Lawrence Hughes and Repatriation Commission
[2013] AATA 373
[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
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.
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
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.
Mr Hughes’ evidence before the Tribunal was mostly about the impact of his right wrist oesteoarthrosis on his ability to work. He did however confirm the contents of his statement of 16 February 2012. He expressed his intention to continue farming indefinitely, with no planning in place for retirement. Prior to 2001, it was his practice to employ staff according to the season and his need for help.
Mr Hughes denied having any problems with his right wrist in 2007 and 2008. He was able to use a shovel and shear and crutch sheep without any pain in his wrist. However, he had noted some mild discomfort in the wrist when riding a motorbike while herding cattle and sheep. This discomfort was provoked by using a manual throttle on the motorbike and he rapidly learnt to adjust his hand position to avoid this discomfort. Mr Hughes said he also used a quad bike to herd cattle and perform other tasks and has no problem with this as it has an automatic throttle. Mr Hughes has a degree of ambidexterity in that he plays golf and cricket with his left hand but is otherwise right hand dominant. He did however use both hands in his farming activities.
Under cross-examination by Mr Crowe, Mr Hughes said he had first noted discomfort in his right wrist when playing tennis, particularly when serving and volleying. He had seen his general practitioner and undergone x-rays of the right wrist. He agreed that he had seen Mr Khoury in February 2005 for assessment of his osteoarthritis of the spine, knees and ankles and did so when he was playing Country Week Tennis in Albury. Given his reason for being in Albury at the time, Mr Hughes believed his wrist couldn’t have been too bad at that stage. Mr Hughes agreed that he had undergone cortisone injections into his right wrist at a later date, which he could not recall accurately, but which, according to the general practitioner’s notes, was from August 2010 onwards.
Mr Hughes said he saw Mr Kirwan, an orthopaedic surgeon approximately every six months. He said that between 2010 and 2011 he probably had four to five intra-articular injections of steroids, which gave him relief for three months each time. He also saw Mr Philip Frawley, a hand surgeon, regarding his wrist. In November 2011, Mr Hughes underwent arthroscopic surgery to his right wrist, prior to the operation he was unable to play tennis and his wrist had started to affect his golf. He returned to playing golf two months after surgery but noted some loss of power in his right wrist and forearm which took time to recover. Mr Frawley had advised Mr Hughes that the procedure conducted in November 2011, although successful, would not stop the progress of disease in his right wrist and he may need a fusion of the wrist in two to three years’ time. He was able to play golf freely and only experienced any wrist discomfort at the extremes of movement. Mr Hughes believed his range of movement had improved as a result of the surgery. He played tennis during the Christmas holidays 2012 and played quite well.
Mr Hughes believed his right wrist symptoms and range of movement were currently much better than when he was assessed by Dr Horsley in September 2012 and by the occupational therapist, Ms Dudley, in June 2009.
In re-examination, Ms Ryan asked Mr Hughes if at the time of Ms Dudley’s assessment, in June 2009, there were any activities that he could not perform because of the osteoarthritis of his right wrist. The only task that Mr Hughes could identify was skinning a sheep, something he did once every six months so that he could butcher the animal and freeze the meat for later consumption. Mr Hughes did not believe that the current status of his right wrist would impact on his ability to do farming work.
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
Dr Robyn Horsley is an occupational health physician. She saw Mr Hughes on 3 September 2012 and on 27 September 2012 and reported to the DVA on 27 September 2012 (Exhibit R2). Dr Horsley obtained a detailed history and performed a thorough physical examination. She concluded that Mr Hughes’ major limiting factor was osteoarthritis of both knees. This condition, along with his lumbar spondylosis, had resulted in him having no capacity to work as a farmer for more than eight hours per week. In her opinion: ... he has come to the end of his working life.
As requested by the DVA, Dr Horsley paid particular attention to Mr Hughes’ right wrist osteoarthritis. She concluded that the osteoarthritis did impact upon his capacity to work as a farmer as at the date of her examination. However, based on the history Mr Hughes gave her, the knee conditions were the significant factors in 2008. She concluded that in 2012 Mr Hughes’ right knee, left knee and his right wrist prevented him from returning to work as a farmer. She also concluded that he had no capacity for work in any form for more than eight hours per week, both in 2008 and 2012.
DR CLAYTON THOMAS
Dr Clayton Thomas is also an occupational health physician, specialising in rehabilitation and pain medicine. He assessed Mr Hughes at the request of his solicitors and reported on 19 July 2012 (Exhibit A3). Dr Thomas provided a supplementary report on 16 January 2013 (Exhibit A4). Based on the history he obtained and his examination of Mr Hughes, Dr Thomas concluded that Mr Hughes’ osteoarthritis of both knees, both ankles and his back prevented him from working for more than eight hours per week as a farmer. While Mr Hughes’ right wrist was also involved in the osteoarthritic process, Dr Thomas noticed it to be: ... stiff with loss of terminal dorsiflexion and palmar flexion but ... very good grip strength of the right hand. Dr Thomas did not believe that the right wrist pathology would reduce Mr Hughes’ capacity for work, although he might have difficulty with heavier tasks such as lifting heavy objects.
Dr Thomas was later provided with Dr Horsley’s report with which he agreed in most respects; except that on his assessment, Mr Hughes’ right wrist osteoarthritis was less disabling than Dr Horsley considered it to be.
The Tribunal notes that both occupational health physicians assessed Mr Hughes’ right wrist in late 2012 and that neither had the opportunity to assess him at the time he ceased all physical work as a farmer at the end of 2008.
RELEVANT LEGISLATION
The relevant legislation is contained in s 24 and s 28 of the Act. Section 24 states:
24 Special rate of pension
(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.
Section 28 provides:
28Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
SUBMISSIONS
The parties identified the only issue before the Tribunal to be the satisfaction of s 24(1)(c) of the Act, that is, whether the applicant’s accepted war-caused conditions alone prevented him from working and as a result he had suffered a loss of income.
The Commission’s submission was essentially that Mr Hughes’ right wrist osteoarthritis contributed to his incapacity for any work for more than eight hours per week. Mr Crowe conceded that the evidence regarding the onset of symptoms in Mr Hughes’ right wrist was unclear. Although Ms Dudley’s assessment in June 2009 and Dr Robinson’s assessment in December 2008 indicated that there was a significant decrease in the range of movement of Mr Hughes’ right wrist at that time. Certainly, Mr Hughes had denied that it had impacted on his ability to work or use his right wrist for activities such as golf until late 2010. Mr Crowe submitted that the Tribunal should give greater weight to the opinions of Ms Dudley rather than the subjective opinion of Mr Hughes, as to the impact of his right wrist condition on his work capacity.
In its statement of facts and contentions, the Commission conceded that Mr Hughes satisfied s 24(1)(a) and s 24(1)(b) of the Act but contended that s 24(1)(c) was not satisfied. The Commission relied on the decision in Forbes v Repatriation Commission (2000) 58 ALD 394 where, Nicholson J stated (at paragraph 40):
[40]... it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
Mr Crowe identified the question to be determined by the Tribunal as: whether the totality of all factors contributing to Mr Hughes’ inability to continue to undertake the relevant remunerative work included any contribution from any factor that was not an accepted incapacity. The Commission contended that the contribution of Mr Hughes’ right wrist osteoarthritis to his inability to continue work was more than trivial or insignificant and therefore s 24(1)(c) of the Act was not satisfied.
Ms Ryan, for Mr Hughes, submitted that the evidence before the Tribunal clearly indicated that Mr Hughes’ right wrist osteoarthritis did not contribute to his cessation of work. Mr Hughes had described the symptoms in his right wrist as an irritant which did not impact on his ability to perform his farming duties. His evidence had been that it was his knee and back conditions that prevented him from performing the major tasks of shearing, crutching and dragging sheep. Ms Ryan submitted that Mr Hughes’ evidence was supported by his son’s observations. And more particularly by the fact that Dr Robinson’s medical records relating to Mr Hughes do not contain any entries of complaints by Mr Hughes in relation to his right wrist. The evidence also pointed to the fact that he had not sought medical attention in relation to his right wrist condition until November 2010, more than two years after he had ceased all physical work on his properties.
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.
In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J in relation to the alone test said:
It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
and in Forbes v Repatriation Commission (2000) 58 ALD 394, Nicholson J at [40] stated:
... it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
Thus, the Tribunal is required to consider and analyse any contribution Mr Hughes’ right wrist osteoarthritis may have had in preventing him from continuing to work as a farmer.
The Tribunal finds Mr Hughes to be a truthful and impressive witness. While he could not remember the exact date of onset of what he described as discomfort in his right wrist, he was able to place the time in the context of events such as playing tennis and golf. His wrist did not impact on his ability to play tennis until after 2010 and on his golf in 2011. He had however noted some discomfort while operating the throttle on a motorbike on the farm and this would have been before he ceased all physical work in August 2008. He dealt with this discomfort by simply changing his grip on the handlebar.
From Mr Hughes’ description of the physical activities giving rise to this discomfort, the Tribunal infers that it was only experienced when he extended his wrist, for example, in using the throttle, serving and volleying at tennis and eventually when playing golf. Dr Robinson’s clinical notes do not mention any complaints relating to the right wrist. The wrist was x-rayed, along with numerous joints, in 2004 and early changes of osteoarthritis were reported. However, in 2005 Mr Khoury, while noting the radiological changes in the right wrist, did not make any comment regarding symptoms in the right wrist.
Mr Hughes did not seek medical treatment for the right wrist until August 2010 (Exhibit R4). On 10 November 2010 Mr Hughes complained to Mr Kirwan of an ache in his right wrist at night. Mr Kirwan described the range of movement in the wrist as very good. Surgical intervention was not undertaken until November 2011 when Mr Hughes noted his wrist interfered with him playing golf. By this time Mr Hughes had not undertaken any physical work for over three years because of his back and knee symptoms and restrictions.
Mr Hughes has achieved an excellent result from his arthroscopic wrist surgery with complete resolution of the ache. Mr Hughes has also noted an increase in the range of movement, such that he was able to resume playing tennis and golf.
Medical evidence regarding Mr Hughes’ right wrist and some of his other joints is conflicting. The Tribunal is unable to give any weight to the assessment of the various ranges of movement of Mr Hughes’ joints provided by Dr Robinson in 2008. In terms of range of movement, Dr Robinson found reductions in the range of movement of Mr Hughes’ cervical spine, thoraco-lumbar spine at 25 per cent, his right and left shoulders at 30 per cent, his right and left knees at 20 per cent, right ankle at 20 per cent and left ankle at 30 per cent, his left wrist at 20 per cent and his right wrist at 50 per cent. In contrast, Doctors Horsley and Thomas found all joints to have a normal range of movement, with the exception of Mr Hughes’ lumbar spine and right wrist.
The Tribunal acknowledges that there is a gap of four years between Dr Robinson’s examination and those of Dr Horsley and Dr Thomas. If Dr Robinson’s figures are to be accepted, Mr Hughes has undergone a spectacular improvement in his range of joint movement. Ms Dudley’s upper limb capacity evaluation of 11 June 2009 in which she determined that Mr Hughes had a demonstrated upper limb capacity that would not alone prevent him from working is unclear. In regard to the right wrist she wrote: R wrist limited 10 – 15 degrees of normal range in flexion, extension and ulnar and radial deviation. There is no qualification of the 10 to 15 degrees by the use of the prefix by or the preposition to.
The Tribunal has interpreted the wording as meaning there was a 10 to 15 degree reduction in the normal range of movement whereas Dr Horsley has interpreted this as being a limitation of the range of movement to 10 to 15 degrees. Dr Thomas described Mr Hughes’ right wrist as being stiff with loss of terminal extension and flexion at the date of his report on 19 July 2012. In her report of 27 September 2012, Dr Horsley reported the flexion and extension of Mr Hughes’ right wrist was half normal and ulnar and radial deviation were minimal.
None of these three doctors has declared the normal standard of the range of movement of the wrist and it is not known if they were using the same parameters. In Dr Horsley’s opinion, in 2012 Mr Hughes’ right wrist restrictions would have impacted on his capacity for work although she identified the major factor causing him to cease work in 2008 was his bilateral knee osteoarthritis alone but also in combination with his accepted bilateral ankle osteoarthritis and lumbar spondylosis. Thus, she opined that in 2008 the right wrist disease did not impact in any way, either alone or in combination, on Mr Hughes’ cessation of all physical work. Dr Thomas opined that it was Mr Hughes’ knee, ankle and back conditions that were the predominant cause preventing him from working as a farmer. He accepted that the right wrist had some degenerative changes which would impact on the heavier tasks of farming as at the date of his report in 2012.
The Tribunal notes that, in relation to all of his joint pathology, it has been pain that has limited Mr Hughes’ activity not the range of movement of these joints. The exception is his back, where it is agreed his flexion is limited. He regarded his wrist symptoms, as variously reported, as a discomfort, an irritant and an ache at night. He has never complained that the range of movement of his wrist affected his performance.
In assessing whether there are reasons other than war-caused injuries or diseases preventing a veteran from working, the Tribunal is required to follow the approach outlined in Flentjar v Repatriation Commission (1997) 48 ALD 1 wherein Branson J outlined four questions which required a response by the decision‑maker:
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?
The Tribunal finds that the remunerative work that Mr Hughes was undertaking was farming (Question 1). All the evidence, which includes that of Mr Hughes, Dr Robinson, Dr Horsley and Dr Thomas, indicate that it was Mr Hughes’ war-caused disease of osteoarthritis of the back and knees that prevented him from continuing to undertake that work. Therefore, question 2 is answered in the affirmative. Again, based on the evidence before it, the Tribunal finds that Mr Hughes’ war-caused diseases were the only factors that prevented him from continuing to undertake farming at the time of his cessation of all physical activities on his farms in August 2008 (Question 3).
Question 4 of Flentjar relates to the second limb of s 24(1)(c) of the Act, regarding the loss of salary, wages or earnings experienced by Mr Hughes as a result of being prevented by virtue of his war-caused injuries from continuing to undertake the work of farming. This has not been raised as an issue before the Tribunal. However, the Tribunal notes that Mr Hughes had no income except for his disability pension from 2009. Any income received from leasing the properties in the Kalawar Partnership to his son purely offsets the outgoings such as rates and water entitlements. The latter amounts to $30,000 per year. Mr Hughes satisfies all the requirements delineated by the Full Court of the Federal Court in Flentjar.
Mr Hughes worked for 42 years as a farmer. He has no other training or experience except for 12 months, at the age of 17, when he worked as a labourer. Clearly, he cannot perform labouring duties. There is no other remunerative work that he could undertake and he has been found by all treating doctors to be incapable of undertaking any form of work. To quote Dr Horsley: He has come to the end of his working life.
The Tribunal finds that Mr Hughes satisfies all the requirements of s 24(1)(c) of the Act and did so at the time he lodged his application for payment of the disability pension at the special rate on 29 June 2009.
The Tribunal sets aside the decision under review and substitutes its decision that Mr Hughes qualifies for the disability pension at the special rate.
I certify that the preceding 56 (fifty‑six) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. [sgd]........................................................................
Associate
Dated 4 June 2013
Dates of hearing 27 March 2013 Counsel for the Applicant Fiona Ryan Solicitors for the Applicant Williams Winter Advocate for the Respondent Adrian Crowe Solicitors for the Respondent Department of Veterans' Affairs ANNEXURES
·Exhibit R1 – Section 37 documents
·Exhibit R2 – Medical report of Dr Robyn Horsley in relation to Mr Lawrence Hughes dated 27 September 2012
·Exhibit R3 – Medical report of Dr Robyn Horsley in relation to Mr Lawrence Hughes dated 23 October 2012
·Exhibit R4 – Clinical notes of Dr Peter Robinson
·Exhibit A1 – Statement of Mr Lawrence Hughes dated 16 February 2012
·Exhibit A2 – Statement of Mr Michael Hughes dated 5 June 2012
·Exhibit A3 – Medical report of Dr Clayton Thomas in relation to Mr Lawrence Hughes dated 19 July 2012
·Exhibit A4 – Medical report of Dr Clayton Thomas in relation to Mr Lawrence Hughes dated 16 January 2013
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