Lombardini and Repatriation Commission (Veterans' entitlements)
[2024] AATA 416
•13 March 2024
Lombardini and Repatriation Commission (Veterans' entitlements) [2024] AATA 416 (13 March 2024)
Division:VETERANS' APPEALS DIVISION
File Number: 2021/5042
Re:Annette Lombardini
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:13 March 2024
Place:Perth
The Reviewable Decision is set aside and substituted with the decision that Mrs Lombardini satisfies the eligibility criteria in s 24(1) of the Veterans’ Entitlements Act 1986 (Cth) for an increase to the special rate of pension.
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Senior Member Dr M Evans-Bonner
CATCHWORDS
VETERANS’ ENTITLEMENTS – claim for increase in disability pension from the general rate to the special rate – when the Applicant ceased work – whether war-caused or other factors contributed to the Applicant not being able to engage in remunerative work during the assessment period – “alone” test in s 24(1)(c) of the Veterans’ Entitlements Act 1986 (Cth) applied – Applicant found to be eligible for the special rate of pension – Reviewable Decision set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 15(1), 19(9), 19(5C), 23, 23(1), 23(1)(b), 24, 24(1), 24(1)(aa), 24(1)(b), 24(1)(c), 24(2), 24(2)(a), 24(2)(b), 28, 120(4)
CASES
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 68
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy [2002] FCAFC 424
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
13 March 2024
OVERVIEW
Mrs Lombardini served in the Royal Australian Navy from November 1976 to March 1980 (T19.1).
She is currently in receipt of a disability pension at 100% of the general rate, having been found to suffer from a war-caused injury.
Mrs Lombardini is seeking to increase the rate of her disability pension to the special rate of pension.
The Reviewable Decision that Mrs Lombardini is seeking review of is a decision of the Veterans’ Review Board (VRB) dated 25 May 2021, which affirmed a determination dated 15 October 2020 to continue Mrs Lombardini’s pension at 100% of the general rate (T1.1).
The issue that I must determine is whether Mrs Lombardini is entitled to an increase in her disability pension from 100% of the general rate to the intermediate rate or the special rate under s 23 or 24 of the Veterans’ Entitlements Act 1986 (Cth) (VEA).
For the reasons set out below, I have decided that Mrs Lombardini satisfies the eligibility criteria in s 24(1) of the VEA for an increase to the special rate of pension.
BACKGROUND
Mrs Lombardini has prior accepted claims (T23.1/167) for the conditions of:
·“sprain of the right elbow”, effective from 3 February 1977 under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth); and
·“tinea of the skin” and “bilateral sensorineural hearing loss”, both effective from 25 April 2016.
On 8 April 2019, Mrs Lombardini made a claim for disability pension and an application for an increase to disability pension for several claimed conditions (T9) and submitted a lifestyle questionnaire (T10).
On 7 January 2020, a delegate of the Department of Veterans’ Affairs (Department) decided to accept Mrs Lombardini’s claims for “Right elbow osteoarthritis, Left knee osteoarthritis, Lumbar spondylosis, and major depressive disorder with effect from 08 January 2019”. The delegate increased the rate of Mrs Lombardini’s pension under the VEA from 40% to 100% of the general rate (T19.1/141).
On 3 May 2020, Mrs Lombardini’s advocate sought review of that pension assessment (T20/152; T20.1). That application for review was dismissed by the VRB on 21 August 2020 because it was out of time (T24.1/263).
On 1 October 2020 Mrs Lombardini made another application for an increase in her disability pension (T26) and submitted a lifestyle questionnaire. This application referred to the disability being an “Increase in Disability Major Depression Disorder”, with the “signs and symptoms” listed as “mobility” and the “basis for the diagnosis” being an enclosed report from psychiatrist, Dr James Fellows-Smith (T26/273). In her application form Mrs Lombardini also stated that she ceased work in a childcare centre on 7 November 2016 with the reason for ceasing work stated as “Mobility/ Major Depression Disorder” (T26/276-277).
On 15 October 2020, a delegate of the Respondent decided to refuse an increase to the Special Rate (the Determination) (T30.2) on the basis that:
Given the extensive time you have spent outside of the workforce, and that you have not been genuinely seeking employment, I am satisfied that it is not your accepted VEA disabilities “alone” that are preventing you from working” (T30.2/299).
This meant that Mrs Lombardini’s disability pension continued at 100% of the general rate with effect from 15 October 2020.
On 23 October 2020, Mrs Lombardini’s advocate requested a review of the Determination by the VRB on her behalf (T31).
In support of the 23 October 2020 request for a review, Mrs Lombardini’s advocate provided a letter from psychiatrist Dr Fellows-Smith dated 1 May 2020 (T20.2) which, in summary, stated that Mrs Lombardini ceased work on 1 November 2014 due to abnormalities to her lumbar spine which was an accepted condition, and that it was the loss of her role as a childcare supervisor that led to her depression (T20.2/156).
He also provided a letter from a catering company dated 8 September 2020. The letter stated that the company could not take the risk of employing Mrs Lombardini because of her mobility issues with her back and knees which raised concerns with insurance premiums and liabilities (T31.2/304).
However, on 25 May 2021, the VRB made the Reviewable Decision. The VRB was not satisfied that Mrs Lombardini’s circumstances had met the provisions of the “work capacity” test outlined in s 24(1)(b) and (c) of the VEA (T1.1/4).
In an application dated 26 July 2021, Mrs Lombardini appealed the Reviewable Decision to the Veterans’ Appeals Division of this Tribunal.
THE HEARING AND THE EVIDENCE
Mrs Lombardini was represented by an advocate, Mr Allan West OAM, who was assisting Mrs Lombardini pro-bono. Volunteer advocates like Mr West provide invaluable assistance and support to veterans in these types of proceedings. I sincerely thank Mr West for his efforts in assisting Mrs Lombardini pro-bono.
The Respondent was represented by Mr Ashley Burgess of The Australian Government Solicitor.
Before the hearing
Before the hearing, the Applicant lodged:
(a)A document titled “Submission” on 31 January 2023 attaching a letter from the catering company (T31.2/304), a photograph of Mrs Lombardini in 2014 and 2022, and a newspaper article.
(b)A letter by email on 5 February 2023, but Mr West confirmed at the hearing that it should be replaced with a letter dated 16 February 2023 with the photograph of Mrs Lombardini in 2014 and 2022, and her working with children check attached.
(c)Further submissions on 17 October 2023 attaching the photograph again and an email about the “alone test” in s 24 of the VEA.
The Respondent lodged a Statement of Facts, Issues and Contentions dated 11 August 2023 and a Reply to the Applicant’s Submissions dated 6 October 2023.
The hearing
The application was heard in person at the Tribunal on 15 November 2023.
Mrs Lombardini gave evidence at the hearing and was cross-examined.
The evidence
I admitted the following documents into evidence during the hearing:
(a)Witness Statement of Mrs Lombardini dated 29 November 2021 (Exhibit A1).
(b)Handwritten letter of Dr James Fellows-Smith dated 21 October 2021 (Exhibit A2).
(c)Section 37 T-Documents, labelled T1-T44, comprising pages 1-547 (Exhibit R1).
(d)Briefing letter to Dr Anthony Cairns dated 18 October 2022 (Exhibit R2).
(e)Report of Dr Anthony Cairns dated 22 December 2022 (Exhibit R3).
(f)Briefing letter to Dr Jonathan Spear dated 20 April 2023 (Exhibit R4).
(g)Report of Dr Jonathan Spear dated 9 May 2023 (Exhibit R5).
After the hearing
On 15 November 2023, I made directions for written closing submissions to be lodged. I issued other directions amending that direction on 27 November 2023 and 18 December 2023. I thought that written closing submissions would be the fairest option so that Mrs Lombardini and Mr West, who are not legally trained, would have time to consider the evidence and submissions from the hearing and to consider their response. Both parties were agreeable to the filing of written closing submissions.
In addition to the evidence listed above, the Respondent lodged a Summons Bundle which consisted of 877 pages. Due to the large number of pages, I marked the Summons Bundle as a provisional Exhibit R6 and included a direction in the 15 November 2023 Direction that the Respondent was to file a consolidated Summons Bundle on or before 4 December 2023. This was to replace the Summons Bundle with a more concise bundle containing the documents that the parties intended to rely upon.
Consequently, the Respondent lodged the following documents which will replace the provisional Exhibit R6:
(a)Consolidated Summons Bundle indexed 1 to 21 and comprising pages 1 to 35.
(b)Consolidated Summons Bundle Volume 2 indexed 1 to 2 and comprising pages 36 to 39.
I thank the Respondent for organising these Consolidated Summons Bundles.
Written closing submissions were received on 5 December 2023 for the Applicant and 22 December 2023 for the Respondent.
LEGISLATIVE FRAMEWORK
Division 4 of Part II of the VEA sets out how the rates of pensions payable to veterans are to be determined.
All references to legislative provisions below are references to the VEA.
Application for an increase in pension
As I mentioned above, Mrs Lombardini is receiving a pension at the general rate and has applied for an increase in her pension to the special rate of pension.
Under s 15(1), a veteran who is in receipt of a pension may apply for an increase in the rate of pension:
A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
Special rate of pension
Section 24 sets out the eligibility criteria for the special rate of pension.
Subsection 24(1) provides:
(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.
Section 28 of the VEA limits the matters that can be considered in determining whether an applicant who is incapacitated from war-caused injury or war caused disease, or both, is incapable of undertaking remunerative work. It provides:
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).
The two limbs of s 24(1)(c)
Subsection 24(1)(c) has two limbs. Further clarification about those two limbs is provided for in s 24(2).
The first limb requires that “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”. This limb is sometimes referred to as the “alone test”.
In Repatriation Commission v Richmond [2014] FCAFC 124 (Richmond), the Full Court of the Federal Court explained how the “alone test” (that is, the first limb of s 24(1)(c)) operates. Their Honours explained, at [57]-[59]:
The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
In our view the authorities on the alone element of the test in the first limb are clear. In Cavell (at 539-540) Burchett J expressly approved the Tribunal’s statement that the use of “alone” in s 24(1)(c) means that any non war-caused factor which plays a part in the applicant’s inability to work or to obtain and hold remunerative employment is sufficient to displace the applicant’s case for a pension at the special rate.
The second limb requires that the veteran “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.”
This first limb is informed by s 24(2)(b), and the second limb is informed by s 24(2)(a). Subsection 24(2) provides:
(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.
As was observed by the Full Court of the Federal Court in Richmond, at [66], “the harshness of the “alone” requirement is ameliorated to some extent by s 24(2)(b).” That is, s 24(2)(b) ameliorates the stringency of the “alone test” if an applicant has been genuinely seeking remunerative work.
In Repatriation Commission v Hendy [2002] FCAFC 424 (Hendy), the Full Court of the Federal Court explained what “remunerative work that the veteran was undertaking” in s 24(1)(c) (and s 24(2)(b)) means. The Full Court stated, at [35]-[36]:
The Tribunal’s task was to assess what the Veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the Tribunal undertook. The Tribunal was not bound to limit its consideration to the last employment that the Veteran actually undertook.
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. 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. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. 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. Error on the part of the Tribunal is determining whether the veteran’s war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly, not open to review.
Intermediate rate of pension
If I were to find that Mrs Lombardini was not entitled to a special rate disability pension, I must consider whether she would be entitled to a pension at the intermediate rate. The criteria for the intermediate rate of pension are set out in s 23(1) which provides:
(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’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
Subsection 23(1) is substantially like s 24(1) except that s 23(1)(b) requires that the war-caused incapacity rendered the veteran incapable of undertaking remunerative work “otherwise than on a part-time basis or intermittently” whereas s 24(1)(b) refers to the veteran being incapable of undertaking remunerative work “for periods aggregating more than 8 hours per week”. Consequently, it is slightly easier for the veteran to meet the amount of remunerative work in s 23(1)(b) for the intermediate rate than for the special rate in s 24(1)(b).
Assessment period
I am required to assess the rate of pension that would have been payable to Mrs Lombardini from time to time during the assessment period. This is provided for in s 19(5C):
(5C) The matters that the Commission must assess are:
(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable.
The “assessment period” is defined in s 19(9) as follows:
“assessment period”, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
The “application day” is also defined in s 19(9). The relevant part of that definition is:
“application day”, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:
(a) the day on which the claim or application was received at an office of the Department in Australia; …
The Respondent received Mrs Lombardini’s application on 1 October 2020 (T26; T29/292). Therefore, 1 October 2020 is the application day and the date that the assessment period commences.
As the application is being reviewed by this Tribunal, the assessment period ends on the day that I decide this application. That is, the date of my decision in this application.
Standard of proof
I must decide this application using the “reasonable satisfaction” standard of proof, as set out in s 120(4) which provides:
Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
THE ISSUES IN DISPUTE
In this application the Respondent agrees that Mrs Lombardini satisfies the following sub-paragraphs of s 24(1):
·(aa) because she made a claim for an increase in her pension;
·(aab) because she had not turned 65 when she made the claim; and
·(a)(i) because she has been assessed as having an incapacity from war-caused injuries and war-caused diseases of at least 70%.
At the hearing, it was s 24(1)(b) and (c) that were in issue.
However, in their written closing submissions dated 22 December 2023, the Respondent conceded that Mrs Lombardini met the requirements of s 24(1)(b).
In summary, s 24(1)(b) requires the veteran to be rendered incapable of working more than eight hours per week by war-related incapacity alone.
In his report dated 9 May 2023, Dr Spear considered that Mrs Lombardini “has symptoms and signs of generalised anxiety disorder which could be considered major depressive disorder with anxious distress according to DSM-5 criteria” and that Mrs Lombardini “has been unfit for any paid employment since at least 8 January 2019” (Exhibit R5/10).
The Respondent accepted that Mrs Lombardini’s evidence, plus this evidence from Dr Spear, supported a finding that, during the assessment period, Mrs Lombardini’s war-caused psychological condition, was on its own, sufficient to render her incapable of undertaking remunerative work for more than eight hours a week.
I am reasonably satisfied that the evidence supports such a finding, and I make that finding.
DOES THE APPLICANT MEET THE REQUIREMENTS OF S 24(1)(C)?
Although Mrs Lombardini has met the requirements of s 24(1)(aa) through to and including s 24(1)(b), she must also meet s 24(1)(c) to succeed with her application.
Remunerative work
To determine whether Mrs Lombardini meets the first limb of s 24(1)(c), I must first consider the “remunerative work that the veteran was undertaking”.
Mrs Lombardini has undertaken a range of jobs in her career. These include working as a typist (T41/421), factory assistant, steward in the navy, bank clerk, merchandiser, sales representative, and receptionist (R3/2; A1). Mrs Lombardini started working in childcare in approximately 2000 and became a childcare director in mid-2013 (A1, paras [28] and [41]).
There are several different dates in the documents as to when Mrs Lombardini last worked. For example, in her claim form dated 3 September 2016, Mrs Lombardini said that she stopped working in November 2014 (T23.1/198). In another claim form dated 5 April 2019 she stated she stopped working on 7 November 2013 (T9/34). In another form dated 28 September 2020, Mrs Lombardini stated that she stopped working on 7 November 2016 (T26/276). Her evidence at the hearing was that she ceased work in November 2014. She was asked several times and confirmed that was the date (transcript/18, 24, 25). It is likely that Mrs Lombardini stopped working in November 2014 because that date was in her earliest claim form which was closest in time to November 2014. She was also certain about this date when asked several times about it at the hearing. I am reasonably satisfied that Mrs Lombardini stopped working on 7 November 2014.
Based on Mrs Lombardini’s work history, and applying the Full Federal Court’s comments in Hendy, what she “probably would have done” during the assessment period was work as a childcare worker or director. She did so for well over a decade before the start of the assessment period. Additionally, her other roles were held before 2000, and so a substantial amount of time had passed since then and the commencement of the assessment period. The passage of so much time and Mrs Lombardini’s age during the assessment period made it less likely that she would be engaging in a similar role to one of those that she held prior to her working in childcare.
I therefore find that the relevant remunerative work that Mrs Lombardini was undertaking was as a childcare worker or director.
The first limb of s 24(1)(c): The “alone” test
As the Full Federal Court explained in Richmond, the veteran’s war-caused incapacity alone must prevent them from continuing to undertake the remunerative work during the assessment period. If there are factors that are not war-caused, even if they are of secondary importance, the veteran will not be eligible for the special rate.
The Respondent submitted that it was not Mrs Lombardini’s war-caused injuries alone that prevented her from undertaking remunerative work during the assessment period but rather a combination of factors. These included that the Applicant needed to care for her spouse, and that some conditions that had not been accepted as war-caused contributed to preventing her from undertaking remunerative work during the assessment period. The Respondent relied upon the evidence of psychiatrist Dr Spears and orthopaedic surgeon Dr Cairns. The Respondent intended to call Dr Spears and Dr Cairns as witnesses, but they were not called because Mr West did not require them for cross-examination.
The Respondent said that there was evidence that these factors had contributed to Mrs Lombardini stopping work in the first place (in November 2014). The Respondent submitted that although the assessment period was the relevant period, evidence about why Mrs Lombardini ceased working in November 2014 may inform my enquiry. I agree that the assessment period, in this case 1 October 2020 until the date I hand down my decision, is the relevant period. It may be informed by prior events if there is a logical correlation between those events and the applicant’s circumstances in the assessment period but is the assessment period that is the relevant period and the focus of my enquiry.
Mrs Lombardini’s position was that she stopped work due to her war-caused injuries which also prevented her from undertaking remunerative work during the assessment period. Mrs Lombardini gave evidence about why she stopped working and how her accepted conditions prevented her from continuing to undertake the remunerative work during the assessment period. Mrs Lombardini also relied upon the evidence of her treating psychiatrist, Dr Fellows-Smith.
In her written statement, Mrs Lombardini gave evidence that in late 2012, whilst working as a childcare worker, she was lifting a child out of its cot when her right elbow, back and knee gave way and she dropped the child, breaking its fall by putting her foot out. She stated that after that incident she “broke down mentally” and was “devastated”. She did not want to continue to work with children “because of the risk that [she] was to their safety” but had no choice but to keep working. She stated that in mid-2013 she was approached to be the director of a day care centre where she was responsible for the day-to-day running of the centre, but she did not have to directly take care of the babies. Mrs Lombardini stated that on about 1 November 2013 she went to see her general practitioner who advised her to stop work. She said she was prescribed anti-depressant medication but did not take it because she wanted to stay in control. She said that she also started seeing psychiatrist Dr Fellows-Smith and was later diagnosed with major depressive disorder and that she continues to receive treatment from Dr Fellows-Smith (A1, paras [35]-[38]).
At the hearing Mrs Lombardini also gave evidence about this incident. She stated that the babies were in cots which are at chest height. She stated that she tried to pick up a six month old baby when the following happened (transcript/41):
I’ve got to pick this six-month-old baby up. Picked him up, and as I’ve come down, my left knee just buckled and my right elbow locked. Now when it locks, it locks. There’s nothing I can do. And with that, I dropped him, but not dropped him down like that. I held him by one hand, my left arm. Like, as I went down, I put my right knee out and I broke his fall on my leg. So he didn’t actually hit the ground full on. He hit my leg then hit the floor.
She confirmed that it was not her non-accepted shoulder injury that caused her issues at the time she dropped the baby, but rather her elbow (transcript/19). She stated that her “left knee went and [her] right elbow gave way” when she dropped the baby (transcript/40).
Mrs Lombardini said that although the baby was not injured, she was “scared” after the incident. Mrs Lombardini confirmed that at the time of the incident she was acting as the director of the childcare centre because the director was away. She said that she did not write up the incident but that she told the parents about the incident when they came to collect the baby and that the parents accepted what had happened because the baby was not injured (transcript/42).
From Mrs Lombardini’s evidence at the hearing, I formed the view that she was profoundly affected by the incident with the baby. She described not being able to nurse her own grandson (her son’s child) when he was six months’ old because she was afraid that she might drop him. She stated that her son thought she did not love her grandson and that she was too ashamed to tell her son why she did not want to pick up her grandson because she “thought he’d think the worst of me” (transcript/42).
The Respondent referred to Mrs Lombardini’s medical records which showed that she attended her general practitioner on numerous occasions in 2013 and 2014 for a variety of complaints which did not include any symptoms or limitations arising from her accepted conditions. The records did not contain any reference to Mrs Lombardini being told to cease work due to her war-caused conditions. Those records included Mrs Lombardini seeking treatment for hernia, neck pain with paraesthesia – left upper limb, lipoma, hormonal replacement therapy, right shoulder pain worsening at work due to lifting children, a sore throat, infected toenails and obtaining prescriptions (R6/26-38). The Respondent submitted that the records suggest that Mrs Lombardini’s neck and shoulder conditions (which I note were in her 2013 medical records) contributed to her ceasing work in November 2014, and not her war-caused conditions.
However, Mrs Lombardini’s evidence was that her other non-accepted injuries had not contributed to the incident with the baby, nor to her stopping work (transcript/40):
I had my neck fixed as soon as I could, back in 2000 and something. So my neck was fine. I had my shoulder fixed as soon as I could after dropping the baby. I did – the baby didn’t – situation didn’t come into that. The same as my right knee. I’ve worked up until whenever, but I never had it operated on until 2020. So I’ve lived with it, and I’ve just gone through life with it.
This evidence suggests that, even though Mrs Lombardini discussed her neck and shoulder conditions with her general practitioner in 2013, they were not a factor in her ceasing work in November 2014, nor were they factors that prevented her from undertaking remunerative work during the assessment period.
Mrs Lombardini has also had other health issues and a personal tragedy. In March 2018 she was diagnosed with breast cancer and had some counselling associated with her breast cancer. Her mother passed away in 2019 and her daughter passed away in early 2021 (transcript/34 and 36). There is no evidence on which I could logically conclude that these hardships were factors that prevented Mrs Lombardini from undertaking remunerative work during the assessment period.
In a claim form and lifestyle questionnaire dated 3 September 2016, Mrs Lombardini stated that she stopped work in November 2014 and gave the reason, “combination of injury and looking after my spouse” (T23.1/198). In her written statement Mrs Lombardini said that she relied on the excuse that she would become a carer for her husband and that “the real reason I ceased work was because I had put a child’s safety at risk because of my physical disabilities and I did not want to put any other child at risk”. She further stated that, “Becoming a carer for my husband was a convenient way of avoiding admitting the truth about my vulnerabilities, including my mental health”. She said that nothing really changed because she was already caring for her husband prior to finishing work (A1, paras [64], [65], [68]). At the hearing Mrs Lombardini described how she cared for her husband. She would set out his clothes, tablets, and breakfast in the morning, and she would make his lunch the night before. She would phone him when she was at work to make sure he had got out of bed and showered. When she got home, she would make his dinner (transcript/33). Mrs Lombardini stated that: “Me looking after my husband is something I do every day of my life, but I didn’t stop work to look after him” (transcript/40).
I do not think that caring for her husband was a factor in Mrs Lombardini ceasing work. The evidence indicates that she was able to manage his care whilst working at the same time, which suggests that it was not a factor. Mrs Lombardini, who I found to be a truthful witness, also stated that it was not a factor. I accept her evidence.
The Respondent submitted that Mrs Lombardini was granted a carer’s payment from Centrelink on 29 November 2014, the same month that she ceased work. They submitted that this suggests that her caring responsibilities would have been such as to be a factor that would prevent her from working because she would need to demonstrate she was providing “constant care” for her husband to be eligible for the payment. The Respondent cited the Tribunal’s decision in Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 where the Tribunal observed, at [7], that: “The requirement that the “care” be “constant” means that the person must be acting as a carer on a more-or-less full-time basis”. I do not have a copy of Mrs Lombardini’s carer’s payment claim before me, and it would not be appropriate for me to speculate about the circumstances and the reasons for the grant of that claim. It is appropriate for me to make findings based on the evidence before me, namely the evidence of Mrs Lombardini, which I have accepted as being truthful. I am therefore not persuaded that the grant of the carer’s payment is indicative that caring for her husband was a reason why Mrs Lombardini ceased work in 2014, or that it was a factor that prevented Mrs Lombardini from working during the assessment period.
There is conflicting expert medical evidence concerning the factors which may have prevented Mrs Lombardini from continuing to undertake the remunerative work during the assessment period.
Consultant orthopaedic surgeon Dr Anthony Cairns assessed Mrs Lombardini on 5 December 2022, and produced a report of the same date (R3). Dr Cairns’ view was that “for a complex variety of reasons, on balance Mrs Lombardini is probably now incapable of working for more than eight hours per week” but that he “[did] not consider that the Accepted Conditions are the sole cause preventing her from performing the remunerative work that she had undertaken in the past” (page 7).
Dr Cairns’ assessment was that Mrs Lombardini presented with “a long history of multi-focal musculoskeletal impairments, including the specific complaints in relation to her right elbow, lumbar spine and left knee …” (page 6).
Dr Cairns’ view about the factors contributing to Mrs Lombardini’s inability to undertake remunerative work/ activity was as follows (page 9):
There are multiple other factors contributing to Mrs Lombardini’s inability to undertake remunerative work/activity:
(a)
· severe depression
· cervical spondylosis
· bilateral shoulder impairment
· Right knee injury/ total knee replacement arthroplasty.
(b) Taken in combination, together with the subject of this matter, significant.
It is unclear what the reference to “together with the subject of this matter” was intended by Dr Cairns to mean. It is unclear whether Dr Cairns was stating that each of the conditions listed was equally significant in contributing to Mrs Lombardini’s inability to undertake remunerative work.
Dr Cairns also did not clearly explain how he reached these conclusions based on his assessment and why he reached his conclusion about the above contributing factors. I also note that there does not appear to have been any history taken about the incident where Mrs Lombardini dropped the baby which may have affected the conclusions Dr Cairns reached.
Further, Dr Cairns made the following comment under the heading: “Please provide any other comments or evasions which you consider relevant?” (page 9):
The only other comment I have to offer, possibly relevant, is that there appears to be a significant element of psychogenic potentiation, perhaps understandable, in the claimant’s presentation, and noted that her interval of Navy service was a relatively short period of three years and four months preceding discharge two months short of her 21st birthday, and that the numerous, multifocal musculoskeletal impairments are primarily degenerative, on balance it is reasonable to accept a postulated relationship of her right elbow and left knee long-term conditions to the service related episodes, less possible than in relation to the lumbar spondylosis, given the documented history of spinal pathology remote from that site (cervical spondylosis).
I am unsure as to what Dr Cairns is suggesting here. On one reading he could be suggesting that some of Mrs Lombardini’s physical conditions may be psychological or influenced by psychological factors, but it is unclear. It is also unclear if this comment was intended to clarify the conclusions about the multiple factors that Dr Cairns had identified earlier which he seemed to suggest were significant in combination.
Consultant psychiatrist Dr Jonathan Spear assessed Mrs Lombardini on 27 April 2023 and wrote a report dated 9 May 2023 (R5). Dr Spear opined that the accepted condition of major depressive disorder was “most likely a significant cause of her inability to obtain remunerative work, but not the substantial cause given the other barriers to employment listed above” (page 13). Dr Spear opined that the barriers to Mrs Lombardini seeking employment were as follows (page 12):
Significant barriers to employment include:
·Primary
oMajor depressive disorder (accepted 8 January 2019) which would impair vocational functioning.
oMedical conditions accepted under the VEA include right elbow osteoarthritis due to lifting; lumbar spondylosis due to lifting and left knee osteoarthritis due to lifting; tinnitus and bilateral sensory neuro hearing loss which aggravate her accepted mental health condition.
oConditions not accepted as service related such as neck pain; right shoulder pain; left shoulder pain, and right knee injury which aggravate her accepted mental health condition.
oEmotional distress which can be challenging in any workplace.
oNegative thoughts which increase mood symptoms, pain, and emotional distress.
oLifestyle with limited exercise and hazardous alcohol use which would reduce conditioning and impact attendance and performance.
·Secondary
oImpaired attention which would impact work performance.
oIntolerance of others which would limit teamwork and customer service.
oDecompensation which would limit workplace attendance.
oDifficulty leaving home which would limit her capacity to travel to work.
I observe that many of the factors listed above do seem to relate to Mrs Lombardini’s mental health, and possibly to her major depressive disorder. Specifically, Dr Spear referred to Mrs Lombardini’s accepted and non-accepted conditions aggravating her accepted mental health condition, and the remaining three primary and four secondary conditions are related to mental health. It is therefore unclear if these relate to separate mental health conditions or if they are a part of Mrs Lombardini’s major depressive disorder. I do note that, Dr Spear did “not consider that the accepted condition [of major depressive disorder] was the sole cause preventing her employment” (page 10), but given the above, I am uncertain as to whether that conclusion was provisional and was later being qualified in this list of barriers.
Additionally, Dr Spear was asked to obtain a detailed work history from Mrs Lombardini, but he did not refer to the incident where Mrs Lombardini dropped the baby and so it does not appear that he took it into account (page 9). This may have changed his conclusion about the significance of Mrs Lombardini’s major depressive disorder to her inability to undertake remunerative work.
The other expert medical evidence that is before me is from Mrs Lombardini’s treating psychiatrist, Dr Fellows-Smith. Mrs Lombardini was referred to Dr Fellows-Smith by general practitioner Dr Baggaley on 28 March 2019 for “psychiatric review”. Dr Baggaley stated that Mrs Lombardini “has significant anxiety and struggles to cope caring for her husband who has PTSD” (R6/39).
Dr Fellows-Smith wrote a report for the Department dated 26 June 2019 (T16/111) after seeing Mrs Lombardini on 18 June 2019.
The Respondent submitted that this initial report supported a conclusion that Mrs Lombardini was prevented from working due to issues unrelated to her war-caused conditions. I was not left with that impression after reading the report, but rather, there were suggestions of both war-caused and non-caused factors being contributors. However, none of the headings or questions posed in Dr Fellows-Smith’s report indicate that he was providing an opinion on that issue. Rather, the report concerns the diagnosis and relationship to service of Mrs Lombardini’s major depressive disorder.
Dr Fellows-Smith’s diagnosis for Mrs Lombardini was that her major depressive disorder was a secondary injury which resulted from her accepted conditions. However, I note that in the passage below, he refers to both knees when only the left knee was accepted as war-caused (T16/113):
Mrs Lombardini presents with Major Depression secondary to chronic pain from orthopaedic injuries to lumbar spine, bilateral knee joints and right elbow joint. The time of onset of major depression was on or around 01.03.2017 when her orthopaedic condition was diagnosed by her general practitioner Dr Patu. She also has tinnitus and deafness.
Dr Fellows-Smith also listed corroborative information which supported his findings. He noted comments made by Dr Baggaley in his referral letter that Mrs Lombardini “has anxiety and struggles to cope with the stress of her life due to osteoarthritis of the right knee and shoulder joint arthroplasty on the right. There is also an injury to the cervical spine dated 2019”. The Respondent submitted that none of those conditions were war-caused. This suggests that Dr Fellows-Smith may have been led to the impression that all Mrs Lombardini’s injuries were war-caused.
Dr Fellows-Smith also stated that Mrs Lombardini retired around 1 June 2014 when her husband, who was also a patient of his, was diagnosed with PTSD. Dr Fellows-Smith only briefly mentions why Mrs Lombardini stopped work. He stated (T16/111):
Mrs Lombardini stated that she first experienced depressed mood in the context of loss of role having ceased work to look after her husband. Her husband was having dissociative episodes and he was needing support with activities of daily living and also supervision.
In the corroborative evidence section of his report, Dr Fellows-Smith referred to Mrs Lombardini’s husband confirming that he was dependent on her for activities of daily living and support. That evidence suggests that Mrs Lombardini needing to care for her husband may have been a factor in her stopping work in 2014.
Dr Fellows-Smith wrote another letter dated 1 May 2020 to the Department after a delegate made the decision to reject Mrs Lombardini’s claim for the special rate of pension (T20.2/156). He stated that Mrs Lombardini had informed him that there were no non-accepted conditions. Dr Fellows-Smith clarified that it was the issues with Mrs Lombardini’s lumbar spine that resulted in her doctor recommending that she cease work on medical grounds and that it was the loss of her childcare role that led to her depression.
Dr Fellows-Smith wrote another report dated 15 September 2020 (T25/269). That report appears to be in response to an email request sent by Mrs Lombardini’s representative Mr West, to Dr Fellows-Smith’s receptionist on 14 September 2020. The email asks the receptionist to give Dr Fellows-Smith a copy of a submission that he made in these proceedings on 3 May 2020. The submission refers to Mrs Lombardini’s contention “that her having to cease work was caused through her service related disabilities alone” (R6/10). In his email, Mr West stated that “If James [Dr Fellows-Smith] could just back my submission which he has virtually in his report it will be a great help” (R6/9).
In his report dated 15 September 2020, Dr Fellows-Smith seemed to be under the misapprehension that all Mrs Lombardini’s claims had been accepted by the Department and that she did not have any non-accepted disabilities (T25/269).
In the 15 September 2020 report, Dr Fellows-Smith took issue with the delegate’s interpretation that her husband’s illness was a reason why she ceased work. Dr Fellows-Smith stated (T25/269-270):
Mrs Lombardini is unable to perform her usual duties or any alternative duties that she may be suited to based on her education and training for greater than eight hours per week for the foreseeable future. There appears to be a misunderstanding with regard to my comments in relation to her husband’s illness. These do not have a material effect on her decision to cease work but rather to allay issues of anxiety and guilt related to obsessional traits from the harden up at Cerberus. I understand that she had been informed by her GP [Dr Patu] that she should cease work on medical grounds in January 2016 and had battled on despite his advice having dropped a child in the health care centre. I would therefore advocate a review of your decision to reject her for the Special Rate.
I accept that Mr West was acting in good faith when he contacted Dr Fellows-Smith. He explained at the hearing that Dr Fellows-Smith had written a diagnosis only which did not state why Mrs Lombardini should stop work. He said he tried to be diplomatic so as not to offend Dr Fellows-Smith by giving him the impression that he was telling him how to write his report (transcript/9-10).
The Respondent suggested that Dr Fellows-Smith’s 15 September 2020 report was “a complete reversal” of his opinion that there were several causes of Mrs Lombardini ceasing work. That was not my reading of the 15 September 2020 report. Dr Fellows-Smith continued to hold the opinion that all Mrs Lombardini’s claims had been accepted. He continued to state that she retired on or around 1 June 2014 when Mrs Lombardini’s husband was diagnosed with PTSD and that she is unable to work for more than eight hours a week. The main point clarified was the degree of contribution that caring for her husband played in Mrs Lombardini’s decision to cease work. I am not of the view that Dr Fellows-Smith changed his opinion regarding the causes of Mrs Lombardini ceasing work from his initial report dated 26 June 2019 because he did not specifically address that question. As I mentioned above, his report concerned his diagnosis of, and the causal relationship of Mrs Lombardini’s service to her major depressive disorder. I also do not think that there was any suggestion in the email from Mr West that Dr Fellows-Smith should change his opinion about his initial observations about Mrs Lombardini being a carer for her husband, nor that Dr Fellows-Smith should clarify that it was only the accepted conditions that resulted in Mrs Lombardini dropping the baby.
My overall view of the medical evidence is that it is not as helpful as it could be. Dr Cairns and Dr Spear were asked about Mrs Lombardini’s reasons for being unable to engage in remunerative work, but Dr Fellows-Smith did not directly address that issue, particularly in his earlier reports. Dr Cairns and Dr Spear may have been provided with the Tribunal’s Persons Giving Expert and Opinion Evidence Guideline, but they (most likely due to their different specialties) each identified different factors for Mrs Lombardini ceasing work. Dr Cairns and Dr Spear also had the opportunity to review the medical information of Mrs Lombardini that was before the Tribunal, unlike Dr Fellows-Smith. However, Dr Fellows-Smith had the advantage of being Mrs Lombardini’s treating psychiatrist and having a longitudinal perspective. He was the only expert who addressed the incident where Mrs Lombardini dropped the baby, which in my view (after hearing Mrs Lombardini’s evidence) was a critical event with respect to her ceasing work and being able to engage in remunerative employment during the assessment period. For those reasons, and to the extent that I need to prefer one expert’s evidence over another, I prefer the evidence of Dr Fellows-Smith.
I have considered the medical evidence, together with the evidence of Mrs Lombardini. I found Mrs Lombardini to be a truthful witness and I accept her evidence. I accept that the incident with dropping the baby happened due to her accepted conditions when her right elbow, back and knee gave way. That event had a profound effect on Mrs Lombardini and that event, together with her having to cease work, exacerbated her war-caused major depressive disorder. Mrs Lombardini was able to give a satisfactory explanation as to why there was no formal record of the incident where she dropped the baby occurring. I accept her evidence that her general practitioner advised her to stop work, even though it was not recorded in her medical notes, but that she continued working because she felt that she had to. I also accept Mrs Lombardini’s evidence that her other non-accepted medical conditions did not prevent her from working and that she was able to live with those conditions. They involved her neck, shoulder and right knee which have now been treated or operated on.
Based on the totality of the evidence before me, I find that it was Mrs Lombardini’s accepted war-caused conditions, being her accepted elbow, back and left knee conditions, which caused her to drop the baby, which in turn resulted in her ceasing work and the aggravation of her major depressive disorder that alone rendered her incapable of engaging in remunerative work during the assessment period.
Based primarily on the evidence of Mrs Lombardini herself, as I explained above, I do not think that caring for her husband played any role in her being unable to engage in remunerative work during the assessment period. She provided the same level of care to her husband both before and after she ceased work in November 2014. The opinion of Dr Fellows-Smith supports that conclusion, but even without it, I would be reasonably satisfied that caring for her husband was not a factor that prevented Mrs Lombardini from engaging in remunerative work during the assessment period.
I am reasonably satisfied, and I find, that Mrs Lombardini’s war-caused injuries alone prevented her from engaging in remunerative work as a childcare worker or director.
Because Mrs Lombardini has satisfied the alone test, it is unnecessary for me to consider whether she satisfied the ameliorating provision in s 24(2)(b).
The second limb of s 24(1)(c)
It follows from my reasoning above, and therefore I find, that the second limb of s 24(1)(c) is satisfied. That is because Mrs Lombardini is suffering a loss of salary, wages, or earnings that she would not be suffering if she was free from her war-caused incapacity.
Informed by s 24(2)(a), I have found that Mrs Lombardini did not cease to engage in remunerative work for reasons other than her incapacity from her war caused injuries and disease (s 24(2)(a)(i)). There was no other reason (such as needing to be a carer for her husband) why she was prevented from engaging in remunerative work during the assessment period (s 24(2)(a)(ii)). It was her accepted war-caused conditions alone that prevented her from doing so.
CONCLUSION
For the reasons I have outlined above, I am reasonably satisfied, and I therefore find, that Mrs Lombardini satisfies the eligibility criteria in s 24(1) for an increase to the special rate of pension.
DECISION
The Reviewable Decision is set aside and substituted with the decision that Mrs Lombardini satisfies the eligibility criteria in s 24(1) of the Veterans’ Entitlements Act 1986 (Cth) for an increase to the special rate of pension.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
................[Sgd]..........................................
Associate
Dated: 13 March 2024
Date of hearing:
Date final submissions received:
15 November 2023
22 December 2023
Representative for the Applicant: Mr Allan West OAM (pro-bono) Representative for the Respondent:
Mr A Burgess, The Australian Government Solicitor
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