Michael Lee and Repatriation Commission

Case [2015] AATA 371

[2015] AATA 371  

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/5889; 2013/5890

Re

Michael Lee

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Date 28 May 2015
Place Sydney

The decision of the Veterans’ Review Board, dated 30 July 2013, that Mr Lee is not entitled to payment of the pension at either the special rate or the intermediate rate, is affirmed.

.............................[sgd]...........................................

Deputy President J W Constance

Catchwords

VETERANS’ ENTITLEMENTS – pension – special rate of pension – lumbar spondylosis - whether condition of itself alone renders applicant totally or permanently incapacitated 

VETERANS’ ENTITLEMENTS – pension – intermediate rate of pension - lumbar spondylosis – whether condition of itself alone renders applicant incapable of working part-time or intermittently – non-accepted condition of obesity – whether accepted conditions alone prevent from continuing to undertake remunerative work

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 19, 23, 24, 28

Cases

Chambers v Repatriation Commission (1995) 55 FCR 9

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Richmond [2014] FCAFC 124

Richmond v Repatriation Commission [2014] FCA 272

Smith v Repatriation Commission [2014] FCAFC 53

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

  1. Mr Lee served in the Royal Australian Air Force from 1971 until 1994. He worked primarily in aircraft maintenance.

  2. The Repatriation Commission has accepted that Mr Lee suffers from a number of medical conditions arising from his military service. As a result, Mr Lee is currently in receipt of a disability pension at 100 per cent of the general rate.  This pension is payable in accordance with the provisions of the Veterans’ Entitlements Act 1986 (Cth).

  3. On 14 November 2011, Mr Lee lodged an application for an increase in his rate of disability pension. The Repatriation Commission refused this application on 3 January 2012.

  4. On 22 March 2012, Mr Lee lodged a claim for acceptance of his condition of diabetes as related to service. This was accepted by the Repatriation Commission in a determination dated 30 March 2012, however, Mr Lee’s rate of pension was continued at the general rate rather than at the special rate.

  5. Both decisions were appealed by Mr Lee to the Veterans’ Review Board. The Board affirmed the decisions and so Mr Lee’s rate of pension remains at 100 per cent of the general rate.

  6. Mr Lee has applied to the Tribunal for a review of the decision of the Veterans’ Review Board. For the reasons which follow, the decision under review will be affirmed.

    BACKGROUND

  7. Mr Lee enlisted in the Royal Australian Air Force in 1971. After completing training as an airframe fitter in 1973, he was posted to the Richmond Air Base where he engaged in what he describes as “deeper level maintenance on multi-engine aircraft”.[1]

    [1] Exhibit A1.

  8. His work in aircraft maintenance involved heavy lifting. He and others would prop up on their shoulders long objects of over 250kg in order for other aircraft fitters to fit these to the aeroplane.…

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AGLC
Michael Lee and Repatriation Commission [2015] AATA 371
Case
[2015] AATA 371
Decision Date

CaseChat Overview and Summary

In the case of Michael Lee and the Repatriation Commission, the applicant, Mr Lee, sought a review of a decision by the Veterans’ Review Board regarding his eligibility for an increased rate of pension under the Veterans’ Entitlements Act 1986. The central issue was whether Mr Lee's condition of lumbar spondylosis, by itself, rendered him totally or permanently incapacitated, thus entitling him to a special rate of pension, or whether it merely rendered him incapable of working part-time or intermittently, thereby qualifying him for an intermediate rate of pension.

The court had to determine whether Mr Lee’s lumbar spondylosis, independent of other conditions such as obesity, rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The court examined the evidence provided by Mr Lee, Professor Ghabrial, and Dr Chase, weighing their opinions on Mr Lee's capacity to work. Professor Ghabrial opined that Mr Lee was unfit for any type of work, whereas Dr Chase believed Mr Lee could work between 8 and 20 hours per week in a job that avoids heavy physical work and allows alternating standing and sitting. The court found Dr Chase's view more persuasive due to his expertise in occupational medicine and rehabilitation, concluding that Mr Lee’s lumbar spondylosis did not alone render him incapable of engaging in part-time work.

Consequently, the court affirmed the Veterans’ Review Board's decision, holding that Mr Lee did not satisfy the requirements of subsection 24(1)(b) of the Act and was not entitled to the special rate of pension. However, the court determined that Mr Lee was entitled to the intermediate rate of pension under section 23 of the Act. This conclusion was based on the finding that while Mr Lee's lumbar spondylosis impaired his ability to work full-time, it did not prevent him from undertaking part-time work under the specified conditions.

Orders

Orders of the court

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Background

Background to the litigation

Mr Lee has applied to the Tribunal for a review of the decision of the Veterans’ Review Board. For the reasons which follow, the decision under review will be affirmed.BACKGROUND Mr Lee enlisted in the Royal Australian Air Force in 1971. After completing training as an airframe fitter in 1973, he was posted to the Richmond Air Base where he engaged in what he describes as “deeper level maintenance on multi-engine aircraft”.[1][1] Exhibit A1. His work in aircraft maintenance involved heavy lifting. He and others would prop up on their shoulders long objects of over 250kg in order for other aircraft fitters to fit these to the aeroplane. Later in his career, he was engaged in the installation and removal of aeroplane wings. It was during this time that Mr Lee first experienced back pain and consequent difficulty with tasks including climbing and manoeuvring himself into confined spaces in and around aircraft. After leaving the RAAF in 1994, Mr Lee worked as a contractor for the Royal Australian Navy, supervising engineering work on ships. He continued this work until about December 1999. Mr Lee states that his back problems caused him difficulty in moving in confined spaces throughout the ships on which he worked. From 2000, Mr Lee worked in engineering management roles for the RAAF. Mr Lee states that his back condition grew worse from about 2000 onwards. He found it more difficult to perform household tasks, and gave up mowing his lawn in about 2005 on account of the pain. He terminated his employment on 14 September 2011. In a Lifestyle Questionnaire completed in support of his application for an increase in the rate of pension, Mr Lee stated that this was “due to increased pain and restrictive [sic] mobility”.[2][2] Exhibit R1, p 42.LEGISLATION Part II of the Veterans’ Entitlements Act 1986, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”. The pension which is being paid to Mr Lee is payable in accordance with this Part. Section 15 permits a veteran who is in receipt of a pension under Part II to apply for an increase in the rate of the pension on the ground that his/her incapacity has increased since the pension was last assessed. In determining whether a veteran is eligible for an increase in the rate of pension, section 19 of the Act provides that the veteran’s entitlement is to be assessed with respect to any circumstance that occurs within the assessment period. The assessment period runs from the date of the application for an increase in the pension (in this case 14 November 2011) up to the decision of this Tribunal.[3] As stated by Buchanan J in Smith v Repatriation Commission:[4]The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.[3] Subsection 19(9).[4] [2014] FCAFC 53, [40].

Evidence

Evidence Before The Court

In his report of 19 June 2014, Professor Ghabrial also referred to his review of the x-rays performed on 17 June 2011. He reported that these x-rays:… showed an old trauma to the T8 vertebra with a mild wedge fracture. There is also, what appears to be, thoraco-lumbar spondylosis with some degenerative spondylolisthesis of the L3/4 vertebra without any stress fracture of the pars indicating that it is related to the spondylosis.When he gave evidence, Professor Ghabrial explained that there are 5 types of spondylolisthesis, one of which is degenerative spondylolisthesis which is part of spondylosis. In his view, Mr Lee suffers from degenerative spondylolisthesis.Evidence of Dr Chase, Occupational Physician Dr Chase assessed Mr Lee on 3 April 2014 at the request of the Department of Veterans’ Affairs. He provided a report dated 12 May 2014,[10] and gave evidence.[10] Exhibit R2. Dr Chase expressed the view that a combination of Mr Lee’s low back pain and his morbid obesity would impact on his capacity to engage in full-time or unrestricted work. It is the opinion of Dr Chase that Mr Lee is able to work in an administrative or managerial role for a period between eight and twenty hours per week. This could be up to four hours per day five days per week or alternatively five hours per day four days per week. Dr Chase advises various patterns of work in establishing rehabilitation programs for his patients. In his experience, it is reasonable to expect a person with degenerative changes in the back, and mechanical back pain, to work between eight and twenty hours per week. In this situation, pain management medication could be used to reduce pain in such a way that would not involve drowsiness or loss of concentration.Section 28 of the Act – capacity to undertake remunerative work This section sets out the matters to be taken into account in applying the provisions of subsection 24(1)(b). The section 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 …… 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). The effect of s 28 is to exclude all other factors from consideration in determining whether the Applicant satisfies subsection 24(1)(b).[11] [11] Chambers v Repatriation Commission (1995) 55 FCR 9 at [39].Consideration On the basis of the evidence of Mr Lee, I am satisfied that he has the vocational, trade and professional skills, qualifications and experience of an airframe fitter, aircraft maintenance officer, supervisor of engineering work on aircraft and ships, and of a clerical and administrative worker.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The effect of s 28 is to exclude all other factors from consideration in determining whether the Applicant satisfies subsection 24(1)(b).[11] [11] Chambers v Repatriation Commission (1995) 55 FCR 9 at [39].Consideration On the basis of the evidence of Mr Lee, I am satisfied that he has the vocational, trade and professional skills, qualifications and experience of an airframe fitter, aircraft maintenance officer, supervisor of engineering work on aircraft and ships, and of a clerical and administrative worker. Further, I am satisfied that a person with the skills, qualifications and experience referred to above might reasonably undertake the kind of remunerative work which Mr Lee has undertaken and, in addition, remunerative work of a general clerical and/or administrative nature in commercial enterprises and in the Public Service. In considering the degree to which Mr Lee’s physical impairment arising from his back condition has reduced his capacity to undertake the remunerative work referred to above, I have taken into account his evidence together with that of Professor Ghabrial and Dr Chase. In doing this, I have given careful consideration to Mr Lee’s statement that in 2011, after experiencing increasing back pain for several years, he reached the conclusion that he could no longer continue to work. I accept that Mr Lee was an honest witness and genuinely held this view at the time he ceased working and has continued to hold the same view. The view held by Mr Lee is supported by Professor Ghabrial who is of the opinion that Mr Lee is not fit for any type of work. However, having considered the competing views of Professor Ghabrial and Dr Chase, I prefer the opinion of Dr Chase that Mr Lee is capable of working between 8 and 20 hours per week in a job that does not require heavy physical work and permits him to alternate standing and sitting. I prefer the evidence of Dr Chase by reason of his qualifications and experience in occupational medicine involving the rehabilitation of patients and the development of suitable programs for their return to work. Whilst Professor Ghabrial has vast experience in treating and repairing spinal conditions, he did not provide the overall view of possible rehabilitation and return to work provided by Dr Chase. Whereas Professor Ghabrial considered that the need for Mr Lee to take drugs for pain relief may affect his ability to work, Dr Chase’s experience enabled him to put forward proposals for pain relief which were consistent with Mr Lee being able to engage in employment. On this basis, I am not satisfied that Mr Lee’s incapacity from his lumbar spondylosis 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. Mr Lee does not satisfy the requirements of subsection 24(1)(b) of the Act and is therefore not entitled to payment of the pension at the special rate.PART BIS MR LEE ENTITLED TO PAYMENT OF THE PENSION AT THE INTERMEDIATE RATE (s.23)?