Martino and Repatriation Commission (Veterans' entitlements)
[2021] AATA 1867
•13 May 2021
Martino and Repatriation Commission (Veterans' entitlements) [2021] AATA 1867 (13 May 2021)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/6101
Re:John Martino
APPLICANT
AndRepatriation Commission
RESPONDENT
Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:13 May 2021
Place:Melbourne
The decision under review is set aside and substituted for a new decision that the appropriate rate of pension to be applied to the applicant:
(a)in respect of the period from 12 March 2013 to 30 July 2014 is the temporary special rate backdated to 12 December 2012;
(b)in respect of the period from 31 July 2014 to 29 November 2015 is the intermediate rate;
(c)in respect of the period from 30 November 2015 for the balance of the assessment period is the temporary special rate; and
(d)prospectively from the date of this decision for a period of 18 months is the temporary special rate but subject to a further review to be undertaken before the conclusion of that period.
................................[sgd]........................................
The Hon. Matthew Groom, Senior Member
Catchwords
VETERANS’ ENTITLEMENTS – application for special rate of pension – veteran medically discharged due to accident – consideration of veterans’ capacity for work during the assessment period – consideration of medical evidence on state of veterans’ accepted condition at different times during assessment period – eligibility for special or intermediate rate of pension met for specific periods – consideration of evidence of permanency of condition – condition not permanent – decision set aside and substituted
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Leigh and Repatriation Commission [2006] FCA 395
McDonald v Director General of Social Security (1984) 6 ALD 6
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
13 May 2021
INTRODUCTION
This matter involves a review of a decision of the Veterans Review Board (the “VRB”) made on 13 August 2018 which assessed the applicant’s pension at the intermediate rate of pension with effect from 13 August 2018.
The applicant’s L5-S1 lumbar disc degeneration condition (the “lower back condition”) had previously been accepted as a defence caused condition with entitlement to a pension under the Veterans’ Entitlements Act 1986 (the “Act”).
On 12 March 2013, the applicant made an additional claim for major depressive disorder and an application for an increase in his pension.
On 8 August 2013, the applicant’s major depressive disorder with associated anxiety was accepted by the Department as defence caused and his pension was increased to the temporary special rate from 12 December 2012 to 2 May 2014 and then at 80% of the general rate.
On 17 September 2013, the applicant made an application for review of the Department’s decision to the VRB. The hearing of that matter was adjourned pending further medical evidence.
On 13 August 2018, the VRB assessed the applicant’s pension at the intermediate rate in accordance with section 23 of the Act.
On 22 October 2018, the applicant made an application for review of the VRB’s decision which is the matter presently before this Tribunal.
BACKGROUND
The applicant is approximately 53 years of age and previously worked as a cadet officer at the Duntroon Royal Military College between 21 January 1991 and 22 October 1991. During his time at the college, the applicant suffered a significant lower back injury as a consequence of a fall, which subsequently lead to his medical discharge.
As a consequence of his injury the applicant has experienced ongoing pain in his lower back as well as shooting pain through his left leg.
The applicant is well educated. Following his discharge from service the applicant obtained a Bachelor of Arts with Honours at Monash University. The applicant then commenced a PhD in Classical History and Archaeology, however, before completing his PhD the applicant transferred to a Diploma of Education at the University of Melbourne. The applicant undertook work experience as part of that course and also worked part-time to help with family finances. Before graduating with his Diploma, the applicant returned to his PhD which he then completed in around 2006. The applicant found this period of his life particularly stressful and suffered significant sleep disruption and mood issues throughout this period and following.
Between 2006 and 2012, the applicant established a commercial writing business which, among other things, included writing screenplays. He ceased his work in that capacity on 15 February 2012 as a consequence of a further deterioration in his lower back condition. The applicant’s evidence was that he had been working 15 to 20 hours per week during that period.
As a result of the deterioration in the applicant’s lower back condition, in around February 2012 the applicant was assessed by his GP and then referred to a neurosurgeon, Mr Paul D’Urso, for a further assessment. The applicant subsequently underwent surgery involving an instrumented interbody fusion and rhizolysis procedure on 11 October 2012 which was performed by Mr Paul D’Urso.
The applicant gave evidence that his initial recovery from surgery was slow and involved a program of rehabilitation including regular hydrotherapy, Pilates and remedial massage. The applicant gave evidence that following his recovery from surgery he undertook sporadic work involving very limited weekly hours which included some writing, research as well as a small number of public speaking engagements.
In 2015, the applicant was engaged by Toyota Australia to write a history of Toyota’s manufacturing in Australia. The contract ran for approximately six months and required the applicant to undertake a trip to Japan for the purpose of conducting interviews. Following the completion of his work in Japan, the applicant then travelled to Europe to attend a wedding.
The applicant claims that in late 2015, following his return from Europe, he suffered a further serious deterioration in his lower back condition and that the condition has continued to deteriorate further since that time continuing to significantly constrain his ongoing work capacity.
RELEVANT LAW
The Act relevantly provides as follows.
19 Determination of claims and applications
(1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall:
(a) consider all matters that, in the Commission’s opinion, are relevant to the claim or application; and
(b) subject to this section, determine the claim as provided by subsection (3); and
(c) subject to this section, determine an application under subsection 15(1) under subsection (5D); and
(d) subject to this section, determine an application under subsection 15(2) as provided by subsection (5).
(2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include:
(a) the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3);
(b) any evidence subsequently submitted to the Commission in relation to the claim or application; and
(c) any evidence, documents or other material furnished to the Commission under section 32.
(3) The Commission shall determine a claim for a pension as follows:
(a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:
(i) the incapacity of a veteran from war‑caused injury or war‑caused disease, or both; or
(ii) the death of a veteran that was war‑caused;
(b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).
(4) The Commission must determine an application under subsection 15(2) as provided by subsection (5).
(4A) The Commission must deal with an application under subsection 15(1) in accordance with subsections (5A), (5B) and (5C) and determine the application under subsection (5D).
(5) The Commission must determine an application under subsection 15(2) as follows:
(a) first, the Commission must determine whether the claimant is entitled to be granted a pension in respect of the incapacity of the veteran;
(b) then, if the Commission determines that the applicant is so entitled, the Commission must proceed as set out in subsections (5A), (5B), (5C) and (5D).
(5A) If:
(a) paragraph (3)(b) applies in respect of a claim; or
(b) subsection (4A) applies in respect of an application under subsection 15(1); or
(c) paragraph (5)(b) applies in respect of an application under subsection 15(2);
the Commission must assess the matters set out in subsection (5C).
(5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.
(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.
(5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.
(5E) Pension is payable from the date of effect of the determination made under:
(i) in the case of a claim—subsection (3); or
(ii) in the case of an application made under subsection 15(2)—paragraph (5)(a); or
(iii) in the case of an application made under subsection 15(1)—subsection (5D).
(5F) A determination under:
(a) subsection (3), in respect of a claim; or
(b) subsection (5), in respect of an application under subsection 15(2); or
(c) subsection (5D), in respect of an application under subsection 15(1);
takes effect from the date on which the determination is made or on such later or earlier date as is specified in the determination.
(6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
(7) Where:
(a) the Commission, upon considering a claim for a pension in respect of the incapacity of a veteran from injury or disease determines, or is satisfied, that the veteran suffered the injury or contracted the disease as claimed and that the injury is a war‑caused injury or the disease is a war‑caused disease, as the case may be; and
(b) the Commission is also satisfied a determination under this Act is in force determining that the veteran has suffered an injury or contracted a disease (not being the injury or disease referred to in paragraph (a)) and that:
(i) that injury is a war‑caused injury, or is, in accordance with subsection 70(3), a defence‑caused injury for the purposes of subsection 70(1); or
(ii) that disease is a war‑caused disease, or is, in accordance with subsection 70(3), a defence‑caused disease for the purposes of subsection 70(1);
as the case may be, whether or not a pension under Part II or Part IV, as the case requires, has been granted in respect of that injury or disease;
the Commission shall not, in a case where the claimant is in receipt of a pension under Part II or Part IV in respect of incapacity resulting from the injury or disease referred to in paragraph (b), grant a separate and additional pension to the claimant in respect of incapacity resulting from the injury or disease referred to in paragraph (a), but the Commission shall, having regard to any incapacity resulting from the injury or disease referred to in paragraph (a) and any incapacity resulting from the injury or disease referred to in paragraph (b) and treating any such defence‑caused injury as war‑caused injury and any such defence‑caused disease as war‑caused disease:
(c) if the claimant is not in receipt of a pension under Part II or Part IV—determine whether the claimant is entitled to be granted a pension under Part II and, if it determines that the claimant is entitled to be granted such a pension, assess the rate of the pension to be granted to the claimant in accordance with the preceding provisions of this section; or
(d) if the claimant is in receipt of a pension under Part II or Part IV—re‑assess the rate of that pension in accordance with the preceding provisions of this section.
(8) Where the Commission grants the whole or a part of a claim or application, the Commission may pay to the claimant or applicant an amount, calculated in accordance with a scale approved by the Commission, in respect of the expenses (if any) incurred by the claimant or applicant in providing for the production of relevant documentary medical evidence.
(9) In this section:
application means an application made in accordance with section 15.
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; or
(b) if subsection 20(2), 20(2B) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a), 20(2B)(a) or 21(2)(a) was so received.
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.
claim means a claim made in accordance with section 14.
relevant documentary medical evidence, in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used:
(a) in support of the claim or application; or
(b) if a part only of the claim or application was granted—in support of that part of the claim or application.
…
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
(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.
(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.
(3A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) (as affected by subsection (2)) apply to the veteran; and
(d) the veteran is, because of incapacity from war‑caused injury or war‑caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 24 or 25 does not apply to the veteran.
(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war‑caused injury or war‑caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
(c) 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.
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $619.80 per fortnight.
(5) Subject to subsection (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4) or (5) of this section, reduced in accordance with section 25A.
24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war‑caused injury or war‑caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war‑caused injury or war‑caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3) This section also applies to a veteran who has been blinded in both eyes as a result of war‑caused injury or war‑caused disease, or both.
(4) Subject to subsections (5), (5A) and (6), the rate at which pension is payable to a veteran to whom this section applies is $919.40 per fortnight.
(5) Subject to subsections (5A) and (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
(5A) If:
(a) section 115D applies to a veteran because of subsection 115D(1A); and
(b) the veteran is engaged in remunerative work of more than 8 hours, but less than 20 hours, per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme;
then, subject to subsection (6) of this section, the rate at which pension is payable to the veteran is the higher of the following amounts:
(c) the amount worked out under subsection (5) of this section;
(d) the amount under subsection 23(4).
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4), (5) or (5A) of this section, reduced in accordance with section 25A.
24A Continuation of rates of certain pensions
(1) Subject to subsections (1A) and (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking—the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies—the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
(1A) However, subsection (1) does not prevent a rate applicable under subsection 24(4), (5) or (5A) from being reduced to give effect to subsection 24(6).
(2) Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme or section 115D applies to the veteran.
25 Temporary payment at special rate
(1) Where the Commission is satisfied that:
(a) a veteran is temporarily incapacitated from war‑caused injury or war‑caused disease, or both; and
(b) if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2) Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate that would have been applicable under subsection 24(4), (5), (5A) or (6) if section 24 applied to the veteran.
(3) The Commission may, under this section:
(a) determine a period that commenced before the date on which the determination is made; and
(b) determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.
…
28 Capacity 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).
ISSUE
The Tribunal accepts that, in accordance with section 19(9) of the Act, the relevant assessment period for the assessment of the rate of pension in respect of this matter is from 12 March 2013 through to the date of the Tribunal’s decision.
The respondent has conceded that the temporary special rate was the appropriate rate of pension from 12 December 2012 through to 2 May 2014.
The respondent contends that from 3 May 2014 onwards the appropriate rate is the intermediate rate.
The Tribunal has understood the respondent to be conceding that:
(a)in respect of the period 12 December 2012 through to 2 May 2014, the applicant satisfies each of the eligibility preconditions for the special rate as set out in section 24 of the Act, but that the applicant does not satisfy the incapacity requirements of that section on a permanent basis and therefore falls within the scope of the temporary special rate in section 25.
(b)in respect of the period from 3 May 2014 and following, the applicant satisfies each of the eligibility preconditions in section 23 of the Act.
Having regard to the evidence before it, including the previous assessment of the VRB, the Tribunal is satisfied that these concessions are appropriate. However, the question remains whether or not the temporary special rate should be applied for a period within the assessment period other than that conceded by the respondent or should be made permanent as contended by the applicant.
The respondent has also conceded that in applying each of sections 23, 24 and 25 of the Act the applicant has not previously been engaged in work of a kind that applies a standard working week. Accordingly, in assessing the applicant’s work capacity against the criteria in section 23, section 23(2)(b) would apply and in assessing the applicant’s work capacity against the criteria in section 24, section 24(1)(b) would apply.
Therefore, given the concessions that have been made and accepted by the Tribunal, the residual issues for determination are:
(a)whether and for what periods during the assessment period the applicant was, due to his defence caused conditions, not capable of undertaking remunerative work for 20 hours or more per week such that the intermediate rate should be applied to the applicant’s pension; and
(b)whether and for what periods during the assessment period the applicant was, due to his defence caused conditions, not capable of undertaking remunerative work for periods aggregating more than eight hours per week;
(c)in the event that the applicant is not capable of undertaking remunerative work for periods aggregating more than eight hours per week in any period during the assessment period due to his defence caused conditions, then whether the Tribunal is satisfied that the defence caused conditions giving rise to that incapacity can be considered to be permanent, such that the special rate should be applied, or temporary, such that the temporary special rate should be applied; and
(d)what is the appropriate rate to be applied to the applicant’s pension prospectively from the date of the Tribunal’s decision.
CONTENTIONS AND CONSIDERATION
The applicant contends that following his surgery for his lower back condition in October 2012 he undertook a rehabilitation program, as proposed by his neurosurgeon Mr D’Urso, and that his condition gradually improved through 2013 to 2015 which allowed him to return to the workforce but with very constrained hours of up to eight hours per week. He contends that until the first quarter of 2014 his work incapacity from his condition was total. The applicant acknowledges that during 2014 and through to his overseas trips in 2015 his condition had improved to a degree. However, the applicant contends that, notwithstanding some improvement during this period, from the first quarter of 2014 onwards he continued to be limited in his work capacity due to his lower back condition to less than eight hours per week.
The applicant claims that in late 2015, following his return from Europe, he suffered a significant and sudden deterioration in his lower back condition which caused him to suffer severe back spasms and heightened levels of nerve and back pain. The applicant claims that since that time his lower back condition has not recovered and that he continues to suffer very debilitating symptoms including extended periods of complete immobility, extended periods of sciatica and greatly increased spinal pain. He claims that this has continued to constrain his work capacity to less than eight hours per week.
The applicant’s evidence was that as a consequence of the deterioration of his condition there have been ongoing discussions with his current neurosurgeon regarding further surgery. The applicant’s evidence was that for the entire period following his surgery in 2012 he has required ongoing rehabilitation in the form of regular hydrotherapy, Pilates and remedial massage, although he has ceased doing Pilates on the recommendation of his doctors. The applicant’s evidence was that through this period he has at various times taken anti-inflammatory medication for his condition as well as medication in the effective management of his pain. The applicant contends that at no time since his surgery has he had a capacity to work eight hours or more per week. He also contends that at no time since his initial back injury has he had a capacity to work in excess of 20 hours per week.
The applicant puts these contentions on the basis of his lower back condition alone. While the applicant still maintains that his mental health conditions in combination with his lower back condition reduce his work capacity even further, he made clear to the Tribunal that he was not seeking to rely on his mental health conditions as the basis for his work incapacity as he believed that his lower back condition alone was the condition that most significantly impacted his work capacity and did so to less than eight hours per week.
The applicant claims that the weight of the reliable medical evidence supports his contentions. The applicant relies in particular on a series of medical certificates issued by two GPs between 2012 and 2018, the applicant’s primary GP Dr Irina Khanina and also Dr Lidia Fleishman; the most recent report of Associate Professor Goldschlager dated 18 March 2019; the amended report of occupational physician Dr James Rowe dated 23 April 2018; the Rehabilitation Closure Report by the ORS Group dated 21 September 2016, together with the earlier reports of his neurosurgeon, Mr Paul D’Urso. The applicant has been highly critical of a number of other reports including the report of orthopaedic surgeon Mr Ronald Haig dated 22 May 2013, the first report of Dr Rowe dated 17 January 2018, as well as Mr D’Urso’s later reports dated 5 June 2017 and 17 September 2018.
The respondent concedes that the applicant was suffering an effective total incapacity due to his recovery from surgery from 12 December 2012 through to 2 May 2014. The respondent relies in particular on the report of orthopaedic surgeon Mr Ronald Haig dated 22 May 2013 in this respect. The respondent’s submission was that from three May 2014 for the balance of the assessment period and prospectively the applicant’s pension should be set at the intermediate rate.
The respondent contends that following his surgery in 2012 the applicant made good progress in his rehabilitation and had recovered from his surgery to a point where he was capable of working in excess of eight hours per week by 2 May 2014. The respondent contends that since two May 2014, while the applicant has experienced occasional flare-ups in his lower back condition, those flare-ups are manageable by way of anti-inflammatory and pain management medication. The respondent contends that for the period between 3 May 2014 and following the applicant has consistently maintained a work capacity between eight hours and 20 hours per week. The respondent contends that the applicant’s mental health conditions make no difference to this assessment.
The respondent contends that its position regarding the applicant’s work capacity following his recovery from surgery is supported by the weight of the medical evidence including in particular the reports of Dr Burke, Mr D’Urso and also the first report of Dr Rowe, although the respondent has indicated that it does not seek to rely on the reports of Dr Rowe. The respondent also contends that this position is further supported by evidence relating to the work the applicant performed under his contract with Toyota Australia during the course of 2015.
The respondent contends that the weight of the independent medical evidence before the Tribunal supports a conclusion that, notwithstanding the issues the applicant experienced in late 2015 following his overseas trip, he has since his recovery from surgery in the early part of 2014 continued to have a work capacity of between eight and 20 hours per week.
The respondent concedes that the report of Associate Professor Goldschlager could be viewed as supporting a conclusion that the applicant’s condition had subsequently deteriorated again resulting in a further decline in the applicant’s work capacity, but contends that there is insufficient evidence before the Tribunal to reach a conclusion in that respect, and certainly insufficient evidence to conclude that the applicant’s work capacity is less than eight hours per week on a permanent basis.
Between 2012 and 2018 the applicant’s GP, Dr Irina Khanina, issued numerous medical certificates attesting to her assessment that following his surgery the applicant was unfit to continue in his usual occupation and then subsequently that the applicant was only able to work up to eight hours per week. Dr Khanina also prepared a medical impairment assessment report together with a work ability report both dated 3 April 2013. In her impairment assessment report Dr Khanina states that the applicant suffers back pain after sitting for 10 to 15 minutes, that his walking distance is restricted on level ground and he needs to rest after approximately 1km, and that he suffers sciatica in both legs. In the work ability report Dr Khanina states that each of the applicant’s conditions are causing severe impact however notes that she is not able to assess the impact on his ability to work until further time has lapsed following the applicant’s surgery. In addition, the Tribunal also accepts that on occasion during this period a substitute GP of the applicant, Dr Rosenblum, also provided an assessment that was consistent with Dr Khanina.
In his report dated 22 May 2013 orthopaedic surgeon Mr Ronald Haig notes that following surgery the applicant continues to experience “constant lower back pain”, which he graded as a pain level of five to seven on a scale from one to ten. Mr Haig notes that the applicant appears independent in terms of personal care, that he can drive a motor vehicle for short distances only but that he does not involve himself in any sports or recreational activity. Mr Haig notes that the applicant was undertaking Pilates and hydrotherapy on a regular basis. He also notes that the applicant takes Endone and/or Codeine for pain management on an as needs basis. He also continues to take Efexor for depression. Mr Haig notes that the applicant is still in the post-operative phase but that he does not believe that the applicant’s current inability to work is permanent. Mr Haig goes on to conclude that he does not believe that the applicant should be working at all and not until he reaches “maximum medical improvement” and that he believes that this should occur within three to four months. He notes that he believes that the applicant could return to work on a graduated return to work plan in an appropriate setting and that he should be able to work a full working week however he states that he believes that physical work should be discouraged.
In his appeal to the VRB the applicant states that he believes that Mr Haig’s report was “based upon the erroneous” and “medically irresponsible”, noting that, in the 22 years since the original spinal injury occurred, he had never been deemed, by any of the numerous general practitioners or specialist doctors and surgeons, capable of working more than 20 hours a week. The applicant also states that Mr Haig reached his conclusion in relation to the applicant’s potential work capacity upon achieving “maximum medical improvement” without having undertaken a thorough assessment of the applicant’s work capacity and while also acknowledging that it would be appropriate to review the applicant again in six to nine months’ time.
While the Tribunal does not accept the applicant’s description of Mr Haig’s report as being “medically irresponsible”, it does accept that Mr Haig’s conclusion in relation to the applicant’s future work capacity would appear to have been formed without regard to the limited nature of the applicant’s work capacity prior to his surgery. However, in the Tribunal’s view, Mr Haig’s report should not be read as reaching anything near a final conclusion in relation to the applicant’s future work capacity. In the Tribunal’s view, Mr Haig made it clear in his report that no such conclusion could be reached without a further review being undertaken of the applicant. In this sense the Tribunal accepts the applicant’s contention that the weight given to the conclusion in the report by the VRB was somewhat overstated.
In his report dated 12 September 2013 the applicant’s former neurosurgeon, Mr D’Urso, concluded that:
..John Martino’s condition has substantially affected his ability to perform employment activities. Before surgery, John reported that he had chronic back and sciatic symptoms. He was only able to sit, stand and walk for 10 to 20 minutes. Currently John is recovering from surgical intervention. I would anticipate that his condition would have stabilised by September 2013. More accurate assessment of his capacity could be determined at this time.
.. There will be a partial incapacity of a permanent nature. John will have limitations in his ability to perform unrestricted physical or manual activities. He should not be required to perform repetitive bending, twisting or lifting, lift weight in excess of 15 kg. He should have the ability to ambulate freely in the workplace and avoid sitting and standing postures in excess of one hour.
.. I do believe that John Martino has been prevented from undertaking employment because of his lumbosacral disc degeneration. Now that surgical intervention has been carried out, I would be hopeful that John will regain capacity for employment in the future.
..I would anticipate that John Martino would be able to participate and [sic] return to work program. He should be able to return to part-time light employment up to 16 hours per week. Graduated increase in hours of employment and intensity of employment could then be conducted over subsequent months. I would anticipate that John Martino should have capacity to return to full-time light employment by the end of calendar year 2013.
In respect of Mr D’Urso’s report of September 2013 the Tribunal notes that again, while Mr D’Urso is optimistic about the potential for the applicant to regain future work capacity, his conclusion is qualified in the sense of acknowledging that the applicant is still recovering from surgery and that his full work capacity will not be properly understood until a future point in time.
However, in Mr D’Urso’s subsequent report of 14 May 2014 he concludes:
I would anticipate that John Martino would currently have capacity to work at least 16 hours per week. I would be hopeful that with time over the calendar year 2014 that he could increase to perhaps 30 hours per week…
The Tribunal notes with respect to Mr D’Urso’s May 2014 report that while Mr D’Urso’s conclusions in relation to the capacity have firmed compared to his 2013 report it would appear on the face of the report that Mr D’Urso has reached his conclusions in the 2014 report on the basis of a review of written materials and not on an actual assessment of the applicant himself.
On 21 August 2014, occupational physician Dr Nicholas Burke concluded in his report as follows:
… It is quite evident that he [the applicant] has the capacity to return to the workforce…His training, education and experience have prepared him mainly for sedentary-type positions and in my opinion he would have the capacity to return to these positions. He indicated that his spinal surgeon felt that he may be able to return to work around 16 hours a week… I think his condition has stabilised further and in my opinion it should be possible for him to be able to cope with at least 24 to 30 hours a week with the expectation of returning to work full time over a 6 to 12 month period of time..
On 5 December 2014, Mr D’Urso further advised that:
Overall, John seems to be managing quite well. His back pain is about 4.5/10 on an average day. He can sit 45 minutes and walk for 20 minutes. John does not take regular medication. He is attending hydrotherapy three times a week and participating in some archery.
I am pleased with John’s progress.
It would appear on the face of the report that, in contrast to Mr D’Urso’s May 2014 report, Mr D’Urso’s December 2014 assessment is based at some level on an in-person assessment of the applicant.
Dr Burke subsequently undertook a further assessment of the applicant on 20 August 2015 and in his subsequent report dated 21 September 2015 Dr Burke notes that:
I re-questioned Dr Martino in relation to the report which was written on 31 July 2014 and dated 21 August 2014. I went through the previous history and Dr Martino agreed with all aspects of the history. He indicated that the major development with respect to his occupation has been the development of the two film screenplays.
..In addition, he has secured work with Toyota doing the history of the death of Toyota manufacturing in Australia. He is doing around eight hours a week and he has a contract which extends through to the end of the year. Again he is optimistic about future extensions of this contract. He has also done a speaking engagement in February, with the subsequent publication of the paper.
All of his work has been freelance.
With respect to treatment, there has been very little change. He has continued with his hydrotherapy. He is doing this three days a week at Caulfield Hospital. This is funded through the Department of Veterans Affairs.
He is no longer doing any Pilates.
He has occasional remedial massage.
He sees Dr Selvendra, his psychiatrist, approximately every three months.
He continues to see Dr D’Urso on an annual basis.
Otherwise, there are no significant interventions at this stage.
…He continues to report symptoms along the lines that he had when I saw him 12 months ago. Essentially the principal symptoms are in the lower back, as opposed to the legs.
He only experiences significant leg symptoms associated with stumbling or tripping. If he does something akin to this he will get a shock like sensation extending through his legs. As long as he avoids accidents, he does not have any major symptoms.
With respect to his back, he has ongoing pain, principally around the area of the scar. The pain is generally there most of the time but tends to fluctuate. It tends to be very much related to the degree of activity. Sitting tolerance is reduced to less than an hour. Driving tolerance is around 45 minutes. Walking tolerance remains 10 to 15 minutes.
There is no pins and needles, tingling or numbness. There is no bowel or bladder disturbance.
.. He is able to drive but does not extend himself. He helps with lighter cleaning around the house. His wife tends to do the cooking and most of the shopping. There is no requirement for lawn mowing. He may do a small amount of gardening.
He is an avid reader and remains so. At home he has an ergonomic workstation. He has sit/stand workstation and has assessed the work-place for general ergonomics.
…He subsequently came to a spinal fusion in October 2012. This was a PLIF. This has resulted in an improvement in symptoms, particularly his lower limb symptoms.
In a report dated 7 October 2016 the applicant’s psychiatrist, Dr Chris Grant, noted:
He [the applicant] said he last held substantive employment in 2015 when he was involved in a history project for Toyota for five or six months, 12 to 18 hours weekly… Since then he has had occasional public speaking roles, but no substantive or recurrent employment.
In a subsequent report dated 5 June 2017 the applicant’s former neurosurgeon, Mr D’Urso, noted as follows:
The L5-S1 motion segment was degenerate and has been surgically fused. Solid interbody fusion has now developed. The L5-S1 level does not adversely impact John Martino’s capacity to work at this time.
.. The L4-5 motion segment is now biochemically disadvantaged due to the fusion at the L5-S1 level. This could well contribute to some retrolisthesis at the L4-5 level, as well as a degenerative disc disease at this level. It is likely that the L4-5 motion segment is the source of ongoing symptoms now which causes a degree of incapacity and disability.
In a report dated 8 September 2017 the applicant’s psychiatrist, Dr Ajit Selvendra, noted that following a further deterioration in the applicant’s lower back condition later in 2015 the applicant had become upset and developed a sense of futility and foreboding. Dr Selvendra went onto to note:
He [the applicant] reflected on his future and not being able to provide for his wife, family and also still being impaired at an older age, and with additional difficulties of obstructive sleep apnoea despite being cautious about his health. He demonstrated ongoing symptoms of depression, sleep disturbance, lethargy, lack of motivation, lack of energy with anxiety.
He described his routine at home with three times a week hydrotherapy, spending time laying on his back for a few hours each day either on couch or otherwise, and even undertaking work that way.
…. Following initial success after the back operation Mr Martino later stated he did not have sustained improvement and in retrospect was doubtful whether he would have gone ahead with the operation had he known this was his trajectory.
He had difficulty maintaining the eight hours of work and was not able to find any further suitable work despite trying. He attempted to do work on his ergonomically adjustable table and also did reading at times laying on his back. He was reluctant to take painkillers. He described decreased motivation, and has treatment such as hydrotherapy which he values, and also some archery.
… Mr Martino’s psychiatric condition does affect his functioning, and it is difficult to distance his mental health condition from his physical condition. However, his psychiatric condition alone should allow him to cautiously attempt more than eight hours per week of work and continue increasing as tolerated. However, at this stage it is unlikely that the mental health condition alone would allow him to work sustainably for 20 hours per week without destabilising his condition.
In 2018 occupational physician Dr James Rowe assessed the applicant in relation to his work capacity. In his report dated 17 January 2018 Dr Rowe noted that:
… Prognosis is poor. It is unlikely to improve and may possibly deteriorate.
I am not a psychiatrist. I cannot comment on the impact of any depression on his capacity for employment. I understand he has been seen by psychiatrist but no reports concerning his depression were attached to your referral.
He [the applicant] is working part-time as a project manager in a book publishing company. Because of his back pain and his ongoing treatment, he works between 8 and 20 hours per week and that is his capacity.
The applicant subsequently took umbrage in relation to some of the factual details contained in Dr Rowe’s January report and, apparently facilitated through the Department, spoke directly to Dr Rowe in relation to his concerns.
In a letter to the Department dated 3 April 2018 Dr Rowe states as follows:
Dr Martino asserts that he is not working at present and that he has not worked since October 2015 and that this is an error in my report of December 5 to you. Unfortunately I am unable to check my notes taken on the day of the exam: these are used as an aid-memoire and held for a short period only following the examination before the report is finalised.
He further objects that I have stated that his work capacity is between eight hours and 20 hours per week.
This part of my report reflects my answer to Part C on the forms attached with the referral regarding Capacity for Employment.
It is of course possible that I was mistaken when I stated that Dr Martino is currently working. If he would like to speak with me and clarify where he thinks I am in error, I’ll be happy to amend my report accordingly following our discussion.
Dr Rowe subsequently spoke with the applicant and then issued an amended report dated 23 April 2018 with an amended reference to the applicant’s capacity for work. In his amended report Dr Rowe states as follows:
The last time [the applicant] worked was in 2015 for up to 8 hours a week in a sedentary part-time position coordinating the publication of a book for Toyota and that remains his capacity.
He is not currently employed and has not worked since the above dates.
The respondent contends that the Tribunal should not place any weight on Dr Rowe’s subsequent report on the basis that the amended reference to the applicant’s work capacity would appear on the face of it to have no independent medical basis and therefore Dr Rowe’s amended description of the applicant’s work capacity should be considered to be unreliable. The applicant contends that the original report of Dr Rowe was factually inaccurate and that far from being unreliable Dr Rowe’s amended report more accurately captures the applicant’s work capacity at that time.
On 17 September 2018, Mr D’Urso provided a further report stating that:
MRI … Shows similar appearances to his previous MRI scan one year ago. There is evidence of surgical fusion at L5-S1 and some minor degenerative change at L4-5 with no evidence of any nerve root compression at any level.
John has become belligerent in regard to the previous report I wrote to the Department of Veterans’ Affairs, which I have enclosed for your reference.
I do not think I can help John any further in the future.
Subsequent to the VRB hearing, the applicant was assessed by neurosurgeon Associate Professor Tony Goldschlager. In his report dated 18 March 2019, in response to a question regarding whether or not the applicant’s limited work capacity should be considered permanent or without increased capacity for work expected in the future, Associate Professor Goldschlager stated:
At present this is indeterminate. Dr Martino symptoms can fluctuate and may improve, or become worse. It may be beneficial to have the patient assessed by an occupational physician who could give more specific recommendations as to his occupational activities and the limitations of these.
In the same report Associate Professor Goldschlager also stated:
Dr Martino is a writer. He has some sitting intolerance and his pain can flareup when working excessive hours. Dr Martino explained that he is unable to work for more than eight hours per week.
In his direct evidence the applicant told the Tribunal that following his back injury in 1991 he had experienced ongoing difficulty working for extended hours and at no stage during the intervening period up until 2012 did he have a capacity to work for in excess of 20 hours per week. The applicant described his lower back condition together with his mental health issues as having a significant impact on his studies as well as employment activities during this period. The applicant stated that he had particular difficulty with his conditions in 2004 while attempting a Diploma of Education while also working part-time.
The applicant described experiencing a more significant deterioration in his lower back condition in 2012 after undertaking physical activity while moving house with his wife. He described the activities as having been “too much and my back gave away completely, I was on a walking stick after being incapacitated for a week solid”. He stated that following that episode he was continuing to experience both significant lower back and leg pain. As a result of the deterioration in his condition the applicant was referred to neurosurgeon Mr D’Urso who, following an assessment, recommended surgery which was undertaken on 11 October 2012.
The applicant stated that his recovery from surgery was slow despite having made considerable effort in undertaking a rehabilitation program as recommended by Mr D’Urso which included hydrotherapy and Pilates. The applicant told the Tribunal that during all of 2013 and up until the first part of 2014 he continued to experience chronic pain and sciatica symptoms as reflected in Mr D’Urso’s September 2013 report. This required him to spend extended periods at rest or otherwise lying down. He was not working during this time and, with the exception of a period in 2015, has not worked in any substantive way since the surgery.
The applicant told the Tribunal that his condition improved to some degree through the course of 2014 and that while his improvement was not rapid it was marked and he was pleased with the progress he was making at that time and was looking forward to getting back into the workforce. He told the Tribunal that at this time he was free of significant leg pain for the first time in some time although there was still stiffness and soreness and he still needed to lie down on a regular basis for an hour or two at a time.
There was also evidence that around this time the applicant was engaging in some social activities as well as sport, specifically archery. The respondent contends that the applicant’s involvement in archery is evidence of the applicant’s improved physical condition at that time. When this contention was put to the applicant in cross-examination, the applicant told the Tribunal that he considered archery to be a gentle sport that is recognised as suitable for people with pronounced disabilities and that it had been recommended to him as a way of increasing strength in core muscles and which was beneficial for his condition. He told the Tribunal that he uses a very light bow and engaged in the sport within his physical capability. When asked about the extent of physical maintenance required on his archery equipment, the applicant told the Tribunal that it requires some oil to be rubbed into the bow every six months or so and that there is otherwise not a lot of maintenance. The Tribunal accepts the applicant’s evidence in this respect and notes that the applicant took up the sport as part of a recommended rehabilitation program.
The applicant told the Tribunal that his condition continued to improve into 2015 and at that time he secured some work in the form a contract with Toyota to write a history of Toyota’s manufacturing in Australia as well as some public speaking at University and a couple of private schools. The contract with Toyota ran for approximately six months. The applicant told the Tribunal that while undertaking his contract with Toyota he was required to do some interviews in Japan and that was the point at which he was taking pain killers and had extended himself beyond his medical limitations. He told the Tribunal that following his trip to Japan he attended a wedding of a close friend in Europe and that the combined effect of the two trips together with him pushing himself too hard physically had led to a further collapse in his back. The applicant told the Tribunal that he does not believe that the further deterioration he experienced at this time has ever fully recovered.
There was also evidence before the Tribunal that prior to his surgery the applicant had written a screenplay for his brother in law entitled “Steel” but that the screenplay had never entered production. He had also co-written a screenplay entitled “Olympia” which was pursued by a Russel Crowe production company but ultimately they were not able to raise the money to produce it. The applicant told the Tribunal he had also had discussions with another company in relation to gaming rights associated with this screenplay. He told the Tribunal he commenced co-writing the screen play in around 2010 when he was in a better condition physically. He completed the work in around 18 months. The applicant conceded that he had undertaken some administrative work in trying to get these projects off the ground but maintained that the work had not been onerous and had been spread out over the course of approximately 10 years. The applicant told the Tribunal that he is still open to selling the rights to the “Olympia” screenplay and doing further screenplay writing work to the extent he is physically capable but told the Tribunal that he has learnt through his experience that when he extends himself too much he suffers a further deterioration in his condition so he now tries to stay within his medical limitations. The applicant also told the Tribunal that he had been upfront with the department in relation to these activities, including by providing details in relation to the activities to the Department in writing, and had accounted for all income he had received.
In cross-examination, the respondent asked the applicant a number of questions regarding the nature of his work during his contract with Toyota in 2015. The applicant explained that the contract he had with Toyota involved part-time work for up to eight hours a week. This had been stipulated in the contract. The respondent’s counsel asked the applicant to explain an invoice issued in respect of the applicant’s contracted work with Toyota in 2015 dated 5 June 2015 that was included in the Tribunal materials. The applicant explained that the invoice was for a combination of some retrospective as well as prospective work under the contract between May and September 2015. The applicant told the Tribunal that he had undertaken work substantially consistent with his up to eight hours a week arrangement, but he conceded that on two occasions he had invoiced Toyota for 12 hours in a week although he stated that the nature of the work in each instance was not onerous. The applicant told the Tribunal one such occasion was while he was in Japan doing interviews for the project where he had been invoiced for his time at 12 hours per day over the five and half days of the trip but that his actual work during this four or five day period was limited to approximately three hours. He told the Tribunal that it had been agreed with Toyota that they would invoice them for half of every 24-hour period he was away for the trip but that the actual work he did was substantially less than that. He said that in the end there were only three interviews he was required to do, each running for approximately one hour. He said he did that work over the course of a four or five-day period.
When asked whether he considered the travel involved in the trip to Japan to have been onerous, the applicant stated that he agreed and that he believed the impact of the travel to have been a significant contributing factor in the further issues he had with his back later in that year. He told the Tribunal that after returning from Japan in around September he then travelled to Europe for a wedding of a close friend in either October or November. He stated that he was in Europe for about three weeks. He told the Tribunal that the plane trips in particular were very lengthy and that immediately following the trip to Europe his back started to flare up again very badly. The Tribunal accepts the applicant’s evidence in this respect. While the applicant presented as agitated and frustrated at times through the course of giving his evidence the Tribunal found his evidence to be consistent and reliable. While the applicant was not precise as to the exact date the further deterioration in his lower back condition occurred, based on the applicant’s evidence the Tribunal accepts that by the end of November, that is by 30 November 2015, the applicant’s lower back condition had deteriorated significantly.
When the applicant was asked whether he thought the difficulties he experienced following his trips in 2015 was just part of the ups and downs of his condition, the applicant told the Tribunal that he did not consider that such a description was an accurate representation of his condition following the further deterioration in late 2015. He told the Tribunal that the reports of Dr Rowe and Associate Professor Goldschlager made clear that he was suffering from an ongoing condition of the spine and that his prognosis was poor and not likely to improve. He told the Tribunal that Associate Professor Goldschlager had made clear to him that there may be a need for further surgery to his back to more effectively manage his condition.
The applicant’s evidence was that while the impact of his condition fluctuated to a degree, it had not recovered in any substantive sense since his further deterioration in late 2015. His evidence was that as a consequence of the ongoing impact of his lower back condition he continued to experience significant lower back pain and sometimes leg pain which required regular rest and extended periods laying down. His evidence was that he sometimes took medication for the management of his pain although not constantly. He told the Tribunal that he had continued with his hydrotherapy and archery within the limits of his physical capacity although he had since ceased doing Pilates on advice from his doctors. The applicant told the Tribunal that following his contract with Toyota he has not undertaken any other substantive work and that he believes that during the entire period since his initial recovery from the surgery he has not had a capacity to undertake work of eight hours or more a week.
The applicant was asked how he could explain the reference in Dr Grant’s report of October 2016 to the applicant having worked for five or six months at between 12 and 18 hours weekly. The applicant stated that he could not explain it but that it was wrong. When asked whether Dr Grant’s reference to hours worked might be explained by his work under the Toyota contract, the applicant stated that he did not agree with that and to suggest as much was just speculation and nothing more.
The applicant was also asked how he could explain the reference in Mr D’Urso’s report of 5 June 2017 that states that the applicant’s L5/S1 segment has been fused and does not adversely impact on the applicant’s capacity to work at this time. The applicant again stated that he believed the conclusion of Mr D’Urso was wrong and that that he had not been physically assessed for the purpose of the report, Mr D’Urso had not accessed all of his medical records in preparing the report and that the report contained a number of other factual errors in it. The applicant stated that he did not believe that the conclusions reached by Mr D’Urso in the questionnaire attached to his June 2017 report were reliable as, again, he had not physically examined him. When asked whether he agreed that Mr D’Urso’s reports of 2017 together with his later report of 17 September 2018 suggest that he suffered occasional exacerbated symptoms relating to his lower back condition which can be reasonably managed by anti-inflammatory medication, the applicant told the Tribunal he did not agree with that conclusion. He told the Tribunal that he had ongoing issues although occasionally things would be worse still and that sometimes he oscillated between a very low level of mobility to effectively none at all.
When asked about Dr Rowe’s statement in his initial reports that the applicant worked for a publishing company between eight and 20 hours per week, the applicant told the Tribunal that the statement was wrong and that he was not working at all at that time of the report nor had he ever worked for a publishing company.
When asked whether he considered that the statements included in Dr Grant’s 2016 report and Dr Rowe’s initial report appeared to be consistent and also appeared to be referring to the period the applicant was doing work with Toyota, the applicant stated that it may be consistent but that it was wrong and noted that Dr Rowe had issued an amended report that retracted the statement. The applicant told the Tribunal that after reading Dr Rowe’s initial report he had notified the Department of his concerns and subsequently been contacted by Dr Rowe to discuss his concerns regarding some of the factual detail in the report. Dr Rowe then issued an amended report dated 23 April 2018 which removes the reference to the applicant working for a publishing company between eight and 20 hours per week and replaces it with a statement that he has the capacity to work up to eight hours a week.
In his direct evidence the applicant also explained in some detail the impact his mental health conditions have on his work capacity. The applicant told the Tribunal that he continues to suffer from his accepted mental health conditions and has been taking Cymbalta for a number of years with different dosages depending on where he is at with his mental health at any particular point in time. He told the Tribunal that he experiences periods of insomnia which are related to mood and anxiety with subsequent lethargy and lack of energy the following day. He told the Tribunal that at times it can be protracted. He told the Tribunal that in 2004 while attempting to undertake a Diploma of Education he was working part-time and had experienced a breakdown as well as issues with his lower back condition. He told the Tribunal that it took approximately six months of therapy and counselling to be able to re-engage with his PhD studies. He said that he been married for just over a year at that point and that it was a particularly difficult time.
The applicant told the Tribunal that he also had a difficult period from a mental health perspective in 2013 following on from his spinal surgery at the end of 2012. He said that he was having difficulty with the uncertainty about how complete his recovery from surgery was likely to be and told the Tribunal that by the middle of 2013 he felt improved from a mental health perspective although he was still 100% incapacitated as a consequence of his physical condition at that time.
The applicant told the Tribunal he felt more significantly improved in the first quarter of 2014, and that his surgery recovery had gone well and consequently his mood lifted. The applicant told the Tribunal that, while that period was probably the best he had felt for a couple of years, he was still limited in his physical capacity. He told the Tribunal that at that point he was looking forward to re-engaging in the workforce and had taken up archery and doing other activities he had not done for a long period of time. The applicant told the Tribunal that he then had suffered his further deterioration in late 2015. He told the Tribunal that he endeavoured to manage his mental health by getting to the archery range when he can and also by undertaking hydrotherapy on a regular basis. He also told the Tribunal that he has the strong support of his wife and other family and friends.
When asked to what extent his mental health conditions further reduce his work capacity on top of the impact of his lower back condition, the applicant stated that he would defer to his psychiatrist Dr Selvendra who stated in his most recent report that the applicant’s work capacity based on his mental health conditions alone was limited to no more than 20 hours per week.
Based on the evidence before it, Tribunal is satisfied that the applicant was totally incapacitated as a result of his defence caused lower back condition from the date of his surgery in October 2012 through to around the middle of 2014. The Tribunal is satisfied that the weight of the medical evidence supports a conclusion that the applicant had recovered from his surgery and that his lower back condition and associated physical capacity improved at this time. The Tribunal is satisfied that the marked improvement in the applicant’s condition had occurred by 31 July 2014, being the date the applicant was physically assessed for the purpose of Dr Burke’s 21 August 2014 report.
The Tribunal found Dr Burke’s report to be particularly thorough. In his report Dr Burke notes the impact of the applicant’s lower back condition as resulting in a reduced sitting tolerance with a requirement to get up and move around on a regular basis; that the applicant can drive for approximately 45 minutes; he has a walking tolerance of around 500 meters or 10 minutes; and that activities involving heavy lifting increase his symptoms. Dr Burke also describes the applicant as experiencing an intermittent shock-like sensation in his leg. He describes the applicant as doing some light cleaning around the house and small amounts of gardening. He notes that he has taken up archery and also engages in some social activities at home. He notes that the applicant continues to take medication in the management of his mental health conditions as well as some anti-inflammatory medication.
On his physical examination of the applicant Dr Burke notes:
Back/Spine:
There were scars consistent with the previous surgery. There was no observable spasm, no guarding and no tenderness. Range of motion of the lumbar spine was markedly reduced. Forward flexion was to 40°, lateral deviation left and right to 15°, rotation left and right to 20°, extension to 10°. He could walk on his heels, walk on his toes and squat.
Lower limbs:
Neurological examination of the lower limbs was normal (power, time, reflexes and sensation). Sitting straight leg raising test was possible to 80° and supine straight leg raising test to 20°. Simulated rotation was positive and axial loading was negative.
In his summary and assessment Dr Burke notes:
He [the applicant] indicated he had a significant exacerbation of back symptoms in early 2012. This was associated with a house move and subsequently came to spinal fusion later in October 2012. He continues to be followed up by his treating spinal surgeon, Dr D’Urso.
He continues to describe ongoing symptoms. However, it is evident that there has been a quite marked improvement in symptoms as a consequence of the fusion operation.
Specifically on the issue of the applicant’s work capacity Dr Burke states as follows:
I think it is quite evident that he [the applicant] has the capacity to return to the workforce. At this stage, it would be prudent to avoid significant manual handling activities such as repeated bending twisting and heavy lifting activities. His training, education and experience have prepared him mainly for sedentary-type positions and in my opinion he would have the capacity to return to these positions. He indicated that his spinal surgeon felt that he may be able to return to work around 16 hours a week. He has not seen Dr D’Urso for approximately an eight or nine month period of time. I think his condition has stabilised further and in my opinion it should be possible for him to be able to cope with at least 24 to 30 hours a week with the expectation of returning to work full-time over 6 to 12 month period of time.
This assessment is predicated on the assumption that a psychiatric impairment is not an impediment for returning to the workforce.
In the Tribunal’s view it is clear from the report that at that time he assessed the applicant Dr Burke viewed him as having the capacity to return to the workforce in sedentary type positions of up to 24 to 30 hours per week. Dr Burke expressly qualifies his assessment with a requirement to factor in the impact of the applicant’s mental health conditions. The Tribunal is satisfied that when read with Dr Selvendra’s report dated 4 June 2013 which stated that on the basis of the applicant’s accepted mental health conditions alone the applicant’s work capacity would be limited to no more than 20 hours a week, that the applicant’s work capacity as at 31 July 2014 is above eight hours per week but limited to up to 20 hours per week.
The Tribunal notes that this conclusion is consistent with the report of Mr D’Urso of 14 May 2014, although the Tribunal has placed less weight on Mr D’Urso’s May report on the basis that Mr D’Urso did not appear to have physically assessed the applicant for the purpose of that particular report and that his previous report in October 2013 was expressed in more cautious terms, noting that the applicant was making some “slow progress” and that he “needs to be a little patient with his recovery”.
While Dr Burke references Mr D’Urso’s May 2014 report in his report, the Tribunal is satisfied that Dr Burke’s conclusions are based on his own independent assessment of the applicant having physically examined him. The Tribunal notes that this conclusion is also consistent with Dr Burke’s subsequent report dated 21 September 2015. The Tribunal also notes that this latter report was prepared prior to the deterioration in the applicant’s back condition following his return from Europe later in 2015.
In addition, the Tribunal’s conclusion that the applicant had a work capacity during this period of between eight and 20 hours a week is further reinforced to some limited degree by the direct evidence of the applicant himself. While the applicant made very clear to the Tribunal that he did not consider himself to have a work capacity at this time of in excess of eight hours a week, it was clear from his direct evidence that the applicant believes that from the first quarter of 2014 he had made a more substantial physical recovery from his surgery, was generally feeling better and more optimistic and commenced undertaking activities he had not previously participated in for several years, including social activities and also taking up archery.
The Tribunal is satisfied that the applicant’s broader circumstances during this period as described by him in his direct evidence would strongly suggest that his physical condition had improved quite markedly when compared to his immediate post-surgery condition through the course of 2013.
The Tribunal accepts that Dr Burke’s assessment is inconsistent with the assessment of the applicant’s GPs during this period, which limited the applicant’s work capacity to less than eight hours a week. The Tribunal acknowledges that the applicant’s GPs, and in particular Dr Khanina, have had a consistent engagement with the applicant over an extended period of time, however, given the clarity of Dr Burke’s conclusion together with his very significant experience and specialisation, the Tribunal prefers the evidence of Dr Burke.
For these reasons, the Tribunal is satisfied that from the date of the application through to 30 July 2014 the applicant had a work capacity of less than eight hours a week due to his defence caused conditions. Further the Tribunal is satisfied that from 31 July 2014 until the applicant’s further deterioration of his lower back condition at the end of November 2015 the applicant had a work capacity of between eight and 20 hours per week due to his defence caused conditions.
The Tribunal is satisfied that the applicant suffered a significant further deterioration in his lower back condition at the end of 2015 which once again further constrained his working capacity to less than eight hours per week. The Tribunal is also satisfied that the applicant’s lower back condition is not fully recovered from this further deterioration and that it continues to cause ongoing pain which requires rest on a regular basis through the course of the day and results in a significant limitation on the applicant’s capacity to undertake remunerated employment. Consistent with these conclusions, the Tribunal is satisfied that the applicant’s defence caused conditions have resulted in his work capacity being limited to less than eight hours per week from 30 November 2015 through to the end of the relevant assessment period.
The Tribunal is satisfied that the report of neurosurgeon Associate Professor Tony Goldschlager dated 18 March 2019 supports this finding. Associate Professor Goldschlager prepared his report after having physically assessed the applicant and also having reviewed other relevant medical evidence including, in particular, the applicant’s more recent MRI scan. In his report Associate Professor Goldschlager states:
Dr Martino had undergone an L5/S1 minimally invasive fusion by Mr Paul D’Urso in 2015. Subsequently he had improvement of his pain for some time. Dr Martino described being cramped on a plane when returning from overseas and developing significant back pain and left sided lower extremity pain following this. This fluctuated in intensity, but recently has been quite bad. The pain was felt in a band across his lower back, which was worse when he was upright, as well as some pain in his lateral thigh. He called this sciatic pain.
An MRI scan dated 16 August 2018 showed no neural compression. There was possibly some L5 nerve root, but I did not think this was compressed. The pain was not in the L5 distribution. Otherwise the MRI looked satisfactory. The operative site looked satisfactory.
Clinically he had a normal examination. His hip was not irritable to internal rotation and he had no weakness.
I was unsure as to the cause of his problem. I organised for a bone scan, to assess for facet arthropathy, as well as a CT scan, to exclude pseudarthrosis. I explained to Dr Martino that a differential was that the pain could be coming from his left hip, so I organised for an MRI scan of his hip as well.
Dr Martino returned for review with his imaging results on 07 November 2018. His imaging had been very helpful. As mentioned above, a differential diagnosis for his problem included pseudarthrosis, which he did not have. There was solid bridging of bone, indicating fusion at the L5/S1 level, contrary to the radiologist’s report. There was also no evidence of loosening of the screws. There was no halo around the screws and normal uptake on the bone scan. There was some mild hip osteoarthritis, which probably did not account for his pain.
There was some soft tissue density in the left lateral recess at L5/S1. This was not reported on the previous MRI scan, but going back it could be seen on the MRI scan. It was harder to see due to the artefact from the screws. This could be some scar tissue from the surgical tract, but it was a little more medial than the tract.
I thought this could account for his pain. He described his pain being in his posterior buttock, posterior lateral thigh and sometimes down to the dorsum of his foot. This was confounded by a previous ankle injury as well.
I explained to Dr Martino that there were two options; we could explore this area surgically, or monitor it. We agreed to monitor it and I organised to review John in six months with a repeat CT scan.
I saw Dr Martino again on 12 February 2019, essentially for the purpose of this report. He still had ongoing left-sided radicular pain in the L5 distribution. This was fairly constant initially, but was now present intermittently. This was provoked after walking distance of approximately one kilometre and relieved on sitting down. This was consistent with a neurogenic claudication type pain. Dr Martino described marked stiffness in his back the day after any substantial walking. He also described back pain, which was worse than the leg pain.
On examination he had no weakness in dorsiflexion. He was able to heel walk, but he did have a Trendelenburg lurch on the left. His reflexes were normal.
Dr Martino explained that he was undergoing therapy and only able to work eight hours per week as the flare ups of his pain limited his ability to work.
In the Tribunal’s view it is clear from Associate Professor Goldschlager’s report that the associate professor has identified a soft tissue density in the left lateral recess at L5/S1 which was not reported on the applicant’s previous MRI scan, that could be related to scar tissue from the surgical tract and that could potentially explain the ongoing pain the applicant had described to him. The Tribunal is satisfied that the description of the applicant’s pain as noted in the report is consistent with the applicant’s description of his pain for the period since late 2015 when he suffered his deterioration. Associate Professor Goldschlager makes clear in his report that his observation potentially justifies surgical exploration. Significantly, Associate Professor Goldschlager also makes clear in his report that the soft tissue density issue he identified was not easily identifiable from the MRI scan and had not previously been reported on from the MRI scan. In addition, in his report Associate Professor Goldschlager notes that some of the back pain that the applicant has described may be the result of the sacral fracture, which was associated with the applicant’s initial service caused injury.
In his report Associate Professor Goldschlager clearly states that in his view the applicant’s lower back condition prevents him from undertaking remunerative work of more than eight hours per week. The respondent contends that less weight should be given to this statement on the basis Associate Professor Goldschlager’s opinion was substantially informed by Dr Martino himself. The Tribunal rejects this contention. While the Tribunal accepts that the applicant told Associate Professor Goldschlager that he was limited in his work capacity to no more than eight hours per week the Tribunal is satisfied that Associate Professor Goldschlager would not have stated a clear and unequivocal conclusion in the manner in which he did unless he was satisfied on basis of all of the medical information he had access to, together with his own assessment of the applicant that such a conclusion was justified in his professional view.
In reaching its conclusion in relation to the ongoing limitation of the applicant’s work capacity to less than eight hours a week, the Tribunal has also placed some weight but not significant weight on the reports of Dr Rowe. While the Tribunal accepts the respondent’s contention that the circumstances surrounding the amendment of Dr Rowe’s report to remove reference to the applicant having a work capacity of between eight and 20 hours per week was somewhat unusual and that it does tend to suggest that the description of the applicant’s limited work capacity contained in the amended report is based very substantially if not entirely on what Dr Rowe had been told by the applicant, in the Tribunal’s view that does not justify dismissing the balance of Dr Rowe’s report in its entirety. It is clear from each of Dr Rowe’s reports, including his initial report dated 17 January 2018, that Dr Rowe accepts that the applicant continues to suffer from ongoing pain in his lower back that radiates to his left leg; that he had stiffness in movement to the lumbar sacral spine; and that his prognosis is poor and that his condition is unlikely to improve and may possibly deteriorate. In the Tribunal’s view there is not a reasonable basis for questioning the independence or reliability of those professional observations and the Tribunal does not do so. In the Tribunal’s view, Dr Rowe’s observations in this respect further support the Tribunal’s conclusion that the applicant has continued to suffer ongoing pain in connection with his lower back condition in the period since his further deterioration in late 2015 consistent with the applicant’s direct evidence.
In addition, in reaching its conclusion in relation to the applicant’s ongoing limited work capacity the Tribunal has also placed some weight on the report of the applicant’s psychiatrist Dr Ajit Selvendra dated 8 September 2017. While Dr Selvendra’s report does not provide a specific conclusion in relation to the impact of the applicant’s lower back condition on his work capacity, appropriately considering Dr Selvendra’s area of expertise, the report does however describe a history of engagement with the applicant including the applicant’s description of ongoing pain in relation to his lower back condition which in the Tribunal’s view is substantially consistent with the applicant’s direct evidence to this Tribunal. In the Tribunal’s view, it is relevant in this respect that Dr Selvendra had seen the applicant on 16 December 2015 and also on 7 June 2017. In his report Dr Selvendra notes that:
When reviewed in 2015 Mr Martino had an operation on his lumbar/sacral back region. He felt it had been relatively successful initially allowing him the chance to improve. He obtained work through Toyota, and the employer allowed to work around his requirements of eight hours per week, and also flexible hours of work at home.
However he did later have deterioration and significant back discomfort which did not resolve, MRI scans by specialist showed notable further deterioration in his back, with the prospect of additional problems later. This upset Mr Martino as he did not expect this and he developed a sense of futility and foreboding.
Following initial success after the back operation Mr Martino later stated he did not have sustained improvement and in retrospect was doubtful whether he would have gone ahead with the operation having known this was the trajectory.
He had difficulty maintaining the eight hours of work and was not able to find any further suitable work despite trying. He attempted to do work on his ergonomically adjustable table and also did reading at times laying on his back. He was reluctant to take pain killers. He described decreased motivation, and has treatments such as hydrotherapy which he values, and also some archery.
He was worried about the future, and had negativity “how many employers are going to put up with this”, “just being realistic in this respect”, and described a significant adjustment process. He described uncertainty for the future and described the back issue as a “major hole in my life”.
In pressing its contention that the appropriate assessment of the applicant’s work capacity following his recovery from surgery in 2012 is between eight hours and 20 hours per week, the respondent has relied significantly on the various reports of the applicant’s former neurosurgeon Mr D’Urso. The Tribunal has already addressed the conclusions reached by Mr D’Urso in his earlier reports. In respect of Mr D’Urso’s report dated 5 June 2017 the Tribunal accepts the contention by the applicant that less weight should be given to the conclusions reached by Mr D’Urso in the report given that it would appear clear on the face of the report that Mr D’Urso had not physically examined the applicant for the purpose of that report. In relation to Mr Urso’s report dated 5 April 2016 the Tribunal notes that the report is particularly brief. Significantly, the report does identify ongoing issues in the form of retrolisthesis at L4-5 and notes that the applicant had experienced a bout of acute back pain toward the end of 2015 and has had a few bouts since. Mr D’Urso concludes that the applicant’s symptoms are probably related to the L4-5 level which causes some “acute local spasms and locking”.
In the Tribunal’s view Mr D’Urso’s April 2016 report is not fundamentally inconsistent with the applicant’s direct evidence regarding the deterioration towards the end of 2015, nor is it fundamentally inconsistent with the conclusions reached by Associate Professor Goldschlager, although the later would appear to acknowledge a greater materiality in the applicant’s ongoing symptoms. In any case, to the extent of any inconsistency, the Tribunal prefers the conclusions of Associate Professor Goldschlager on the basis that his assessment would appear to have involved a more thorough examination of the applicant’s more recent MRI scan and his assessment is also more current than those of Mr D’Urso.
For these reasons, the Tribunal satisfied that following the deterioration in the applicant’s lower back condition at the end of November 2015 the applicant has continued to experience significant recurrent pain associated with his lower back condition which has continued to significantly impact on the applicant’s capacity to undertake remunerated work. Again, for the reasons set out above, the Tribunal is satisfied that the appropriate assessment of the applicant’s work capacity due to his defence caused conditions from 30 November 2015 for the balance of the assessment period is less than eight hours per week.
The Tribunal now turns to the question of whether the applicant’s work capacity of less than eight hours can be said to be permanent. The applicant contends that it is. He relies heavily on the conclusions of Dr Rowe who described his prognosis as being poor with the possibility of deteriorating further as well as again the medical certificates of his GPs who since 2012 have consistently certified the applicant as having a work capacity of less than eight hours.
The Tribunal certainly accepts that the applicant’s work capacity of less than eight hours per week is likely to be ongoing for a period of time. However, the Tribunal is not satisfied that there is sufficient independent medical evidence before it to justify a conclusion that the applicant’s work capacity of less than eight hours a week is likely to continue on a permanent or indefinite basis sufficient to satisfy the permanency requirement in section 24 of the Act.
It is clear from Associate Professor Goldschlager’s report of 18 March 2019 that he is not satisfied that the applicant’s ongoing issues with his lower back condition are permanent and that he considers it appropriate for a further assessment to be made. In his report in response to a question regarding whether the applicant’s capacity for work could be expected to increase in the future Associate Professor Goldschlager states as follows:
At present this is indeterminate. Dr Martino symptoms can fluctuate and may improve, or become worse. It may be beneficial to have the patient assessed by an occupational physician who could give more specific recommendations as to his occupational activities and the limitations of these.
The Tribunal accepts Associate Professor Goldschlager’s opinion in this respect. In the Tribunal’s view Associate Professor Goldschlager’s report is the most current and authoritative report on the applicant’s present work capacity and he clearly expresses uncertainty about whether or not that capacity is likely to improve in the future. The Tribunal prefers Associate Professor Goldschlager’s report over those of Dr Rowe, specifically on the question of the applicant’s work capacity for the reasons already set out. The Tribunal also prefers the conclusions of Associate Professor Goldschlager to the assessments of the applicant’s GPs due to his high level of specialisation.
More specifically the Tribunal accepts Associate Professor Goldschlager’s recommendation that further assessments are necessary in order to form a more informed view about the permanency of the applicant’s lower back condition and the impact it is likely to have on his ongoing work capacity. It is of course possible that if the further assessments Associate Professor Goldschlager has recommended are undertaken that a more informed view could be reached on this point. Those further assessments might show that the capacity constraints are ongoing, justifying a conclusion that the rate be adjusted to permanent. Alternatively, they may show that the applicant’s work capacity constraints have resolved to a sufficient degree justifying his rate being set at the lower intermediate rate. The Tribunal does not accept the applicant’s contention that the Tribunal can rely on the conclusions of Dr Rowe in respect of the applicant’s work capacity. The Tribunal accepts that those conclusions are not reliable for the reasons set out.
In all the circumstances the Tribunal is satisfied that the applicant’s pension should be set at the temporary special rate prospectively from the date of the Tribunal’s decision for a period of 18 months. The Tribunal is satisfied on the basis of the evidence before it that the applicant is likely to continue to have a work capacity of less than eight hours for at least this period of time. Such a period of time would also enable any necessary further assessment to be undertaken to reach a more informed view as to whether the applicant’s pension should be made permanent at the special rate, continued at the temporary special rate for a further period, or alternatively revert to the lower intermediate rate.
In reaching this conclusion the Tribunal has had regard to the decision of Leigh and Repatriation Commission [2006] FCA 395 and also McDonald v Director General of Social Security (1984) 6 ALD 6 referred to by the Respondent. For the reasons set out above, the Tribunal is satisfied that in the circumstances of this case there is insufficient independent medical evidence to reach a conclusion that the incapacity the applicant suffers as a consequence of his defence caused conditions can be said to be likely to subsist for a sufficiently extended period to conclude that the incapacity is permanent for the purposes of the Act. This is not to suggest that a further assessment of the applicant is unlikely to determine that incapacity is permanent. Rather, it is the acknowledgement of the conclusion of Associate Professor Goldschlager that further assessment is required before such a conclusion can be reliably reached.
As indicated earlier in these reasons, at the outset of the hearing the applicant made clear to the Tribunal that he was pressing his case based solely on the impact of his lower back condition and not relying on the impact of his other accepted mental health conditions. Notwithstanding the applicant’s position in this respect, in reaching its final view, the Tribunal has taken account of the impact of both sets of conditions on the applicant’s work capacity. However, having done so, the Tribunal has formed the view that the impact of the applicant’s mental health conditions on his work capacity does not alter the Tribunal’s ultimate conclusions in any respect. It does, however, further reinforce the Tribunal’s view that the applicant’s work capacity continues to be less than eight hours a week following the deterioration of his back condition in late 2015. On the basis of the material before it, and most significantly the conclusions reached by the applicant’s psychiatrist Dr Ajit Selvendra in his report dated eight September 2017, the Tribunal accepts that the applicant’s work capacity is limited to no more than 20 hours per week on the basis of his accepted diagnosed condition of Major Depressive Disorder with associated anxiety alone. While very little independent medical evidence was before the Tribunal on the point, the Tribunal is satisfied that the applicant’s defence caused mental health conditions are likely to further compound the applicant’s work capacity to some degree. The Tribunal is not satisfied that any compounding effect on the applicant’s work capacity as a consequence of the applicant’s mental health conditions would have reduced the applicant’s work capacity to less than eight hours a week between 30 July 2014 and 29 November 2015. In the Tribunal’s view the weight of the evidence strongly suggests that the applicant had improved mood and less significant symptoms associated with his mental health condition during that period and until his further deterioration in his back condition towards the end of 2015. Nonetheless, in the Tribunal’s view, it would be appropriate in undertaking any further assessment to ensure that an up to date assessment is made of the compounding impact of the applicant’s defence caused lower back and mental health conditions. This would assist in any assessment of the appropriate rate of pension beyond the 18 month prospective period.
Conclusion
For these reasons, the Tribunal satisfied that the appropriate rate of pension to be applied to the applicant:
(a)in respect of the period from 12 March 2013 to 30 July 2014 is the temporary special rate backdated to 12 December 2012 in accordance with section 25 of the Act;
(b)in respect to the period from 31 July 2014 to 29 November 2015 is the intermediate rate;
(c)in respect of the period from 30 November 2015 for the balance of the assessment period is the temporary special rate; and
(d)and prospectively from the date of this decision for a period of 18 months is the temporary special rate but subject to a further review to be undertaken before the conclusion of that period.
DECISION
The decision under review is set aside and substituted for a new decision that the appropriate rate of pension to be applied to the applicant:
(a)in respect of the period from 12 March 2013 to 30 July 2014 is the temporary special rate backdated to 12 December 2012;
(b)in respect to the period from 31 July 2014 to 29 November 2015 is the intermediate rate;
(c)in respect of the period from 30 November 2015 for the balance of the assessment period is the temporary special rate; and
(d)prospectively from the date of this decision for a period of 18 months is the temporary special rate but subject to a further review to be undertaken before the conclusion of that period.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member
..............................[sgd]..........................................
Associate
Dated: 13 May 2021
Date of hearing: 16 July 2019 Date final submissions received: 25 July 2019 Applicant: In person Advocate for the Respondent: K. Rudge
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Judicial Review
-
Procedural Fairness
-
Remedies
-
Statutory Construction
-
Standing
0