Murray and Repatriation Commission

[2006] AATA 3

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 3

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/242

VETERANS’ APPEALS DIVISION		)
Re		ANTHONY MURRAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date4 January 2006

PlaceBrisbane

Decision The decision under review is affirmed.

................[Sgd].........................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for special rate pension – applicant not prevented from undertaking remunerative work by reason of his war-caused disabilities alone – decision affirmed.

Veterans’ Entitlements Act 1986 s 24

Banovich v Repatriation Commission (1986) 9 ALN 223

Forbes v Repatriation Commission (1990) 20 ALD 255

Flentjar v Repatriation Commission (1997) 48 ALD 1; (1997) 26 AAR 93

REASONS FOR DECISION

4 January 2006	Senior Member B J McCabe
introduction

1. Mr Anthony Murray applied for an increase his disability pension payable under the Veterans’ Entitlements Act 1986 (the VEA). The respondent Commission declined to increase the pension beyond 100% of the general rate. The Veterans’ Review Board affirmed the decision. The applicant has asked the Tribunal to reconsider the decision.

2. The applicant can only succeed in his claim for a pension paid at the special rate if he satisfies the requirements of s 24 of the VEA. The respondent concedes the applicant is able to satisfy ss 24(1)(a) and (b). The issue in this case is whether he can satisfy s 24(1)(c) which requires that he be prevented from undertaking remunerative work by reason of his war-caused disabilities alone.

the material before the tribunal

3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

·     Statement of the applicant dated 13 January 2005  (exhibit 2);

·     Statement of Mr John Andrew Chate dated 1 October 2004 (exhibit 3);

·     Report of Dr Michael Likely dated 25 January 2005 and commissioning letter dated 14 January 2005 (exhibit 4);

·     Correspondence from Dr Peter Doyle dated 5 October 2000 (exhibit 5);

·     Photo of the applicant and helicopter (external view) (exhibit 6);

·     Photo of the applicant and helicopter (internal view) (exhibit 7);

·     Report of Dr Peter Mulholland dated 6 July 2005 and commissioning letter dated 4 July 2005 (exhibit 8);

·     Report of Dr Phillip Vecchio dated 12 December 2004 and commissioning letter dated 12 October 2004 (exhibit 9);

·     Report of Dr Peter Boys dated 1 July 2004 (exhibit 10);

·     Minute of Dr Peter Grant dated 12 October 2004 (exhibit 11);

·     Letter of Mr Alex Wright dated 8 October 2004 (exhibit 12);

·     Applicant’s personal file from the Queensland Government Department of Emergency Services; and

·     Clinical notes of Dr Kevin Arlett lodged in the Tribunal 11 October 2004 (exhibit 14).

4.       The applicant gave evidence at the hearing. Dr Arlett, the applicant’s general practitioner, also gave evidence.

5.       Mr Murray was represented by Mr Honchin of counsel. The Commission was represented by Mr Stoner, counsel employed by the respondent.

the factual background

6.      The applicant was born on 2 February 1939. He was 64 years of age at the date of his application to the Commission; he is currently 66 years old. He enlisted in the RAAF at the age of 15. He was trained to work on turbine and piston engine aircraft. In time, he developed expertise in engineering as well as management and administration.

7.      Mr Murray has developed a number of health problems that have been accepted as being related to his service including:

·Osteoarthrosis of both knees;

·Osteoarthrosis of the left shoulder;

·Psychiatric conditions;

·Gastro-oesophageal reflux disease;

·Alcohol dependence or abuse; and

·A hearing condition.

8.      The applicant also claims to suffer from lumbar and cervical spondylosis and several other conditions. Liability has not been accepted for those conditions.

9.      After the applicant left the RAAF, he worked briefly in the management of a gold club. He subsequently joined Hawker Pacific in Brisbane where he worked as an engineer/engine fitter. He moved to Hawker de Havilland in Townsville in 1987 where he became chief engineer. He explained in his statement that he was the only licensed engineer and he had overall responsibility for engineering work on all Hawker aircraft in Townsville. He carried out some of the maintenance work himself. He left Hawker de Havilland in 1989.

10.     Mr Murray says he did some part-time work for Skywest Aviation in Townsville in the three months following his departure from Hawker de Havilland. He then took up a position with the North Queensland Emergency Response Group (NQERG) in July 1990. He became the maintenance manager. NQERG was absorbed by the state Department of Emergency Services (DES) in 1992. The applicant continued working there until he resigned on 30 November 2002.

11.     The applicant was responsible for the maintenance of a Beech 200 King Air fixed wing aircraft and two helicopters while he worked at NQERG/DES. Some of the work was contracted out, although it remained his responsibility. He did a lot of the work himself, or directly supervised the individuals doing the work. He was the most senior person in Townsville; although he reported to more senior people in the hierarchy in Brisbane, his work was not supervised on a daily basis by anyone else. He worked 5 days a week but he was on call 24 hours a day. He pointed out in his statement and in his oral evidence that the emergency response aircraft had to be ready to go at any time, and he might be called to work on the aircraft at any time and in any weather.

12.     The applicant said he began to experience more and more physical pain during the 1990s. He explained in his oral evidence that an aircraft had to be serviced after 50 flying hours. In the helicopters, that meant pulling panelling off the inside and outside of the aircraft to access the work spaces. He had to kneel down inside the helicopter and on the roof in order to access the parts he was servicing. He was in danger of falling and had to balance himself in awkward positions. He said he spent up to 8 or 10 hours at a time on his knees during the course of a service. He also had to reach with his arms extended. That was difficult because of his shoulder condition. He says working in any confined space is difficult given his knee and shoulder conditions.

13.     Mr Murray said the pain would make him anxious because he worried he might miss something or make a mistake while distracted by the pain. He would wake up at night and start wondering whether he had completed a task correctly. He would sometimes return to the workplace in the middle of the night to check on what he had done. He also began to drink more, and he grew irritable. He said he kept up with the paperwork required by the Civil Aviation Safety Authority but it was a constant source of stress: he wondered if he was doing it properly and quickly enough. He said he felt the burden of responsibility. He was conscious that if his maintenance regime was not effective, aircraft might not be available in emergencies or an aircraft might crash.

14.     The applicant says he would start to “get the shakes” when he was doing his work. He was prescribed a range of medications for his anxiety.

15.     Mr Murray’s supervisors apparently identified some shortcomings in his work. There was some remedial action taken in respect of this unsatisfactory performance in 2001. Mr Murray explained the incident in question in his oral evidence. He says he was wrongly blamed for a mistake made while he was on leave.

16.     The applicant says he decided to resign because the stress was getting to him. Mr Wright, the senior pilot, confirmed in a letter (T documents p 52) that he and the applicant spoke about the desirability of Mr Murray retiring in view of the stress, his injured knees and “generally deteriorating musculo-skeletal flexibility.” The applicant’s letter of resignation does not mention these concerns. It says the applicant wanted to retire be cause he had worked in aviation for 48 years.

17.     The applicant has been offered work on a casual basis servicing helicopters since he left DES in 2002. He did not accept any of the offers. He says he does not have the physical or mental capacity to do the work any more.

the medical evidence

18.     The principal medical witness was Dr Arlett. Dr Arlett has treated the applicant for a number of years. He wrote a medical report on 9 May 2003 suggesting the applicant could not work because of osteoarthritis in both knees and his shoulder, and because of his anxiety and depression. Mr Stoner pointed out in cross-examination that Dr Arlett had also noted on the Medical Impairment Assessment form included in the T documents that the applicant suffered from cholelithiasis which caused constant pain. In a medical examination form at T documents p 66, Dr Arlett notes the applicant also suffers from osteoarthritis of the spine and the thumbs. Dr Arlett explained the diagnosis of a thumb condition was not made until May 2003, which was after the applicant had resigned in 2002. He said the thumb condition did not explain why the applicant left work.

19.     Mr Stoner also pointed out that Dr Arlett had rated the thumb conditions and the lumbar and cervical spondylosis as being severe impediments to at least some of the applicant’s functions: see T documents at p 68. Dr Arlett suggested the back conditions in particular might not affect many of the applicant’s functions that did not involve sitting or carrying heavy loads.

20.     Dr Vecchio saw the applicant on behalf of the Commission. His report dated 12 December 2004 concludes the applicant’s back, neck, hip and elbows do not limit his work – although this conclusion appears to be based on the applicant’s history. Dr Boys agreed in his report that the applicant’s knees are the major problem. His report dated 1 July 2004 suggests the applicant does not report any difficulty with his thumbs. That is surprising given Dr Arlett’s diagnosis of a thumb condition in 2003. Dr Curtis says the back and thumb conditions do not prevent the applicant from working. He apparently accepts the applicant’s explanation that his knees are the real problem.

21.     Dr Phillips reported deteriorating neck symptoms. The applicant admitted to constant neck pain which affects his work: see report of 13 February 2002. Dr Phillips noted lower back pain and pain in the lower limbs. He suggested there was a generalised pre-disposition to arthritic change affecting a number of joints, including those in the applicant’s hand.

the legislation

22. Section 24(1)(c) requires that I consider whether:

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;

23.     Mr Stoner points out that the Tribunal is not simply asking why the applicant ceased working in his last job. I am required to consider the reasons why he could not work at the time of his application for increased benefits, and thereafter during the assessment period: see Banovich v Repatriation Commission (1986) 9 ALN 223. If it turns out that the only obstacle to his continuing work is an accepted condition or conditions, he can satisfy the provision. But if there are any other factors that make a meaningful contribution to his lack of employability – even if they do not emerge until after the applicant ceases work - he must fail: see Forbes v Repatriation Commission (1990) 20 ALD 255.

24. The correct approach to the application of s 24(1)(c) was set out in the decision of the Full Court in Flentjar v Repatriation Commission (1996) 48 ALD 1. I will apply that approach here.

25.     The applicant’s “relevant remunerative work” was aircraft maintenance and maintenance supervision. The medical evidence suggests his knees and his shoulder in particular prevent him from continuing to do that work. His psychiatric conditions have also played a role. Those conditions are service-related. But I think the medical evidence confirms that other factors also play a role in preventing the applicant from continuing to work. The applicant’s thumbs are an obvious problem. It is apparent he sought to downplay their significance in the history he has provided to the various specialists he saw. But his own treating doctor opined that they create a severe impediment, albeit that they were not as severe a problem when he actually retired in 2002. It is also apparent from the applicant’s letter of resignation that he was intending on retiring in any event. He was 64 in 2002 and had worked in aviation for 48 years. The letter from the chief pilot referred to above confirms the applicant was worried about his health, and about his musculo-skeletal flexibility – something highlighted by Dr Phillips, who noted the disposition to generalised arthritic change involving multiple joints.

26. It follows the applicant cannot satisfy the “alone” test in s 24(1)(C). He has not been seeking work since he resigned from DES, so he cannot take advantage of the ameliorating provision in s 24(2).

conclusion

27.     The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:                 Sam J Appleton

Date of Hearing  13 October 2005, Townsville
Date of Decision  4 January 2006, Brisbane

The applicant was represented by Mr Honchin of counsel.

The respondent was represented by Mr Stoner, departmental advocate.