McMahon and Repatriation Commission
[2008] AATA 622
•16 July 2008
Administrative Appeals Tribunal
INTERIM DECISION AND REASONS FOR INTERIM DECISION [2008] AATA 622
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1657
VETERANS' APPEALS DIVISION ) Re PATRICK MCMAHON Applicant
And
REPATRIATION COMMISSION
Respondent
INTERIM DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Dr J Campbell, MemberDate16 July 2008
PlaceSydney
Interim
DecisionThe appropriate course is to allow the parties the opportunity to obtain the evidence necessary to enable us to make the correct or preferable decision. First, we need evidence to show, what, if any, is the appropriate adjustment for presbyacusis. Secondly, if some adjustment for presbyacusis is appropriate, does Mr McMahon's war-caused hearing loss alone have the effect that he cannot undertake relevant remunerative work prescribed by s 24(2A)(c) and (d) of the Veterans’ Entitlements Act 1986.
We will list a directions hearing at a time convenient to the parties when we will make further directions, if necessary. We are not, of course, precluding the parties from coming to an agreement without our assistance about the appropriate way to proceed.
..................[sgd].................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
VETERANS’ AFFAIRS – Pension - Special Rate – Criteria for – 90 year old claimant – Employed by Australian Bureau of Statistics - War-caused hearing loss – Whether war-caused hearing loss alone renders applicant incapable of undertaking any remunerative work for 8 hours per week - Whether war-caused hearing loss alone prevented applicant from continuing last paid work - Whether Guide to the Assessment of Rates of Veterans’ Pension applies to claims for special rate - Medical evidence considered – Interim decision –Further medical evidence about effect of presbyacusis required - Directions hearing to be set down
Administrative Appeals Tribunal Act 1975, s 33, 37
Veterans’ Entitlements Act 1986, ss 19, 21A, 24, 28 120
Guide to the Assessment of Rates of Veterans’ Pension (5th Edition), Scale 7.1.9
REASONS FOR INTERIM DECISION
16 July 2008 Senior Member, Mrs Josephine Kelly
Dr J Campbell, Member1. Mr Patrick McMahon was born on 17 June 1915. He is now 93 years of age. He was 90 years at the time he made his claim which is the subject of these proceedings. He worked for the Australian Bureau of Statistics (ABS) on a part-time basis as a field interviewer from 1974 until 10 January 2006. He served in the Royal Australian Air Force (RAAF) in New Guinea for 14 months during World War II. He served in the RAAF from March 1942 to 12 December 1945. He has operational service as defined in the Veterans' Entitlements Act 1986 (the Act).
THE ISSUES
2. The question in these proceedings is whether Mr McMahon is entitled to the Special Rate of Pension pursuant to s 24 of the Act. The issues in simple terms are whether Mr McMahon's hearing loss, which is related to service, alone prevents him from undertaking remunerative work for more than 8 hours per week (s 24(1)(b) and s 24(2A)(c) of the Act), and whether that hearing loss alone prevented him from undertaking his "last paid work" as a field interviewer for the ABS (s 24(2A)(d) of the Act) (emphasis added).
THE REVIEWABLE DECISION
3. The decision under review is the decision of the Repatriation Commission (the Commission) dated 23 June 2006 that continued disability pension at 100% of the General Rate, as affirmed by the Veterans’ Review Board on 16 March 2007.
DATE OF EFFECT
4. The ‘assessment period’ in this matter commenced on 1 February 2006, when Mr McMahon claimed an increase in his pension. That is the ‘application day’ (s 19(9) of the Act). If this application is successful, the earliest date of effect would be 1 February 2006.
DISABILITIES
5. The following disabilities of Mr McMahon have been accepted by the Department as war caused:
- Lumbar Spondylosis;
- Cervical Spondylosis;
- Bilateral acquired cataracts;
- Non melanotic malignant neoplasm of the skin; and
- Bilateral sensori-neural hearing loss.
6. The following disabilities of Mr McMahon have been rejected by the Department as war caused:
- Macular degeneration;
- Ischaemic heart disease;
- Atrial fibrillation; and
- Tension headache.
THE CASE FOR MR MCMAHON
7. The case for Mr McMahon was, of course, that his service related hearing loss alone renders him incapable of undertaking any remunerative work for more than 8 hours per week (s 24(1)(b) and s 24(2A)(c)) of the Act, and that that hearing loss alone prevented him from undertaking his "last paid work" as a field interviewer (s 24(2A)(d) of the Act).
8. Mr McMahon gave evidence. We also have the material in the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, Mr McMahon's written statement, and other material tendered by Ms Wood, counsel who appeared for Mr McMahon. Evidence from Dr Harvey-Sutton, occupational physician, was relied upon. Dr Harvey-Sutton's opinion was that Mr McMahon is not capable of working for more than 8 hours per week by reason of his accepted conditions, in particular his hearing loss. As Dr Harvey-Sutton said:
In fact I do not believe that he can work at all as
- "mistakes" in relation to his interviewing technique are not acceptable,
- the close proximity which he would have to stand to hear people, is socially unacceptable
- His requests to "repeat" the answers would not be professionally acceptable.
THE LEGISLATION
9. Following are the relevant provisions of the legislation.
10. Section 24 of the Act relevantly provides:
(1) This section applies to a veteran if:
…
(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
…
(2A) This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason
11. Section 28 of the Act provides:
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
12. According to s 5Q of the Act, the term “remunerative work includes any remunerative activity”.
13. Section 21A of the Act is relevant because of a submission made on behalf of the Commission. That section provides:
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions.
(2) Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3) The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.
WHAT WAS NOT IN DISPUTE
14. Mr O'Reilly, who appeared for the Commission, stated that it was accepted that Mr McMahon satisfied s 24(1)(a)(i), that is he has at least 70% incapacity, and s 24(2A)(a) and (b), that is that he made his application for an increase in pension and had turned 65 before making that application. Mr O’Reilly also conceded that if Mr McMahon succeeded in respect of s 24(2A)(d), then it was accepted that he had suffered loss of salary or wages as required by s 24(2A)(e). Mr O'Reilly also accepted that Mr McMahon satisfied s 24(2A)(f) and (g), that is to say, that Mr McMahon was undertaking his last paid work after he had turned 65 and, when he stopped undertaking his last paid work had been working in his profession for at least 10 years, beginning before he turned 65.
STANDARD OF PROOF
15. The standard of proof to be applied is prescribed by s 120(4) of the Act (reasonable satisfaction).
CONSIDERATION
16. Mr McMahon is a remarkably fit 93 year old who plays tennis, square dances, and continues to drive a motor vehicle.
17. In his claim form he stated that he had to cease work because of his war-caused hearing loss:
It became almost impossible to attend to matters over the telephone or understand what was being said during training sessions.
18. He had lodged his resignation from the ABS "effective from 28th October 2005" by a letter dated 30 August 2005, however, he said that he was asked to stay on to take part in the centenary celebrations of the ABS in December 2005, and he agreed to stay until after the completion of the January 2006 survey.
19. Mr McMahon’s employment history included work as a farm labourer, seller of white goods and radios, as a fitter and teacher of fitting during his Air Force service, constructing tennis courts, and as a curator of tennis courts, farming, driving, agricultural market analyst and reporter and his field interviewing with the ABS.
20. His general practitioner, Dr Dowe, wrote a letter dated 30 August 2005. He stated that Mc McMahon suffers from bilateral sensori-neural hearing loss, which had:
deteriorated to a degree that he can no longer carry out his work as a field interviewer [with the ABS] even though he is using advanced technology digital hearing aids.
Dr Dowe referred to the audiologist's assessment carried out in July 2005.
21. In February 2006, a further audiogram was carried out at the request of the Department of Veterans Affairs. The report stated:
Mr McMahon has a moderate to profound bilateral sensorineural hearing loss. This represents a slight deterioration over the last couple of years. He reports intermittent mild tinnitus in both ears.
22. In an employment questionnaire Mr McMahon filled out in March 2006, he wrote that he had:
resigned in Jan[uary] 2006 because, over the previous 18 months to 2 years my hearing problem had become so much worse that I could not properly hear the people I was interviewing… I would not be able to do other work as I can’t conduct interviews, I can’t effectively take instructions, nor be involved in discussions about the work.
23. Dr Dowe filled out a work ability report questionnaire on 16 March 2006. He ticked a box indicating that Mr McMahon could do work other than that previously undertaken, but commented "At the age of 90 work is hard to come by and do".
24. The Commission relied on the evidence of Dr Chase, occupational physician, who had prepared a report dated 27 August 2007. He also gave oral evidence.
25. Dr Chase's opinion was that Mr McMahon is capable of working more than 8 hours per week, but less than 20 hours per week. Dr Chase accepted that Mr McMahon cannot continue in the role he was performing for the ABS because of his hearing loss:
while the likelihood (in reality) of him returning to work or gaining paid employment is loss there are no reasons why he could not work for more than eight but less than 20 hours per week.
26. Dr Chase did not perform a full formal occupational therapy assessment. He described Mr McMahon as:
a spry man who is very fit for his age, though this does not change the fact that he is 92 years of age.
27. Dr Chase noted a markedly restricted range of movement in the cervical and lumbar spine, and commented that he had evidence of widespread osteoarthritis, which was not unexpected in a man of his age. He said:
His back and neck pains do provide him with some restrictions regarding paid employment but they would not prevent him from working altogether in any sort of administrative or interviewing role..
28. Mr O'Reilly, on behalf of the Commission, also submitted that there is a considerable age related component of Mr McMahon's hearing loss, that is due to presbyacusis. He argued that the Guide to the Assessment of Rates of Veterans' Pensions (5th Edition) (GARP) requires an adjustment for presbyacusis to be made. In Mr McMahon's case, that is 12.5%.
CONCLUSION
29. This is an exceptional case. We are not persuaded by the submissions made on behalf of the Commission to the effect that the legislation did not contemplate a person of Mr McMahon's age satisfying the criteria set out in the Act. Those criteria are either satisfied or they are not.
30. The dispute between the parties commenced with whether Mr McMahon satisfied s 24(1)(b) of the Act, that is, whether Mr McMahon's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (emphasis added).
31. On this question, we prefer the evidence of Dr Harvey-Sutton to that of Dr Chase. We have difficulty comprehending the type of work that Dr Chase considers that Mr McMahon can undertake. We infer that he believes Mr McMahon can undertake some administrative/interviewing work. We accept Mr McMahon's evidence that he stopped work because of his hearing loss. We do not accept that there is employment available for him despite his hearing loss. We also do not accept the submission we understood Mr O'Reilly to make that Mr McMahon's age would prevent his working. He had been working for the ABS until after his 90th birthday, which is many years beyond the normal span of a working life. Dr Chase’s evidence supports that view.
32. Considering all the evidence, we find that Mr McMahon's hearing loss alone renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
33. We turn now to Mr O'Reilly's submission that the legislation requires a 12.5% adjustment for presbyacusis, pursuant to the GARP, such that we cannot be satisfied that Mr McMahon satisfies the "alone" test in sub-sections 24(2A)(c) and (d) of the Act.
34. We accept that the GARP applies to the determination under s 21A of the degree of incapacity from war-caused injury. Section 21A(2) requires that the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%. Mr McMahon's incapacity has previously been determined as 100%, and that has not been challenged. The evidence demonstrates that the 12.5% adjustment, required by scale 7.1.9 of the GARP, was made in coming to the assessment of 100%. As the Commission conceded, Mr McMahon satisfies the 70% degree of incapacity prescribed by s 24(1)(a) of the Act.
35. In our opinion, the GARP itself has no further relevance to the determination to be made pursuant to s 24 of the Act. However, we do accept that, putting aside the GARP, the measurement of hearing loss may take into account a component for presbyacusis, depending on age. We note that Scale 7.1.9 of the GARP states that the adjustments for presbyacusis have been modified from the adjustments provided by the National Acoustic Laboratories.
Additional evidence required
36. The evidence before us does not address the question of whether an adjustment should be made for presbycusis, and, if so, whether the presbycusis "factor" plays a part in rendering Mr McMahon incapable of undertaking any remunerative activity for more than 8 hours per week, (s 24(2A)(c) and s 24(1)(b) of the Act). The same difficulty confronts us in relation to making a finding pursuant to s 24(2A)(d) of the Act.
37. We do find on the evidence, that Mr McMahon's hearing loss alone prevented him from continuing to undertake his last paid work, that is, as a field interviewer, but again the presbyacusis question prevents us from making a finding on the question of whether it was his war-caused hearing loss alone that had that effect.
38. In order to make the correct or preferable decision, we require the following additional evidence. First, we need evidence to show, what, if any, is the appropriate adjustment for presbyacusis. Secondly, if some adjustment for presbyacusis is appropriate, does Mr McMahon's war-caused hearing loss alone have the effect that he cannot undertake relevant remunerative work prescribed by s 24(2A)(c) and (d) of the Act.
39. The Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it things appropriate (s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 33(1AA) of the AAT Act casts an obligation on the decision-maker to use their best endeavours to assist the Tribunal.
INTERIM DECISION
40. It seems to us that the appropriate course is to allow the parties the opportunity to obtain the evidence necessary to enable us to make the correct or preferable decision. First, we need evidence to show, what, if any, is the appropriate adjustment for presbyacusis. Secondly, if some adjustment for presbyacusis is appropriate, does Mr McMahon's war-caused hearing loss alone have the effect that he cannot undertake relevant remunerative employment prescribed by s 24(2A)(c) and (d) of the Act.
41. We will list a directions hearing at a time convenient to the parties when we will make further directions, if necessary. We are not, of course, precluding the parties from coming to an agreement without our assistance about the appropriate way to proceed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the interim decision herein of Senior Member,
Mrs Josephine Kelly and Dr J Campbell, Member.Signed: ………[sgd]………..
Steven Mulipola, Associate
Date of hearing: 13 March 2008
Date of decision: 16 July 2008
Counsel for the Applicant: Ms E Wood
Solicitors for the Applicant: Legal Aid Commission of NSW
Representative for the Respondent: Advocacy, Department of Veterans’ Affairs
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