughes gave oral evidence before the Tribunal. 

    THE ISSUE BEFORE THE TRIBUNAL

  3. The parties agreed that the only issue before the Tribunal was whether Mr Hughes satisfies s 24(1)(c) of the Veterans’ Entitlement Act 1986 (the Act).

    BACKGROUND TO THE APPLICATION

  4. Mr Hughes completed Year 10 at the age of 16, following which he started working on his parent’s farm of 950 acres.  On turning 18 he became a partner in the farming business with his mother, father and brother.  Prior to his National Service call up, he worked for 12 months as a labourer…

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Details
Case
[2013] AATA 373
Decision Date

CaseChat Overview and Summary

The parties in this matter were Lawrence Hughes and the Repatriation Commission. The dispute centred on whether Mr Hughes satisfied the requirements of section 24(1)(c) of the Veterans’ Entitlement Act 1986 (the Act). The Tribunal was tasked with determining whether Mr Hughes’ war-caused injuries or diseases, and no other factors, prevented him from continuing to undertake remunerative work. The Tribunal had to consider the evidence presented by both parties and determine if Mr Hughes’ osteoarthritis of his right wrist was the sole reason for his incapacity to work, as required by section 24(1)(c) of the Act.

The key legal issue before the Tribunal was whether Mr Hughes’ osteoarthritis of his right wrist was the sole reason for his incapacity to work, as required by section 24(1)(c) of the Act. The Tribunal had to consider the evidence presented by both parties and determine if Mr Hughes’ war-caused injuries or diseases, and no other factors, prevented him from continuing to undertake remunerative work. The Tribunal also had to consider whether other factors, such as age, recency of work, or a desire to retire, played a role in Mr Hughes’ incapacity to work.

The Tribunal concluded that the major, if not the only, cause of Mr Hughes’ incapacity to work was his osteoarthritis of the lumbar spine, both knees, and to a lesser extent both ankles. These conditions were accepted as war-caused disabilities. The Tribunal found that Mr Hughes’ osteoarthritis of his right wrist did not prevent him from continuing to undertake remunerative work. The Tribunal determined that Mr Hughes satisfied section 24(1)(c) of the Act, as his war-caused injuries or diseases, and no other factors, prevented him from continuing to undertake remunerative work.

The Tribunal ordered that Lawrence Hughes satisfied section 24(1)(c) of the Veterans’ Entitlement Act 1986. The Tribunal found that Mr Hughes’ war-caused injuries or diseases, and no other factors, prevented him from continuing to undertake remunerative work.

Orders

Orders of the court

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Background

Background to the litigation

The parties agreed that the only issue before the Tribunal was whether Mr Hughes satisfies s 24(1)(c) of the Veterans’ Entitlement Act 1986 (the Act). BACKGROUND TO THE APPLICATION Mr Hughes completed Year 10 at the age of 16, following which he started working on his parent’s farm of 950 acres. On turning 18 he became a partner in the farming business with his mother, father and brother. Prior to his National Service call up, he worked for 12 months as a labourer in the building industry and the mining industry. He completed 2 years’ service in the Army, serving in Vietnam from October 1967 until July 1968. On his discharge from the Army he returned to work on the family farm. During his service in Vietnam Mr Hughes had injured his ankles, knees and back when, as part of his duties, he jumped from a helicopter. Approximately 2 years after his discharge from the Army, Mr Hughes purchased the shares of his parents and brother in the family farm and thereafter ran the business in partnership with his wife. The partnership was known as the Kalawar Partnership. Over the years, Mr Hughes purchased two neighbouring properties, one in the name of the partnership and one in his wife’s name. They eventually extended the family property to 1500 acres, on which they raised sheep and cattle and grew crops. In particular, they grew rice in an irrigation area. In 2001 Mr Hughes’ son, Michael and Michael’s wife Simone came to work in the farming business. They had relocated from Melbourne, where Michael had worked as an engineer. He initially worked for his parents on wages. In 2006 Mr and Mrs Hughes entered into a partnership with Michael and Simone, establishing the Rawalak Partnership. The new partnership provided contract servicing to other farms and operated a share farming business. Michael continued to work for wages. Over a period of some years, the Rawalak Partnership gradually assumed the operation of the business involving the 1500 acres. The various partnerships have been detailed and confirmed by the parties’ accountants, solicitors and the relevant bank. Mr Hughes first became aware of his diminishing ability to cope with the physical demands of operating the farm prior to his son’s arrival in 2001. It was for this reason that his son took over the majority of the labour intensive tasks. As Mr Hughes’ symptoms (predominantly pain and discomfort relating to his back, knees and ankles) increased, he reduced his involvement in the farming activities. By 2008 he was working, on his own estimate, less than eight hours per week. He limited his physical activities to driving around the properties checking fences and irrigation levels. He did however continue in an administrative and managerial decision-making role. On 31 December 2010 Mr Hughes and his wife formally ceased trading in all partnerships involving their properties. Michael and Simone purchased the two properties that had been added to the main farming business. As of 1 January 2011, Mr and Mrs Hughes leased the original 950 acres of the Kalawar Partnership to Michael and Simone for a sum of money that offsets their outgoings (Exhibit A1). They continued to live on the homestead and the surrounding 5 acres.

Evidence

Evidence Before The Court

Mr Hughes confirmed that his ability to farm his property had been affected solely by the osteoarthritis of his back (lumbar spondylosis), his knees and ankles. These conditions had prevented him from bending to perform sheering and crutching of sheep. However, they had not impacted on his ability to patrol the irrigation lines in the rice farm or to repair the lines (which required fixing by inserting a little plug). DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL Mr Hughes’ clinical records covering the period from March 1972 to December 2011 were provided by his general practitioner, Dr Peter Robinson (Exhibit R4). These notes document Mr Hughes’ attendance for problems relating to osteoarthritis of his ankles, knees and back. The notes do not record any complaint of pain or examination of the right wrist. However, it would appear from Mr Khoury’s report that an x-ray of the wrist had been performed in March 2004 and had shown mild osteoarthritis. Dr Robinson had referred Mr Hughes to several orthopaedic surgeons including to Mr Brian Barrett about Mr Hughes’ widespread osteoarthritic changes. All the specialists had recommended conservative treatment and the use of anti-inflammatory drugs. Mr Hughes did require a right knee arthroscopy in 1991 for a lateral meniscus tear. Ultimately, in November 2011 he underwent arthroscopic debridement of his right wrist by Mr Frawley, for what was described as: a chronic scapholunate dissociation, with advanced arthritic change between the scaphoid and radius with a loose body in the gap. On 9 December 2008 Dr Robinson completed an Ability to Work report for the Commission, declaring Mr Hughes totally unfit for work because of multiple joint arthritis and alcohol dependence. Dr Robinson’s notes contain the reports of Mr Kirwan (in relation to Mr Hughes’ general osteoarthritis) and Mr Frawley (in relation to Mr Hughes’ right wrist pathology), who have seen Mr Hughes on a regular basis since late 2009. Mr Kirwan documented Mr Hughes’ osteoarthritis of the knees, ankles and back and advised conservative treatment. Mr Frawley became involved in Mr Hughes’ management on the recommendation of Mr Kirwan, when his right wrist discomfort was considered to require surgical intervention in 2011. Ms Simone Dudley performed an upper limb capacity evaluation at the request of the DVA in June 2009. Ms Dudley found the range of movement in Mr Hughes’ neck, shoulders and elbows to be normal. The range of movement in the left wrist was described as full range but that in the right wrist was decreased 10 to 15 degrees of the normal range in flexion, extension and ulnar and radial deviation. Ms Dudley concluded that Mr Hughes had: demonstrated upper limb capacity that would not alone prevent him from working. Michael Hughes provided a statement dated 5 June 2012 (Exhibit A2). He confirmed he was a chemical engineer by training and worked in the field until March 2001. In that year, he returned to Deniliquin to work on his parents’ farm, as he and his wife wished to raise their children in the country rather than in the city. He was aware at the time that his father was having difficulty coping with the physical demands of farming and was having to hire more farm labour. Michael Hughes confirmed that the drought being experienced in the area broke in 2008 and work at the property increased. This increase in workload highlighted his father’s incapacities. Thereafter Mr Hughes continued in an administrative role while Michael took over more and more of the actual work of farming. Michael confirmed the establishment of the Kalawar and Rawalak partnerships and the purchase, by him and his wife, of the properties on 1 January 2011. DR ROBYN HORSLEY

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ms Ryan finally submitted that Dr Horsley’s opinion that Mr Hughes’ right wrist condition, as assessed in 2012, would prevent his return to work was made without a consideration of the type of work Mr Hughes’ farming involved. TRIBUNAL’S DELIBERATIONS Both the expert medical opinions and Mr Hughes’ evidence established that the major, if not the only cause, of his incapacity to work for eight or more hours per week as a farmer is his osteoarthritis of the lumbar spine, both knees and to a lesser extent both ankles, all of these being accepted as war-caused disabilities. The Commission has conceded that Mr Hughes satisfies s 24(1)(a) and s 24(1)(b) of the Act. The question before the Tribunal is whether he satisfied s 24(1)(c), either at the time of lodgement of his application on 29 June 2009 or during the assessment period which ends when this Tribunal publishes its decision (Hall v Repatriation Commission (1994) 33 ALD 454). The first limb of s 24(1)(c) of the Act requires that the evidence presented establishes that it is by reason of incapacity from that war-caused injury or war-caused disease or both, alone that Mr Hughes is prevented from continuing to undertake remunerative work that veteran was undertaking... The only physical medical condition challenging the alone test of s 24(1)(c) of the Act has been identified as Mr Hughes’ osteoarthritis of his right wrist. Other factors such as age, recency of work or a desire to retire have not been raised by the parties and the Tribunal agrees that they are not relevant. Mr Hughes was aged 63 at the time his claim was lodged. While he had reduced his physical participation in the farming of his properties progressively from 2001, when his son returned to the farms, he was still working for up to eight hours per week in a physical capacity until late 2008. Mr Hughes had farmed since the age of 18, except during his national service enlistment. In the first year after leaving school he worked as a labourer. He has spent 42 years of his life farming. Mr Hughes did discuss retirement with his general practitioner of 40 years, Dr Robinson, on 30 June 2008 and ceased all physical work from August 2008. Thereafter, he was only involved in managerial and administrative decision-making, such as the types of crop to be sown, stock rotation, stock purchase and sales. Mr Hughes’ physical contribution was confined to driving a utility vehicle around the property checking stock, fences and irrigation levels. All of his involvement in the farming of the properties ceased on 31 December 2010. In Repatriation Commission v Hendy (2002) 76 ALD 47 at paragraph [37] Whitlam, Emmett and Stone JJ said: The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. 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. ... Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.