Maurice Chopping and Repatriation Commission
[2013] AATA 362
•31 May 2013
[2013] AATA 362
Division VETERANS' APPEALS DIVISION File Number
2011/5050
Re
Maurice Chopping
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Professor P ReillyDate 31 May 2013 Place Adelaide The Tribunal:
(a)affirms the decision under review insofar as that decision determined that Mr Chopping was not eligible for pension at the special rate; and
(b)remits to the respondent the question of whether Mr Chopping is entitled to the extreme disablement adjustment provided for in s 22 of the Veterans' EntitlementsAct 1986.
.......................[Sgd].................................................
Senior Member K Bean
CATCHWORDS
VETERANS' AFFAIRS - Veterans' entitlements - Rate of disability pension - Special rate - Whether factors other than accepted disability contributed to veteran being prevented from continuing to undertake remunerative work - Veteran suffering arthritis in knees and shoulders - Veteran carried out a variety of different forms of employment in the period before ceasing remunerative work - "Alone test" not satisfied - Ameliorating provision also not satisfied - Decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986, s 24
CASES
Repatriation Commission v Hendy (2002) 76 ALD 47
Jackman v Repatriation Commission, (Unreported, Federal Court, Tamberlin J, 30 June 1997)
Smith and Repatriation Commission (2012) 131 ALD 63
Thorpe and Repatriation Commission [2011] AATA 491
Repatriation Commission v Connell (2011) 123 ALD 440REASONS FOR DECISION
Senior Member K Bean
Professor P Reilly31 May 2013
INTRODUCTION
The applicant, Mr Chopping, served in the Australian Army from 26 March 1968 to 25 March 1971. His service included operational service in Vietnam for approximately ten months, in the course of which he underwent a number of extremely traumatic experiences.
After struggling with the symptoms of the condition for many years, Mr Chopping was finally diagnosed as suffering from Post-Traumatic Stress Disorder (PTSD) in approximately 2003, and this has subsequently been accepted as a war-caused disability. Mr Chopping also has a number of other war-caused disabilities, including lumbar spondylosis, and is currently in receipt of a disability pension at 100 per cent of the general rate.
Notwithstanding the effects of his war-caused conditions, Mr Chopping returned to work after his Vietnam service, and continued to work for many years thereafter, running a highly successful farming operation and a number of other successful businesses. However, commencing in approximately 2003, his PTSD symptoms began to become more debilitating, and over the ensuing few years he gradually reduced his employment activities, ultimately selling his farm, located in Western Australia, in 2006. Since that time, Mr Chopping has not worked, other than in a part-time job, for a relatively short period.
In light of the effects of his accepted conditions and the fact that he had ceased remunerative work, on 10 December 2009 Mr Chopping lodged an application for an increase in his pension.[1] However, the Repatriation Commission decided that he did not meet the requirements for payment of pension at the special rate,[2] and that decision was affirmed by the Veterans’ Review Board (VRB).[3]
[1] T4/13.
[2] T5/31.
[3] T3/9.
Mr Chopping subsequently lodged an application with this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.
LEGISLATION AND ISSUES
In order to establish that he is entitled to be paid disability pension at the special rate, Mr Chopping must demonstrate that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes of this matter, the assessment period is the period between when Mr Chopping first lodged his application on 10 December 2009[4], and the date of this Tribunal’s decision.[5]
[4] T4/13.
[5] VE Act, s 19(9).
Section 24 of the VE Act relevantly provides as follows:
“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.
…”
There is no dispute between the parties that the conditions suffered by Mr Chopping and which have been accepted as war-caused are:
(c)Folliculitis with acne;
(d)Pterygia;
(e)PTSD;
(f)Bilateral sensorineural hearing loss;
(g)Bilateral tinnitus; and
(h)Lumbar spondylosis.
There is also no dispute between the parties that Mr Chopping satisfies ss 24(1)(aa), (aab), (a), (b) and (d) of the VE Act, and we also accept that he satisfies those provisions.
However, Mr Crowe, who appeared as advocate for the respondent, contended that Mr Chopping did not satisfy the “alone” test prescribed by s 24(1)(c), either directly or with the benefit of the “ameliorating” provision, s 24(2)(b). We note that Mr Crowe did not put in issue the second limb of s 24(1)(c) by arguing that Mr Chopping was not suffering a loss of earnings, but rather limited his arguments to whether Mr Chopping satisfied the first limb, being the “alone” test.
It follows that the issues before us are:
(a)whether, pursuant to s 24(1)(c), by reason of his war-caused incapacity alone, Mr Chopping has been prevented from continuing to undertake the remunerative work that he was previously undertaking; and, if not,
(b)whether, at any time during the assessment period, Mr Chopping satisfied the ameliorating provision, namely s 24(2)(b).
For completeness, we note that as Mr Chopping turned 65 after lodging his application but before the date of the hearing, an issue arises as to whether, if he is not entitled to the special rate of pension, he is entitled to the extreme disablement adjustment pursuant to s 22 of the VE Act. However both parties agreed that, in the event we find Mr Chopping is not entitled to receive pension at the special rate, the issue of the application of s 22 should be remitted to the respondent.
We propose to proceed to address the first of the issues identified above, before turning to the second issue.
HAS MR CHOPPING BEEN PREVENTED, BY HIS ACCEPTED DISABILITIES ALONE, FROM CONTINUING TO UNDERTAKE THE REMUNERATIVE WORK THAT HE WAS UNDERTAKING?
The correct application of the test set out in s 24(1)(c)
In the recent decision of Smith v Repatriation Commission (2012) 131 ALD 63, her Honour Justice Gordon summarised the effect of some of the relevant authorities as follows (at [48]):
“(1)In applying s 24(1)(c), the task is ‘to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well’: Cavell v Repatriation Commission (1988) 9 AAR 534 at 539; Repatriation Commission v Hendy (2002) 76 ALD 47 at [37] and Forbes v Repatriation Commission (2000) 101 FCR 50 at [32].
(2)In Flentjar at 4-5 Branson J propounded four questions designed to address the s 24(1)(c) issue:
1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the [VE] Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
(3)Consideration of the “remunerative work” is not limited to the last job undertaken by the veteran; regard should be had to the types of work performed by the veteran: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 and Repatriation Commission v Hendy (2002) 76 ALD 47 at [36].
(4)The phrase “remunerative work” is not focused upon the particular tasks and duties involved in specific jobs. In identifying the relevant “remunerative work”, the decision-maker must look “to the type of substantive work undertaken by the veteran at a higher level of generality”: Repatriation Commission v Butcher (2007) 94 ALD 364 at [7]; Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 and Starvcevich at 225.”
For completeness, we also note that it is clear from the applicable authorities that there is no “presumption of continuance”. In other words, there is no presumption that because a veteran ceased a particular form of work by reason of his war-caused incapacity alone, the veteran must be taken at the application day to be prevented from carrying out that work by reason of his war-caused incapacity alone.[6]
[6] Jackman v Repatriation Commission (Unreported, Federal Court, Tamberlin J, 30 June 1997).
It is against the background of these authorities that we are required to assess whether, at any time during the assessment period, Mr Chopping satisfied s 24(1)(c).
As Mr Chopping has carried out a number of different types of work over the course of his working life, it is desirable that we identify with precision the “remunerative work” that he was undertaking, before proceeding to address the application of the alone test more directly.
What was the “remunerative work” that Mr Chopping was undertaking?
In both his statement and oral evidence, Mr Chopping said that the main work he had undertaken was large scale farming. He explained that at the time he commenced his military service in 1968, his family owned a beef and grain farm and when he returned from his service in Vietnam, he continued to work on the family farm. He subsequently bought a farm of his own in Western Australia, in about 1980, which he operated until 1988. He then sold that farm and bought another farm, also in Western Australia, and undertook beef and grain farming again. He continued working that farm until he sold it in 2006.
However at the same time that he owned and operated these farms, Mr Chopping also undertook a number of other remunerative activities. He said that in approximately 1982 he commenced a business in bitumen paving which continued for about 18 months.[7] In around 1991, he also bought into a trucking business which mainly undertook carting of fuel and wool. He said in addition to operating that business, he also drove some of the trucks himself. He retained that business until approximately 2003/2004. In approximately 1992, he said he also “bought into” a lime sand mine which he subsequently sold in approximately 2005. He said he operated the trucking business in conjunction with the lime sand mine and the trucks were used to haul lime sand to farmers to spread on their farms.
[7] Exhibit 2, [19].
At the hearing, Mr Chopping also said he had undertaken some further work since selling his farm and his trucking and mining businesses. He said that he and his wife had since moved to Darwin and whilst in Darwin in approximately May 2008 he obtained some work on a charter vessel conducting pleasure cruises for an operator known as “Sunset Cruises”. He said he did this work for approximately nine months in total, although this was interrupted by the wet season. He said his duties included looking after the “mechanical side” of the boat, mooring and tying up. He did this job from approximately 5 pm til 9 pm, 5 to 7 days per week. He said although he had looked for other work since ceasing that job, this was the last work he had actually undertaken.
In light of the evidence before us therefore, we have concluded that the “remunerative work” previously undertaken by Mr Chopping is properly characterised as:
(a)operating and working on large scale farms including maintenance of vehicles and farm machinery;
(b)operating small paving, trucking and mining businesses;
(c)truck driving; and
(d)working as part of the crew on a small cruising boat, including mechanical maintenance of the vessel.
Having identified the work undertaken by Mr Chopping, we will now turn to the reasons for him being prevented from continuing to undertake that work.
What were the reasons Mr Chopping was prevented from continuing to undertake this work?
Mr Crowe conceded for the respondent that Mr Chopping was prevented from continuing to undertake the work he had done in the past, and that the main reason for Mr Chopping ceasing the remunerative work he had previously undertaken was his accepted PTSD condition. Having regard to Mr Chopping’s evidence that his employment with Sunset Cruises was terminated following a verbal altercation between himself and a harbour official, Mr Crowe also conceded that Mr Chopping was prevented from continuing with that particular job by reason of his PTSD condition alone.
However Mr Crowe contended that it was not sufficient for Mr Chopping to establish that he had ceased his last job by reason of his accepted disabilities alone. Rather, Mr Crowe submitted that it was necessary for Mr Chopping to establish that, during the assessment period, he had been prevented from carrying out the kinds of remunerative work he had previously done, by reason of his accepted disabilities alone. He contended that factors other than Mr Chopping’s accepted disabilities had contributed to him no longer carrying out the remunerative work he had undertaken in the past. In particular, he contended that the problems Mr Chopping was having with arthritis in his shoulders and knees were part of the reason for him deciding to sell his farm and also part of the reason that he had to ceased to carry out the more physically demanding types of work he had done in the past.
While he conceded having arthritis in his shoulders and knees which flared up from time to time, Mr Chopping was adamant that this made no contribution to his decision to sell his farm. He also said that his arthritis had not made any contribution to him ceasing farming work, or any of the other work he had previously undertaken.
Therefore the main issue in dispute between the parties is whether the arthritis in Mr Chopping’s shoulders and knees made a contribution to him ceasing to undertake the work he had undertaken in the past, such that he does not qualify for the special rate of pension. Our discussion of the evidence will accordingly focus on that issue.
The evidence
In his statement, Mr Chopping said:
“I have minor arthritis in my bilateral shoulders and bilateral knees. There have been no specific events that have caused trauma to those areas and I have not received any medical treatment on either my knees and shoulders.
My shoulders and knees do not prevent me from working.”[8]
[8] Exhibit 2, [12]-[13].
In his oral evidence, Mr Chopping said he felt he had had arthritis for about thirty years and it had become somewhat worse as he had grown older. He said his arthritis would occasionally flare up but that it did not affect him working. In particular, he said it did not affect him in carrying out farming or trucking work as he was able to do all of the physical activities necessary to carry out this work. He also said his arthritis had not affected him in carrying out work associated with the mine, as this took very little effort on his part.
In the course of his evidence, Mr Chopping was asked about the following paragraphs of the report of Dr Mary Wyatt, Consultant Occupational Physician, dated 28 March 2012:
“In discussing ceasing his work, Mr Chopping said there had been a misunderstanding about his physical ailments and whether they contributed to him ceasing work. The treating general practitioner does say in the documentation that Mr Chopping had ceased work because he was not physically capable of working, in addition to his mental impairment. Mr Chopping said he had been embarrassed about admitting his mental health issues, so he lied to the doctor about his physical problems.
With respect to his physical problems, Mr Chopping said he has ongoing soreness of his knees and shoulders. He said he made a series of devices to lessen his physical work on the property. He did not have to lift truck tyres, and made a range of devices so he did not have to do a great deal of manual handling. He also changed what he did on the property; namely, doing less maintenance and planting less wheat.
Mr Chopping advises that physically he does not have significant problems. The soreness in the knees and shoulders does not cause him problems. He said the shoulders are a little sore after activity, but it does no stop him doing anything these days. Mr Chopping said he has not had any treatment for his knee or shoulder problems, nor is he having any current treatment.”[9]
[9] Exhibit 4, page 3.
In response to this report, Mr Chopping acknowledged that he had accentuated his physical problems in talking to his general practitioner because he was embarrassed about his PTSD condition. He also acknowledged that he had had soreness in his knees and shoulders for years, but said this was minor. He further acknowledged that he had made devices to help him carry out the physical work on the farm, but said “that’s how farming goes”. He said when he had free time he liked to manufacture things to make life on the farm easier as it helped to keep him busy.
Mr Chopping was also asked about a particular medical report form completed by his general practitioner in Darwin, Dr Tonga, on 13 March 2009. In that form, Dr Tonga indicated that Mr Chopping suffered from pain in his shoulders, knees and back, and that he had “restricted range of movements in these areas”. Dr Tonga also stated in relation to these conditions that “all combine to restrict ability to work”.[10] Dr Tonga also stated that Mr Chopping had ceased work in February 2006 and that he “sold farm because he was physically unable to maintain required workload”.[11] Asked about the effects of Mr Chopping’s non accepted disabilities on his ability to work, Dr Tonga also stated “all added to the PTSD … makes the veteran unable to cope with any return to work”.[12]
[10] T19/116.
[11] T19/117.
[12] T19/117.
As to the contents of this report, Mr Chopping acknowledged that he had effectively “lied” to Dr Tonga by allowing him to think that his arthritis symptoms were worse than they actually were. He said he did this because he remained embarrassed about his PTSD condition, and did not like talking about his psychiatric symptoms. He said that he had continued to feel that way notwithstanding that, by 2009, his PTSD condition had been diagnosed for some six years, and Dr Tonga was aware of the condition.
Mr Chopping was also asked about the following observation in Dr Wyatt’s report as to possible reasons for him ceasing farming work when he did:
“It is possible that he was financially secure and it was a sensible time to retire and that this was part of his decision making. It was a bit difficult to get a sense of his financial reasoning. He said that money was not an issue and has not been an issue, although I noted there was reference to financial problems in one of the questionaries completed.”[13]
[13] Exhibit 4, page 6.
Mr Chopping denied that being financially secure had led him to sell the farm as part of his retirement plan. He said he had a son and step-son who he had intended to “set up” and he would have liked to hand over the farm to one or both of them in accordance with the family tradition. He said this had been his intention, however, he had been unable to carry out that intention because his PTSD symptoms had become overwhelming. In a similar vein, Mr Chopping said that a statement he had made on a “self-employment report” in 2006 that he had ceased farming because his farm was “not viable”,[14] was not true.
[14] T10/64.
Mr Chopping’s attention was also drawn to a medical report completed by his then general practitioner, Dr Girle, on 7 December 2006 in which she indicated that his capacity for heavy work was limited due to “knee arthritis” and “L shoulder arthritis” as well as PTSD.[15] He indicated that his arthritis had been unusually bad when he saw Dr Girle for the purposes of this assessment, as he had been suffering a “flare up”.
[15] T14/77.
Mr Chopping was also asked about his own statement in a claim form dated February 2008 that he had “pain in shoulder joints cannot sleep as pain increases with pressure”.[16] He said it was true that when he had a flare up of his arthritis, his sore shoulders did affect his sleep. He was also asked about his statement on the same form in relation to his knees:
“Pain while walking cannot kneel. All movements in knees very painful.”[17]
However he indicated that he had not actually read this form before signing it and it had been filled out by someone else on his behalf.
[16] T17/92.
[17] T17/93.
Mr Chopping was also asked about another statement made by him on a claim form in February 2009 in relation to his shoulders where he said “from time of injury the pain and loss of movement did decrease but in later years it has become more severe”.[18] He said this was true as he had had more symptoms as he had grown older. However he said his shoulder pain was not severe now and was only really a problem for him when his shoulder condition “flared up”.
[18] T18/114.
Under cross-examination, Mr Chopping acknowledged that his arthritis could be a problem at times, but only with more physical work. He maintained there was very little he could not do on the farm with the assistance of the machinery and other equipment which was available. He also said that the way his farm had been set up, there was very little for him to do. He said a lot of the “day to day” things his wife did. However he said that his PTSD symptoms had become so bad that “everything fell in on me”. He said he thought at the time he sold the farm in 2006 that unloading problems and demands would reduce his stress levels and PTSD symptoms.
In regard to his knees, Mr Chopping acknowledged that these could be painful when walking up stairs and that he would have some symptoms after walking 100 metres. However he said his biggest problem was his shoulders. Nevertheless, he said he was not currently receiving any treatment for his shoulders but simply adjusted what he did to accommodate them.
As we have alluded to above, Dr Mary Wyatt, Consultant Occupational Physician, examined Mr Chopping on 21 March 2012 for the purposes of this matter and has provided a report dated 28 March 2012 to the respondent. Notwithstanding what Mr Chopping told her about emphasising his physical problems when speaking to doctors because of embarrassment about his psychiatric symptoms, Dr Wyatt formed the view that Mr Chopping did have significant restrictions as a result of his shoulder condition. She stated in her report:
“I do not think Mr Chopping has significant problems with his knees, however he does present to have disability at his shoulders.”[19]
[19] Exhibit 4, page 5.
She went on to state:
“Based on all the information I have available, I think it is likely that Mr Chopping’s physical complaints contributed to him ceasing work in 2006. This is noting the report from his treating doctor at that time, noting the demands of his job on the farm, and noting his physical conditions.
His reason for ceasing work and selling the property and closing his trucking business may well have been largely or mostly related to his difficulty in dealing with people and coping with stress, but it does seem likely that his physical problems have also contributed to his decision to cease running the property.”[20]
She continued:
“I suspect a large part of Mr Chopping ceasing work has been as a result of his difficulty in dealing with stress and desire to lessen his stress load. Nonetheless, it does seem likely that his physical problems, as reported in earlier information, influenced his decision to cease work. The type of problems he has at the shoulders would make it difficult to do a lot of heavy work on the farm.”[21]
[20] Exhibit 4, page 6.
[21] Exhibit 4, page 6.
Dr Wyatt also gave oral evidence at the hearing and adhered to her written opinion in the course of her oral evidence.
Under cross-examination, she was asked about the report of Mr Mehta, Orthopaedic Surgeon, dated 27 April 2011, in which he stated that based on his examination, Mr Chopping could walk comfortably for distances up to one kilometre and that his knee and shoulder joints enjoyed “a good range of movement which is largely pain free”.[22] She pointed out that the statement that his range of movement was “largely” pain free implied that some pain was present. She also stated that the range of movement found by Mr Mehta was greater than when she examined Mr Chopping. She said that problems with walking more than one kilometre was a significant restriction and, whilst Mr Mehta had said he “could not detect any signs of tenderness or any malady in these joints”, she had found some joint tenderness.
[22] T31/136.
Dr Tonga also gave oral evidence at the hearing, with his evidence being largely consistent with his written reports. He confirmed that in his view, Mr Chopping’s arthritis of his shoulders and knees would give him problems with physical work and were part of the reason he was not working, although he appeared to retreat somewhat from this opinion when the contents of Mr Mehta’s reports were put to him.
Also relevant in this context is a report from Mr Chopping’s treating psychiatrist, Dr Lance Risbey, dated 6 September 2010. As to the reasons for Mr Chopping selling his farm, Dr Risbey stated in that report as follows:
“At review, he informed me that he had continued to work on his farm (beef cattle) at Carnamah, together with truck driving, but in 2004 he decided to give up trucking, and to restrict himself to farming as it was more isolated. He thought this would reduce the stress arising from having to deal with people, which truck driving involved to a considerable extent. Whilst he enjoyed driving itself, at which time he was alone, he found it difficult to deal with people, and became increasingly intolerant of other people not performing adequately. He said he was sick of “getting mucked around”, by people who were not ready at the specified time. In addition, he complained of difficulty with “small talk”, adding “I can’t be bothered” with the social niceties of general conversation.
He was becoming more irritable, was unable to tolerate people departing from planned arrangements, and found it hard to tolerate the delays imposed on him at wheat bins, then having to deal with irate farmers who were irritated by his delays (caused by others).”[23]
[23] Exhibit 5, page 1.
Dr Risbey continued later in his report as follows:
“In July 2005 he continued to feel somewhat stressed and decided to sell his farm. He had found that his stress had begun to increase again, and his sleep had deteriorated. He had been trying to keep his stress low on the farm, and had kept himself busy, always “looking for something to do”, and “picking fault with everything”.
…
Despite the isolation of the farm (which initially had reduced his stress as he had hoped), stress symptoms continued to build up, even after he had sold his prime mover in January 2005, and restricted himself to farming alone.
He therefore decided to sell his farm, which he did in January 2006, and he and his wife moved to Queensland where he bought a boat with the proceeds of his farm sale.”[24]
[24] Exhibit 5, page 2.
He concluded:
“It was clear from the history as recorded above that he had become unfit to work over the past four to five years, such that he had to cease farming even after restricting himself to that activity (in the wake of selling his trucking rigs). He had tried to get jobs and had done a couple of short jobs on a charter boat, and then he became involved with arguments with the harbor[sic] official.
Taking the history in total, I find his PTSD has deteriorated and he is significantly disabled by poor concentration and poor memory, irritability and the tendency to be argumentative, and the need for social isolation and intolerance of people, together with chronic internal restlessness and discontent which has not been helped significantly by various life style changes which constitute and attempt to externalize his problem and to avoid accepting the real nature of it (as an internal issue).
…
In summary, he is unfit to work, and compared with his clinical state in 2003, he is more disabled now than he was then. In my opinion he has been unfit to work since 2006, and is certainly unfit [for] work at present or at any time in the future.”[25]
[25] Exhibit 5, page 3.
Consideration
In light of this evidence, we have found the question of what factors contributed to Mr Chopping being prevented from continuing to undertake the remunerative work he was undertaking a difficult one. The factors which complicate this question include the range of different forms of employment undertaken by Mr Chopping, and the fact that whilst Mr Chopping ceased most forms of employment prior to 2006, he worked again in 2008 and 2009, and of course the assessment period commences from when he lodged his application for an increase in pension, on 10 December 2009.
In these circumstances, in order to ensure that we have addressed all relevant issues, we propose to discuss each relevant form of employment in turn. Having regard to the relevant authorities, we consider it appropriate that we address both the reasons for Mr Chopping ceasing each relevant form of employment, and the reasons for him being prevented from continuing in that employment after 10 December 2009.
Taking the relevant types of employment in chronological order of cessation, it appears on the evidence before us that the first type of work that Mr Chopping relinquished was his trucking business which he apparently sold off “in parts in around 2003/2004”.[26] The evidence before us as to the reasons for selling this business is relatively limited. However in light of the evidence which is available, including the report of Dr Risbey, we are satisfied that Mr Chopping’s PTSD condition was the only reason for him ceasing to operate that business, and that by the time he sold that business he had become unfit to run the business, or engage in truck driving, by reason of his PTSD condition.
[26] Exhibit 2, [21].
However that still leaves the question of whether, as at and from 10 December 2009, Mr Chopping was prevented from engaging in truck driving work of the kind he had previously undertaken, by reason of his war-caused incapacity alone. In relation to that question, we consider it relevant that after he moved to Darwin, Mr Chopping said he continued to seek work as a truck driver, including work driving a delivery truck for an ice works in Broome. He said he had applied for the Broome job before he started work for Sunset Cruises, in approximately 2008. However he also stated in the course of his evidence that he had since stopped looking for work as a truck driver, as he considered his reflexes and judgement were no longer good enough for him to safely work as a truck driver.[27]
[27] See our discussion below of Mr Chopping’s attempts to seek work following his move to Darwin.
Having regard to this evidence, whilst we are satisfied that Mr Chopping ceased to operate his trucking business by reason of his PTSD condition alone, we note that he considered undertaking work as an employed truck driver after selling this business, and sought out such work. Further, doing the best we can on the evidence, we are satisfied that by the commencement of the assessment period, Mr Chopping had ceased looking for work as a truck driver as he was no longer confident that his reflexes and judgement were good enough to allow him to work safely as a truck driver. It therefore follows in our view that the fact Mr Chopping’s reflexes and judgement had deteriorated with age contributed to him being prevented from continuing to undertake work as a truck driver during the assessment period.
Although we regard that conclusion as sufficient to prevent Mr Chopping from satisfying the alone test, for completeness we nevertheless propose to proceed to discuss the other relevant forms of employment undertaken by Mr Chopping.
Turning to his interest in the lime sand mine, it appears that Mr Chopping sold this “in around 2005”.[28] Again, there is limited evidence before us as to the reasons for him selling this business, however there is nothing before us which would suggest that his physical limitations were a factor. Mr Chopping said that whilst the demands associated with this business were fairly minimal, he did have some problems dealing with customers. The effect of his evidence was that he sold this business with a view to reducing the demands upon him and his overall stress load, in an effort to improve his PTSD symptoms. He also said that the business was profitable, and it would have been in his financial interests to retain this business.
[28] Exhibit 2, [22].
Whilst Dr Risbey does not specifically address this business in his report of 6 September 2010, his opinion is clearly to the effect that Mr Chopping has been unfit to work or operate a business since 2006, by reason of his PTSD condition. In light of this evidence, and in the absence of any evidence to suggest that his physical problems caused him any difficulties in carrying out this business, we are satisfied that his PTSD symptoms were also the only reason for Mr Chopping ceasing to operate this business, and that his PTSD condition alone has prevented him from continuing to undertake work of this kind. We consider that this conclusion would also apply to other similar businesses operated by Mr Chopping in the past, such as his paving business. In other words we are satisfied that his PTSD condition alone, has prevented him from continuing to operate businesses of the kind he previously operated.
The next work which Mr Chopping ceased was his farming work, as he sold his farm in early 2006. As we have noted above, Mr Crowe contended on the evidence that it was clear Mr Chopping’s physical limitations, particularly the increasing problems he was having with his shoulders, were a factor which contributed to him ceasing this work. He pointed out that it is clear from the case law that these factors did not in themselves need to prevent Mr Chopping from carrying out farming work, rather it was sufficient to defeat eligibility for special rate if factors other than war-caused disability made a contribution to Mr Chopping ceasing to carry out the relevant remunerative work.[29] In support of his submission that the arthritis in Mr Chopping’s knees and shoulders contributed to him ceasing farming work, Mr Crowe relied upon statements made by Mr Chopping himself, together with the opinion of Dr Wyatt and statements made by both Mr Chopping’s general practitioners, Dr Girle and Dr Tonga.
[29] See Hendy (2002) 76 ALD 47, at [37].
We consider there to be some force in Mr Crowe’s submissions in this regard. Certainly, taken at face value, many of the statements attributed to Mr Chopping, and a number of the opinions expressed by the medical practitioners who have treated or examined him, suggest that his physical problems where part of the reason for him selling his farm. As we have noted above, Mr Chopping’s treating general practitioner, Dr Tonga, stated in March 2009 that Mr Chopping had “sold farm because he was physically unable to maintain required workload”.[30] Mr Chopping’s previous general practitioner, Dr Girle also considered in 2006 that his knee and shoulder arthritis would restrict him in carrying out heavy work,[31] though not moderate or light work.
[30] T19/117.
[31] T14/77.
Dr Wyatt also concluded that Mr Chopping’s arthritis, particularly in his shoulders, would have caused him difficulty in carrying out farm work, and were part of the reason for him deciding to sell his farm. Significantly, she reached and adhered to that opinion notwithstanding Mr Chopping’s explanation to her that he had placed undue emphasis on his physical symptoms when speaking to his treating doctors because of embarrassment about his PTSD condition.
Also relevant in this regard are statements made in forms signed by Mr Chopping to the effect that the pain in his shoulder joints was such that he could not sleep on either shoulder and that “all movements” in his knees were “very painful”. In February 2009 Mr Chopping also stated on a claim form in relation to his shoulders that the pain and loss of movement had become “more severe” in later years.[32]
[32] T18/114.
Mr Chopping says that, in regard to the statements made in 2008, he did not read these before signing the claim form and they were not accurate. In relation to the statement made in 2009, he said that his shoulders only affected his sleep when they were “flared up” and in relation to the abovementioned statements made by Dr Girle in 2006, he said her assessment coincided with a flare up of his arthritis which resulted in his symptoms being worse than they usually were.
Mr Floreani, who appeared as counsel for Mr Chopping, also contended that in giving her opinion, Dr Wyatt had made certain assumptions about the nature of the farming work undertaken by Mr Chopping which were not borne out by the evidence. Mr Floreani urged the Tribunal to accept Mr Chopping’s evidence that the work he carried out on the farm was not particularly physically demanding and was well within his capacities, given the machinery and other devices which were available to assist him. He also contended that the fact that Mr Chopping had been able to undertake the work he subsequently did for Sunset Cruises demonstrated that operating the farm was well within his physical capacities at the time he sold it. Mr Floreani also relied upon the fact that the radiological findings in relation to Mr Chopping’s knees and shoulders were minimal. As to the statements made by Dr Tonga in 2009, he submitted that these were explained by the fact that Mr Chopping exaggerated his physical complaints in talking to Dr Tonga, because of embarrassment about his PTSD condition.
However, whilst we accept Mr Chopping’s evidence that he was and remains embarrassed about his PTSD symptoms, we are not satisfied that this distorted the history he gave to his doctors so greatly that we should disregard their opinions as to the difficulties caused by his shoulder and knee symptoms. In this regard, we accept Dr Wyatt’s evidence that Mr Chopping’s embarrassment about his PTSD condition does not entirely account for the knee and shoulder symptoms and restrictions recorded by his doctors, most relevantly Dr Tonga. Rather, having regard to the contemporaneous material, including his own statements, we are satisfied that by 2006 the symptoms in his knees and shoulders were troubling Mr Chopping significantly, and affecting his ability to carry out physical work on his farm to a significant extent.
Whilst he admitted to having some difficulty with his shoulders and knees, Mr Chopping was adamant that these formed no part of his reasons for selling his farm. He said that the farm was highly economically viable at the time he sold it, which in the event the respondent has not disputed. He also said that the farm was highly mechanised and that the physical effort required of him in order to keep the farm running was minimal. Indeed this is illustrated to some extent by the fact that whilst operating the farm, he was able to operate two other businesses, one of which involved him spending a substantial part of his time driving trucks. He also made reference to the fact that he had strong non-economic motivations for retaining the farm, given his desire to hand the farm over to his son and/or step-son, in keeping with the family tradition.
Mr Chopping also said that his wife assisted with some of the physical tasks on the farm, and that he had access to a variety of machinery and mechanical devices which allowed him to carry out the work on the farm notwithstanding his physical limitations. He stated that the non-urgent nature of the work on the farm gave him the flexibility to rest for a period of time if he was having difficulty with his arthritis symptoms. He explained that the reason he decided to sell the farm was that he had become overwhelmed and debilitated by his PTSD symptoms, and felt an urgent need to lessen the demands upon him, in the belief that this would alleviate and help him to cope with those symptoms.
Having regard to this evidence, on balance we are satisfied that Mr Chopping decided to sell his farm primarily by reason of his PTSD condition. We are also satisfied on the evidence, including the report of Dr Risbey, that by reason of his PTSD condition, Mr Chopping was unfit to continue operating a farm at the time he sold his farm. However in light of the evidence before us and having regard to the medical evidence in particular, we are also satisfied that at the time he sold the farm, Mr Chopping’s arthritis symptoms in his knees and shoulders were significant, and were impacting on his ability to carry out physical work on the farm. We have also concluded that whilst they did not play a major role, those symptoms made a meaningful contribution to Mr Chopping’s decision to sell his farm.
As with Mr Chopping’s truck driving work however, the reason for Mr Chopping selling his farm in 2006 is not the only relevant question in relation to Mr Chopping’s farming work. Having regard to the statutory framework and the authorities, the more relevant question for us is whether, during the assessment period, he was prevented from undertaking farming work of the kind he had previously undertaken, by his PTSD condition alone.
We consider it relevant to that question that Mr Chopping said in his evidence that after moving to Darwin, he sought work on his cousin’s farm in Western Australia as an employee. However he was told that he would not “fit into” the team, which he interpreted as a reference to the fact that he was significantly older than most of the other workers on the farm. He also acknowledged in his evidence that, by reason of the arthritis in his knees and shoulders, he could not physically do what he could when he was a younger man, and would be likely to have some difficulties with heavy physical work. For example, he acknowledged that when he was seeking work in Darwin, he avoided those jobs which involved heavy physical work, which he regarded as beyond his capacity[33].
[33] See our discussion below of Mr Chopping’s evidence as to his attempts to seek work following his move to Darwin.
In light of this evidence, we are satisfied that during the assessment period, if not for his PTSD condition, Mr Chopping may have undertaken or sought work as an employee on a farm. However we are also satisfied that, during the assessment period, his age and the physical limitations arising from the arthritis in his knees and shoulders each contributed to him not undertaking work of that kind. Accordingly this forms an additional reason why, in our view, Mr Chopping does not satisfy the alone test.
Finally, in relation to Mr Chopping’s last paid work for Sunset Cruises, whilst the evidence establishes that Mr Chopping was prevented from continuing with this job because of a verbal altercation with a harbour official, in our view the evidence does not establish that Mr Chopping could not have undertaken other work of a similar kind, having regard only to his PTSD condition. Accordingly, as we do not consider that Mr Chopping was prevented from continuing to undertake work of the kind he undertook for Sunset Cruises by reason of his PTSD condition, alone, this provides a further reason for Mr Chopping not satisfying the alone test.
Before leaving this issue, we should also record that we sought further submissions from the parties after the hearing as to the implications of the decision of Deputy President Forgie in Thorpe and Repatriation Commission [2011] AATA 491, and whether the observations made by the Deputy President in that matter as to the proper construction of s 24(1)(c)[34] should lead us to take a different approach to our analysis from that set out above. In particular, we asked the parties to address the question of whether the Deputy President’s comments should be taken as supporting an approach whereby it was sufficient to satisfy s 24(1)(c) if a veteran could show that they had ceased a particular form of work by reason of their war-caused condition “alone”.
[34] At [88] – [115].
Having considered the further written submission of the parties however, and reflected further on the decision itself, we have concluded that the focus of the Deputy President’s observations was on the question of when a veteran can be taken to have been “prevented from continuing to undertake” remunerative work that the veteran was previously undertaking. We accept that the Deputy President was making the point in these observations, subsequently vindicated by the decision of the Full Federal Court in Repatriation Commission v Connell (2011) 123 ALD 440, that it is sufficient that a veteran has ceased to undertake some of the remunerative work they were undertaking, and that they need not necessarily have ceased all work. However this issue has little relevance in the circumstances of this matter, as there is no dispute that Mr Chopping had ceased all remunerative work prior to the commencement of the assessment period.
We also accept Mr Crowe’s submission that the phrase “remunerative work” must be interpreted having regard to the definition of that phrase in s 5Q of the VE Act, which states that “remunerative work includes any remunerative activity”. Further we also accept Mr Crowe’s submission that we are required to consider what has prevented Mr Chopping from undertaking the work he was previously undertaking, taken as a whole, and that the “preventative effect cannot be dismantled into separate preventative effects each for a different type of work.”[35] In other words, the correct question for a decision-maker in applying s 24(1)(c) is whether, with respect to all work the veteran was previously undertaking but is now prevented from undertaking, their war-caused incapacity, alone, is the reason they are prevented from continuing to undertake that work. It follows that a veteran will not satisfy the applicable test if, in respect of a relevant form of work they were previously undertaking, factors other than war-caused incapacity play a role in them being prevented from continuing to undertake that work.
[35] Further written submissions for the respondent received on 22 February 2013.
We note that in his written submissions filed after the hearing, Mr Floreani relied on the decision in Thorpe in support of a contention that we should conclude that Mr Chopping satisfied s 24(1)(c) on the basis of having ceased his farming work by reason of his PTSD condition, alone, and we could disregard the subsequent work he did in Darwin.[36] However for the reasons given above, we are not persuaded that it is sufficient for a veteran to have ceased one form of work by reason of their war-caused condition, alone. Further we are not satisfied that Mr Chopping ceased farming work by reason of his PTSD condition, alone, in any event.
[36] Further submissions of the applicant received on 28 March 2013.
Conclusion
It follows that Mr Chopping does not satisfy the alone test as we are not satisfied that during the assessment period his PTSD condition, alone, was the reason for him being prevented from continuing to undertake remunerative work of the kind he had previously undertaken, including work as a truck driver, as an employee on a farm, or as part of the crew on a small cruising vessel.
In light of this conclusion, it is accordingly necessary for us to address the issue of whether Mr Chopping nevertheless satisfies the requirements of s 24 with the assistance of s 24(2)(b).
DURING THE ASSESSMENT PERIOD, DID MR CHOPPING SATISFY THE AMELIORATING PROVISION?
On behalf of Mr Chopping, it was submitted that even if he did not satisfy s 24(1)(c) without reference to the ameliorating provision, he nevertheless satisfied the requirements of s 24 when regard was had to s 24(2)(b). It was submitted that Mr Chopping satisfied this provision as, during the assessment period, he had been genuinely seeking to engage in remunerative work, and his war-caused incapacity was the substantial cause of his inability to engage in remunerative work.
As to his efforts to find work, Mr Chopping said that since moving to Darwin he had applied for truck driving jobs and work as a handyman, but been unsuccessful. He said he had also sought work assisting a tradesman to re-fit engines, but this had not eventuated as the tradesman was directed to seek assistance from staff of the company he was working for. As we have alluded to above, Mr Chopping said he had also asked someone he knew about driving delivery trucks for an ice works in Broome, but there was no work available. He said he also wrote to the son of one of his cousins who runs a large property in Western Australia, seeking work on the farm. However he was advised that he was considered unsuitable as he would not “fit into the team”. He said he was not sure exactly what this meant, but it may have been at least in part a reference to his age. He said that another potential employer had told him that his attitude and temperament did not seem suited to the work on offer. He also acknowledged that some of the other potential employers he had approached had probably thought he was too old.
Mr Chopping also said that he had regularly enquired about work at the Francis Bay Mooring Basin in Darwin, known as “the Duck Pond”, and that if “something came up” he would “still do it”. He said although he was not as fit as he used to be, he thought he was physically “still in quite good nick”. Although he did not consider he would be able to do the heavier forms of physical work which were available at the Duck Pond, he said work became available there from time to time which was within his physical capacities. Mr Chopping said he had most recently enquired about work at the Duck Pond two weeks prior to the hearing.
As to the timing of his other attempts to seek work, Mr Chopping said he thought he had sought work on his cousin’s farm after he took the job with Sunset Cruises, but he thought he had asked about work at the ice works in Broome before the Sunset Cruises job. He had sought work at the Duck Pond both before and after the Sunset Cruises job. As we have referred to above, he also mentioned that he had given up looking for truck driving work, as he was no longer confident that his reflexes and judgment were good enough for him to safely undertake truck driving work.
In light of this evidence, there appear to us to be a number of difficulties with Mr Chopping’s reliance on s 24(2)(b). We are satisfied that Mr Chopping has not worked since he ceased work with Sunset Cruises in approximately March 2009. We are also satisfied that he has sought further work since then, probably including work on his cousin’s farm, and work assisting a tradesman to refit engines. However there is very little evidence to support a conclusion that the “substantial cause” of Mr Chopping being unable to obtain the work he was seeking was his war-caused incapacity.
Mr Chopping gave evidence that one employer had said he was not suited to a particular job by reason of his temperament and attitude. However Mr Chopping also acknowledged that his age was probably a factor in him not obtaining some of the jobs he sought, and he also made reference to other factors, such as the tradesman with whom he sought work being required to seek assistance from an employee of the company which had hired him. Accordingly we are not satisfied that Mr Chopping’s war-caused incapacity was the substantial cause of him not being able to obtain remunerative work in the period after March 2009.
In addition, Mr Chopping acknowledged in his evidence that he had sought work as recently as two weeks before the hearing, and he also stated that “if something came up” he would “still do it”. In light of this evidence, we are not satisfied that Mr Chopping has actually ceased seeking remunerative work, which we also regard as an essential prerequisite to satisfying s 24(2)(b).[37]
[37] See Furnell & Repatriation Commission [2011] AATA 149, at [20] – [23].
For completeness, we should also make reference to another aspect of the decision of Gordon J in Smith v Repatriation Commission (2012) 131 ALD 63, not alluded to in our discussion of that decision above. In that matter, her Honour held that, properly construed, s 24(2)(b) is only applicable to veterans who have not worked following military service.[38] For the reasons we have given, even if s 24(2)(b) was not construed so as to exclude a veteran who had worked after service, we would have concluded that Mr Chopping did not satisfy its terms. However we regard the decision of Gordon J in Smith as binding upon us and it follows that the construction arrived at by her Honour in that decision also forms an additional reason why Mr Chopping cannot satisfy this provision. We have accordingly concluded that Mr Chopping did not satisfy s 24(2)(b) at any time during the assessment period.
[38] At [34]-[40].
CONCLUSION
As, during the assessment period, Mr Chopping did not satisfy s 24(1)(c), either according to its terms or with the benefit of s 24(2)(b), we have concluded that he is not qualified to receive pension at the special rate. We have therefore decided to affirm the decision under review, although we propose to remit the matter to the respondent for consideration of whether Mr Chopping is eligible for the extreme disablement adjustment.
DECISION
The Tribunal:
(a)affirms the decision under review insofar as that decision determined that Mr Chopping was not eligible for pension at the special rate; and
(b)remits to the respondent the question of whether Mr Chopping is entitled to the extreme disablement adjustment provided for in s 22 of the Veterans’ Entitlements Act 1986.
I certify that the preceding 85 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean, Professor P Reilly .........................[Sgd]...............................................
Administrative Assistant
Dated: 31 May 2013
Date(s) of hearing 26 and 27 September 2012 Date final submissions received 28 March 2013 Counsel for the Applicant Mr N Floreani Solicitors for the Applicant Tindall Gask Bentley Counsel for the Respondent Mr A Crowe
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