McCool and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1071

McCool and Repatriation Commission (Veterans' entitlements) [2017] AATA 1071 (10 July 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/2058
Re:James McCool
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Dr Graham Maynard, Member

Date:10 July 2017
Place:Brisbane

We affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD and Dr Graham Maynard
CATCHWORDS
VETERAN’S ENTITLEMENTS – Rate of pension – Whether Applicant eligible for special rate – Whether Applicant eligible for intermediate rate – Consideration of “Alone test” in ss 23 and 24 – Medical evidence insufficient to satisfy alone test – Applicant not entitled to payment at the special rate or intermediate rate – Decision under review affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 19, 23, 24, 28, 120
CASES
Repatriation Commission v Watkins [2015] FCAFC 10
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Butcher (2007) 94 ALD 364
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
10 July 2017
INTRODUCTION

On 28 August 2013, the applicant lodged a claim for an earnings-related rate of pension.
On 15 October 2013, a delegate of the respondent made a decision to increase the disability pension of the applicant to 100% of the general rate with effect from 28 August 2013.[1] On 11 March 2015, the Veterans’ Review Board (“VRB”) affirmed this decision.[2]
[1] Ex A T19, p. 138-142
[2] Ex A. T2
On 27 April 2015, the applicant made an application to this Tribunal for a review of that decision.[3]
[3] Ex A, T1
BACKGROUND
The applicant injured his back in 1969 while serving as a cook in the Royal Australian Air Force (“RAAF”).[4] Until his discharge from the RAAF in 1974 the applicant continued his duties as a cook.
[4] T22 p. 152-153
The applicant has two medical conditions that have been accepted as attributable to his service in the RAAF, namely: bilateral sensorineural hearing loss and lumbar spondylosis.[5]
[5] T19 p. 140-141
The applicant worked as a taxi driver from 1997 to 2010 and then from 2011 to on or about 22 February 2013 he worked 15 to 35 hours per week as a traffic controller. On 21 March 2013 he resigned from his position and has not worked since his resignation.[6]
[6] T24 at p. 206
MEDICAL EVIDENCE
Wesley Hospital Back Rehabilitation Program
The applicant attended at a Back Rehabilitation Program at the Wesley Hospital from 7 January to 18 January 2013.[7] The report of his attendance contains recommendations from Dr William Ryan, Orthopaedic Surgeon/Rehabilitation Physician, Marty Kelly, Physiotherapist, Robert Isaac, Accredited Exercise Physiologist and Julie-Anne Brennan, Occupational Therapist. Each physical health professional recommended the continuation by the applicant of flexibility and stretching exercises.
[7] Exhibit D, Back Rehabilitation Program Comprehensive Report dated 18 January 2013 pp. 1-7
Dr Ryan signed off on the recommendations on the front page of the report from the Back Rehabilitation Program that the applicant maintain a self-management exercise regime…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1071
Decision Date: 10 July 2017

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Repatriation Commission regarding veteran's entitlements. The applicant, who had served in the Royal Australian Air Force and suffered from accepted service-related conditions of bilateral sensorineural hearing loss and lumbar spondylosis, sought payment at the special or intermediate rate of pension. The applicant had previously worked as a taxi driver and traffic controller but had resigned from his traffic controller position and had not worked since.

The primary legal issues before the Tribunal were whether the applicant was eligible for payment at the special rate or the intermediate rate of pension. This required determining whether the applicant was prevented from working for eight hours a week by reason of his accepted conditions, a key criterion for these pension rates under sections 23 and 24 of the relevant Act. The Tribunal also considered whether the applicant met the requirements for the extreme disablement adjustment.

The Tribunal's reasoning focused on the conflicting medical evidence regarding the applicant's capacity to work. While one medical opinion suggested the applicant was unable to work due to back pain and mobility restrictions, the Tribunal gave greater weight to the opinion of an orthopaedic surgeon who found the applicant's spondylosis to be mild and unlikely to cause significant work capacity restrictions. The Tribunal noted that the surgeon's examination was comprehensive and his opinion was based on objective findings. Crucially, the Tribunal was not reasonably satisfied that the applicant was prevented from working for eight hours a week due to his accepted conditions, a prerequisite for the special and intermediate rates. The Tribunal also found no evidence to support an extreme disablement adjustment.

Consequently, the Tribunal affirmed the decision under review, finding the applicant not entitled to payment at the special or intermediate rate of pension. The Tribunal noted that the ameliorating provisions of sections 23(3) and 24(2) of the Act were not relevant as the applicant was over 65 years of age at the time of his claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 27 April 2015, the applicant made an application to this Tribunal for a review of that decision.[3][3] Ex A, T1BACKGROUND The applicant injured his back in 1969 while serving as a cook in the Royal Australian Air Force (“RAAF”).[4] Until his discharge from the RAAF in 1974 the applicant continued his duties as a cook. [4] T22 p. 152-153 The applicant has two medical conditions that have been accepted as attributable to his service in the RAAF, namely: bilateral sensorineural hearing loss and lumbar spondylosis.[5] [5] T19 p. 140-141 The applicant worked as a taxi driver from 1997 to 2010 and then from 2011 to on or about 22 February 2013 he worked 15 to 35 hours per week as a traffic controller. On 21 March 2013 he resigned from his position and has not worked since his resignation.[6][6] T24 at p. 206MEDICAL EVIDENCEWesley Hospital Back Rehabilitation Program The applicant attended at a Back Rehabilitation Program at the Wesley Hospital from 7 January to 18 January 2013.[7] The report of his attendance contains recommendations from Dr William Ryan, Orthopaedic Surgeon/Rehabilitation Physician, Marty Kelly, Physiotherapist, Robert Isaac, Accredited Exercise Physiologist and Julie-Anne Brennan, Occupational Therapist. Each physical health professional recommended the continuation by the applicant of flexibility and stretching exercises.[7] Exhibit D, Back Rehabilitation Program Comprehensive Report dated 18 January 2013 pp. 1-7 Dr Ryan signed off on the recommendations on the front page of the report from the Back Rehabilitation Program that the applicant maintain a self-management exercise regime incorporating stretching, stability training, strength training and cardiovascular exercise aimed at continuing to improve flexibility, postural stability, strength and fitness. It was also recommended that the applicant continue to have his exercise program monitored by an exercise physiologist to ensure exercise adherence and continued functional progression. Mr Isaac recommended that an exercise physiologist continue to monitor the exercise program to ensure exercise adherence to the program and continued functional progression. Mr Issac recommended that the applicant continue with the home exercise program he was issued on discharge and that he should aim to perform his strength training 2-3 times per week, stretch and stability exercises every day and walk (cardio) at least 3-5 times per week. Ms Brennan recorded the results of the “The Brief Pain Inventory” and the “Oswestry Low Back Pain Disability Questionnaire” conducted on admission and discharge from the program. Ms Brennan remarked that the applicant’s “performance on the program, his physical tolerances and manual handling capacity indicate that his current functional tolerances meet the physical demands of his job as a traffic controller”.[8] Ms Brennan recorded that the applicant stated that “he will be resuming his usual work duties following completion of the Back Program” and that the applicant stated that “he was motivated to return to work”. Ms Brennan recommended that there be a regular exercise program to “increase his functional tolerances for work and his activities of daily living” and there be a “return to work on usual duties following completion of the Back Program”. Ms Brennan recorded that the applicant was a traffic controller who was working for 25 hours per week.[8] Ibid at p. 5

Evidence

Evidence Before The Court

The applicant worked as a taxi driver from 1997 to 2010 and then from 2011 to on or about 22 February 2013 he worked 15 to 35 hours per week as a traffic controller. On 21 March 2013 he resigned from his position and has not worked since his resignation.[6][6] T24 at p. 206MEDICAL EVIDENCEWesley Hospital Back Rehabilitation Program The applicant attended at a Back Rehabilitation Program at the Wesley Hospital from 7 January to 18 January 2013.[7] The report of his attendance contains recommendations from Dr William Ryan, Orthopaedic Surgeon/Rehabilitation Physician, Marty Kelly, Physiotherapist, Robert Isaac, Accredited Exercise Physiologist and Julie-Anne Brennan, Occupational Therapist. Each physical health professional recommended the continuation by the applicant of flexibility and stretching exercises.[7] Exhibit D, Back Rehabilitation Program Comprehensive Report dated 18 January 2013 pp. 1-7 Dr Ryan signed off on the recommendations on the front page of the report from the Back Rehabilitation Program that the applicant maintain a self-management exercise regime incorporating stretching, stability training, strength training and cardiovascular exercise aimed at continuing to improve flexibility, postural stability, strength and fitness. It was also recommended that the applicant continue to have his exercise program monitored by an exercise physiologist to ensure exercise adherence and continued functional progression. Mr Isaac recommended that an exercise physiologist continue to monitor the exercise program to ensure exercise adherence to the program and continued functional progression. Mr Issac recommended that the applicant continue with the home exercise program he was issued on discharge and that he should aim to perform his strength training 2-3 times per week, stretch and stability exercises every day and walk (cardio) at least 3-5 times per week. Ms Brennan recorded the results of the “The Brief Pain Inventory” and the “Oswestry Low Back Pain Disability Questionnaire” conducted on admission and discharge from the program. Ms Brennan remarked that the applicant’s “performance on the program, his physical tolerances and manual handling capacity indicate that his current functional tolerances meet the physical demands of his job as a traffic controller”.[8] Ms Brennan recorded that the applicant stated that “he will be resuming his usual work duties following completion of the Back Program” and that the applicant stated that “he was motivated to return to work”. Ms Brennan recommended that there be a regular exercise program to “increase his functional tolerances for work and his activities of daily living” and there be a “return to work on usual duties following completion of the Back Program”. Ms Brennan recorded that the applicant was a traffic controller who was working for 25 hours per week.[8] Ibid at p. 5 The report contains a number of conclusions based on the achievement of a reduced percentage in back pain disability:·“The decrease in percentage indicates Mr McCool feels less limited with daily living tasks since attending the program.”·“Mr McCool reported a decrease in the impact of pain in his daily life.”·“On discharge Mr McCool felt he was capable of Sedentary work.”

Decision

Reasons for decision

As the applicant was over 65 years at the time of his claim, the ameliorating provisions of sections 23(3) and 24(2) of the Act are not relevant. There is no evidence before the Tribunal that the applicant satisfies the requirements for the extreme disablement adjustment.DECISION We affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The standard of proof required is that outlined in section 120(4) of the Act whereby we must determine any issues to our reasonable satisfaction.CONSIDERATION To be eligible for pension at the special rate, certain criteria in section 24 of the Act must be met. Pension The applicant is now in receipt of pension at 100% of the general rate. This meets the requirements of section 24(1)(aa) of the Act because the applicant has a pension which is at least 70% of the general rate.Whether the applicant is prevented from working for eight hours a week by reason of his accepted conditions We next must consider whether section 24(1)(b) of the Act is satisfied. There is conflicting medical evidence as to whether the applicant is prevented from working for eight hours a week by reason of his accepted conditions. Dr Rowan in his reports of 19 February 2016 and 25 June 2016 has given his opinion that the applicant was unable to do any work because of the pain in his back and his restrictions on mobility. Professor Outerbridge in his report of 23 October 2014 has given his opinion that what he regards as mild spondylosis “would not lead to significant restriction of his capacity to carry out his normal working duties”.[17][17] Exhibit A, T-documents, T24 at p. 215 Having considered these conflicting opinions, we cannot be reasonably satisfied that the applicant is prevented from working for eight hours a week by reason of his accepted conditions. Dr Rowan has quite properly acknowledged that he has no qualifications in orthopaedic medicine. There is also no evidence that Dr Rowan had objectively examined the work capacity of the applicant. The report of Dr Rowan dated 19 February 2016 refers to the reported symptomatology of the applicant. The report of Dr Rowan dated 25 June 2015 assumes that lumbar spondylosis and intervertebaral disc prolapse are separate conditions and acknowledges that it is impossible to identify the symptomology of each condition. Professor Outerbridge had undertaken a detailed physical examination of the applicant which is recorded in his report. In his report he gave his opinion that the symptoms of the applicant appear to be in excess of what one would expect considering his mild degenerative changes seen on the CT scan. Professor Outerbridge in his report referred to examples of what could be regarded as abnormal illness behaviour. Professor Outerbridge has reported that despite only being able to flex the hips to 60 degrees while supine, the applicant was able to sit at hips flexed at 90 degrees with no discomfort or pain.[18] [18] Ibid at p. 214 We rely upon the opinion of Professor Outerbridge who considered that the mild spondylosis of the applicant would not lead to a significant restriction of his capacity to carry out his normal working duties. Professor Outerbridge is an orthopaedic surgeon of some seniority in his profession. After having reviewed his report we consider that he approached his examination in a fair and comprehensive manner. Professor Outerbridge answered the questions put to him by the respondent directly and clearly and based his opinion on the findings of the CT scans which showed only mild lumbar spondylosis. Professor Outerbridge employed techniques that detect “abnormal illness behaviour” that are used especially in the examination of backs.