MITCHELL and REPATRIATION COMMISSION
[2010] AATA 222
•30 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 222
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3995
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY MITCHELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member A K Britton
Dr M E C Thorpe, MemberDate30 March 2010
PlaceSydney
Decision The decision under review is affirmed.
.....................[SGD]...................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – special rate of pension – accepted war-caused conditions, alone, did not render veteran incapable of working more than 8 hours per week –
Veterans’ Entitlements Act 1986 (Cth) – ss 24(1)(b), 24(1)(c), 28
Chambers v Repatriation Commission (1995) 36 ALD 207 at 220
Repatriation Commission v Buckingham (unreported, Federal Court of Australia, Ryan J, 7 February 1996)
REASONS FOR DECISION
30 March 2010 Senior Member A K Britton
Dr M E C Thorpe, Member1. Veteran, Anthony Mitchell, served in the Australian Army in Vietnam for 18 months beginning in 1967. He claims that he is totally and permanent incapacitated for remunerative work as a result of his multiple war-caused conditions, of which he considers lumbar and thoracic spondylosis and post traumatic stress disorder to be the most significant. He contends that he satisfies the eligibility requirements for a special rate pension under s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act).
2. The decision the subject of Mr Mitchell’s application for review to the Administrative Appeals Tribunal was the decision made by the Repatriation Commission in June 2007, and affirmed by the Veterans’ Review Board, to reduce his pension from the “special rate” to 100% of the “general rate”. This decision in effect reversed a decision of the Commission made in 1996 that Mr Mitchell was eligible for a pension at the special rate.
3. The key issue to be determined is whether Mr Mitchell satisfies the eligibility criteria for a pension at the special rate.
Criteria for eligibility for pension at the special rate
4. Section 24 of the Act sets out several criteria that must be satisfied before the pension is payable at the special rate. It is agreed that all but those set out in ss 24(1)(b) and 24(1)(c) are satisfied. They provide:
(1) This section applies to a veteran if:
...
(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...
Background
5. While serving in Vietnam in 1968, Mr Mitchell was involved in a serious motor vehicle accident. One passenger was killed and others were injured. Mr Mitchell was flung from the vehicle and landed on his buttocks some distance away. He claims that he has been troubled by his back since that accident. While in the Army, he neither reported the incident nor sought treatment for his back.
6. Mr Mitchell has a chequered employment history. In the 25 years after leaving the Army, he held mostly casual jobs. His longest period of full-time employment was as a courier or driver for a smallgoods shop. In early 1993 he worked for the Shoalhaven Council for about 12 months as a ganger. He subsequently went on to work for the Nowra-based Leader Printers for about three months, driving a utility truck and delivering bundles of newspapers.
7. In June 1994, in the course of his employment with Leader, Mr Mitchell was involved in a serious motor vehicle accident. He suffered multiple fractures of the right femur, injured his back and badly lacerated his face. He was hospitalised for a significant period and underwent multiple operations. His recovery was complicated by renal failure and a collapsed lung.
8. Mr Mitchell has not worked since this accident. He is currently in receipt of weekly compensation paid by his former employer’s Insurer, Allianz, and has been since the date of the accident.
9. In 1997, the Compensation Court of NSW entered consent orders awarding Mr Mitchell lump sum compensation in respect of:
• 15% permanent impairment of the back
• 5% permanent loss of use of the right arm at or above the elbow
• 35% permanent loss of use of the right leg at or above the knee
10. Mr Mitchell was awarded further compensation in 2002, namely an additional 10% permanent impairment of the back and 5% for permanent loss of use of the sexual organs.
11. Following the 1994 accident, Mr Mitchell was left with a right leg six centimetres shorter than the left, swelling over the right hip and right leg rotation. This caused problems with his gait, caused him to limp, tilted his pelvis and aggravated his back.
12. In February 2001, Mr Mitchell tripped while stepping off a kerb and re-fractured his right femur. Surgery was performed which corrected the angle of the right leg, reduced the leg length disparity and stopped the swelling over the misaligned bone in the right thigh. The weight of medical opinion is that this surgery largely ameliorated Mr Mitchell’s right leg and hip problems. Mr Mitchell believes that his condition dramatically improved following this surgery and jokingly told a practitioner who assessed him in February 2009 that re-fracturing his femur was “the best thing that ever happened to him”.
13. Accepted conditions Mr Mitchell suffers from the following war-caused conditions: chronic strain right wrist, sensory-neural hearing loss, bilateral pars fractures and first degree spondylolisthesis, PTSD, psychoactive substance abuse or dependence, lumbar and thoracic spondylosis, osteoarthritis of the right wrist, osteoarthritis of the left knee, and osteoarthritis affecting both ankles.
Is mr mitchell totally and permanatly incapacitated for remunerative work by his war-caused conditions alone?
14. Section 24(1)(b) will be satisfied if Mr Mitchell’s incapacity from war-caused conditions is of such a nature of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. Section 28 provides that in determining whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work for the purposes of s 24(1)(b), the decision maker 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).
15. By the combined operation of ss 24(1)(b) and 28, the following issues fall to be determined:
1. What are Mr Mitchell’s vocational, trade and professional skills, qualifications and experience?
2. What are the kinds of remunerative work which a hypothetical person with those skills, qualifications and experience might reasonably undertake?
3. To what degree has Mr Mitchell’s war-caused impairment reduced his capacity to undertake the kinds of remunerative work referred to in (2) above?
4. Does Mr Mitchell’s accepted war-caused condition/s render him incapable of performing remunerative work for periods aggregating more than eight hours per week?
Mr Mitchell’s vocational, trade and professional skills, qualifications and experience
16. Mr Mitchell left school at age 15. He started but did not finish an apprenticeship as a blacksmith. He holds no formal qualifications.
17. Mr Mitchell’s experience is in un-skilled and semi-skilled employment. He has worked in a variety of positions — as a driver, labourer, concreter, barman, abattoir worker, courier and ganger.
Kinds of work a hypothetical person with Mr Mitchell’s skills, qualifications and experience might reasonably undertake
18. Section 28(b) requires us to focus attention upon the range of employment opportunities that a hypothetical person with Mr Mitchell’s skills, qualifications and experience as referred to above, might reasonably undertake: Repatriation Commission v Buckingham (unreported, Federal Court of Australia, Ryan J, 7 February 1996). All of Mr Mitchell’s skills and qualifications, regardless of the means by which they were acquired or developed, are to be taken into account in determining the opportunities for remunerative work available to him: Chambers v Repatriation Commission (1995) 36 ALD 207 at 220.
19. In our view, a hypothetical person with Mr Mitchell’s skills, qualifications and experience might reasonably be expected to undertake the types of work he has previously undertaken, as well as other unskilled or semi-skilled work which requires little or no training, and for which prior experience is not generally a pre-requisite. This kind of work would include: process worker, console operator, courier/driver, boom gate operator, or parking attendant. For convenience, we will refer to both categories of work as “notional work”.
To what degree has Mr Mitchell’s war-caused impairment reduced his capacity to undertake notional work?
20. The parties disagree about whether Mr Mitchell’s incapacity for employment during the assessment period is attributable to his war-caused conditions alone. For present purposes we will assume rather than decide that any physical or mental incapacity for employment Mr Mitchell might suffer results from his accepted conditions. Adopting that assumption, we will examine the degree to which Mr Mitchell’s capacity to undertake notional work has been reduced.
21. Mr Mitchell believes his main problems in terms of his fitness for employment are his back and PTSD. He believes that his back has deteriorated since the 1994 accident. He reports ongoing pain in his back which fluctuates in severity. He also reports that he experiences some discomfort and pain in his ankles and left knee, and that this has become progressively worse over the last few years. He takes analgesics for pain relief, reportedly between six and eight per day.
22. Of the experts whose opinions on Mr Mitchell’s capacity for employment are before us, two — Drs Tommasino Mastroianni and Ross Mills — believe he can work full-time with restrictions. Drs David Smith and MarkBurns, on the other hand, are of the opinion that Mr Mitchell is totally unfit for work.
23. Dr Mastroianni, an occupational physician, is of the opinion that Mr Mitchell has the capacity to work full-time as long as he avoids heavy lifting. Dr Mills — who is also an occupational physician — agrees that Mr Mitchell can work full-time, but is of the opinion that his restrictions extend beyond heavy lifting. He thought that Mr Mitchell was fit for work providing he did not — lift more than five kilograms; undertake prolonged or repetitive bending, stooping or heavy pushing; or, engage in static sitting or standing for more than 30 minutes. He also recommended that Mr Mitchell avoid working in positions in which hearing would be critical, and that he be protected from exposure to loud noise. He nominated light processing and boom gate operation as examples of the types of work Mr Mitchell could undertake within those restrictions.
24. Occupational physician Dr Burns is of the view that given “all of Mr Mitchell’s disabilities” he would have difficulty working more than eight hours per week and that his physical problems would “certainly prevent” him from undertaking labouring work. He considered Mr Mitchell’s low back problem to be his “major disability”. He thought that Mr Mitchell’s psychological problems did not play a large part in his inability to work, but that that might be because he had not worked for many years.
25. Mr Mitchell‘s GP, Dr Smith, has certified Mr Mitchell totally unfit for work on account of “fracture right femur, renal failure, lung collapse” since he took over as his GP in 2002. In a report to Allianz dated 29 September 2005, he wrote that as a consequence of the 1994 accident his patient suffered from “arthritic pain and limitation of movement of the back, right leg, both ankles”. In a later report dated 20 October 2008, he wrote that Mr Mitchell continues to have persistent pain; is restricted in all his activities; and is not fit, and is not likely to be fit, for his pre-injury duties.
26. To better understand the extent to which Mr Mitchell‘s accepted conditions have reduced his capacity to undertake notional work, each accepted condition must be examined. In this regard, we have found the evidence given by Drs Mills and Burns to be of particular assistance. This is because each took a detailed history, undertook a comprehensive examination and recorded their findings. However, we have not confined ourselves to their evidence alone.
27. PTSD Mr Mitchell was under the care of psychiatrist Dr Peter Jenkins from 1994 until Dr Jenkins’ retirement over two years ago. The condition is now managed by his GP, and Mr Mitchell apparently sees a psychologist from time to time. Mr Mitchell has been on anti-depressant medication for an extended period.
28. The condition is now stable and has been for a number of years. Neither Drs Burns nor Mills believe it now impacts on Mr Mitchell’s fitness for work.
29. It was argued for Mr Mitchell that his poor employment history was attributable to his PTSD and that it is likely to continue to adversely impact on his employment capacity. Throughout the entire period Mr Mitchell was in employment the condition was neither diagnosed nor treated. Even if as contended his employment capacity was reduced by PTSD throughout that period, it does not follow that it will do so when the condition is treated and stabilised. There is no medical evidence to support the proposition advanced for Mr Mitchell that it is likely that his condition will reduce his employment capacity under these conditions.
30. We are comfortably satisfied that the condition has not reduced Mr Mitchell‘s capacity for notional work throughout the assessment period.
31. Alcohol dependence Nor do we think that the accepted condition of alcohol dependence has reduced Mr Mitchell’s capacity to undertake notional work at any time during the assessment period. To Mr Mitchell’s great credit, the condition is now largely under control. Since 1994, his alcohol consumption has markedly decreased and is now confined to weekly or bi-weekly binges. There is nothing before us to indicate that it interferes with his family life, hobbies or fitness and treatment regime, or has resulted in any anti-social behaviour.
32. Osteoarthritis of the ankles and left knee Mr Mitchell reported to Drs Mills and Burns that he has been experiencing intermittent discomfort in his left knee and ankles, more so over the last couple of years. He told the Tribunal that his mobility is reduced to some extent by his ankles. Dr Burns found on examination that Mr Mitchell had full-range of pain free movement of both knees and was able to squat equally on both. On testing three months later, DrMills made similar findings. He recorded that on testing, Mr Mitchell demonstrated a full-range of movement of both ankles and that both were normal to inspection and palpation.
33. Osteoarthritis of the right wrist, chronic strain right wrist Both doctors recorded a loss of movement in both wrists — Dr Burns —15%; Dr Mills — 30%. Dr Mills found Mr Mitchell’s wrists to be normal to inspection and palpation. Dr Burns recorded similar findings and also found Mr Mitchell’s grip strength to be normal. Mr Mitchell told the Tribunal he felt that the grip was weaker in his right hand.
34. Hearing loss Dr Mills believes that Mr Mitchell’s hearing is not functionally-limiting, except in noisy environments.
35. Back condition Dr Mastroianni recorded that Mr Mitchell told him that his back pain is constant and aggravated by prolonged walking, bending and lifting. Dr Mills recorded that Mr Mitchell described his pain as “moderate” but flaring up about three times a month.
36. In a report to Allianz dated 16 January 2009, Dr Mastroianni recorded his findings on testing and clinical examination of Mr Mitchell’s back:
Restricted back movements of about a quarter, full rotation
Mr Mitchell complains of discomfort and stiffness in the back and at the end of movements more so on extension and reports that his back clicks when he moves
No muscular spasm guarding or tenderness in the back
Mr Mitchell was observed to get on and off the couch without difficulty
37. Drs Mills and Burns made broadly similar findings. Neither found local tenderness or spasm; on forward flexion Mr Mitchell was able to touch his knees for Dr Mills and calves for Dr Burns. Dr Burns noted decreased back extension of more than 50%.
38. Drs Burns and Mills recorded in their respective reports Mr Mitchell’s self-assessment of activity tolerances:
Dr Burns
Dr Mills
Sitting tolerance
Unrestricted. Only forced to lie down when back symptoms are most severe.
30 minutes (dynamic)
Standing tolerance
5 minutes (static)
15 minutes (dynamic)
Walking tolerance
15-20 minutes at a time
Not stated
39. Dr Burns gave a different estimate of Mr Mitchell’s sitting tolerances in his oral evidence, placing it at around 30 minutes.
40. Findings and Conclusions The final issues to be decided are the degree to which Mr Mitchell’s multiple accepted conditions have reduced his capacity to undertake notional work (remunerative work), and whether the nature of his incapacity is such as to render him incapable of undertaking such work for periods aggregating more than eight hours per week. Section 28 of the Act directs us to ignore all but the three classes of matters listed in that provision when assessing Mr Mitchell’s capacity for remunerative work.
41. As the summary recorded above reveals, there is little material difference in the findings reached by Drs Mills and Burns on testing and clinical examination of Mr Mitchell. Each believes that apart from those relating to his back his accepted conditions contribute to his incapacity to only a minor degree. Each considers that his PTSD is stable and unlikely to reduce his capacity for employment. They are in broad agreement about Mr Mitchell’s functional capacity. They also agree that he is now unfit for any heavy manual work, but differ on whether he has any residual capacity for employment.
42. Dr Mills has taken a detailed history, undertaken a careful and comprehensive clinical examination and assessment, taken into account all of Mr Mitchell’s conditions and accepted his claims of intolerance for certain activities and experience of pain and discomfort. Furthermore, he has had regard to the functional requirements of the types of employment he believes Mr Mitchell could undertake — namely boom gate operator and light process worker — and assessed those against Mr Mitchell’s functional capacity. He was not cross-examined on his opinion that Mr Mitchell had the capacity to undertake work of this type. His opinion about the degree to which Mr Mitchell’s accepted conditions has reduced his employment capacity in our opinion is both measured and realistic.
43. It was argued for Mr Mitchell that Dr Mills’ opinion about whether Mr Mitchell was fit for work should be disregarded, as he in effect applied an overly harsh test and did not ask whether he was fit for the type of work available to him and in which he had experience. It was emphasised in this context that the only work Mr Mitchell had undertaken throughout his working life was heavy manual work.
44. In our view, Dr Mills’ opinion should not be disregarded on that basis. Unlike s 24(1)(c), where the enquiry is directed to the type of work the veteran has undertaken, s 24(1)(b) focuses on the kinds of remunerative work a hypothetical person with the veteran’s skills, qualifications and experience might reasonably undertake (see Chambers v Repatriation Commission (1995) 36 ALD 207 at 220) If Mr Mitchell is contending that s 28(b) is restricted to the kinds of work the veteran has undertaken, we cannot agree. While trite that experience is essential in certain types of employment, it is not a universal requirement. The types of employment nominated by Dr Mills are essentially unskilled or semi-skilled in nature. While they would require some induction training, it does not follow that it is not the kind of work a person without previous experience might reasonably undertake.
45. It is to be noted that Mr Mitchell’s past employment was not confined to heavy unskilled employment as suggested in submissions. While much of the work undertaken by Mr Mitchell could be so characterised, he was not exclusively involved in this type of work as his employment history as a bar attendant, courier driver and council worker reveals. He testified that the latter was not heavy work.
46. The statement made by Dr Burns in his report of 11 February 2009 that Mr Mitchell would have “difficulty working more than eight hours per week” is ostensibly a reference to work “at large”. However, a fair reading of his report taken together with his oral evidence suggests that his primary focus was on Mr Mitchell’s fitness to return to labouring work, which he believed to be “the only work for which he appears to have the skills, qualifications, training and experience”. He did not expressly state that Mr Mitchell was incapable of undertaking light work or explain why he could not. Indeed, several of his findings as to Mr Mitchell’s functional capacity are consistent with him being capable of undertaking certain forms of light work.
47. The conclusion that Mr Mitchell has some residual employment capacity is of course at odds with that reached by his GP, Dr Smith, who has certified him unfit to return to his pre-injury employment. While in the material before us he did not expressly state that Mr Mitchell was incapable of undertaking eight hours per week of light employment, in fairness to Mr Mitchell, we proceed on the basis that he holds that view.
48. The opinion held by a treating doctor about their patient’s fitness for employment deserves significant weight. Dr Smith has had the immeasurable advantage of being able to observe Mr Mitchell’s progress over an extended period. Nonetheless, in this case, we believe the evidence before us, which includes a comprehensive assessment of Mr Mitchell’s functional capacity carried out by two qualified practitioners, together with Dr Mills’ stated opinion that Mr Mitchell is capable of at least some light work, suggests that Dr Smith has underestimated his patient’s fitness for work.
49. For the reasons given above, Dr Mills’ assessment seems to us to address the issue we must determine more specifically than Dr Burns’, and is more accurate than Dr Smith’s. We therefore conclude that Dr Mills’ opinion on that issue is to be preferred over that provided by the other practitioners whose opinions are before us.
50. There can be no question that the totality of Mr Mitchell’s impairments have made him unfit for heavy manual work. However, we are comfortably satisfied that they have not reduced his capacity to undertake notional work that could be characterised as light work. We accept Dr Mills’ opinion that the restrictions recommended by him are not incompatible with the inherent requirements of a boom gate operator and light process worker. For the reasons given, we find that work of this kind is work that a veteran with Mr Mitchell’s skills, qualifications and experience might reasonably undertake.
51. In our view, while a combination of factors relating to his accepted conditions — including analgesic use and the need to undertake regular treatment and pursue an extensive exercise regime — might reduce Mr Mitchell’s capacity to work full-time as a boom gate operator or light process worker, they would not prevent him working at least eight hours a week aggregate in employment of this kind.
Conclusion
52. We are comfortably satisfied that Mr Mitchell’s incapacity from his multiple war-caused conditions is not of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
53. It follows that Mr Mitchell does not satisfy s 24(1)(b) and is therefore ineligible for a pension at the special rate. We therefore affirm the decision under review.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr M E C Thorpe, Member.
Signed: ................................ [SGD]................................
AssociateDate of Hearing: 17 February 2010
Date of Decision: 30 March 2010Representative for the Applicant: Mr A Latimore, NSW Legal Aid Commission
Representative for the Respondent: Mr A Carter, Sparke Helmore
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