Miller and Repatriation Commission

[2007] AATA 2058

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2058

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 200700052

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHEN MILLER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date11 December 2007

PlacePerth

Decision The decision under review is affirmed.  

.............[Sgd Dr J D Campbell]...........

Member

CATCHWORDS

Veterans Entitlements - accepted Disabilities - non accepted disability - claim for special rate - the 'Alone' test

LEGISLATION

Veterans Entitlements Act 1986, sections 5Q, 24

CASES

Cavell v Repatriation Commission [1988] 9 AAR 534 

Flentjar v Repatriation Commission [1998] 48 ALD 1

Repatriation Commission v Hendy [2002] 76 ALD 47

REASONS FOR DECISION

11 December 2007 Dr J D Campbell, Member

1.      Mr Stephen Miller lodged a claim with the Repatriation Commission on 8 November 2005 for right and left shoulder conditions to be recognised as war caused or defence caused and for an increase in the rate of disability pension.

2.      On 31 January 2006 the Repatriation Commission determined that osteoarthrosis of the left shoulder and osteoarthrosis of the right shoulder were defence caused disabilities, with date of effect being 8 August 2005.

3.      On 1 February 2006 the Repatriation Commission assessed Mr Miller’s disability pension at 100% of the General Rate with the date of effect being 8 August 2005.

4.      In making such decisions the Repatriation Commission noted that Mr Miller had the following accepted disabilities:

§Internal derangement of the left knee

§Internal derangement of the right knee

§Post Traumatic Stress Disorder

§Osteoarthrosis of the left shoulder

§Osteoarthrosis of the right shoulder

5.      Further the following non accepted disability was considered Lumbar Spondylosis.

6.      The matter was further considered by the Veterans Review Board and in their decision dated 28 November 2006; Mr Miller’s claim for a special rate pension was refused.

ISSUES

7.      The relevant issues in this matter are:

(a)What is the relevant type of remunerative work Mr Miller was undertaking within the meaning of s 24 (1) (c) of the Act?

(b)Is Mr Miller prevented from continuing to undertake such work by reason of war caused injury or war caused disease?

(c)Is Mr Miller prevented from continuing to undertake such work by reason of the only factors being his war caused injuries or war caused disease?

(d)If the answers to the questions (b) and (c) are in the affirmative, the question arises as to whether Mr Miller, by reason of being prevented from continuing to undertake that work, is suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?

8.      For the reasons stated later in this decision I conclude that

(a)The relevant types of remunerative work that Mr Miller was undertaking was that of boilermaker(welder), field engineer (range of construction and demolition activities, as well as operating field machines, power tools, assault boats  and bridging equipment) and police officer.

(b)Mr Miller is prevented from undertaking such work by reason of his war/defence caused injuries or war/defence caused diseases.

(c)Mr Miller is prevented from undertaking such work both because of his war/defence caused disabilities and his non accepted disability for lumbar spondylosis.

(d)As the answer to the previous conclusions involved a finding of both war/defence caused disabilities and non accepted disabilities preventing Mr Miller from undertaking such work, there is no requirement to consider the issue of loss of earnings.

(e)The decision under review is affirmed.

BACKGROUND

9.      Mr Miller was born in 1965 and upon leaving school completed a trade apprenticeship as a boilermaker in 1985.  Mr Miller served in the Army between 3 September 1985 and 22 June 1990 as a field engineer, with part of this service being with the United Nations in Namibia.  After leaving the Army Mr Miller successfully completed the Police Academy course and served in the Western Australian Police Force until he resigned from the police force in 1992.  Mr Miller has not worked since this resignation.

10.     On 19 March 1993 Mr Miller was examined by a medical officer at the Australian Government Health Service in relation to assessment for disability support pension (DSP)/sickness allowance.  In his general assessment the doctor states:

“This 27 year old man has sustained a back injury involving discs.  He is permanently unfit to undertake heavy or moderately heavy manual work ….His depressive reaction and difficulty in adjustment to his altered life is likely to be temporary, but may take 1 – 2 years to resolve.”  (T8 Pg 50).

11.     On 13 September 1993 Mr Miller in a claim for DSP listed his medical conditions which stopped him from working as lower back damage (L5, S1 and S4 permanently damaged) commencing in December 1991 and depression commencing in January 1992.  Mr Miller described his back condition as affecting his ability to work, in that he was unable to stand for periods of time of greater than 15 minutes and he was unable to life heavy objects.  Disability support pension was granted on 27 September 1993 (T8 Pg 57).

12.     On 27 May 1998 Mr Miller was again examined by a medical officer in relation to DSP.  In relation to chronic low back pain suffered by Mr Miller the examining doctor noted “L4-5 foraminal stenosis, secondary to disc bulging and vertebral malalignment”, with Mr Miller reported as stating “left sided back pain and says unable to bend or lift repeated by … unable to sit for long periods – at times sleeping is dysfunctional in part due to back pain.” (T8 Pg 34).  The doctor concluded that Mr Miller continued to be unfit for work because of his low back condition and his depression. (T8 Pg 39).

13.     On 28 October 2003 Mr Miller lodged a claim for disability pension in relation to post traumatic stress disorder, a back injury and a knee injury.  In relation to his back, Mr Miller stated that he had regular back pain, was unable to lift or operate normally and experienced a sleep disorder.  Further he stated that he had facet joint injections, steroid injections and physiotherapy for his back condition.  Dr McAuliffe, the treating doctor considered the appropriate medical diagnosis to be lumbar pain syndrome (T3).

14.     In a lifestyle questionnaire lodged on 5 January 2004 Mr Miller noted that he was only able to drive a car with a lumbar spine support and then only for a period of 20-30 minutes (T4).

15.     In a medical report dated 30 November 2005, Dr McAuliffe, the treating general practitioner, considered that Mr Miller’s lumbar pain syndrome made a 20% contribution on Mr Miller’s loss of work capacity.  Dr McAuliffe considered Mr Miller’s back condition at the time to be active (T6 Pg 29).

16.     On 21 January 2004 Dr Leaver, a consultant radiologist reported that an X-ray of Mr Miller’s lumbosacral spine: (T7 Pg 31)

“There are minor retrolistheses at L3/4 and L4/5.  Alignment is otherwise normal.  The L4/5 disc is markedly narrow with prominent end plate osteophytes.  The L1/2, L2/3, L3/4 and L5/S1 discs demonstrate mild to moderate narrowing.  There is no osseous lesion or pars defect.  The facet and sacroiliac joints have a normal appearance”

Conclusion:  Multilevel lumbar disc degeneration with spondylosis, maximal at L4/5.”

17.     On 21 November 2005 Mr Miller lodged an application for service pension citing back injuries as one of the disabilities.  The service pension was approved on 23 November 2005.  I note that this activity occurred after the claim which is currently before me.

CONSIDERATION AND FINDINGS

18.     It is not in dispute between the parties that Mr Miller is receiving a 100% disability pension and that his accepted conditions of post traumatic stress disorder, internal derangement of right and left knee and osteoarthrosis of right and left shoulders, are of such a nature, as, of themselves alone render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week.  I note the many reports of Dr Fellows-Smith, Consultant Psychiatrist, commencing 10 February 2004 and accept that this material clearly defines the nature of Mr Miller’s psychiatric illness.  In such circumstances I conclude that both s 24(1) (a) and (b) of the Veterans’ Entitlement Act 1986 are satisfied.

19.     I note that in part s 24 (1) (c) of the Act provides:

“The veteran is, by reason of incapacity from that war caused injury or war caused disease, or both, alone, prevented from continuing to undertake the remunerative work that the veteran was undertaking ….”

20.     I further note s 24 (2) (b) provides:

“…..

(b)when a veteran is not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, he continuing so to seek to engage in remunerative work, and that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been presented by reason of that incapacity from continuing to undertake the remunerative work that the veteran was undertaking.”

21.     I further observe s 28 of the Act which nominates the matters which one must have regard to when considering issues of remunerative work in s 24 (1) (b) of the Act.  These include the vocational, trade, and professional skills, qualifications and experience of the veteran;  the kinds of remunerative work which a person with the previously listed attributes might reasonably undertake and the degree which the veteran’s accepted physical and mental impairments has reduced his or her capacity to undertake the kinds of remunerative work.

22.     In considering Mr Miller’s circumstances, it is evident that he left work as a policeman in 1992 and has not worked since.  In addressing the issue of the kinds of remunerative work Mr Miller has undertaken in the past and might be reasonable to undertake, in accordance with the preceding paragraph, such a list would include boilermaker, welder and policeman.

23.     In evidence Mr Miller was particular in stating that he resigned from the police department in 1992 as a consequence of some of his earlier activities and his dislike for his role as a policeman.  Mr Miller was particular in stating that the back injury as a result of a bicycle accident was minor, with only five or six days off on sick leave.  Mr Miller stated that he had no treatment for his back since 1990/91, no pain since 1992 and was taking no medications for his back.

24.     I note Mr Miller’s assertions that his back was no longer and had not been a problem to or for him for a long time.   In relation to the many earlier statements made by him and opinions given by doctors in his claims for DSP and/or Veterans Disability Pension, Mr Miller stated that he was in need of income support and it was less difficult to run such claims or physical injury as opposed to psychiatric illnesses.  I find his evidence on the clinical history of his back complaint ambiguous, and in reflection somewhat opportunistic and less than reliable.

25.     In addressing the issues nominated in Flentjar v Repatriation Commission (1988) 48 ALD 1, it is evident that I have determined the relevant remunerative work which Mr Miller was undertaking or could be expected to undertake. I have concluded that his accepted disabilities (namely, shoulders, knees and Post Traumatic Stress Disorder) prevent him for undertaking such remunerative work.

26.     In addressing the issue of whether the accepted disabilities are the only factors which prevent him from undertaking such work, I am left with the issue of whether or not Mr Miller’s lumbar spondylosis is another factor which also prevents him from undertaking such remunerative work.

27.     I have detailed Mr Miller’s view of events in relation to his back injury.  I note Dr McAuliffe’s medical note of 1 August 2007, in which he states that Mr Miller’s “back pain which was diagnosed in the early 1990’s is no longer an issue and requires no treatment.  In summary, the alone reason for him is psychiatric (i.e. PTSD)”   I would also note that Dr McAuliffe’s statement is dependent on the reliability of symptoms reported to him by Mr ‘Miller’.

28.     I note the interpretation given to the word ‘alone’ by Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 as requiring a practical decision as to whether the veteran’s loss of remunerative work is attributable to his or her service related incapacities and not to something else as well. I further note that my task at this stage is as put in Repatriation Commission v Hendy (2002) 76 ALD 47 where the Full Court stated:

“The decision maker is required to take into account any factor that plays or contributes to a veteran’s being prevented from continuing to engage in remunerative work”.

29.     I am mindful that my opinion is this matter must be arrived at the standard of proof nominated in s 120 (4) of the Act – namely one of reasonable satisfaction.  Nevertheless I am confronted with a raft of evidence and medical opinion from 1993 to the end of 2005 that Mr Miller’s back was a significant factor in his inability to work.  Mr Miller has stated that what is detailed in the various claims and medical opinions during that period is not a correct detail or assessment of his back condition.  I have much difficulty in accepting this proposition in that both the medical opinions rendered during that period and the x-ray report of the lumbosacral spine in January 2004 clearly detailed that Mr Miller has a lumbosacral back disease involving degenerative changes throughout the lumbosacral area.  I also note that the designated condition of lumbar spondylosis predicates difficulty with bending and lifting and activities involving prolonged immobility of the lumbosacral spine, such as sitting, standing and/or driving.  All such difficulties are noted at various stages in the twelve year period to 2005.

30.     In addressing the here and now and the period from November 2005 onwards, Mr Miller continues to live a lifestyle that involves no work.  His doctor reports as does he, that his back is no longer an issue and requires no treatment.  In such circumstances I would conclude that the environment in which Mr Miller currently exists is and has been therapeutic, in that any back symptomatology is no longer present.  However that is not the question which has to be asked and answered and which is alluded to in Repatriation Commission v Henely (Ibid).  In turning to that question, the underlying pathology demonstrating multilevel disc degeneration in the lumbosacral spine with spondylosis maximal at L5/S1 reported in the x-ray of 4 January 2004 at best will not have changed.  Further it is this condition of lumbar spondylosis which has in the past and in the opinion of many doctors given rise to the back symptoms which in their opinions have made a significant contribution towards Mr Miller’s capacity not to work.

31.     In summary I conclude that Mr Miller’s currently asymptomatic lumbar spondylosis continues to make a contribution to Mr Miller being prevented from continuing to engage in remunerative work.  In so finding I am mindful of the relevant kinds of remunerative work previously undertaken by Mr Miller, the complaints of back symptomatology and the medical assessments made over the period 1993 – 2005 in which Mr Miller’s back condition was documented and diagnosed.

32.     Further I express difficulty with accepting Mr Miller’s current detailing of the history of his back difficulties over time, in the light of the documented evidence, including radiological findings.

33.     In such circumstances I conclude that Mr Miller does not satisfy the “alone” test pursuant to s 24 (1) (c) of the Act, as the non accepted disability of lumbar spondylosis remains a factor preventing Mr Miller continuing to engage in remunerative work.  Further, with such a conclusion, there is no requirement to consider the issue of suffering a loss of wages, salary, earnings, etc.

34.     Further in addressing s 24 (2) (b) I observe that there is no evidence before me that Mr Miller has been genuinely seeking to engage in remunerative work at any period since he left work in 1992 and more particularly during the assessment period (from date of claim to decision finalisation).  In such circumstances any relief in the form of “substantial cause”, is not available for Mr Miller in this matter.

35.     In such circumstances I affirm the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: ..................[Sgd C Skinner]...........................
   Associate

Date of Hearing  30 November 2007
Date of Decision  11 December 2007
Counsel for the Applicant         Mr P S Lofdhal

Counsel for the Respondent     Mr C Ponnuthurai

Solicitor for the Respondent     Department of Veterans Affairs