Moorcroft and Repatriation Commission

[2002] AATA 546

DECISION AND REASONS FOR DECISION [2002] AATA 546

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/896

VETERANS' APPEALS  DIVISION       )          
           Re      BRIAN KEITH MOORCROFT     
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member Dr. J.B. Morley RFD, Member Brig. I.R.W. Brumfield, CBE, DSO, RL, Member   

Date5 July 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.

.............(Signed).................................
  D.W. MULLER
  SENIOR MEMBER
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – special rate – applicant suffering non-accepted kidney condition requiring dialysis – whether applicant ceased work because of accepted conditions alone – whether accepted conditions alone prevent return to workforce
Veterans' Entitlements Act 1986: s. 24 

REASONS FOR DECISION

5 July 2002   Mr. D.W. Muller, Senior Member Dr. J.B. Morley RFD, Member Brig. I.R.W. Brumfield, CBE, DSO, RL, Member               

1. This is an application for review of a decision of the Repatriation Commission dated 28 June 1995, which refused an application for increase in the rate of disability pension and continued pension at 80% of the General Rate.  On 29 April 1996 the Veterans' Review Board affirmed the decision.

2. The following matters are not contested and the Tribunal finds as follows:

   (i)Brian Keith Moorcroft was born on 27 May 1937.

   (ii)He left school in approximately 1952 at the age of 15 years.

   (iii)After leaving school he initially worked as a greengrocer's assistant.

   (iv)He served in the merchant navy from 1953 to 1955.

   (v)He served with the British Navy for two years from 1955 to 1957.

   (vi)He served in the Australian Army as a plant operator from 27 March 1962 until his discharge on 11 April 1968.  He had two tours of duty in Vietnam for a total of about 16 months.

   (vii)After leaving the Army in 1968, he ran his own take-away food business for 5½ years.

   (viii)He then had the following jobs:

• As a labourer at the Sugar Mill

• As a bondsman at the Bundaberg distillery

• As a plant operator at Comalco at Weipa for approximately 8 years

• Seasonal employment from May to September performing weighbridge work with the Atherton Maize Board

• Caretaker of a mining site by an accountancy firm for two years

• Return to the weighbridge work

  (ix)On 18 August 1989, he ceased work and has not worked since.

  (x)He was offered a job in 1989, but felt that his back would not be able to "stand up to it".  He was offered a later job at Port Douglas, estimating concrete, but the firm failed to obtain the contract.  He has not attempted to gain employment since 1990.

  (xi)He has the following disabilities which have been accepted as war-caused:

  Gout with urinary calculus and right partial nephrectomy
  Anxiety state
  Tinea
  Hypertension
  L5/S1 disc lesion
  Obesity
  Gastro-oesophageal Reflux

(xii)He has been in receipt of a veterans' disability pension of 80% of the General Rate since 25 October 1983.

(xiii)He has been in receipt of a service pension due to his invalid status since 1989.

(xiv)On or about 18 April 1995, he made application for an increase in disability pension. He submitted that he was entitled to be paid pension at the Special Rate provided for in s 24 of the Veterans' Entitlements Act 1986.

1. The applicant contended that he ceased work in 1989 and has not been able to rejoin the workforce due primarily to his back condition but also to his obesity and his other war-caused disabilities.  He claimed that his war-caused injuries alone prevented him from working.

2. Those parts of s 24 of the Act which are relevant for the purposes of this review provide:

   "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;"

1. The Applicant satisfies the provisions of subsections 24(aa), (aab), (a) and (b).  The question for determination by the Tribunal is whether he satisfies subsection 24(1)(c).

2. The Applicant also suffers from other disabilities which are not related to his Army service.  They are:

• Presbyopia

• Refractive error

• Plantar war right foot

• Hiatus hernia with reflux

• Chronic glomerulonephritis

• Conductive hearing loss

1. The Applicant has also suffered from other problems of ill health which adversely affected his capacity for work and his desire to seek work.  They are:

• General fatigue

• Aches and pains in joints and muscles (arthritis)

• Lower abdominal pains

• Neck pain and stiffness

• Pain in legs and shoulders

• Sore knees – Valgus knees

• Asthma

• Mental state and attitude to work (poor motivation) lack of muscular fitness

1. The Applicant's kidney disease is an extremely serious and debilitating condition.  It was first diagnosed in 1990/91.  A report from Dr. Furlong, renal physician, dated 4 September 1997, outlines the nature of the kidney condition, in part as follows:

   "Mr Moorcroft has end stage renal failure from focal sclerosing glomerulonephritis and receives haemodialysis three times a week (Tuesdays, Thursdays and Saturdays) at Cairns Base Hospital.  Each treatment lasts five hours and, given that he travels to and from Atherton, I consider work impossible on these days.  On the other hand, work is theoretically possible on the days that he does not receive haemodialysis (Mondays, Wednesdays and Fridays).  Work for greater than eight hours a week is therefore possible.
   Many patients receiving haemodialysis work either full time or part time.  However, they are in the minority.  I emphasis that in making these statements I have disregarded Mr Moorcroft's other medical conditions."

1. The Applicant relied on a combination of medical reports from Dr. B. Cameron, General Practitioner and Dr. T. Furlong.  Dr. Cameron reported:

   "In my opinion Mr Moorcroft's L5-S1 disc lesion together with his obesity are sufficiently disabling that he is unable to work for more than eight hours per week.  These are recognised war caused conditions.  It is clear that these alone are sufficient for him to be unable to carry out employment of the kind that he has previously undertaken."

   Essentially, it is the Applicant's case that his war-caused back problems and obesity have been sufficiently debilitating on their own to prevent him from working more than eight hours per week and that if his serious kidney disease had been his only disability he would not have been prevented from working more than eight hours per week.

1. The Applicant's position was not supported by Dr. Shepherd, Orthopaedic Surgeon, who reported on 23 November 2000, that although the Applicant's back condition and obesity would make it difficult for him to undertake heavy physical work, he would be able to undertake lighter work if he was motivated to get himself fit.

   "This man's inability to work is a relatively complex situation.  His lumbar spine pathology would no doubt give him some degree of symptoms however I think it is his relative lack of activity and subsequent obesity and lack of muscular fitness, which is greatly exacerbating his difficulties with work.  His level of activity is largely determined by his level of motivation and mood.  I note that he has had documented disabilities related to an anxiety state and depression.  I believe that there are many people in paid employment with a spine such as Mr. Moorcroft's though it is his spinal pathology in combination with his mental state and attitudes, which lead to him not pursuing paid employment.  I believe that his back would limit his physical activity and that he would have difficulty undertaking heavy physical work though if he was fully fit he would be able to undertake lighter work."

1. At any event the question for determination in relation to whether or not the provisions of subsection 24(1)(c) are satisfied, is not whether the war-caused disabilities on their own would be sufficient to prevent the Applicant from working more than eight hours per week, irrespective of other major non war-caused disabilities, but whether his war-caused injuries or diseases alone prevent him from working more than eight hours per week.

2. The documents placed before the Tribunal reveal that since mid 1989 the Applicant has been treated for neck pain, pain in legs and shoulders, general tiredness, loin pain, lower abdominal pain, sleep problems and thoracic pain.  In September 1995, Dr. Clark, orthopaedic surgeon reported that the Applicant was suffering from a "wide variety of musculo-skeletal complaints including sore knees and a sore neck, cramps around his thumb and in his feet as well as back pain and leg pain".

3. The Tribunal also received evidence from witnesses who attempted to translate the degree of each of disability of the Applicant into a percentage of his total incapacity for work.  Such an exercise can only ever produce rough estimates at best but it is clear that the Applicant's back problems, obesity, hypertension and kidney disease have all been very significant factors in his being prevented from continuing to undertake remunerative work.  The Tribunal is also satisfied that the Applicant's other combined non war-caused disabilities and health problems set out in paragraph 5 and 6 above play a significant role in his being prevented from continuing to undertake remunerative work.

4. The Tribunal finds that at the date of the Applicant's application for an increase in pension, 18 April 1995, he was prevented from continuing to undertake remunerative work that he was undertaking by reason of incapacity from his war-caused injuries and diseases plus his incapacity from his non war-caused kidney disease in particular, and also because of his not insignificant other non war-caused disabilities.  He has not, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, been prevented from continuing to undertake remunerative work that he was undertaking.

5. The Applicant does not satisfy the provisions of subsection 24(I)(c)of the Act and he therefore fails to qualify for the Special Rate pension.  For the same reasons he also fails to qualify for the Intermediate Rate pursuant to section 23 of the Act.

6. The decision under review is affirmed.

   I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member;  Dr. J.B. Morley RFD, Member and
   Brig. I.R.W. Brumfield, CBE, DSO, RL, Member.

   Signed:         .....................................................................................
              B. Hitchcock Personal Assistant

   Date/s of Hearing  7.9.00, 28.6.01, 25.6.02
   Date of Decision  5 July 2002
   Counsel for the Applicant        Mr. D. O'Gorman
   Solicitor for the Applicant         Gilshenan and Luton
   Counsel for the Respondent    Ms. E. Ford
   Solicitor for the Respondent    Australian Government Solicitor