May and Repatriation Commission
[2001] AATA 112
•16 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 112
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/710
VETERANS' APPEALS DIVISION )
Re leslie ray may
Applicant
And REPATRIATION COMMISSION
RespondentDECISION
Tribunal Senior Member M D Allen
Date16 February 2001
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu therefor its decision, namely: THAT the Applicant, Leslie Ray May, is entitled to pension for the defence-caused disease of lumbar spondylosis; AND THAT he is entitled to pension for incapacity occasioned by all defence-caused injuries and diseases at the Special Rate as provided by section 24 of the Veterans' Entitlements Act 1986 as and from 19 June 1997.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim lumbar spondylosis defence-caused following altered gait resulting from injury to left knee which was an accepted disability. malalignment in SoP does not require a permanent or structural malalignment but malalignment on walking meets terms of SoP.
Special Rate Pension. Whether alone test met. Effect of time out of the workforce when inability to obtain remunerative work a result of defence-caused incapacity alone.
Veterans' Entitlements Act 1986 - s24, subs120(4) and subs120(6), s120B
Statutory Instrument No 166 of 1996
Social Security Act 1991 - s94
Safety, Rehabilitation and Compensation Act 1988 - ss24, 27, 28
Repatriation Commission v Smith 15 FCR 327
Repatriation Commission v Keeley [2000] FCA 532
Department of Health and Anor v Jephcott 9 ALD 35
Forbes v Repatriation Commission 58 ALD 394
REASONS FOR DECISION
16 February 2001 Senior Member M D Allen
By application made 15 June 1998 the Applicant sought review of a determination by the Respondent made 7 October 1997, as affirmed by a Veterans' Review Board on 6 April 1998, rejecting his claim to have the condition diagnosed as lumbar spondylosis attributed to his service in the Australian Regular Army (ARA).
The Applicant served in the ARA between 16 September 1981 and 28 March 1983 when he was discharged as medically unfit. That service qualifies as "defence service" as that term is defined in s68 of the Veterans' Entitlements Act 1986 (as amended) (VEA).
As the Applicant's service was defence service, the standard of proof in this matter is that stated by subs120(4) of the VEA, namely that of to the Tribunal's "reasonable satisfaction". As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327, that term equates to the civil standard of proof, namely proof on the balance of probabilities. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
The Applicant's initial claim was lodged on 19 September 1997, consequently s120B of the VEA applies to this matter. Section 120B provides that the Tribunal can only be reasonably satisfied that an injury or disease is causally related to defence service if a so-called Statement of Principles (SoP) supports the Applicant's case.
Repatriation Commission v Keeley [2000] FCA 532 determined that the SoP pertaining to any particular claim is that SoP in force at the time the Respondent made its original decision in the matter. In this case that SoP is Instrument No 166 of 1996 entitled "Lumbar Spondylosis".
In its written submissions in this matter the Respondent conceded that the correct diagnosis of the Applicant's claimed condition was lumbar spondylosis, and that the clinical onset of that disease was on or before 1991.
Originally the matter came on for hearing before me in Coffs Harbour on 21 October 1999. For reasons outside the control of the Tribunal, the matter did not resume in Sydney until 8 November 2000.
Upon enlistment into the ARA the Applicant, after recruit training, was allocated to the Royal Australian Army Ordnance Corps where his classification was that of a trainee storeman. Early in his service he was treated for a foot condition exacerbated by the wearing of Army boots, and the incapacity of bilateral hammer toes 2, 3, 4 and 5 with arthrodeses has been recognised by the Respondent as having been caused or contributed to by the Applicant's defence service. Apparently surgery was carried out on the Applicant's right foot by Mr Kudelka, Orthopaedic Surgeon, in July 1982.
Exhibit A1 is a statement by the Applicant dated 10 September 1998. In that statement and in evidence to the Tribunal he stated that in November 1982, whilst unloading stores at 32 Supply Battalion, Broadmeadows, he tripped whilst carrying a roll of rubber matting, injuring his left knee and back.
Following the fall his left knee began to swell and he was bent over because of pain in the right side of his back. He informed his warehouse supervisor and was sent to the Regimental Aid Post (RAP) for medical treatment. I note the transcript for 21 October 1999 records the Applicant as (p10):
"… and after that the Warrant Officer sent me to the doctor at the RAP."
Exhibit A8 contains at p273 a statement from a Warrant Officer Grade 1 Stephens.
Upon attendance at the RAP the Applicant was seen by an elderly doctor employed on contract by the Department of Defence. That medical practitioner informed the Applicant he just had muscle soreness and a bruised knee and gave him some Panadol. No further investigations were carried out.
The Applicant's back continued to remain sore for approximately 8 to 10 weeks. During this time the pain was severe and bending or sitting for long periods caused increasing pain, as did placing weight on the left knee.
At the time the Applicant was injured by the fall he was on light duties as a result of the operation on his toes. He continued to perform light duties without physical training until his discharge from the Army in March 1983.
Cross-examined the Applicant stated that the range of movement in his back was never the same after his fall and that after the initial severe pain, he continued to experience pain in his back with exacerbations.
Following his discharge from the ARA the Applicant has been examined by numerous medical practitioners. Apart from the examination at the RAP at the time of his fall and a medical board prior to discharge, the Applicant has been seen by various specialist medical practitioners regarding claims for Defence Force Retirement and Death Benefits and a claim pursuant to the Compensation (Commonwealth Government Employees) Act 1971 and its successor the Safety, Rehabilitation and Compensation Act 1988, including a successful application to the Administrative Appeals Tribunal regarding a claim for permanent impairment in respect of his left knee.
There is no doubt that the Applicant had a severe fall whilst carrying out his duties at 32 Supply Battalion on 7 November 1982. A sequelae of that fall is that the Respondent has accepted liability for what it terms "probable cartilage degeneration (lateral meniscus) left knee" and Comcare (and its precursor The Commissioner for Employees Compensation) has accepted liability for internal derangement of the left knee leading to a permanent impairment of 20% under the Comcare Guide to the Assessment of the Degree of Permanent Impairment. (See sections 24, 27 and 28 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act)).
I deduce from the above that the fall was sufficiently severe to lead to a significant impairment in the Applicant's left knee, however, in these proceedings the Applicant has claimed that the fall so injured his back as to cause his present condition of lumbar spondylosis.
The Applicant's evidence to me was that he went to the RAP immediately following his fall. Document T22 p77, in the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975, is a copy of an Army form documenting the Applicant's attendance at the RAP. That form gives the date of examination as 8 November 1982 and refers to a complaint of ankle pain and a bruised left knee.
This report conforms with the history the Applicant gave to Mr Wilton Carter, Orthopaedic Surgeon, in a letter dated 15 February 1988 (contained in Exhibit A12). In that letter the Applicant states inter alia:
"I fell to the right jaring (sic) my knee and had to be helped up and the rubber matting lifted off of me. My knee became sore and seemed to swell up a bit, I reported the incident to my Warrant Officer in charge, he asked if I would be alright to continue work 'I said I would' and continued work.
That night at home my left knee became very sore and the next day I presented myself to the RAP … I was told by the doctor that it was sore muscles and was given liniment (sic) to rub on, this never helped.
I returned a few times to the RAP with the knee pain and was given liniment (sic) every time."It will be noted that in the above quoted that there is no reference, in this history written by the Applicant, of back injury. Although the Applicant does conclude the said letter by stating "I find that my feet, knee and back complaint (sic) are worsening" (Tribunal's emphasis).
Exhibit A8 (Part 1) contains, repeated at several folios, a contemporaneous report of the Applicant's injury. At folio 271 the Report of Injury form completed by the Applicant states, in reply to the question "Description of how injury occurred", the following:
"The injury occurred whilst loading stores into crates, I stepped back off a pallet while carrying a heavy roll of rubber slipped twisting my knee."
And at folios 272 and 273 are witness statements which read:
"On or about 11 Nov 82 (sic) I was working with Pte May in storehouse 7 32 Sup Bn Broadmeadows. We were loading heavy stores onto pallets. Pte May stepped backwards and stepped onto a broken pallet. He lost his footing and went to ground. When he got up he immediately complained about having a sore ankle." Sgd Mr C. Parker
And:
"on or about 7 Nov 82 Pte May reported to me that had twisted his ankle and knee whilst loading stores onto a pallet.
The member did not appear in a great deal of pain and after a brief period of time resumed his normal duties." Sgd B Stephens WO1
Folio 119 of Exhibit A8 is a report by a Dr Allen dated 11 September 1986 which reads inter alia:
"Re Leslie Ray May
I attended this man for the first time on April 21st, 1983; shortly after he came to live in this area. He spoke about his recent discharge from the Army, and particularly about the severe problems that he had with his feet. He also complained about pain in his left knee which he stated he had injured while in the Army."
On 19 August 1987 the Applicant was seen by Dr Richard Ward, a specialist in sports medicine, at the request of the Department of Defence. Dr Ward took a history of the Applicant falling and twisting his left knee awkwardly and of the left knee becoming sore and swollen. No mention is made of any back injury occurring at that time.
Document T5 is a report dated 24 July 1984 by Mr Wilton Carter to the Applicant's then solicitor. No history is recorded of any fall, but it is clear from the report that Mr Wilton Carter was engaged to report upon the Applicant's foot problems; I therefore do not draw any inferences from the failure in that report to refer to any history of back or knee injury or pain.
A further report by Mr Wilton Carter to the Applicant's solicitor is at folio 40 of Exhibit R4. That report dated 14 October 1986 reads inter alia:
"… he stated that over the last 8 months or so he has become aware of discomfort in the lower portion of the back and this is gradually becoming worse. He stated that Dr Allen had said that this 'may be due to his foot condition'. Mr May does not remember any injury to his back as such …
He stated that prior to about 8-9 months ago he had not been aware of any back problems."
Document T23 is a report by Dr Allen dated 18 April 1986. It states inter alia (p81):
"I saw him on August 7th, 1985 when he was complaining of an increase in the pain he was experiencing in the left knee, and he stated that he thought that the knee was inducing ? stresses in his back. …
I saw him on three occasions later in 1985 for minor medical problems: I have made no notes about his back or knee which indicates that those problems were not prominent at that time.
He next complained of his back and knee on February 11th, 1986."
Exhibit R4 is a copy of documents held by Centrelink regarding the Applicant's claim for a Disability Support Pension. At a medical examination on 25 February 1992 a Government Medical Officer recorded at p19:
"Complains of pain in right lower back … Pain started when chopping wood in 1985 and has been present ever since."
Folio 33 of Exhibit R4 is a report by Mr Isbister, Orthopaedic Surgeon, dated 18 September 1991 which records:
"He now has some back pain which has been there since 1985 and is aggravated by bending and lifting."
Exhibit A11 is a further report by Mr Isbister to the Respondent dated 21 December 1998. That report refers only to the Applicant's elbow condition.
Document T8 is a Lifestyle Questionnaire completed by the Applicant and dated 31 January 1995. In that document the Applicant states at p24:
"Since 1986 I've had disc degeneration in my lower back because I don't walk properly due to my feet and left knee problems."
And at Document T9 the Applicant stated on 25 April 1995:
"Approx January 1986 I started getting back problems and some doctor (sic) have stated this a disc degeneration problem. Because I do not walk properly since the operation on my feet which was in 1982 during Army service."
On 23 May 1995 the Applicant wrote to the Department of Veterans' Affairs appealing against a determination made 19 May 1995 rejecting a claim for lumbar spondylosis. In that document (T12) the Applicant states:
"… and also when I fell in November 1982 injuring my left knee, could also explain my lower back problem."
Although the Applicant has given evidence of hurting his back in the fall on 7 November 1982 and gave this history to Dr Peter Boys, Orthopaedic Surgeon, who examined him on 7 April 1998 at the request of the Department of Defence following a claim under the SRC Act, having regard to the contemporaneous documents, namely the report after attendance at the RAP and the witness statements, together with the histories taken by Mr Wilton Carter, Dr Allen and Dr Ward plus the Applicant's own prior statements, I am not satisfied that the Applicant did injure his back in the fall at 32 Supply Battalion on 7 November 1982.
That being so, I do not need to consider whether the circumstances of any alleged injury conformed with Factor 5(e) of Instrument No 166 of 1996 which refers to trauma to the lumbar spine.
Factor 5(c) of the said instrument reads:
"having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis;"
The report of Professor Sambrook (Exhibit A5) clearly raises this factor as a cause of the Applicant's lumbar spondylosis. In his report Professor Sambrook states at pp5-6:
"However, the other issue to be considered is factor 5(c) in regard to malalignment. There is certainly evidence of a scoliosis on one set of films and Mr May walks with a limp so it is reasonable to conclude he is within the definition of malalignment in that there is a deformity of the left knee as a consequence of his cartilage injury which has contributed to the development of the lumbar spondylosis. It may also be worth considering factor 5(g) as he does have evidence of a mild intervertebral disc prolapse at the L4/5 level before the onset of spondylosis at least on the CT scan performed more recently, although no earlier one has been performed so the date of this is difficult to establish with any certainty. Thus although I think this factor could be considered, the main reason for considering Mr May falls within the SOP's relates to malalignment as a consequence of his knee injury."
In his oral evidence to the Tribunal, Professor Sambrook stated that he could not exclude a significant contribution to the cause of the Applicant's lumbar spondylosis from gait and knee problems. There was a displacement of the spine when walking, which was related to his left knee and this constituted a functional malalignment when the Applicant walked. Further, he pointed out that on an x-ray report, the radiologist considered there was a scoliosis of the Applicant's spine with a right pelvic tilt.
To rebut Professor Sambrook's opinion, the Respondent called Dr Boys, orthopaedic surgeon. As stated above Dr Boys saw the Applicant, at the request of the Department of Defence, following the Applicant's worker's compensation claim. In his report of 7 April 1998 (Exhibit A10) Dr Boys diagnosed the Applicant's condition as "chronic musculoligamentous low back strain" and dismissed the effect of the Applicant's altered gait upon that condition.
In evidence Dr Boys conceded that the Applicant has an abnormal gait. He further conceded, in cross-examination, that the SoP allowed for the cause postulated by Professor Sambrook, namely altered gait when walking leading to lumbar spondylosis.
In his report of 6 November 2000 (Exhibit R5), Dr Boys disagreed with the radiologist's report and the opinion of Professor Sambrook as to the existence of a scoliosis. This opinion of Dr Boys is also contrary to that of Mr Wilton Carter, the orthopaedic surgeon who, in 1986, found a scoliosis. Dr Boys also stated that a gait abnormality may give rise to musculoligamentous strain symptoms in the lower back. I find it difficult to reconcile this statement with Dr Boys' earlier opinion that chronic musculoligamentous low back strain was the incapacity suffered by the Applicant but that it was not attributable to the Applicant's defence service. In other words, if the Applicant does suffer a chronic musculoligamentous low back strain then his altered gait is, on Dr Boys' own evidence, a hypothetical cause.
Professor Sambrook has, to my own knowledge, been called on many occasions to give evidence on behalf of the Respondent. The Respondent is of course not obliged to accept Professor Sambrook's opinions but it must, as a matter of consistency, be prepared to acknowledge his eminence in his speciality of rheumatology. The Respondent must also, in order to be consistent, acknowledge that Professor Sambrook is familiar with the Statements of Principles relating to diseases such as lumbar spondylosis.
I have always found Professor Sambrook to be a careful witness and one who will make concessions when facts are put to him which justify that cause. Dr Boys, on the other hand, was very certain of his opinion. Dr Boys also seemed reluctant to concede that the Applicant's condition was indeed a lumbar spondylosis. All in all, I found I was more impressed by the cautious and careful evidence of Professor Sambrook and the opinions expressed by him, and I accept Professor Sambrook's opinion that the malalignment of the Applicant's spine when walking, that is to say by way of a pelvic tilt caused by abnormal gait, significantly contributed to the Applicant's lumbar spondylosis. The altered gait which led to the malalignment is caused by the Applicant's accepted condition of "probable cartilage degeneration (lateral meniscus) left knee" and, although not relied upon by Professor Sambrook, the Applicant's bilateral hammer toes with arthrodeses no doubt also played a part in altering his gait.
In written submissions the Respondent argued that the term "malalignment" in Factor 5(c) of the SoP does not refer to functional malalignment but to a structural or permanent malalignment. The short answer to that submission is that the SoP does not qualify the term "malalignment" by using adjectives such as "structural" or "permanent". As was pointed out by Davies J in Department of Health and Anor v Jephcott 9 ALD 35 at 40 quoting Lord Mersey in Thompson v Goold & Co [1910] AC 409 at 420:
"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do."
Rate of Pension
The Applicant has not worked since his discharge from the ARA in 1983. He has, as a result of his worker's compensation claim, undertaken courses particularly in electronics. It is clear from documents in Exhibit A13 that he applied himself to retraining and I accept his evidence that although he put in his best effort, he was refused employment at the end of his retraining because he could not do incidental work such as lifting photocopiers or facsimile machines.
Upon discharge from the ARA, the Applicant was granted a pension pursuant to the Defence Force Retirement and Death Benefits Act 1973 on the basis that his capacity to undertake civil employment had been reduced by 30%.
Currently the Applicant is also in receipt of a Disability Support Pension granted by the Department of Family and Community Services pursuant to the Social Security Act 1991. Exhibit R4 is a copy of documents from Centrelink and those documents include recent medical reviews of the Applicant. The most recent medical review bears date 6 April 1998 and the conditions causing the Applicant's continuing inability to work are recorded as:
(1) Hammer and claw toes.
Fusion II & III toes both feet.(2) Gout, both feet and ankles.
(3) Disc prolapse lower back L4 L5.
(4) Torn meniscus left knee.
The Applicant submits that he is entitled to pension at the Special Rate. The criteria for the grant of a Special Rate Pension for this Veteran, who was born on 13 July 1961, are set out in subss24(1) and (2) of the VEA, namely:
"(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."
Currently the Applicant is in receipt of pension at 100% of the General Rate and has been in receipt of pension at 80% of the General Rate since 20 March 1998. As at 23 December 1986 he was in receipt of pension at 60% of the General Rate (see Exhibit A13 p89). The effective date for payment of pension for incapacity occasioned by lumbar spondylosis is 19 June 1997, consequently it would seem that at all relevant times the Applicant would have been in receipt of pension at the rate of 70% or more of the General Rate.
The Respondent, in its written submissions, concedes that the Applicant meets paragraphs 24(1)(a) and (b) of the VEA but submits that the Applicant fails to meet the tests imposed in paragraphs 24(1)(c) and 24(2)(b).
In Forbes v Repatriation Commission 58 ALD 394 at 398 Nicholson J said, of the requirements of paragraph 24(1)(c), following the Full Court in Flentjar v Repatriation Commission 48 ALD 1 that the issues before the Tribunal are:
"1. What was the relevant 'remunerative work the veteran was undertaking' within the meaning of s 24(1)(c) of the 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?"
And added (p399):
"In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J agreed with Davies J in Re Easton and Repatriation Commission (1987) 12 ALD 777; … the word 'alone' should not have substituted for it other words in the absence of ambiguity. He saw the requirement of the word 'alone' as it appears in s 24(1)(c) as requiring a practical decision whether the veteran's loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well. He regarded that as a decision not to be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
This matter is not as straight forward as the tests outlined above would indicate as the Applicant has been unemployed, and it seems unemployable, since being discharged from the ARA as medically unfit for further service.
At page 145 of Exhibit A9 is a report by the Commonwealth Rehabilitation Service dated 14 October 1997. It reads inter alia:
"As discussed with you I am of the opinion that it is too early for him to be referred for re-training assistance.
…
I discussed Les' situation at our case team meeting on 9th October, 1987. All members concurred with my opinion that it is too early to consider Les for Vocational re-training. They are, however, happy for me to act as a facilitator in the co-ordination of any services required.
The team was concerned that Les had not been visited by any Defence Services Welfare/Industrial relations personnel. Is this a possibility? He lacks a contact point. Someone to help him with his problems and negotiations with the Department.
Would you please refer Les back to this Unit once a decision has been made as to his readiness for vocational retraining. At this point we would also like to know what potential there was for 'on site' job retraining in the Department of Defence. eg.: Clerical work in a store situation."
Ultimately the Applicant was referred for retraining and undertook an electronics course. That did not lead to employment as his potential employer regarded him as medically unfit to undertake the full duties of the position.
In 1991 the Applicant was granted a Disability Support Pension (DSP). The Social Security Act 1991 commenced on 1 July 1991 and there is nothing in the material presently before me to indicate when the Applicant was first granted a DSP. However, he has been reviewed since that time and the pension continued. Section 94 of the Social Security Act 1991 reads inter alia:
"(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) …
(d) …
(e) …(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training - such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of educational or vocational training or on-the-job training; or
(b)if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market."
"Work" is then defined in the section as meaning:
"work …
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person's locally accessible labour market."
Apart from gout, the disabilities which led to the Applicant being granted a DSP are the same as those which are now recognised as being caused by the Applicant's defence service.
Dr Mark Burns is an occupational physician and his report of 25 June 1999 became Exhibit A4 in these proceedings. Dr Burns is very experienced in the matter of veterans' claims and is very frequently engaged by the Respondent to examine veterans and make reports for tender to the Tribunal. He has also often been called by the Respondent to give evidence on its behalf. In other words he is quite familiar with the Veterans jurisdiction and the requirements of the VEA, and his expertise is acknowledged by the Respondent.
In Exhibit A4, Dr Burns states at p5:
"Mr May has significant musculoskeletal problems involving his feet, his left knee, his low back and his left elbow. These conditions have all been present for a prolonged period of time and must now be considered as chronic. He therefore has a chronic persistent pain state as well as the disability in those joints. It is arguable that he does have some retained employment potential but this would be in a very narrow area. His education level is not particularly high and his persisting pain would make it very difficulty (sic) for him to be retrained. I note that he has attempted retraining in the past with an electronics course but found this extremely hard. It took him three years to pass the basic certificate course and he was unable to pass one of the two subjects he attempted at the higher level.
In conclusion, though I believe that he may be able to work in light sedentary work, it is unlikely that this work will become available to him. In the open workforce he is virtually unemployable. I believe it is true to say that his accepted disabilities plus his lumbar spondylosis are the substantial cause for his inability to work even eight hours per week.
I believe this is what Dr Goode has attempted to say in his report dated 13 April 1999. He has stated that Mr May is theoretically capable of work but that in a competitive commercial workplace he would not be employable."
In passing, I again refer to the requirements for the grant of a DSP and the granting of that pension to the Applicant means that certainly, in the view of the Department of Family and Community Services, he has a continuing inability to work even when work is defined as work that exists anywhere in Australia and that he is not capable of undertaking educational, vocational or on-the-job training.
Dr Burns was cross-examined by the Respondent regarding the Applicant's gout. Dr Burns stated that while he had no doubt the Applicant does suffer gout, it is a condition that comes and goes and that with most people gout attacks are self limiting. Although the Applicant would have to have days off work because of his gout, there was no evidence that the condition was chronic. The history he obtained from the Applicant was that his gout was now well controlled with Zyloprim. Similarly, the Applicant's blood pressure was well controlled on medication.
On 15 January 1999, the Respondent accepted that the Applicant's condition of tendonitis left elbow was defence caused with effect from 14 January 1998. That condition was caused by a fall the Applicant had following surgery on his left knee.
Prior to his enlistment in the ARA the Applicant had been employed in labouring type work plus some stores work. Whilst in the ARA he was trained as a storeman. In assessing the kinds of employment in which the Applicant could engage, the Defence Force Retirement and Death Benefits Board in 1983 stated that the Applicant's skills, qualifications and experience (disregarding physical impairments) equipped him for the tasks of a labourer or storeman.
As pointed out by the Respondent, the Applicant has been out of employment since 1983 and this would mitigate against his now obtaining any employment. In the particular circumstances of this case, I do not regard that as a factor adverse to the Applicant and destructive of the alone test. The sole reason the Applicant has not been able to engage in remunerative work is incapacity occasioned by defence-caused injuries and it is not to be held against him that it has taken many years before the full extent of his disabilities has been recognised by the Respondent.
In any event this matter is one where, contrary to some other cases regarding pension at the Special Rate, time out of the workforce is not of major relevance. The Applicant is not yet 65 and the employments for which he is suited are such that absence therefrom would not disadvantage him as necessary skills would not have been lost or overtaken by new technology.
Apart from the above factors I find it incongruous that the Respondent can argue that the Applicant was not engaged in remunerative work when the very reason he was not so engaged is because of incapacity caused by his defence service. I do not accept that s24 and, particularly paragraph 24(2)(b) of the VEA requires an injured veteran to make a series of fruitless, indeed cynical, job applications in order to demonstrate that he is actively seeking work when it is apparent that, because of his incapacity, he cannot work.
On the evidence before me it is clear that since discharge from the ARA the Applicant not been able to engage in remunerative work and the sole cause of this has been impairment caused by his accepted disabilities. I find that he does meet the criteria in paragraph 24(1)(c) of the VEA and therefore it is not necessary for the Applicant's case to have recourse to the ameliorating provisions of paragraph 24(2)(b).
For the reasons outlined above, the decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant's lumbar spondylosis is a defence-caused disease and that he is entitled to pension for incapacity occasioned by all defence-caused injuries and diseases at the Special Rate as provided by s24 of the VEA as and from 19 June 1997.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong .....................................................................................
AssociateDates of Hearing 21 October 1999 and 8 November 2000
Date of Decision 16 February 2001
Solicitor for the Applicant Mrs J Buss, Legal Aid Commission
Advocate for the Respondent Ms S Breuer, Department of Veterans' Affairs
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