Leslie George Feltham and Repatriation Commission
[2012] AATA 357
•14 June 2012
[2012] AATA 357
| Division | VETERANS' APPEALS DIVISION |
| File Number | 2010/4401 |
| Re | Leslie George Feltham |
| APPLICANT | |
| And | Repatriation Commission |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 14 June 2012 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
...............................[sgd].........................................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – special rate of pension – whether incapacity from war-caused injuries alone prevented the veteran from undertaking remunerative work – relevance of condition accepted as war-caused after date of application
Veterans’ Entitlements Act 1986 s 19(9), 20, 24(1), 24(2), 24(2A), 28
Re Boxsell and Repatriation Commission [2007] AATA 1215
Re Clements and Repatriation Commission (1997) 49 ALD 798
Rose v Repatriation Commission [2001] FCA 245
REASONS FOR DECISION
G. D. Friedman, Senior Member
14 June 2012
REASONS FOR DECISION
Leslie Feltham is receiving disability pension at 100 per cent of the general rate and on 12 November 2009 he applied for the higher loss-of-earnings related payment known as special rate. The special rate of pension requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent refused his application and the decision was affirmed by the Veterans' Review Board (VRB).
The respondent says that Mr Feltham is not entitled to special rate because there were reasons other than his war-caused disabilities of bilateral sensorineural hearing loss, tinea pedis, post-traumatic stress disorder (PTSD), depressive disorder, alcohol abuse and ischaemic heart disease that account for him not being able to work in his previous occupation, and that he is capable of working for more than 8 hours per week. His non-accepted conditions are hyper hydrosis of the feet and hypertension, and he suffers from back and neck pain and carpal tunnel syndrome. Atrial fibrillation was accepted as war-caused by the respondent on 5 November 2010, which is after the date of his application for special rate and after his 65th birthday.
LEGISLATIVE BACKGROUND
Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(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…
…
(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…
(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.
…
28 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).
ISSUES
There is no dispute that Mr Feltham satisfies s 24(1)(a) of the Act. The issues before the Tribunal are:
Is atrial fibrillation a war-caused condition for the purposes of his application for special rate?
Is Mr Feltham incapable of undertaking remunerative work for more than 8 hours per week because of war-caused conditions alone (s 24(1)(b))?
If Mr Feltham satisfies s 24(1)(b) of the Act does his war-caused incapacity alone prevent him from continuing to undertake the remunerative work that he was undertaking (s 24(1)(c))?
IS ATRIAL FIBRILLATION A WAR-CAUSED CONDITION FOR THE PURPOSES OF HIS APPLICATION FOR SPECIAL RATE?
When Mr Feltham lodged his claim for special rate on 12 November 2009 he was aged 64 years. In February 2010 he reached the age of 65 years. On 7 October 2010 he made a claim for disability pension for atrial fibrillation. On 5 November 2010 the respondent accepted the claim for atrial fibrillation with effect from 7 July 2010 (three months prior to the claim (s 20 of the Act)).
Section 19(9) of the Act provides that, in relation to a claim or application relating to a pension, assessment period means the period starting on the application day and ending when the claim or application is determined. Therefore the assessment period for Mr Feltham’s application for special rate is from 12 November 2009 until the date of the Tribunal’s decision.
In assessing whether atrial fibrillation is a war-caused condition for the purpose of his special rate application, Mr Feltham’s age at the time the condition was accepted is relevant as s 24(1)(aab) of the Act provides that s 24(1) of the Act applies if a veteran had not yet turned 65 when the claim or application is made. Section 24(2A) of the Act imposes more stringent provisions than s 24(1) of the Act in respect of applications for special rate, and applies to veterans who have turned 65 years before the claim or application was made. Section 24(2A)(f) of the Act requires that the veteran was undertaking his or her last paid work after the veteran had turned 65. In this case there was no dispute that Mr Feltham ceased paid work in about June 2009 and has not carried out paid employment since then, so he was not undertaking his last paid work after turning 65 and cannot satisfy s 24(2A)(f) of the Act in respect of atrial fibrillation.
The Tribunal must also decide whether atrial fibrillation can be included in the assessment period of Mr Feltham’s previously accepted conditions. In Rose v Repatriation Commission [2001] FCA 245 Weinberg J referred to the 1994 amendments to the Act which imposed more stringent tests on eligibility for special rate. He rejected the argument that the assessment period for a medical condition that was subsequently accepted as war-caused should be included in the assessment period of a previously accepted condition as a continuum. Weinberg J accepted the reasoning in Re Clements and Repatriation Commission (1997) 49 ALD 798 and concluded that the applicant was not eligible for special rate because he did not satisfy one of the cumulative requirements of s 24(2A) of the Act that a veteran must have been undertaking paid employment after turning 65 years. In Re Boxsell and Repatriation Commission [2007] AATA 1215 the Tribunal applied the principle set out in Rose and found that the applicant was not eligible for special rate because he had not worked after the age of 65 years and the claim for a secondary medical condition was lodged and accepted after he turned 65.
In all the circumstances the Tribunal finds that atrial fibrillation suffered by Mr Feltham was accepted by the respondent after he turned 65 and cannot be included in the assessment period for his other war-caused conditions. Therefore atrial fibrillation is not a war-caused condition for the purposes of his claim for special rate.
IS MR FELTHAM INCAPABLE OF UNDERTAKING REMUNERATIVE WORK FOR MORE THAN 8 HOURS PER WEEK BECAUSE OF WAR-CAUSED CONDITIONS ALONE?
Mr Feltham told the Tribunal that he is incapable of working for more than 8 hours per week because of his accepted conditions alone, particularly PTSD and depressive disorder. He stated that he left school at the age of 14 years and worked as a mechanic before undertaking National Service with the Australian Army from 29 September 1965 to 28 September 1967. He served in Vietnam from 8 April 1967 to 14 August 1967 as an infantry soldier. After discharge from the army he worked for several automotive companies as a mechanic and in 1972 became a self-employed motor mechanic for 10 years, following which he was employed as a mechanic for a motor vehicle workshop for three years, then another workshop for two years. He was a workshop foreman for two years and then worked as a maintenance fitter with a construction company for fifteen years.
In 1992 Mr Feltham commenced his own business transporting earthmoving equipment. When he sold the business in 2007 he was self-employed repairing earthmoving equipment. He said that he enjoyed working but by early 2009 he could no longer cope with the demands of employment because of concentration and memory lapses due to depression and anxiety and his concerns that this might lead to injuries to customers if the quality of his work deteriorated. He said that he discussed his concerns with Dr P Carter, his general practitioner, who suggested that he should think about giving up work, which he did in about June 2009.
In relation to his physical conditions Mr Feltham said that his carpal tunnel syndrome did not affect his capacity for work because there was no requirement to hold tools for any length of time. Similarly, he said that his neck pain had been treated by a chiropractor for many years and had no impact on his ability to work, and his alcohol consumption (currently six stubbies of beer each day) has never prevented him from working. Mr Feltham emphasised that atrial fibrillation had been diagnosed in 2006 and had been stabilised with medication, so there was no impact on his work capacity.
Under cross-examination Mr Feltham agreed that his work as a mechanic has included fixing vehicles, tools and equipment, welding, repairing machinery and physical labouring. He agreed further that Dr Carter’s clinical notes make no mention of any discussion about ceasing work. He said that his decision to cease work at the end of June 2009 had been influenced by the desirability of winding up the business by 30 June 2009, being the end of the financial year, for tax and other business reasons, and that he could have ceased at a later date. He explained that Dr Carter had told him that if he felt that he was unable to continue working as a mechanic he should cease and do something else. He agreed further that in February 2009 he had made application to the Department of Veterans’ Affairs for a service pension (which is similar to an age pension for eligible veterans) because he needed to derive income. He said that after ceasing full-time work he might have been capable of performing tasks such as odd jobs or handyman work but I didn’t think of it.
Mr Feltham acknowledged that at the VRB hearing he stated that he decided to cease work because of a lack of concentration:
…and my palpitations. I would find sometimes I had really bad palpitations and I get, sort of, a horrible faint feeling and can’t concentrate on the job and, then, wondering whether I’ve done the job properly or haven’t finished it; completed it properly…
He also agreed that in his application for increase in disability pension to special rate he wrote:
My atrial fibrillation condition was getting worse towards the end of my working life. Despite medication, this condition was not under control. I was experiencing palpitations every two or three days and this left me very lethargic. I was not able to continue my business as a viable concern and the standard of my work dropped as a result. This could have meant disastrous consequences for my clients. This, in turn, aggravated my post-traumatic stress disorder condition...
Mr Feltham agreed that his atrial fibrillation could have caused his lethargy and lack of concentration, and that he still experiences attacks occasionally, despite taking his medication.
In a Work Ability Report dated 18 December 2009 for the Department of Veterans’ Affairs in support of Mr Feltham’s application for special rate, Dr Carter listed the major diagnoses as: 1. Atrial fibrillation 2. Hypertension 3. Depression. In answer to the question: In your opinion, how do the veteran’s disabilities reduce his ability to work? Dr Carter answered: chronic back pain & palpitations with physical labour. Memory and concentration reduced by depression.
In a letter of referral dated 4 August 2010 to Dr D Fairclough, osteopath, regarding Mr Feltham’s carpal tunnel condition, Dr Carter stated:
…He has had symptoms of bilateral CTS (R mostly) for years. He also has a great deal of neck shoulder and back problems as a legacy of heavy lifting over many years. It has been decided to address muscular/spinal issues before embarking on any operations on his wrists.
Dr R Horsley, occupational physician, stated in a report dated 2 March 2011 that the accepted physical conditions, and alcohol abuse, have no impact on his capacity for work. She noted that Mr Feltham also suffers from cervical and thoracolumbar spondylosis, which has no effect on work capacity, and from a physical point of view is capable of continuing his previous role as a mechanic/repairer for more than 8 hours or more than 20 hours per week. She acknowledged that the accepted psychiatric issues must also be considered. When the history of atrial fibrillation and back problems as described by Dr Carter was brought to her attention Dr Horsley said that she deferred to treating doctors, who had a greater knowledge of individual patients. She also emphasised that she assessed Mr Feltham nearly two years after he ceased work, so his symptoms may have changed in that time.
In a report dated 9 February 2011 Dr A S Walton, cardiologist, referred to Mr Feltham’s substantial health issues and noted chronic atrial fibrillation. He stated that Mr Feltham is unfit for work and although the cardiac condition was not the dominant cause, it was related to the other medical conditions and contributed to dyspnoea (difficulty in breathing) and to a lesser extent to lethargy. He said that atrial fibrillation is a common condition and many sufferers are still able to work.
In a report dated 7 March 2011 Dr L Walton, consultant psychiatrist, stated that Mr Feltham's psychiatric disabilities (particularly depressive disorder) alone prevent him from working as a self-employed motor mechanic, but he remains quite capable of physical endeavours such as horse riding or motor cycle riding, and it is theoretically possible that he could work part-time, say between 8 hours and 20 hours, in a situation of ongoing supervision. Dr Walton told the Tribunal that during the assessment Mr Feltham had not highlighted the effects of palpitations and their impact on his concentration.
In a report dated 22 February 2010 Dr V Jelinek, cardiologist, stated that Mr Feltham is physically able to work despite his cardiac condition of atrial fibrillation, but depression limits his ability to work. Dr Jelinek concluded that Mr Feltham could work part-time or full-time as a mechanic if he was less depressed and more motivated.
In a report dated 15 February 2010 Dr N Rose, consultant psychiatrist, stated that Mr Feltham is not limited in his capacity to work by his disabilities, and from a psychiatric perspective is capable of full-time employment. Dr Rose said that Mr Feltham was aged 64 years when he ceased work, and had decided to retire.
The Tribunal takes into account Mr Feltham’s evidence that his war-caused disabilities were the sole cause of his inability to work for more than 8 hours per week. The Tribunal also notes that Dr A Walton stated that Mr Feltham is unfit for work because of substantial health issues, of which atrial fibrillation was a contributing factor but not the major cause, although Dr Walton is a cardiologist and was not in possession of Mr Feltham’s complete medical history when giving his opinion. Dr Carter assessed Mr Feltham as not suitable for work because of disabilities and age.
Dr Horsley concluded that the accepted physical conditions do not prevent Mr Feltham from working more than 8 hours per week. Dr Rose stated that Mr Feltham is capable of full-time employment from a psychiatric perspective. Dr L Walton believed that Mr Feltham is capable of part-time work as a mechanic if supervised. Dr Jelinek concluded that Mr Feltham could work part-time or full-time if he was less depressed and more motivated.
The weight of this evidence suggests that Mr Feltham is capable of working more than 8 hours per week, and is consistent with his own evidence that Dr Carter told him that if he had concerns about the quality of his work as a result of poor concentration and lethargy he should do something else. There is no evidence that Dr Carter concluded that Mr Feltham was unable to work. It is also consistent with Mr Feltham’s evidence that he had not thought about seeking work as a handyman or doing odd jobs or fixing small machinery or equipment, for which he is suitably qualified. For these reasons, and taking into account the factors in s 28 of the Act, the Tribunal finds that Mr Feltham is capable of undertaking remunerative work for more than 8 hours per week.
In any event the Tribunal takes into account Mr Feltham’s written statement on his application for special rate that when he ceased work in 2009 his atrial fibrillation was getting worse, despite medication, and that the palpitations left him very lethargic and aggravated his PTSD, with the consequence that the standard of his work dropped and he could not continue his business. This is consistent with Dr Carter’s written comments listing atrial fibrillation as the first major diagnosis of the medical conditions suffered by Mr Feltham, and Dr Carter’s opinion that palpitations with physical labour reduced his ability to work. Further, Dr Carter also listed chronic back pain as reducing Mr Feltham’s ability to work, and he listed multilevel spinal degeneration 20-30 years and crush #1 10 years as medical issues. This accords with Dr Carter’s referral to Dr Fairclough describing …a great deal of neck shoulder and back problems as a legacy of heavy lifting over many years.
For these reasons the Tribunal finds that atrial fibrillation and back pain contributed to any work incapacity, and as these are not war-caused conditions for the purposes of the application for special rate, the work incapacity is not from war-caused injury or war-caused disease alone. Therefore Mr Feltham is not totally and permanently incapacitated and does not satisfy s 24(1)(b) of the Act and cannot satisfy s 24(1) of the Act and is not eligible for disability pension at the special rate.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
..........................[sgd]..........................
Associate
| Dates of hearing | 27 and 28 March 2012 |
Dated 14 June 2012
Date of final submissions 31 May 2012
Advocate for the applicant Mr D de Marchi
Solicitors for the applicant De Marchi & Associates
Advocate for the respondent Ms R Casamento
Solicitors for the respondent Department of Veterans’ Affairs
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