Moore and Repatriation Commission

[2007] AATA 1142

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1142

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/126

VETERANS' APPEALS  DIVISION		)
Re		ANTHONY ROBERT MOORE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM and Dr R Walters

Date16 March 2007

PlaceHobart

Decision

The applicant contends that Disability Pension should be paid at the Special Rate in accordance with provisions of Section 24 of the Veterans' Entitlements Act 1986.

The Tribunal has conducted a de-novo review and finds on the balance of probabilities the specified criteria are not met.

The decision under review is therefore affirmed.

[Sgd B W Davis]  .  [Sgd R Walters]

Part-Time member  Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - General Rate - Special Rate - diabetes mellitus - diabetic peripheral neuropathy - peptic ulcer disease - chronic bronchitis - osteoarthritis of knee - bilateral sensorineural hearing loss - bilateral tinnitus - degree of incapacity - inability to work - ameliorating provisions - Veterans' Review Board

LEGISLATION

Veterans' Entitlements Act 1986, Sections 22, 23, 24, 31, 120

AUTHORITIES

Easton and Repatriation Commission (1987) 12 ALD 777

Hendy v Repatriation Commission (2003) FCA 424

Leane v Repatriation Commission (2004) FCAFC 83

REASONS FOR DECISION

16 March 2007	Associate Professor B W Davis AM, Dr R Walters (Part-Time Members)
Decision Under Review

1. The decision under review is a decision made by a delegate of the Repatriation Commission on the 15 October 2002, as varied pursuant to Section 31 of the Veterans’ Entitlements Act 1986 on 11 November 2002 and subsequently affirmed by a decision of the Veterans’ Review Board on 18 July 2004, whereby the applicant’s disability pension was assessed at 100 percent of the General Rate.

The Issue

2. The issue is whether the applicant is entitled to be paid disability pension at the Special Rate under Section 24 of the Act.

Legislation

3.      The relevant legislation is the Veterans’ Entitlements Act 1986, Sections 22, 23, 24, 31 and 120. Note also the Guide to Assessment of Rates of Veterans’ Pensions (GARP), 5^th Edition 1998.

Standard of Proof

4. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal, as provided for in Section 120(4) of the Act.

Date of Effect

5.      Should the appeal succeed the earliest date of effect will be 21 March 2002, being three months prior to the date of lodgement of claim.

Background

6.      Anthony Robert Moore was born on 25 May 1945 and is currently aged 61 years.  He served in the RAN from 7 January 1961 to 11 July 1967 and then entered civilian employment.  His naval service included operational service in the Far East Strategic Reserve for the periods      15 April 1963 – 8 May 1963 and 10 May 1963 – 25 May 1963.

7.      His accepted service-related disabilities are:  Bilateral sensorineural hearing loss  .          Bilateral tinnitus  Diabetes mellitus  Diabetic peripheral neuropathy  Peptic ulcer disease  Chronic bronchitis

There is also some medical evidence he suffers osteoarthritis of the knee.

8.      The veteran was employed in a range of jobs after leaving the navy, including but not limited to telephonist, trainee hotel manager, security worker, carpenter and taxi driver.  It was during the latter period that he suffered a motor vehicle accident in 1987, requiring several operations on his cervical and lumbar spine and extensive rehabilitation therapy.  The applicant claims his back pain had considerably eased by December 1989, so he sought re-employment.  This did not prove successful because few vacancies existed for individuals with his medical problems and when he did work he suffered severe muscle spasms which he attributed to advanced diabetic peripheral neuropathy.

9.      Mr Moore commenced voluntary work for the Navy Club in 1990 and from 1992-1995 worked as executive officer for 7-8 hours per week, also performing some paid accounting work at home.  He was offered full-time work as a welfare officer-counsellor with the Navy Club from April – August 2002, but within a few weeks had lodged his resignation, citing ongoing ill-health.  Mr Moore has not sought employment since he ceased work in April 2002.

Disability pension

10.     The applicant claims to have lodged a claim for disability pension on 21 June 2002, identifying a number of service-related disabilities as the basis for the claim.  The assessment by a delegate of the Repatriation Commission cites the date of application as 4 October 2002, but in a decision dated 15 October 2002 Mr Moore was granted disability pension at 90 percent of the General Rate with effect from 4 July 2002.   The accepted disabilities were bilateral sensorineural hearing loss, bilateral tinnitus, diabetes mellitus, peptic ulcer disease and diabetic peripheral neuropathy.  The delegate considered whether the veteran should be granted disability pension at the Intermediate or Special Rate but decided he did not qualify, given there were back problems arising from civilian employment (MVA) and his disabilities were not service-related alone.

11. Mr Moore sought review of this decision, but a Senior Delegate of the Repatriation Commission decided on 11 December 2002 under Section 31 of the Act that disability pension should be increased to 100 percent of the General Rate with effect from 21 March 2002. The impairment rating was 50 points, with a lifestyle rating of 5. In a further Section 31 review, dated 22 July 2003, chronic obstructive airways disease was accepted as war-caused and pension was continued at 100 percent of the General Rate.

12.     Mr Moore decided to lodge an application for review by the Veterans’ Review Board on 29 November 2002, but the hearing was not conducted until 18 July 2005.  Mr Moore was present and represented by advocate Mr David Skinner of the Tasmanian Branch of the RSL.  The VRB had a wide range of evidence before it and analysed it in some detail, noting the veteran’s work history, non-accepted medical conditions, a range of medical assessments and reports, statutory provisions and details provided to the Board as evidence by the applicant himself.  In summary the Board accepted that Mr Moore’s advanced poorly controlled diabetes and associated peripheral neuropathy significantly impaired his capacity to work, but considered that his inability to continue employment since 1987 was in part due to his back condition.

13. The VRB also considered whether the ameliorative provisions of Section 24(2)(b) of the Act might apply in this situation, but found it did not, since the veteran was required to have been genuinely seeking employment during the assessment period and had not done so. Indeed Mr Moore had not sought employment since ceasing work in April 2002. The Board was satisfied the requirements for Special Rate had not been made out, hence the decision under review was affirmed.

14.     Mr Moore then lodged an application for de-novo review by the Administrative Appeals Tribunal on 8 September 2005.

The AAT Hearing

15.     The AAT hearing was conducted in Hobart on 9 February 2007.  The applicant was in attendance and gave evidence, with Mr David Skinner of the RSL, Tasmanian Branch, acting as advocate.  The respondent was represented by Mr Michael Castle.  Only one witness was called, Mr Klaus Strecker, President of the Hobart Sub-Branch of the Naval Association of Australia.

16.     The applicant was affirmed and responded to a series of questions put by his advocate.  Mr Moore stated that he considered diabetes mellitus to be his principal problem, with some associated diabetic neuropathy and back pain.  He considered the VRB had over-emphasised the back problem, which he considered had been largely rehabilitated since 1992 because of a home gymnasium and exercise routine.  He considered he coped fairly well.

17.     Under cross-examination he admitted to some problems, with fluctuating blood sugars and tremor of the lower limbs, which he claimed affected mobility and caused a few falls.  The neuropathic symptoms occurred from time to time and he adjusted his routine accordingly.

18.     Mr Karl Strecker was called as witness and confirmed the applicant had worked as an employee and voluntary assistant at the Navy Club, Hobart, for various periods between 1992 and 2000 and had been offered employment as full-time welfare officer/counsellor between April and August 2002.  He had ceased work with the Club on various occasions citing ill-health and had not worked there since April 2002.  Counsel for the respondent asked whether he had observed Mr Moore at work; he replied the veteran sometimes appeared nervous, drinking, shaking and upset, with mobility problems at times.  He did not discuss his diabetes.

19.     In closing submissions Mr Skinner said the veteran had genuinely sought work from 1989 onwards and had only ceased employment because of incapacities caused by his service-related disabilities alone and he should be granted pension at the Special Rate from mid-2002 onwards.  Mr Castle for the respondent drew attention to the medical evidence of Dr Hassan and others indicating the back problem was involved and therefore the veteran’s disabilities were not service-related alone.

Analysis

20. In the current case the issue before the Tribunal is whether the applicant is entitled to disability pension at either the Intermediate Rate or Special Rate as specified in Sections 23 and 24 of the Veterans’ Entitlements Act 1986.

Statutory Provisions

21.     In order to qualify for the Special Rate the applicant must be less than 65 years of age when the claim or application is made, with a degree of incapacity of at least 70 percent and incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, or suffering a loss of salary or wages that the veteran would earn if free of that incapacity (Sections 24(1)(b) and (c) of the Act).  The Special Rate is not payable if it can be demonstrated the veteran ceased to engage in remunerative work for reasons other than incapacity arising from war-caused injury alone (Section 24(2)(a)(i) and (ii) of the Act).

22.     Provisions in respect of the Intermediate Rate are similar, but involve the issue of whether the applicant is capable of part-time or intermittent work for up to 20 hours per week.  This is not under assessment here, given general incapacity for work.

23.     In considering whether pension at the Special Rate should be granted, considerable emphasis is placed on the phrase ‘of itself alone’, requiring clear demonstration that service-related disabilities are the sole and principal cause of loss of employment or earning capacity.  This matter has been tested in numerous AAT and Federal Court cases, see for example Easton and Repatriation Commission (1987) 12 ALD 777, or more recent cases such as Repatriation Commission v Hendy (2003) FCA 424 or Leane v Repatriation Commission (2004) FCAFC83.

24. In certain circumstances the ‘ameliorating’ provisions of Section 24(2)(b) of the Act or Section 23(3)(b) may apply in determining eligibility for the Special Rate. The ameliorating provisions only apply to a veteran under the age of 65 years who has not been engaged in paid work. The requirements are that:

·the veteran must have been genuinely seeking to engage in paid work;

·but for incapacity arising from accepted disabilities, the veteran would be continuing to seek to engage in paid work;  and

·incapacity is the substantial cause of the veteran’s inability to obtain paid work

If these provisions are met the veteran is to be treated as having been prevented from continuing to undertake the paid work he was undertaking and has therefore suffered a loss of income he might otherwise have earned.

Evidence

25.     Turning more directly to Mr Moore’s situation, the veteran’s evidence to the Tribunal was that his service-related disabilities were principally those of diabetes mellitus and associated diabetic peripheral neuropathy.  He did not dispute he ceased work in 1987 due to back pain arising from a motor vehicle accident, but claimed that following cervical and lumbar surgery the disability had been effectively managed since 1989 by a combination of medication and careful exercise.  Nonetheless in a lifestyle questionnaire dated 27 July 2001 he cited back problems and unsettled diabetes as the reasons ill-health had made him cease work.

26.     There is some support for Mr Moore’s contentions in a medical report by Departmental Officer, Dr H Brigden, dated 2 June 2006, stating that Mr Moore had a favourable outcome from his back surgery and that it now represented no significant disability at all, just some backache at times.  Nonetheless Dr Brigden went on to say that as far as paid employment was concerned Mr Moore was unemployable, as the veteran was overweight and unfit, with little effort to control his diabetes over several years.

27. It is quite clear from the available evidence that neither delegates of the Repatriation Commission or members of the Veterans’ Review Board were convinced Mr Moore’s situation met the criteria in Section 24(1)(c) of the Act for payment of disability pension at the Special Rate. In essence their judgement was that the applicant did not cease work solely due to his service-related disabilities alone, but from back pain arising from the motor vehicle accident as well. There is a significant amount of medical evidence to support such an assessment, which is somewhat at variance with Dr Brigden’s comments.

28.     Mr Moore’s claim that the back injury sustained in civilian employment has not been much of a problem since 1989 appears incorrect.  In a medical report from Dr A Kinnane dated 24 August 1992, noted by the Veterans’ Review Board, shows Mr Moore to be experiencing severe back and leg pain at the time, as well as some neck, shoulder, upper limb and head pain, with strong medication required.  Dr Kinnane’s report also noted the veteran had recently been diagnosed as suffering mild peripheral neuropathy and some of the recent pain at that time was thought to be secondary to this.

29.     The applicant informed the VRB in July 2005 that pain and weakness in his upper limbs in 1995 was due to peripheral neuropathy, however the medical evidence suggest this situation only developed much later, around 2003.  A report by Dr B Taylor, neurologist, dated 27 May 2003 noted the neuropathy had advanced and was affecting his upper as well as lower limbs.  In a lifestyle questionnaire dated 27 July 2001 Mr Moore stated he ceased work due to back problems as well as diabetes.

30.     A medical report dated 30 July 2002 noted the veteran had difficulty walking and had suffered falls, with only about 28 percent of his disability attributable to peripheral neuropathy and the remainder due to a combination of osteoarthritis of the knee and back problems secondary to the motor vehicle accident.

31.     

The Tribunal notes that the applicant made every endeavour to obtain employment between December 1989 and June 2002, serving in a variety of short term roles, with much voluntary work, but the reality was his disabilities precluded ongoing employment.  It is indicative of the situation that even when offered work by the Navy Club, April-August 2002, he ceased work identifying ill-health as the cause.  

The veteran has started that he ceased work in April 2002 and not sought employment since, which is unfortunate in that the assessment period determining whether pension at the Special Rate should be paid, operates from the date of the claim he made (21 June 2002) to the current date.

Decision

32. Having conducted a de-novo review of all available evidence the Tribunal has decided on the balance of probabilities the applicant, Mr Anthony Robert Moore, does not meet the criteria specified in Sections 24(1)(b) and (c) of the Veterans’ Entitlements Act 1986 for payment of disability pension at the Special Rate. The principal reasons is that it is not his service-related disabilities alone which have forced him to cease work, but injuries sustained during civilian employment as well.

33. The Tribunal has also considered whether the ameliorating provisions of Section 24(2)(b) of the Act might apply in Mr Moore’s case. Unfortunately they do not. In order to be accepted the veteran must have been genuinely seeking to engage in remunerative work during the assessment period (Leane v Repatriation Commission (2004) FCAFC 83). Mr Moore has admitted he has not sought employment since ceasing work in April 2002, thus the requirements for Special Rate have not been made out. The decision under review is therefore affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM and Dr R Walters (Part-Time Members)

Signed:   R Hunt (Administrative Assistant)

Date/s of Hearing  9 February 2007
Date of Decision  16 March 2007
Advocate for the Applicant       Mr David Skinner, RSL Advocate
Counsel for the Respondent     Mr Mike Castle
Solicitor for the Respondent    Repatriation Commission