Lyle Brown and Repatriation Commission
[2013] AATA 5
[2013] AATA 5
Division Veterans' Appeals Division File Number
2011/2070
Re
Lyle Brown
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Miss E A Shanahan
Date 9 January 2013 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Member
VETERANS’ AFFAIRS – application for special rate – intermediate rate – retirement by choice or for medical reasons – no medical indication for retirement – decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 s 24, s23
REASONS FOR DECISION
Miss E A Shanahan
9 January 2013
INTRODUCTION
On 16 February 2010, Mr Brown lodged a claim for an increase in his disability pension to either the special rate or the intermediate rate. He had been receiving the pension at 100 per cent of the general rate since 2002. Mr Brown ceased work on 5 February 2010. This claim was rejected by a delegate of the Repatriation Commission (the Commission) on 8 July 2010. Mr Brown sought review by the Veterans’ Review Board (VRB). The VRB affirmed the decision on 15 March 2011 on the basis that Mr Brown was capable of working full-time in his previous occupation. Therefore, he did not satisfy s 24(1)(b) or s 23(1)(b) of the Veterans’ Entitlements Act 1986 (the Act) and did not qualify for the pension at the special or intermediate rate. Mr Brown lodged an application for a review of this decision by the Administrative Appeals Tribunal on 27 May 2011.
Mr Brown was represented by Mr De Marchi, a solicitor and the Commission by Mr Rudge, a solicitor in the advocacy section of the Department of Veterans’ Affairs. Mr Brown, Dr S Ng, Dr A Sillcock, Dr N Anavekar, Professor R Harper and Dr G Markov gave evidence before the Tribunal.
The Tribunal was provided with the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the parties tendered the following documents:
For the Applicant:
·a witness statement from Mr Brown dated 7 June 2012 – Exhibit A1
·a report of Dr Sillcock dated 26 April 2012 – Exhibit A2
For the Respondent:
·a report of Professor Harper dated 22 December 2011 – Exhibit R2
·a report of Dr Markov dated 3 January 2012 – Exhibit R3
·Freemasons employment documents – Exhibit R4
·clinical notes of Dr Ng – Exhibit R5
·clinical notes of Dr R Elliot – Exhibit R6
·clinical records of Dr P Barlis – Exhibit R7
·clinical records of Dr L Clemens – Exhibit R8
·respiratory function test results dated 26 November 2002 and 9 March 2010 – Exhibit R9
·transcript of the VRB hearing dated 15 March 2011 – Exhibit R 10
·a report of Dr B Kenny dated 5 December 2002 – Exhibit R11.
BACKGROUND TO THE APPLICATION
Mr Brown has received the disability pension at 100 per cent of the general rate since 6 August 2002. He has the following conditions accepted as war-caused:
·healed fracture right external lateral malleolus
·sensorineural hearing loss of the right ear
·chronic bronchitis and emphysema
·colorectal adenomatous polyp
·bilateral sensorineural hearing loss with tinnitus
·ischaemic heart disease
·anxiety disorder
·irritable bowel syndrome (IBS)
·oesteoarthrosis of the right ankle
Mr Brown served in the Royal Australian Army (the Army) as a supply officer between 1965 and 1985. He had operational service in Vietnam between 1970 and 1971. On retiring from the Australian Defence Force after 20 years of service, he had reached the rank of Major.
Following his discharge from the Army, Mr Brown managed a retirement village in Victoria from 1985 until 1988, following which he was a property manager in Queensland from 1988 until 1997 and from 1997 until 2001, he owned and operated a limousine on the Gold Coast. He returned to Victoria at the end of 2001 and obtained employment as a services adviser with the Freemasons’ Lodge in Melbourne. He was employed in this role from 2002 until he retired in 2010.
In late 2009, Mr Brown’s colleague suffered a heart attack and over a period of some six weeks, several persons known to him died, presumably unexpectedly. He decided he better have a full medical check-up. He saw his general practitioner on 2 November 2009 and at that time complained of chest pains which lasted a few seconds, difficulty swallowing and breathlessness. Physical examination was normal and a bevy of investigations was initiated and lead to the diagnoses of diabetes mellitus type 2, hypercholesterolaemia and, a past silent that is painless, myocardial infarct. Further investigation revealed a total occlusion of Mr Brown’s dominant right coronary artery (RCA) with retrograde filling of the distal RCA via collaterals and a 70 per cent proximal stenosis in the left anterior descending coronary artery.
On 8 December 2009 the right coronary artery occlusion was successfully stented using three piggybacked drug eluting stents (Dr Barlis, Exhibit R7). Stenting of the left anterior descending coronary artery took place on 19 January 2010, using two stents. Since these interventions, Mr Brown has taken Crestor, Clopidogrel, Coversyl and Aspirin in accordance with the established post infarct/stenting regime. The tiredness and shortness of breath he experienced prior to the coronary artery stenting is greatly improved and echocardiography and an exercise stress test performed on 21 June 2011 are completely normal (Exhibit R5). In particular, his left ventricular function is excellent.
Since ceasing his employment with Freemasons, Mr Brown has performed voluntary administrative work up to 15 hours per week for Freemasons Victoria. He generally works from home. However, once a week he travels by train from Craigieburn to the Middle Park branch. He and his wife also attend evening events at this Lodge up to two times per week. Two to three times per week he walks for up to one hour and weather permitting, he rides a bicycle for one to one and a half hours in which time he covers 20 to 25 kilometres.
There are several errors relating to Mr Brown’s accepted medical conditions which have been noted by some reporting medical specialists and the Tribunal. Mr Brown does not have emphysema as his lung function tests in 2002 and 2010 were better than the predicted normal (Exhibit R9). The adenomatous colorectal polyp has been resected and is thus no longer a factor. He does not have IBS as his colonoscopy findings and colonic biopsies have confirmed a diagnosis of ulcerative colitis. The ulcerative colitis has been treated and is said to be in complete remission (Dr Elliott, Exhibit R6).
On 5 December 2002, Dr Kenny diagnosed Mr Brown with a mild generalised anxiety disorder (GAD) and described it as being of little clinical significance and certainly not requiring treatment (Exhibit R11, p6). Dr Kenny attributed any chest pain that Mr Brown had in 2002 to anxiety and not to ischaemic heart disease. Mr Brown was also assessed by Dr G White, psychiatrist on 25 March 2010 (T12). Dr White was not able to find any evidence of a psychiatric disorder but noted Mr Brown exhibited obsessive compulsive traits and a controlling personality.
Mr Brown has several non-accepted medical conditions of which the most serious are diabetes mellitus and psoriatic arthritis. Both of these conditions are well controlled with treatment. However, the psoriatic arthritis has produced considerable joint deformity affecting predominantly the small joints of the hands and feet. Mr Brown experiences pain in the feet if he walks for longer than one and half hours and has difficulty with some hand movements, particularly gripping using his thumb. His diabetes is treated with Diabex, is well controlled and asymptomatic.
Mr Brown claims he ceased work because of his ill health and on the advice of his general practitioner, Dr Ng and his cardiologist Dr Anavekar, both of whom wrote letters addressed to whom it may concern in January 2010. Dr Ng in his letter of 14 January 2010 described ill health but later outlined the conditions contributing to this ill health as being ischaemic heart disease, diabetes, psoriatic arthropathy and IBS.
Dr Anavekar’s letter of 27 January 2010 stated he would support Mr Brown’s decision to retire. In his evidence to the Tribunal, Dr Anavekar explained that he supported Mr Brown’s decision, although there was no cardiac reason for him to retire. Dr Anavekar agreed with other opinions that it was normal cardiological practice to encourage patients such as Mr Brown to continue to work.
There is an entry in Dr Ng’s notes of 17 December 2009 which states [patient] advised to take it easy, early retirement as work is very stressful (Exhibit R5, p121-122).
The majority of medical experts consider Mr Brown capable of working for more than eight hours per week and most consider him physically fit to work full-time.
EVIDENCE BEFORE THE TRIBUNAL
Mr Brown
Mr Brown’s evidence is summarised above under Background to the application.
Mr Brown said that prior to the diagnosis of coronary artery disease, he was somewhat anxious and felt very tired. His anxiety impacted on his colleagues at Freemasons. He described his duties as sedentary, although on four occasions a year he had to set up conference rooms and for one to two hours per week he would carry office supplies and papers around Dallas Brooks Hall. He said he had intended to work until the age of 70. He found the diagnosis of high grade coronary artery disease in November 2009 very upsetting.
Mr Brown said he currently attends Freemasons’ events twice a week and works in a voluntary capacity 15 hours per week. He postulated that Professor Harper might be quite right in finding that he had the capacity to work for greater than 20 hours per week but doubted anyone would employ him and believed that a return to work would raise his anxiety levels.
At the time of his retirement, Mr Brown was earning $72,000 per annum and since his retirement he has been living on the disability pension at 100 per cent of the general rate which is in the vicinity of $700 per fortnight.
Dr S Ng
In evidence, Dr Ng said that he told Mr Brown to slow down but not to stop work. He gave this advice because Mr Brown suffered from ischaemic heart disease, psoriatic arthropathy and diabetes. He noted that Mr Brown’s psoriasis worsened when he was stressed. Dr Ng recommended a return to work in a stress free environment.
Dr A Sillcock
Dr Sillcock was of the opinion that the advice given to Mr Brown by his general practitioner and cardiologist was at the time reasonable. She was unaware that Mr Brown had any anxiety disorder. She agreed that Mr Brown could work but she felt his chances of getting a job were slim. Dr Sillcock had seen Mr Brown after he had fully recovered from his coronary artery stenting, at which time she said, he felt he could still be working and that he had been given a bum steer in terms of the advice he received. Dr Sillcock was of the opinion that Mr Brown could work more than eight hours per week but not more than twenty.
Professor R Harper
Professor Harper, a cardiologist, in effect confirmed his written report wherein he had stated Mr Brown was now asymptomatic in terms of his ischaemic heart disease and that he had done well from the stenting as a result of which his prognosis was good. Professor Harper did not believe that there was a cardiac contribution to Mr Brown’s shortness of breath and that from the point of his cardiac function, Mr Brown could work more than twenty hours per week. Professor Harper considered the advice given to Mr Brown to retire was contrary to standard cardiological practice.
Dr G Markov
Dr Markov, rheumatologist and general physician, provided a medical report on 3 January 2012 (Exhibit R3) and in his evidence summarised the contents of that report. He assessed Mr Brown’s psoriatic arthropathy as having a minimal effect on his work capacity and that his ischaemic heart disease, having been diagnosed serendipitously and more than adequately treated, resulted in Mr Brown now being asymptomatic and doing very well with a normal echocardiogram and exercise stress test. Dr Markov pointed out that the diagnosis of emphysema was incorrect as Mr Brown’s lung function tests were quite normal.
Dr N Anavekar
Dr Anavekar’s evidence was brief and related to Mr Brown’s retirement. Dr Anavekar said he thought Mr Brown was seeking to retire and therefore, he supported his decision but there was no cardiac cause for either his shortness of breath or his decision to cease work. He agreed entirely with Professor Harper’s opinion.
DOCUMENTARY EVIDENCE
The Tribunal was provided with the clinical notes of Dr Clemens, a rheumatologist (Exhibit R8) and Dr Elliott who is a gastroenterologist (Exhibit R6). Dr Clemens’ notes do not add anything to the evidence already before the Tribunal and Dr Elliott’s clinical notes confirm that Mr Brown does not have IBS but has biopsy proven ulcerative colitis now in total remission.
Dr Ng’s clinical notes do not record the presence or reporting of any chest pain by Mr Brown until 2 November 2009. Nor is there any record of Mr Brown complaining of shortness of breath prior to that date.
Dr G Ramage
Dr Ramage is an occupational health physician. He saw Mr Brown on 29 March 2010 and reported to the Commission on 16 April 2010 (T13). Dr Ramage obtained a detailed history from Mr Brown. On examination no abnormality was detected other than gross distortion of his hand architecture and significant clawing of the toes of both feet (T13, p107).
Despite the joint pathology, Mr Brown was noted to have worked up to 55 hours per week. Dr Ramage concluded that on a purely physical basis there was no reason why Mr Brown could not work more than 8 hours per week and that his decision to cease work was a subjective [one] … based on advice from his cardiologist and general practitioner (T13, p109).
LEGISLATION
Section 24 of the the Act provides for the payment of special rate of pension and states:
24Special 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
...
(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
....
(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.
In the event that a veteran retains some capacity to work, s 23 of the Act may be applicable. Section 23 which is similar to s 24, states:
23 Intermediate 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
...
(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
...
(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; 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 of the Act relates to the capacity of a veteran to undertake remunerative work and states:
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 Applicant
Both in the Statement of Facts and Contentions and closing submissions, Mr De Marchi maintained that Mr Brown retired on the medical advice of his cardiologist and general practitioner who were of the opinion that continuing to work would impact negatively on his health by aggravating his ischaemic heart disease.
Mr De Marchi submitted that despite the voluntary work Mr Brown performed, he did so in a non-stressful environment and satisfied s 24(1)(c) or in the alternative s 23(1)(c) of the Act. He contended that no one would employ an individual with the accepted medical conditions Mr Brown suffered.
Mr De Marchi argued that none of Mr Brown’s non-accepted conditions impacted on his capacity for work and that his ischaemic heart disease and generalised anxiety disorder alone prevented him from working. Therefore, s 24(1)(b) and s 23(1)(b) of the Act are satisfied.
Mr De Marchi submitted that Mr Brown had not looked for work given the medical advice he had received and any attempt to now do so would be impacted upon by Mr Brown’s two and a half years out of the workforce.
With respect to Mr Brown’s eligibility for intermediate rate and the impact of s 28, Mr De Marchi contended that Mr Brown could not perform the physical requirements of the type of work he had undertaken at Freemasons Victoria, or deal with employees or an employer because of his anxiety disorder. Therefore, he satisfies s 23(1)(c) of the Act.
The Respondent
Mr Rudge relied primarily on the evidence of Professor Harper and Dr Anavekar that there was no cardiac reason for Mr Brown to have retired. In contrast, work was considered by the cardiology fraternity as beneficial. It was noted that Mr Brown was a valued employee of Freemasons and had received an excellent report (Exhibit R4).
Mr Brown worked 37.5 hours per week (excluding overtime) which would translate to 18.75 hours should consideration be given to s 23(2)(a) of the Act. However, Mr Rudge submitted that given that all reporting medical experts, including Dr Sillcock, assessed Mr Brown as capable of working at least 20 hours per week, he cannot satisfy s 23(2)(a) and therefore, s 23(1)(b).
Mr Rudge argued that any decision to retire should have been made by Mr Brown after he completed his treatment for coronary artery disease. He also noted that the assessment period commenced on 16 February 2010, the date Mr Brown lodged his claim and runs until the date of this decision.
Mr Rudge contended that Mr Brown is not totally and permanently incapacitated. However, if the Tribunal accepts that he is, it should be noted that both Dr Ng and Dr Markov considered that Mr Brown’s non-accepted psoriatic arthritis was a contributing factor to his capacity for work and based on their reports, the alone test in s 24(1)(b) and s 23(1)(b) cannot be satisfied.
TRIBUNAL’S DELIBERATIONS
Mr Brown satisfies s 24(1)(aa) and s 24(1)(aab) of the Act. It follows that he also satisfies the corresponding provisions in s 23(1) in that he lodged a claim under s 15 for an increase in the rate of pension and at the time of lodgement of the claim he had not yet turned 65. Mr Brown satisfies sub-s 24 and 23(1)(a)(i) in that the degree of incapacity from war-caused injury or war-caused disease or both, has been determined at more than 70 per cent. In fact Mr Brown’s incapacity has been assessed at 100 per cent, although the basis for this determination is unclear.
Mr Brown has undergone successful stenting of his right and left anterior descending coronary arteries and his cardiac function is now excellent. He does not have emphysema or IBS and his GAD if present, is of little clinical significance and does not require treatment. Dr Kenny diagnosed GAD somewhat reluctantly in 2002 and stated that in making the diagnosis he did so: on balance and giving him the benefit of the doubt. In March 2010 Dr White found no evidence of a diagnosable psychiatric disorder in Mr Brown.
The Tribunal accepts that Mr Brown was profoundly upset by the diagnosis of diabetes, hypercholesterolaemia, coronary artery disease and a past silent inferior infarct in November 2009 and the need for percutaneous coronary artery interventions (PCIs) to insert stents. It is understandable that at this time, he gave thought to whether he should retire. He claims he retired on the advice of both his general practitioner and his cardiologist, both of whom gave sworn evidence to the contrary namely, there was no reason to retire because of his coronary artery disease. In his evidence before the Tribunal Dr Ng affirmed that his advice to Mr Brown was to reduce his hours of work. Dr Ng attributed Mr Brown’s ill health to his ischaemic heart disease, diabetes and psoriatic arthritis. Dr Anavekar categorically denied that there was any cardiac indication for Mr Brown to retire.
The opinions of Dr Ramage, Professor Harper and Dr Markov are to the same effect. They all considered Mr Brown fit to work in his previous employment at Freemasons Victoria for more than 20 hours per week, if not full-time. Dr Sillcock despite the limited documentation provided to her, found that Mr Brown had retired because of his ischaemic heart disease, and considered him capable of working for 20 hours per week but no more.
Currently, Mr Brown works 15 hours per week in a voluntary capacity from home. He performs administrative work for Freemasons Victoria, similar to the work he did prior to November 2009. He travels to the Middle Park Freemasons Lodge from Craigieburn once per week for purposes of this voluntary work and he and his wife attend evening events at this Lodge up to twice a week. Mr Brown walks for one to one and a half hours and rides his bicycle 20 to 25 kilometres several days per week. His cardiac function as shown by echo-cardiography and stress testing is excellent. He has normal lung function tests, his diabetes is well controlled, his ulcerative colitis (not IBS) is in complete remission and his GAD is of little or no clinical significance and does not warrant treatment. He does have severe deformities of his hands and feet due to psoriatic arthritis but these have been present from the early 1990s and did not prevent him from working at any time.
Based on the factual evidence before the Tribunal, Mr Brown is not significantly incapacitated by virtue of any of his medical conditions be they accepted as war-caused or not. He is capable of working for more than 20 hours per week. While he has been out of paid employment for two and a half years, the voluntary work he now performs for 15 hours per week is similar to the paid administrative work he performed prior to his retirement.
Mr Brown does not satisfy s 24(1)(b) or s 23(1)(b) in terms of any incapacity for work for more than 8 hours per week or 20 hours per week, respectively. Dr Sillcock reported that Mr Brown’s work capacity is limited to 20 hours per week. If I accept her opinion, it follows that Mr Brown is capable of working 50 per cent or more of the hours he ordinarily worked, namely 18.75 hours per week as submitted by Mr Rudge. Therefore, he satisfies s 23(2)(a) of the Act and is taken not to fulfil s 23(1)(b) of the Act.
Dr Ng maintained that the non-accepted conditions of diabetes mellitus and psoriatic arthritis also contribute to Mr Brown’s incapacity to work. If the Tribunal were to accept Dr Ng’s opinion as the preferable opinion, he being the treating general practitioner, Mr Brown would not satisfy the alone test in s 24(1)(b) or s 23(1)(b) of the Act.
In retrospect, it is regrettable that at a time of great emotional stress, Mr Brown contemplated retirement and sought the support of Doctors Ng and Anavekar during the acute phase of his coronary artery interventional treatment. It would have been preferable for him to wait for his functional capacity to be properly assessed once his treatment was completed. This is particularly so in light of Dr Ramage’s assessment of 29 March 2010, some two to three months after the PCIs, where the only compelling reason he could identify for Mr Brown’s retirement was the advice given by Dr Ng and Dr Anavekar.
Having heard from Dr Ng and Dr Anavekar, I am satisfied that neither of them advised Mr Brown to retire. Dr Ng advised him to slow down and Dr Anavekar merely supported Mr Bown’s decision to retire. Accordingly, any recommendation to retire on medical advice has now been negated by the sworn evidence before the Tribunal.
Given these findings of fact, Mr Brown is not entitled to an increase in his disability pension at either the special rate or the intermediate rate because he has the capacity to work and therefore, does not satisfy s 24(1)(b) or s 23(1)(b). It is not necessary to consider s 28, s 24(1)(c) and s 23(1)(c) of the Act or the case law relied on by the parties.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 52 (fifty‑two) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member [sgd]........................................................................
Administrative Assistant
Dated 9 January 2013
Dates of hearing 2 October 2012 and 22 October 2012 Solicitor for the Applicant Mr Dino De Marchi, De Marchi & Associates Solicitor for the Respondent Mr Ken Rudge, Department of Veterans' Affairs
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