McCauley and Repatriation Commission (Veterans' entitlements)

[2024] AATA 3269

McCauley and Repatriation Commission (Veterans' entitlements) [2024] AATA 3269 (11 September 2024)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2022/5967

Re:Bradley McCauley

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:11 September 2024

Place:Adelaide

The Reviewable Decision is affirmed.

.......................[SGND].....................................

A GEORGE

(Senior Member)

CATCHWORDS

VETERANS – Royal Australian Air Force – whether Applicant eligible for Intermediate Rate pension – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Military Rehabilitation and Compensation Act 2004 (Cth)

Veterans Entitlement Act 1986 (Cth)

REASONS FOR DECISION

Senior Member George

11 September 2024

1. Mr Bradley McCauley is aged 61 years. He joined the Royal Australian Air Force in September 1984. He separated as medically unfit for service in April 2018.[1]

   [1] Exhibit R2, T-Documents, Separation Decision, T14, pages 226-227

2. Mr McCauley has received a disability pension at the General Rate with effect from 2012. On 31 March 2021, aged 57, Mr McCauley applied for an increase in the disability pension under the Veterans Entitlement Act 1986 (Cth) (“the VEA”).

3. On 5 August 2021, the Respondent increased Mr McCauley’s disability pension from 70 per cent to 100 per cent of the General Rate with effect from 31 March 2021. However, it did not grant the Intermediate or Special Rate of pension under the VEA as he was in receipt of incapacity payments under the Military Rehabilitation and Compensation Act 2004 (Cth) (“the MRCA”) for his non-VEA condition of Aggravation of the Signs and Symptoms of Major Depression.[2]

   [2] Exhibit R2, T-Documents, Reasons for Decision, T82, page 524.

4. Mr McCauley sought review of this decision and on 26 April 2022 it was affirmed by the Veterans’ Review Board (“VRB”).[3] This is the Reviewable Decision.

   [3] Exhibit R2, T-Documents, Decision and Reasons, T103 pages 591-602.

5. The issue for the Tribunal to determine is whether Mr McCauley meets the eligibility criteria under s 23 of the VEA to qualify for the Intermediate Rate of pension.

6. For the following reasons, the Tribunal has decided to affirm the Reviewable Decision.

   LEGISLATIVE FRAMEWORK

7. It is not in contention that Mr McCauley made an application under s 15 of the VEA for an increase in the rate of pension for the purposes of s 23(1)(aa) of the VEA. It is also uncontentious that Mr McCauley had not yet turned 65 when his application was made for the purposes of s 23(1)(aab) of the VEA.

8. To be eligible for an Intermediate Rate of pension, Mr McCauley must have an incapacity from war-caused injuries or diseases determined to be at least 70 per cent of the General Rate for the purposes of s 23(1)(a)(i) of the VEA.

9. The meaning of ‘war-caused injuries or diseases’ is provided for in s 9 of the VEA. Relevantly for Mr McCauley’s specific circumstances where he has not rendered operational service, ss 73(2)(a)-(b) provides that references to war-caused injuries or diseases in ss 23 & 24 of the VEA may be read as defence-caused injuries or diseases. It is therefore uncontentious that s 23(1)(a)(i) of the VEA is met.

10. To meet the further eligibility criteria for an Intermediate Rate, Mr McCauley must cumulatively meet the criteria of ss 23(1)(b)-(c) of the VEA as follows:

    ·     Sub-section 23(1)(b): Mr McCauley must have incapacity from war-caused injuries or diseases, or both, that is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently, within the constraints of ss 23(2) and 28 of the VEA; and

    ·     Sub-section 23(1)(c): Mr McCauley must have incapacity from war-caused injuries or diseases, or both, that has prevented him from continuing to undertake remunerative work that he was undertaking and he is, by reason thereof, suffering a loss he would not if he were free from that incapacity.

11. For completeness, the Tribunal notes from closing submissions that it is uncontentious that Mr McCauley is not entitled to either the Special Rate of pension or a Temporary payment at special rate under s 23(1)(d) of the Act.

    SUMMARY OF THE MATERIAL FACTS

12. Mr McCauley enlisted in the RAAF in September 1984. He rose to the rank of Warrant Officer as an avionics technical manager. Mr McCauley has completed numerous trade, management, supervisory, and airside courses during his lengthy career. He is trained in managing chemical holdings, work health and safety, and drug and alcohol testing. Mr McCauley received an Air Force Commendation – Silver during his service.[4]

    [4] Exhibit R2, T-Documents, T4, ADO Service Record.

13. Mr McCauley has the following accepted conditions under the VEA:[5]

    a.    Tinnitus;

    b.    Sensorineural hearing loss;

    c.     Non-melanotic malignant neoplasm of the skin;

    d.    Lumbar degenerative disc disease;

    e.    Degenerative joint disease of the left knee; and

    f.   Cervical degenerative disc disease.

    [5] Exhibit A1, Applicant’s Statement of Issues, Facts and Contentions, paragraph [7]; Exhibit R1, Respondent’s Statement of Issues, Facts and Contentions, paragraph [3.1]; Exhibit R2, T-Documents, Section 37 Statement, page 8.

14. Mr McCauley has the following rejected and/or non-accepted conditions under the VEA or the MRCA:

    a.    Left elbow epicondylitis;

    b.    Signs and Symptoms of Major Depression;

    c.     Aggravation of the Signs and Symptoms of Major Depression;

    d.    Osteoarthritis both ankles; and

    e.    Dental Malocclusion.

15. Mr McCauley has received treatment for depression since 2009.[6] In April 2018, he was found to be “no longer suitable for ADF role/s due to both psychological and physical conditions”.[7] Mr McCauley was then medically discharged. He has not worked since. He currently lives in Bethungra, a town within a one-hour drive of Junee, Cootamundra, Young, Wagga Wagga, and Temora.

    [6] Exhibit R2, T-Documents, T26, Medical Employment Classification Review Record, page 317.

    [7] Exhibit R2, T-Documents, T28, Rehabilitation Case Review Form, page 321.

16. In July 2019, Mr McCauley’s rehabilitation consultant reported that he had withdrawn from completing a Certificate IV in Training & Assessment as he “remained uncertain of the course, intensity to complete the units and benefits of future employment prospects”.[8] Mr McCauley had instead expressed interest in a short course in welding and discussed a work trial.

    [8] Exhibit R2, T-Documents, Email, T44. page 401.

17. Two months later, the rehabilitation consultant reported that Mr McCauley had changed his mind and “he does not wish to pursue any of the vocational options that were previously approved”. He also was approved for recognition of prior learning for the following qualifications:

    a.    Diploma of Work Health and Safety;

    b.    Advanced Diploma of Leadership and Management; and

    c.     Diploma of Management (Human Resources).[9]

    [9] Exhibit R2, T-Documents, Email, T45, page 402.

18. In July 2020, the rehabilitation consultant reported that “Mr McCauley is in the process of placing new claim for TPI and report he feels he may never return to work due to ongoing pain of the lower back and psychological symptoms”.[10]

    [10] Exhibit R2, T-Documents, Email, T48, page 406.

19. A medical report by General Practitioner, Dr Mina Hanna, of 2 December 2020 noted that Mr McCauley had “Continued spinal degradation impacting ability to work and mental health” and that “Patient remains in constant pain affecting ability to work and mental health”. Dr Hanna listed potential triggers as “Lifting heavy objects” and “Encountering stupid people”, where “stupid” seems to mean “arrogant & dismissive”.[11]

    [11] Exhibit R2, T-Documents, Direct Solutions Rehabilitation and Occupations Services report, T50, page 410-411.

20. Incongruously with the evidence above, in his statement of 4 November 2022, Mr McCauley says that his depression was caused by:

    a poorly administered discharge process at my host unit and significant disagreement with management processes and my chain of command when I was medically discharged from the Air Force.[12]

    [12] Exhibit A2, paragraph [6].

21. In his statement, and under cross-examination, Mr McCauley said his depression was in remission and had “resolved”.[13] He informed the Department of Veterans’ Affairs accordingly and cancelled his Incapacity Payments in the belief that he was entitled to the Special Rate of pension.[14] In making these steps, Mr McCauley had relied upon a letter from Consultant Psychiatrist Dr May Matias of 9 June 2021. In that letter, Dr Matias had written:

    I would like to confirm that your mental health condition is now stable and that the information from your self-rating scales indicate confirms your stability and have little residual symptom of anxiety and depression.[15]

    [13] Transcript, page 14, lines 21-29.

    [14] Exhibit A2, paragraphs [3]-[6];

    [15] Exhibit R2, T-Documents, Letter of Dr May Matias, T80, page 511.

22. Dr Matias wrote a more fulsome report on 10 November 2021, following objective testing. Dr Matias concluded that “Mr McCauley is in treatment for depressive symptomatology Cymbalta and with this he is in remission from depression”.[16]

    [16] Exhibit R2, T-Documents, Report of Dr May Matias, T99, page 575.

23. Mr McCauley’s evidence is that he is “unable to secure any employment solely on my VEA conditions”.[17] Mr McCauley’s reasoning is that he still suffers significant lower back pain, nerve pain in the hips, sciatica in the legs, and an inability to lift anything over 10 kilograms. Mr McCauley says he needs to manage his standing and walking in small blocks of time and his limited physical ability has led to weight gain.

    [17] Exhibit A2, paragraph [8].

24. Mr McCauley says:

    So, with regards to undertaking employment in my fields of expertise or certified level of training, and with the complications listed above, I feel that I am incapable of committing to an employer as it would be unfair to them to get value for their dollar due to my levels of restriction. To get through a day I would require a significant level of pain management medication, some of which affects my level of alertness, concentration and ability to drive a vehicle, I also live in a remote area where I need to remain alert if travel is required to/from work.[18]

    [18] Exhibit A2, paragraph [9(e)].

25. Under cross-examination, Mr McCauley gave evidence that he continues to look for work by keeping an eye on the newspaper and browsing SEEK occasionally.[19]

    [19] Transcript, page 16, lines 29-33.

26. Mr McCauley consulted with Dr Farhan Shahzad, an Occupational Physician, who completed a report dated 14 April 2023. Dr Shahzad was called to give evidence at the hearing by the Respondent.

27. The substance of Dr Shahzad’s evidence, both written and oral, is that Mr McCauley can work up to 20 hours per week in a sedentary, office-based capacity. Dr Shahzad was of the view that there are restrictions on Mr McCauley’s ability to stay seated from longer than one hour. Similarly, Dr Shahzad opined Mr McCauley’s was unable to conduct heavy lifting, pushing, and pulling of more than 10 kilograms, including when conducting housework. He also opined that Mr McCauley was unable to undertake repetitive squatting, bending, and twisting.

28. Mr McCauley consulted with Dr Allison Moffatt, a Consultant Psychiatrist, who completed a report dated 5 October 2023. Dr Moffatt was called to give evidence at the hearing by the Respondent.

29. The substance of Dr Moffatt’s evidence is captured in the following paragraph of her report:

    At this time, I see no psychiatric contraindication to Mr McCauley working in any occupational role while he continues to take antidepressant medication. Paid employment would be a useful and productive thing to do. However, the prognosis for Mr McCauley returning to paid or voluntary employment is poor. I consider that he will not return to work, not due to any psychiatric illness, but due to his mindset about working, and this is largely informed by his personality style.[20]

    [20] Exhibit R4, Report of Dr Alison Moffatt of 5 October 2023, page 19.

30. Under cross-examination, Dr Moffatt did not regard it as appropriate to make a firm diagnosis of a personality disorder for Mr McCauley.[21]

    [21] Transcript, page 60, lines 21-22.

    DOES MR MCCAULEY MEET THE REQUIREMENTS OF SECTION 23(1)?

31. The medical evidence from Dr Shahzad in this matter is that Mr McCauley is, within restriction, medically capable of undertaking employment of up to 20 hours a week. Dr Moffatt’s evidence is that paid employment would be useful for Mr McCauley and that, if he continues to take antidepressants, he can do so. The Tribunal places weight on this evidence, noting that the evidence of these medical practitioners was tested at the hearing.

32. Balancing the material medical evidence before it, as summarised above, the Tribunal is satisfied that Mr McCauley is medically capable of undertaking remunerative work on a part-time basis or intermittently within the meaning of s 23(1)(b) of the VEA; as constrained by s 23(2).

33. Mr McCauley has extensive vocational, trade and professional skills, qualifications and experience as a former Warrant Officer. He has a technical avionics background. He has qualifications in work health and safety, management, and human resources. He is trained in managing chemicals and drug and alcohol testing. He may reasonably be expected to undertake remunerative employment on a part-time or intermittent basis in any of these fields.

34. Although Mr McCauley lives in a small town, he is still within a reasonable commuting distance of several regional towns. It is well known that both Temora and Wagga Wagga have significant airfields. Despite Mr McCauley’s evidence to the contrary, the Tribunal is not satisfied that remoteness is a material barrier to Mr McCauley obtaining employment within the physical restrictions advised by Dr Shahzad. Rather, the evidence suggests that Mr McCauley has not been proactive in searching for suitable employment. Furthermore, Mr McCauley has a history of not working well with others in the workplace such as those he regards as “stupid”. This mindset does not give rise to a mental impairment that has reduced Mr McCauley’s capacity to undertake remunerative work.

35. Accordingly, the Tribunal is satisfied that Mr McCauley does not meet the requirements of s 23(1)(b) of the VEA. It is therefore unnecessary for the Tribunal to consider s 23(1)(c) of the VEA as Mr McCauley cannot qualify for an Intermediate Rate of pension.

36. The decision under review must therefore be affirmed.

    DECISION  

37. The Reviewable Decision is affirmed.

    I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for the decision herein of Senior Member George.

    ……………… …[Sgnd]…………..…….…

    Feng Jiang, Associate

    Date of decision:  11 September 2024

    Date of hearing:  19 April 2024

    Final submissions:  27 August 2024

    Solicitor for the Applicant:                  Ms A Irving
      March on Legal

    Solicitor for the Respondent:             Mr L Woolley
      Sparke Helmore

    ANNEXURE: EXHIBIT REGISTER

Date Lodged	Lodged By	DOCUMENT	Exhibit No.
7/2/2024	Respondent	Respondent’s Statement of Facts, Issues and Contentions (7/2/2024)	R1
22/12/2023	Applicant	Applicant’s Statement of Facts, Issues and Contentions (undated)	A1
29/8/2022	Respondent	T-Documents	R2
19/5/2023	Respondent	Bundle of Documents: ·     Letter to Dr Shahzad (10/2/2023) ·     Letter to Dr Shahzad (27/3/2023) ·     Report of Dr Shahzad (14/4/2023)	R3
20/10/2023		Bundle of Documents: ·     Letter to Dr Moffatt (29/8/2023) ·     Report of Dr Moffatt (5/10/2023)	R4
4/11/2022	Applicant	Statement of Bradley McCauley (4/11/2022)	A2
18/4/2024	Respondent	Respondent’s Tender Bundle	R5
		First 3 pages of Tab 5 of the Respondent’s Tender Bundle	R6