Miller and Repatriation Commission
[2011] AATA 176
•18 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 176
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2523
VETERANS' APPEALS DIVISION ) Re DESMOND MILLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date18 March 2011
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – rate of pension – applicant receives pension at 100% of general rate – applicant applied for increase in rate of pension in December 2008 – applicant worked as ship refueller and performed heavy labouring duties – applicant ceased work in 1996 following shoulder injury – applicant has not worked or sought work since – applicant’s pelvis fractured in accident in January 2007 – applicant had successful surgery for fractured pelvis – applicant suffers from war-caused diseases including post traumatic stress disorder, ischaemic heat disease and alcohol abuse – applicant totally and permanently incapacitated from war-caused diseases – physical aftermath of applicant’s pelvis injury contributing to his being prevented from continuing to undertake type of remunerative work that he was undertaking – applicant not prevented by war-caused incapacity alone from continuing to undertake that work – applicant not eligible for special rate of pension – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 24(1)(c)
Banovich v Repatriation Commission (1986) 69 ALR 395
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
18 March 2011 Deputy President S D Hotop Introduction
1. Desmond Miller (“the applicant”), who was born in May 1948, was called up for national service under the National Service Act 1951 (Cth) and served in the Australian Army from October 1968 to October 1970. He rendered “operational service”, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE ACT”), in Vietnam in 1969/1970.
2. The applicant receives a disability pension under Part II of the VE Act by reason of incapacity from various war-caused injuries or war-caused diseases (within the meaning of the VE Act), namely:
· bilateral otitis media;
· anxiety/depression;
· allergic rhinitis;
· sensori-neural hearing loss;
· ischaemic heart disease;
· post traumatic stress disorder;
· alcohol abuse; and
· alcoholic liver damage.
The rate of his disability pension is presently 100% of the “general rate” under s 22(3) of the VE Act.
3. On 1 December 2008 the applicant applied for an increase in the rate of his disability pension.
4. On 4 June 2009 a delegate of the Repatriation Commission (“the respondent”) decided that the rate of the applicant’s disability pension was to remain at 100% of the general rate.
5. On 24 March 2010 the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision of 4 June 2009.
6. On 17 June 2010 the applicant applied to the Tribunal for review of the delegate’s decision as affirmed by the VRB on 24 March 2010.
The Issue and the Tribunal’s Determination
7. The issue for the Tribunal’s determination is whether the applicant is eligible for the special rate of pension under s 24 of the VE Act.
8. For the reasons which follow, the Tribunal has determined that the applicant is not eligible for the special rate of pension under s 24 of the VE Act.
The Relevant Legislation
9. Section 24 of the VE Act relevantly provides:
“ 24 Special rate of pension
(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)…; 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:
…”
The Evidence
10. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T23, pp I–XIV, 1–132) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1 and A2 tendered by the applicant;
· Exhibits R1–R3 tendered by the respondent; and
· the oral evidence of the applicant.
The Applicant’s Case
11. The applicant’s case, as comprised in his oral evidence and documents included in the T Documents and Exhibits, may be summarised as follows:
· he was employed by BP Australia from 1978 to 31 May 1998;
· his work involved refuelling ships and included general labouring duties, lifting and general maintenance;
· his work was heavy, physical work;
· he ceased labouring work in 1995 following an industrial accident in which he sustained a shoulder injury;
· he then received workers’ compensation payments but he subsequently returned to work and did clerical office work for about 4–5 months until early 1996;
· that clerical work was not suitable work for him – labouring work is all he has ever done;
· he has not performed any work since early 1996 and he eventually ceased employment with BP Australia on 31 May 1998 on the grounds of ill health;
· he now has no shoulder problems;
· in January 2007 he was accidentally crushed by a 2-tonne steel beam and he suffered pelvic fractures and other physical injuries;
· although he suffered great pelvic pain in 2007–2008, those injuries were subsequently repaired by surgery and “came good” in 2009 and from that time he has not needed to take painkillers;
· he can now walk “quite well” and he walks about 3 kilometres every day.
· he told his orthopaedic surgeon, Professor Yates, in September 2009 that he wanted to work, and Professor Yates told him that he could do “light work”, including lifting as long as it was not too heavy, and that his “body would tell” him if he was overdoing it;
· he has, however, not sought work because of his war-caused diseases, especially post traumatic stress disorder and ischaemic heart disease, and the mental and physical symptoms which he suffers as a result of those diseases.
The Medical Evidence
12. The T Documents and Exhibits include the following relevant medical material.
Dr Benjamin Jesudas
13. A letter from Dr Jesudas, the applicant’s treating general practitioner, to the Department of Veterans’ Affairs, dated 23 June 2008, states as follows:
“ This is to state that Desmond is unable to work due to his disability. He is suffering from Post traumatic stress disorder and his heart conditions. He is on pacemaker on his R/chest. …” (T16, p 76)
14. A letter from Dr Jesudas addressed “To whom it may concern”, dated 21 November 2008, states as follows:
“ This is to state that Desmond is my patient since 11/12/07. I have seen him for various problems during this period. He is under mental health team at Hollywood Hospital for his Post traumatic stress disorder. He had both shoulder injuries in the past and according to Mr Keith Holt the Orthopedic Surgeon the cause for both shoulder injuries can be regarded as a sequaela of veteran’s accepted vascular disease. The letter is attached for your perusal. His both shoulders are normal and no limitations of movements now. According to the various specialist correspondence in the past, Desmond sustained various physical and mental conditions due to the veteran’s service. …” (sic) (T16, p 75)
15. A letter from Dr Jesudas to the applicant’s advocate, dated 8 June 2010, states as follows:
“ I would like to bring your attention regarding Mr Miller’s repatriation review which was conducted on 04/06/2009. According to the review his sleeping disorder, tremor and falling disorders were not accepted as veteran’s related injuries and mentioned these injuries were related to his employment at BP. According to his clinical history since he returned from Vietnam, all the symptoms and signs were most likely related anxiety and PTSD due to the war. The repatriation commission letter dated on 21/01/1986 clearly indicated that Mr Miller’s disability of anxiety and depression causes him to become easily irritable, to lose his temper readily, to suffer sweating hands and feet and, in times of stress, to experience tremor, abdominal discomfort and heart palpitation. The disability causes him to have nightmares and insomnia, to suffer significant cognitive impairment.
I therefore kindly request you to take this case again and to reconsider to accept the above symptoms as veteran’s related.” (sic) (Exhibit A1)
Dr Keith Holt
16. A report of Dr Holt, Orthopaedic Surgeon, regarding the applicant, dated 22 May 2008 (referred to in Dr Jesudas’ abovementioned letter of 21 November 2008), states as follows:
“ Thanks for asking me to review this man again who had a repair of his right rotator cuff tendons in 1998. This tear was injury related and indeed the cause was a black out whilst he was in the shower. The injury itself has been repaired and he now has full function of his shoulder without any residual problems remaining. From a shoulder perspective therefore he can be regarded as normal and from a shoulder perspective he can be regarded as fit for work.
He did have a loss of consciousness in the shower and it has subsequently been shown that he has got ischemic heart disease and this could well have been a cardio-vascular or cerebro-vascular accident and therefore the injury could be regarded as a sequela of his veterans accepted vascular disease. Certainly no other cause for his syncopal episode has been identified. From that perspective therefore I would support his current claim that is before the board.” (T16, p 77)
Professor J Nivbrant
17. A report of Professor Nivbrant, Orthopaedic Surgeon, to Dr Jesudas, dated 6 February 2008, states as follows:
“ Thank you for referring Mr Miller who is in significant trouble following a trauma about year (sic) ago when he was partly crushed under some heavy machinery. He was taken to Royal Perth Hospital but he did not undergo any surgery. His pelvis has now healed in a ? ‘crumbled position’ (sic). He has massive fractures of his pubic bones bilaterally and they have probably not healed well on the left side. He also has a fracture of the right posterior part of the sacrum and the ileum which appear not to be healed.
Mr Miller is in a lot of pain. He has seen the Pain Management Team and is using all appropriate medications but life is not easy. He has a lot of pain especially from the right pelvis posteriorly with some cracking and crepitation pain from his pubic bones on the left side.
On examination he was quite sore posteriorly over the ESI and ileum parts of the pelvis and he has pretty poor posture.
Unfortunately I am not much of a pelvic specialist myself but I think there is a possibility to discuss fusion of his right ESI joint and probably either fusion or removal of the non-healed parts of the bone on the ileum side as well as doing some sort of fusion to the pubis as well but I think the posterior problem is the number one worst of the lot. Since Royal Perth Hospital has decided not to give it a go I think we will have to try another pelvic specialised surgeon and a good option would be Piers Yates. He is working at Fremantle and I will write a referral to Mr Yates and ask him to take a serious look at Mr Miller and discuss what can be done for him.” (part of Exhibit R1)
Professor Piers Yates
18. On 7 May 2008 Professor Yates, Orthopaedic and Trauma Surgeon, reported to Professor Nivbrant as follows:
“ Mr Miller is a 59 year old Vietnam veteran. At the beginning of 2007 he was crushed between a structure and the ground and had a vertically unstable left hemi-pelvis with apparently an open bowel injury. This was treated with immediate bowel repair but no stabilisation or fixation of the pelvic ring injury. Since then he has gone on to make a good medical recovery. Bowel and bladder function have returned reasonably well. He has some hesitancy but normal erectile function and the bowels are functioning nicely.
His main symptoms relate to the posterior sacroiliac region. He has persistent pain made worse by weight bearing or stressing. This forces him to use a frame for walking. Apparently he was listed for surgery by Professor Zellweger at Royal Perth Hospital, but on the day this did not happen and it is unclear what the plan is since then.
CTs in November reveal sacroiliac fracture dislocation with superior/posterior rotational displacement. There is also non union at the anterior ring and united left anterior structures. There does not appear to be any nerve root pain or symptoms, and his knee and hip are otherwise normal.
His symptoms are very consistent with instability on this side. It would be entirely reasonable to consider correction of the malunion/non union. Before I make this decision however I would like some more information, particularly a new CT scan. I have explained to him and his wife that any surgery will be extremely difficult. The results of sacroiliac fusion are notoriously poor with benefits in pain of about 50%. However his symptoms and signs are consistent with his injury and it is certainly worth considering.” (part of Exhibit R1)
19. On 4 June 2008 Professor Yates reported to Professor Nivbrant as follows:
“ CT shows a posterior translation of the right hemipelvis of about 1.5 cm. I think it is unlikely though to move this far forward. His problems are to do with weight bearing and the prominence of the posterior iliac spine.
I think the best thing to do in the situation is therefore to fuse both the front and back of the ring and excise the posterior iliac spine, and not try and reposition his whole hemi-pelvis.
I have explained that I do not expect to make him 100% but will make him a good deal better. This will not effect (sic) his neurogenic pain.
This surgery is a risk to his life and limb with significant possible complications that I went through with him today. He is very keen to proceed to surgery and he is listed as such. Will need pelvic set, 2 femoral heads, large fragment screws, 7.3 cannulated.” (part of Exhibit R1)
20. Following the surgery on 11 July 2008 Professor Yates reported to Dr Jesudas on 18 August 2008 that the applicant was “doing extremely well” and was taking painkillers “rarely” and that the plan included “fifty per cent weight bearing”. (part of Exhibit R1)
21. On 8 October 2008 Professor Yates reported to Dr Jesudas regarding the applicant as follows:
“ The above gentleman was reviewed in the Orthopaedic Outpatients’ Clinic today. He is doing extremely well three months post surgery. He is walking fully weight bearing with no pain.
He has a small lump on his left groin which does not seem to be an issue; not a hernia as far I (sic) am able to determine and needs no further action.
He has a tiny bit of sacroiliac pain.
…” (part of Exhibit R1)
22. On 14 January 2009 Professor Yates reported to Dr Jesudas regarding the applicant as follows:
“ This gentleman is still doing well. He is still experiencing discomfort from the prominence of the right iliac wing at the back and I have agreed to take this off to enable him to lie flat more comfortably.
CT scan reveals union on the right hand side at the front, but no convincing union at the back.” (part of Exhibit R1)
23. On 6 February 2009 the applicant underwent a minor surgical procedure by Professor Yates for the removal of excess bone from the right side of his pelvis.
24. On 2 September 2009 Professor Yates reported to Dr Jesudas as follows:
“ I was very happy to see Desmond again in my clinic today. Apparently he had a bit of a urinary problem over the last few weeks but this has since resolved. He walks well without pain. He has some right groin discomfort in the soft tissues but I cannot feel a hernia at present. I suspect this possibly relates to his bowel and I do not think there is any likelihood that it relates to his orthopaedic surgery.
Hip movements are good. X-rays show sclerosis around the thigh joint and good position at the front. One of the screws has broken on the left hand side, but this is no longer a significant issue. He is much better since removal of the excess bone in his posterior iliac crest and he is very happy with the outcome.
There is no other orthopaedic intervention required at present and I have made no further appointments to see him.” (part of Exhibit R1)
25. A letter from Professor Yates addressed “To whom it may concern”, dated 2 September 2009, states as follows:
“ Mr Desmond Miller is keen to return to some light duty work of any kind and I am sure he would be very capable of doing this.” (part of Exhibit R1)
Dr Evan Tziavrangos
26. A report of Dr Tziavrangos, Department of Anaesthesia and Pain Medicine, Royal Perth Hospital, regarding the applicant, dated 28 August 2008, states as follows:
“ I reviewed this pleasant retired serviceman today in the Pain Clinic. I have been seeing him for quite some time now following his severe crush injuries he sustained a while ago to his pelvis which resulted in major surgery and the extended rehabilitation at Shenton Park. He has always had problems with severe mixed pain ie nociceptive and neuropathic pain as a result of all of his injuries. They (sic) were associated psychiatric co-morbidities in the form of relapsing post-traumatic stress disorder which necessitated in-patient management long term at Hollywood Hospital. The orthopaedic surgeons here at Royal Perth Hospital were reluctant to perform any further surgeries to his pelvis despite the fact that there were numerous problems with non-union and instability and severe pain, however, the patient ended up having surgery recently at Fremantle Hospital for this.
On today’s review, Desmond was much brighter in his affect and was mobilising reasonably well with the use of a Zimmer frame. He describes significant improvements in pain, motor function, mobility as well as overall mood and sleep. This is quite encouraging although I would be very cautious in extrapolating this long term. I will continue to review Desmond here at this Pain Clinic to make sure that he stays on track with regards to chronic pain management and overall I suspect that he will not ever be free of pain completely. I have advised he continue with simple analgesics like Paracetamol and use Tramadol on a prn basis and of course continue with twice daily Pregabalin for the neuropathic pain which I suspect will be permanent. …” (T15, p 74)
Dr Winston Chiu
27. Dr Chiu, Consultant Psychiatrist, The Hollywood Clinic, provided a report regarding the applicant, dated 11 May 2009, to the Department of Veterans’ Affairs (T18). In that report Dr Chiu noted that the applicant had been attending The Hollywood Clinic from December 2007 and he confirmed that the applicant’s psychiatric diagnosis was:
· post traumatic stress disorder (ongoing);
· major depression (in remission);
· alcohol abuse (in remission).
As regards the applicant’s ceasing work in 1996, Dr Chiu commented:
“ While ‘officially’ he stopped working in 1996 because of his shoulder injury, the root cause of his injury was his inattention and impaired concentration because of the effect of his PTSD and alcohol. He was ‘an accident waiting to happen’.”
He described the applicant’s physical presentation as follows:
“ Mr Miller’s recent operation has been quite successful, leaving him with reasonable mobility and reduced pain, although he still remains restricted in his movements, and he is still physically somewhat physically (sic) unstable and frail.”
Dr Oleh Kay
28. Dr Kay, Psychiatrist, provided a report regarding the applicant, dated 9 August 2010, to Dr Jesudas (Exhibit A2). That report states as follows:
“ Thank you for referring Des who is, as you know, a 62 year old married man who formerly worked at BP as a ship refueller for 18 years, stopping work around 1998.
Desmond has a long and extensive psychiatric history having been medically repatriated from Vietnam for, as I understand it, a combination of psychiatric and hearing problems. He was a national serviceman who worked as an orderly at Vung Tau Hospital transporting patients from the ‘dust off’ helicopters to the casualty clearing station and/or theatre.
He initially received treatment from Dr Jock McLaren at Hollywood Hospital and more recently has had a number of admissions for psychiatric treatment from his current treating psychiatrist Dr Winston Chiu.
Over the years the diagnosis of his psychiatric condition has changed. It has included anxiety, depression and now Post Traumatic Stress Disorder – of course this doesn’t mean he suffered from a number of different psychiatric conditions rather it reflects changes in diagnosis as reflected in various diagnostic schedules and probably also reflects the revolving (sic) nature of PTSD.
He clearly suffers a severe case of PTSD complicated by alcohol abuse (of Ouzo) which in itself has caused him physical problems with his brain such that he has a poor short term memory and a lowish frustration tolerance.
Mr Miller continues to experience reliving phenomena at nighttime in the form of nightmares. His wife reports that he frequently wakes at night, is uncontactable by her but is clearly terrified of something. He suffers from night sweats which is further evidence of autonomic arousal. His wife reports that she has to buy 3 or 4 fresh pillows a year because of the damage his sweating does to the pillows.
Another manifestation of Mr Miller’s PTSD is tremulousness and on psychiatric examination today it was evident that when he was talking about distressing matters he became more shaky – as a psychiatrist I did not see any evidence of Parkinson’s Disease or other neurological cause of his shakiness but I did notice that his shakiness did fluctuate in relation to his level of distress.
I understand that Mr Miller has a history of falls and he gives an account of some kind of ear problem that afflicted him in Vietnam and it has recurred since then and he becomes dizzy and unsteady on his feet. My initial impression is that there is no complete psychiatric explanation for his falls. I note that he continues to fall on occasion now and walks with the assistance of a walking stick and I suspect that at the given time (sic) he has a cardiac pacemaker it is unlikely that there is a cardiac cause of his falling – I therefore accept that ear pathology is contributing to his falls.
What is clear is that service in Vietnam has caused him chronic and severe difficulties both in the physical and psychiatric domain. I note that he was advised to cease work sometime before he actually did so. Certainly his ongoing condition is such that he is precluded from seeking alternative work given his PTSD, his alcohol related brain damage and his unsteadiness on his feet.
I have not made a further appointment with Mr Miller but would be very happy to see him again if the need should arise.”
Analysis
29. It is common ground that paras (aa), (aab), (a) and (d) of s 24(1) of the VE Act are satisfied in this case.
30. As regards para (b) of s 24(1), the respondent conceded, on the basis of the abovementioned reports of Dr Jesudas, Dr Chiu and Dr Kay, that the applicant’s incapacity from war-caused diseases – in particular, post traumatic stress disorder, ischaemic heart disease, and alcohol abuse – is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than 8 hours per week. In the Tribunal’s opinion, that concession was appropriate. Accordingly, para (b) of s 24(1) of the VE Act is also satisfied in this case.
31. The only matter in dispute, therefore, is whether the applicant satisfies para (c) of s 24(1) of the VE Act which comprises the “alone test” and the “loss test”. If the applicant satisfies para (c) of s 24(1) in the current “assessment period” (which, in accordance with s 19(9) of the VE Act, commenced on 1 December 2008), he will be eligible for the special rate of pension under s 24(1).
The “alone test”
32. The “alone test” in s 24(1)(c) of the VE Act will be satisfied if the applicant is, “by reason of incapacity from … war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that [he] was undertaking”.
33. The following propositions regarding the phrase “remunerative work that the veteran was undertaking” in para (c) of s 24(1) of the VE Act emerge from the authorities:
· the phrase refers to the “type of work” which the veteran previously undertook or the “field of remunerative activity” in which the veteran previously worked, not to “a particular job with a particular employer” or “any particular job” which the veteran previously performed: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402–403;
· the “remunerative work”, for the purposes of s 24(1)(c), is not limited to the last substantive work which the veteran actually undertook: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225, 227;
· the “remunerative work”, for the purposes of s 24(1)(c), must be “substantial” work which the veteran has “successfully undertaken” or “effectively undertaken”: Starcevich at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569 at 573–574.
34. In the present case, the remunerative work that the applicant was undertaking, for the purposes of s 24(1)(c) of the VE Act, was the type of work which he successfully performed when employed by BP Australia, namely, semi-skilled and unskilled heavy labouring work.
35. It is not in dispute that the applicant’s war-caused diseases – in particular, post traumatic stress disorder, ischaemic heart disease, and alcohol abuse – of themselves render him incapable of undertaking the abovementioned type of remunerative work. That, however, is not sufficient to satisfy the “alone test” in s 24(1)(c) of the VE Act. In order to satisfy the “alone test”, the applicant’s incapacity from such war-caused diseases must be the only factor which prevents him from continuing to undertake that type of remunerative work. If any factor, other than war-caused incapacity, also “plays a part [in] or contributes to” the applicant’s being prevented from continuing to undertake that type of remunerative work, the “alone test” in s 24(1)(c) of the VE Act will not be satisfied: Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. It is not necessary that any such non-war-caused factor or factors, of itself or themselves, prevent the applicant from continuing to undertake the relevant remunerative work, or play a major part in, or make a substantial contribution to, preventing him from doing so – even if the part so played, or the contribution so made, by any such non-war-caused factor is relatively minor or insubstantial, the “alone test” will not be satisfied: Forbes v Repatriation Commission (2000) 101 FCR 50 at 57; Repatriation Commission v Alexander (2003) 75 ALD 329 at 334.
36. The critical matter for the Tribunal’s determination in the present case is, therefore, whether any non-war-caused factor is playing a part in, or contributing to, the applicant’s being prevented from continuing to undertake the relevant remunerative work in the current “assessment period”.
37. The Tribunal is reasonably satisfied, on the basis of the reports of Dr Jesudas and Dr Holt (see paragraphs 14 and 16 above), that the shoulder injuries previously sustained by the applicant, neither of which has been accepted as war-caused or defence-caused, were subsequently repaired by surgery and have not played any part in, or made any contribution to, the applicant’s being prevented from continuing to undertake the relevant remunerative work in the current “assessment period”.
38. The applicant, however, sustained a very severe injury to his pelvis, which was neither war-caused nor defence-caused, in January 2007. Although the Tribunal is reasonably satisfied, on the basis of Professor Yates’ reports (see paragraphs 18–25 above), that the pelvic fractures sustained by the applicant were subsequently repaired by surgery on 11 July 2008 and 6 February 2009, the Tribunal is not reasonably satisfied that the physical aftermath of that injury is playing no part in, or making no contribution to, the applicant’s being prevented from continuing to undertake the relevant remunerative work in the current “assessment period”. In this connection the Tribunal notes:
· Dr Chiu’s statement, in his report of 11 May 2009 (see paragraph 27 above), that, although the applicant’s recent operation had been “quite successful, leaving him with reasonable mobility and reduced pain”, he still remained “restricted in his movements” and was “somewhat physically unstable and frail”;
· Professor Yates’ opinion, as stated in his letter of 2 September 2009 (see paragraph 25 above), that the applicant would be “very capable” of performing “light duty work”;
· the applicant’s own evidence that he could do “light work”, including lifting, as long as it was “not too heavy”.
It seems to the Tribunal, having regard to that evidence, that the applicant’s serious injury involving pelvic fractures in January 2007 has, notwithstanding the subsequent successful pelvic surgery, resulted in his being physically weaker and less robust than he was immediately before that injury and his being capable of performing only light work duties not including heavy lifting.
39. Accordingly, the Tribunal is reasonably satisfied, and finds, that the physical aftermath of the injury to the applicant’s pelvis in January 2007 has, throughout the “assessment period”, been continuing at least to play a part in, or to contribute to, his being “prevented from continuing to undertake remunerative work that [he] was undertaking” (within the meaning of s 24(1)(c) of the VE Act), namely, heavy labouring work, without restrictions.
40. It may be (as submitted by the respondent) that the applicant’s age – namely, 60 years as at the commencement of the “assessment period”, and presently 62 years – has also been playing a part in, or contributing to, his being prevented from continuing to undertake that type of heavy physical work. It is, however, unnecessary, having regard to the finding in the preceding paragraph, for the Tribunal to make a finding in that respect.
41. The Tribunal concludes, therefore, the applicant, throughout the “assessment period”, has not been “prevented from continuing to undertake remunerative work that [he] was undertaking” (within the meaning of s 24(1)(c) of the VE Act) solely by reason of incapacity from war-caused injury and/or war-caused disease. The “alone test” in s 24(1)(c) of the VE Act is, accordingly, not satisfied in this case.
42. In the light of that conclusion, the question whether the “loss test” in s 24(1)(c) of the VE Act is satisfied in this case does not arise.
Conclusion
43. Paragraph (c) of s 24(1) of the VE Act is not satisfied in this case and, therefore, the applicant is not eligible for the special rate of pension under that subsection.
Decision
44. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 4 March 2011
Date of Decision 18 March 2011
Representative of the Applicant Mr J HannahRepresentative of the Respondent Mr C Ponnuthurai
Compensation and Review Branch Department of Veterans' Affairs
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