Nelson and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 539

Nelson and Repatriation Commission (Veterans’ entitlements) [2015] AATA 539 (23 July 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2014/4101
Re	Bryan Nelson
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President I R Molloy
Date	23 July 2015
Place	Brisbane

The reviewable decision is varied to the extent that the applicant is entitled to a pension at the intermediate rate with effect from 22 July 2013.

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Deputy President I R Molloy

CATCHWORDS

VETERANS’ AND MILITARY COMPENSATION – Disability Pension and Attendant allowance – Pension at the special rate – War caused conditions limiting capacity for work – Applicant capable of remunerative work on a part-time basis or intermittently – Decision varied.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), ss 23, 24, 120

REASONS FOR DECISION

Deputy President I R Molloy

23 JULY 2015

1. This is an application to review a decision of the Repatriation Commission dated

   
   

   3 July 2013, affirmed by the Veterans’ Review Board on 4 June 2014. The reviewable decision was to increase Mr Nelson’s pension to 100% of the general rate with effect from 29 April 2013.

2. Mr Nelson claims an entitlement to a pension at the special rate under s 24 of the Veterans’ Entitlements Act1986 (Cth) (“the Act”). In this respect, the only issue before the Tribunal was whether Mr Nelson satisfied the requirement, under s 24(1)(b) of the Act, that he is “incapable of undertaking remunerative work for periods aggregating more than 8 hours per week”.

3. If he is not entitled to a pension at the special rate then, in the alternative, Mr Nelson submits he is entitled to a pension at the intermediate rate, under s 23 of the Act.

   
   

   Section 23(1)(b) of the Act requires that the veteran be “incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently”.

4. Section 23(2) of the Act provides, relevantly, that paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking or is capable of undertaking work of a particular kind, “if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.”

5. The standard of proof, under s 120(4) of the Act, is reasonable satisfaction. Mr Nelson gave oral evidence. Oral evidence was also given by Dr Peter Larsen, a cardiologist. There was, of course, documentary evidence, including medical reports.

6. Mr Nelson was born on 4 April 1953. He has the following conditions accepted as war-caused: lumbar spondylosis, ischaemic heart disease, erectile dysfunction, tinnitus, and sensorineural hearing loss.[1]

   [1] Exhibit 1.

7. Mr Nelson was employed as a public servant for approximately twenty years until his retirement on 22 July 2013. His last position was with the Department of Human Services. He described his work as performing payroll, leave and superannuation duties.[2] For the most part this involved using a computer. He also fielded telephone enquiries concerning superannuation and other entitlements.

   [2] Applicant’s statement dated 3 November 2014.

8. Until September 2011 Mr Nelson performed his work from an office in Brisbane. This involved a two hour train trip each way from his home on the Sunshine Coast. He said that he found the travel difficult because of his heart disease and lumbar spondylosis. From September 2011 he was given approval to work from the Centrelink office at Maroochydore. His work remained substantially the same.

9. Mr Nelson said that in 2013 he was finding it increasingly difficult to perform all his allocated duties due to shortness of breath, light-headedness/weakness, fatigue, pain and palpitations. He said his work performance had suffered and he was taking an increasing amount of sick leave.

10. He retired from the public service, as I have said, on 22 July 2013. He was then past the age where he could access his superannuation. His retirement was classified as

    
    

    “Age Retirement”. However, he says the reason that he retired was that he was unable to continue to perform his duties. He has not been involved in any remunerative employment since leaving the public service.

11. Dr Larsen has provided three written reports, dated 11 September 2013,[3]

    
    

    3 November 2014,[4] and 5 February 2015.[5] The first of these recorded that Mr Nelson was currently under Dr Larsen’s care, and went on to say:

    At this stage it is appropriate that he only work up to 8 hours per week. This will be on a permanent basis. 

    [3] Exhibit 1, p 69.

    [4] Exhibit 3.

    [5] Exhibit 4.

12. In his report dated 3 November 2014, Dr Larsen said:

    Bryan Nelson is a patient that I last reviewed in my clinic on 23^rd October 2014. He has stable coronary artery disease status post bypass grafting in 2004. Since then he has had a further procedure with stenting to his left main coronary artery performed in August last year. I note his background risk factors of hypertension and dyslipidaemia. When I last saw Bryan, he was stable from a cardiac standpoint and free of significant anginal symptoms.

    Bryan tells me that since bypass grafting he suffers from fatigue and tiredness particularly if he does any office work. I note his background history of being employed in a clerical capacity with the Australian Government.

    During my last consultation with Bryan, he indicated that he is completely unable to perform any work because of fatigue and lethargy which he attributes to his underlying coronary artery disease. Clearly his diagnosis of coronary artery disease is a permanent diagnosis. Bryan tells me that he does not think his condition is likely to improve with any modification of treatment (clinically no modification of treatment is currently indicated).

13. In his third report, dated 5 February 2015, Dr Larsen listed each of the above war-caused conditions as limiting Mr Nelson’s capacity for remunerative work. He attributed that incapacity as to 80% ischaemic disease, and 20% orthopaedic. Dr Larsen expressed the view that Mr Nelson’s capacity to work was less than 8 hours per a week.  

14. On 9 April 2015, Mr Nelson underwent an exercise stress test. The report of that test,[6] records that Mr Nelson “exercised for 5:23 min[utes] on the Bruce protocol achieving

    
    

    7.00 METS of workload”.[7] The report says he experienced his index angina after

    
    

    5 minutes of exercise that resolved promptly in recovery. Exercise was ceased due to angina.

    [6] Exhibit 5.

    [7] Exhibit 5.

15. Dr Larsen had time to consider the stress test report prior to giving evidence. It formed the basis of much of his oral evidence. Dr Larsen agreed that, according to the stress test, Mr Nelson managed what was considered a moderate level of exercise before he experienced chest pain. It was likened to activities such as playing non-competitive singles tennis, loading a truck with bricks, or digging.

16. Mild exertion, 2 to 3 METS, would include dressing, light household duties, and clerical work which involved some moving about. Dr Larsen agreed that Mr Nelson’s previous work activities would fit in the category below 4 METS. Asked whether, based on the stress test, Mr Nelson would be capable of performing his previous work duties, Dr Larsen said that everyone was different, and the issue was not just the onset of angina. 

17. Dr Larsen went on to say that based on the stress test results, Mr Nelson was capable of working two days per week. He emphasised that his assessments had been substantially based on what Mr Nelson had told him about his capacity for work, and that he did not know, until the Tribunal hearing, what Mr Nelson’s job duties actually were. Asked whether he stood by what he said in his reports, Dr Larsen said that they were prepared in good faith, based on what he had been told.

18. I take into account what Dr Larsen said about an individual’s capacity, and that

    
    

    Mr Nelson’s has a number of conditions or symptoms. However, in all the circumstances I am not satisfied that Mr Nelson is incapable of undertaking remunerative work for periods aggregating more than 8 hours per week so as to attract the special rate of pension under s 24 of the Act.

19. The Commission, quite fairly, and without actually conceding the point, submitted that

    
    

    Mr Nelson’s situation fit more comfortably within s 23 of the Act and an entitlement to a pension at the intermediate rate. I agree.

20. My finding is that Mr Nelson is capable of remunerative work aggregating more than

    
    

    8 hour per week, but not for as much as 20 or more hours per week. That is to say, he is capable of remunerative work on a part-time basis or intermittently, within the meaning of s 23(1)(b) of the Act.

21. The reviewable decision is varied to the extent that the applicant is entitled to a pension at the intermediate rate with effect from 22 July 2013.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of DP Molloy.

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Associate

Dated 23 July 2015

Date of hearing	10 June 2015
Advocate for the Applicant	Gordon Blake, ARMED SERVICES ASSISTANCE CENTRE INC.
Advocate for the Respondent	Bruce Williams, Department of Veterans' Affairs