New and Repatriation Commission (Veterans' entitlements)
[2023] AATA 1665
•16 June 2023
New and Repatriation Commission (Veterans' entitlements) [2023] AATA 1665 (16 June 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/6814
Re:Terence New
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:16 June 2023
Place:Sydney
The Reviewable Decision is affirmed.
..................................[SGD]......................................
Senior Member Dr Linda Kirk
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability pension – application for special rate of pension – veteran served in multiple operations – accepted service-caused conditions of thoracic spondylosis, cervical spondylosis, tinnitus, sensorineural hearing loss, osteoarthritis of the left and right knees, adjustment disorder, lumbar spondylosis – depressive disorder and post-traumatic stress disorder not accepted conditions – whether applicant is 'totally and permanently incapacitated' – whether applicant is incapacitated for service caused conditions 'alone' – whether ameliorating provision in s 24(2)(b) applies – whether applicant has been genuinely seeking remunerative work – where applicant has accepted conditions under other schemes – decision affirmed.
LEGISLATION
Military Superannuation and Benefits Act 1991 (Cth)
Military, Rehabilitation and Compensation Act 2004 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Veterans’ Entitlement Act 1986 (Cth)
CASES
Chambers v Repatriation Commission [1995] FCA 1144; (1995) 129 ALR 219
Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1
Forbes v Repatriation Commission [2000] FCA 328; (2000) 101 FCR 50
Leane v Repatriation Commission [2004] FCAFC 83; (2004) 81 ALD 625
Magill v Repatriation Commission [2002] FCA 744
Repatriation Commission v Buckingham [1996] FCA 1218
Repatriation Commission v Butcher [2007] FCAFC 36
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Repatriation Commission v Watkins [2015] FCAFC 10; (2015) 228 FCR 573
Smith v Repatriation Commission [2014] FCAFC 53; (2014) FCR 452
Starcevich v Repatriation Commission [1987] FCA 342; (1987) 18 FCR 221Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veteran’s Pensions (No. 2) 2016 (Cth)
REASONS FOR DECISION
Senior Member Dr Linda Kirk
16 June 2023
BACKGROUND
Terence New (‘the Applicant’) was born in September 1962.[1] He enlisted in the Royal Australian Airforce (‘RAAF’) on 22 January 1985. He was employed as a Logistics Officer, attaining the rank of Squadron Leader. He was discharged on 31 January 2016.
[1] T-Docs T3, 14.
The Applicant rendered ‘operational service’ for the purposes of the Veterans’ Entitlement Act 1986 (Cth) (‘the Act’) as follows:
- 25 February 2000 to 30 June 2000 – Operation Tanager (East Timor);[2]
- 3 September 2001 to 16 November 2001 – Operation Reflex (Border protection post-Tampa affair);
- 10 September 2008 to 11 October 2008 – Operation Catalyst (Iraq);[3]
- 20 April 2010 to 2 November 2010 – Operation Slipper (Afghanistan).[4]
[2] Ibid T21, 138.
[3] Ibid T6, 25; T21, 141.
[4] Ibid.
On 14 August 2015, the Applicant submitted to the Repatriation Commission (‘the Respondent’) a claim under the Act for ‘post-traumatic stress disorder’ and ‘depression’.[5]
[5] Ibid T7, 37, 38.
On 20 June 2016, the Respondent decided that the Applicant’s ‘Depressive Disorder’ was not related to his service, and that there was no medical condition present with respect to the Applicant’s claim for ‘Post Traumatic Stress Disorder’. The Respondent did, however, accept the Applicant’s claim for cervical spondylosis and thoracic spondylosis with effect from 13 June 2015. As a result, the Respondent decided that the Applicant was entitled to a disability pension payable at 40% of the general rate from 13 June 2015.[6]
[6] Ibid T8, 44.
On 1 July 2016, the Applicant made a further claim to the Respondent for ‘adjustment disorder with anxiety’. The Applicant stated in his claim that he ceased employment on 31 January 2016.[7]
[7] Ibid T6, 27.
On 6 October 2016, the Respondent decided that the Applicant’s ‘Adjustment Disorder’ was not related to his service.[8]
[8] Ibid T9, 54.
On 30 November 2016, the Military Rehabilitation and Compensation Commission (‘MRCC’) accepted liability for ‘adjustment disorder with anxious mood’ with an onset of 3 November 2010, and ‘major depressive disorder’ with an onset of 8 August 2012 under the Military, Rehabilitation and Compensation Act 2004 (Cth) (‘the MRCA’).[9]
[9] ST-Docs T26, 160.
REVIEW APPLICATIONS
On 5 December 2016, the Applicant requested an internal review of the Respondent’s decision dated 6 October 2016 and appealed the decision to the Veteran’s Review Board (‘VRB’).[10] On 27 June 2017, the Respondent decided not to intervene in the Applicant’s request for a second review.[11]
[10] T-Docs T10, 58-59.
[11] Ibid T12, 62-63.
On 20 June 2018, the VRB set aside the Respondent’s decision and in substitution decided that the Applicant’s ‘Adjustment Disorder’ was service-related and that a disability pension was payable for any incapacity arising from that condition from and including 1 April 2016 under the Act. The matter was remitted to the Respondent for assessment of the rate at which any pension would be paid.[12]
[12] Ibid T13, 64.
On 12 January 2019, the Respondent decided that the rate of the Applicant’s disability pension would be 100% with effect from 1 April 2016. It determined that a disability pension was not payable at the Special rate as the Applicant was found to not be prevented from engaging in remunerative employment and was not suffering a loss of earnings solely due to service-caused disabilities.[13]
[13] Ibid T5, 21-22.
On 31 January 2019, the Applicant requested an internal review of the Respondent’s decision dated 12 January 2019 and appealed the decision to the VRB.[14]
[14] Ibid T3, 14.
On 13 July 2020, the VRB affirmed the Respondent’s decision (‘the Reviewable Decision’).[15] It was ‘not reasonably satisfied that the applicant has been prevented from continuing to undertake the remunerative work that he had been undertaking due to incapacity from his accepted disabilities alone…’ and therefore the Applicant did not meet the requirements of the ‘alone’ test under section 24(1)(c) of the Act.[16]
[15] Ibid T2, 9.
[16] Ibid, 13, [25].
On 11 November 2020, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[17]
[17] Ibid T1, 1.
The review application was heard by the Tribunal at a hearing in Sydney on 1 and 2 December 2022. The Applicant appeared by video-link on the Microsoft Teams platform and was represented by his advocates. The following witnesses gave oral evidence and were cross-examined at the hearing:
·the Applicant
·Dr Andrew Davey, General Practitioner
·Dr Reza Sabetghadam, Occupational Physician Consultant.
The following documents were before the Tribunal:
·Section 37 T-Documents, pages 1 – 130 (‘T-Docs’);
·Supplementary section 37 T-Documents, pages 133 – 206 (‘ST-Docs’);
·Covid Bundle of Documents, pages 1 – 660 (‘Covid Bundle’);
·Applicant’s Statement of Facts, Issues, and Contentions, with attachments A – E, pages 1 – 20 (‘ASFIC’);
·Respondent’s Statement of Facts, Issues, and Contentions, pages 1 – 25 (‘RSFIC’).
LEGISLATIVE FRAMEWORK
Eligibility for pension
Section 14 of the Act provides for pension claims. Section 15(1) of the Act enables veterans to apply for an increase in their pension payments on the ground that their incapacity has increased since the previous rate of pension assessment.
Section 19 of the Act prescribes the way in which, inter alia, applications for an increase in pension are determined. Subsection 19(5B) directs that an assessment of such an application must be made in accordance with whichever of s 22 (General rate of pension), s 23 (Intermediate rate of pension) or s 24 (Special rate of pension) applies.
In determining eligibility, a veteran’s entitlement is assessed in respect of any circumstance within the ‘assessment period’. This period runs from the date of application for an increase in the pension until the decision of the Tribunal – s 19(9).
The central concept for determining the amount of pension payable is the degree of incapacity. Section 21A of the Act provides for the determination of the degree of incapacity by reference to the relevant provisions of the Guide to the Assessment of Rates of Veteran’s Pensions (‘GARP’).
Special rate of pension
To be eligible for pension at the Special rate, the requirements of s 24 of the Act must be met. If any one of the criteria is not met, the Applicant will not be eligible for payment of pension at the Special Rate. There is no discretion in this regard.
Section 24 relevantly provides:
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)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; 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; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
If any one of the criteria is not met, an applicant will not be eligible for payment of pension at the Special rate.
The standard of proof to be applied is outlined in s 120(4) of the Act. The Tribunal must determine all relevant issues to its reasonable satisfaction and decide, on the balance of probabilities, the correct rate of pension to which the Applicant is entitled.
In determining, for the purposes of s 24(1)(b) of the Act, whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, (‘service-caused conditions’) is incapable of undertaking remunerative work, decision-makers must apply s 28 of the Act, which allows regard to be had only to the following factors:
(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).
ISSUES FOR DETERMINATION
The issues for determination are:
1)Is the Applicant incapacitated from working more than eight hours per week from the commencement of the assessment period by virtue of his service-caused conditions relevant to s 24(1)(b) of the Act?
2)If yes, are the Applicant's service-caused conditions alone the only factors preventing him from continuing to undertake work from the commencement of the assessment period resulting in his suffering a loss of salary or wages that he would not have but for that incapacity such as to satisfy the requirements of s 24(1)(c) of the Act?
EVIDENCE BEFORE THE TRIBUNAL
Accepted conditions
The Applicant has the following accepted service-caused conditions under the Act:[18]
·Thoracic spondylosis
·Cervical spondylosis
·Tinnitus
·Sensorineural hearing loss
·Osteoarthritis of the left knee
·Osteoarthritis of the right knee
·Adjustment disorder
·Lumbar spondylosis
[18] RSFIC, [18].
The following conditions have not been accepted under the Act:
·Post-traumatic Stress Disorder
·Depressive Disorder.
The Applicant has the following accepted conditions under the Safety, Rehabilitation and Compensation Act 1988 (Cth):
·Right knee osteoarthritis
·Right knee bucket handle tear of the medial meniscus (resolved), leading to chondromalacia patella and resulting in osteoarthritis
·Left knee osteoarthritis
·Left knee degenerative medial meniscal tear
·Thoracic spondylosis
·Lumbar spondylosis
·Cervical spondylosis
·Tinnitus
The Applicant has the following accepted conditions under the MRCA:
·Adjustment disorder with anxious mood
·Major depressive disorder.
Employment prior to ADF service
The Applicant completed his Year 12 Certificate in 1980 and obtained a degree from the NSW Department of Industry as a timmer tradesman. Prior to his Australian Defence Force (‘ADF’) service he worked in the following employment:
·Trainee Sail maker at Hood Sails from 1980 to 1981
·Labourer at Duggan Constructions in 1981
·Marine Maintainer at McKay Marine in 1981
·Machinist Trainee at Petrol Tap & Gas Cock Manufacturing Company in 1981
·Fibreglasser at Cobra Cats International from 1981 to 1982
RAAF service
When he joined the RAAF, the Applicant completed his trade training in safety equipment at Richmond, and then worked as an Aircraft support fitter for the first 11 years of his service.[19]
[19] Transcript, 21.
The Applicant’s first posting was to Williamstown to work on the mirages. He then ‘did the rounds’ of some of the training bases. He went to Sale for a couple of years and during this posting he met his wife. They were posted to RAAF Pearce in Perth where they stayed for a couple of years. They then returned to Sydney and the Applicant worked at Richmond.[20]
[20] Ibid.
The Applicant was sponsored by the ADF to undertake study at the University of Toowoomba with a view to getting a commission as a supply officer. He graduated with a Bachelor of Business in Logistics and Operations Management in 1998.[21] He also completed the following qualifications:
·Associate Diploma of Administration Studies – 1997
·Certificate in Aircraft Life Support Maintenance – 1996
·Diploma of Government (Management) – 2005
·Advanced Diploma of Personnel & Operations Management – 2005
·Certificate IV in Training and Assessment – 2012
[21] Ibid, 24.
The Applicant and his wife were posted to the United States where they both studied and did a lot of travelling.[22] When they returned to Australia, the Applicant was posted to Canberra. He was commissioned as an officer and became a supply (logistics) officer.[23] This role involved the movement of items from A to B to get people deployed and moving around shipping parts and spares for the maintenance of aircraft.[24]
[22] Ibid, 21.
[23] Ibid.
[24] Ibid 22, 23.
The Applicant was next posted to Williamstown and had a range of jobs as a junior officer. In February 2000 he was deployed to East Timor which was his first major operational deployment. When he returned to Australia, both he and his wife were posted to Canberra into RAAF headquarters. They were both promoted within the course of a year. The Applicant worked in joint operations command and travelled to the Middle East.[25]
[25] Ibid, 22.
In 2010, the Applicant was deployed to Afghanistan. He was embedded with the American forces as part of the training side of the operational force, supporting the Afghan forces directly and training and sending them out into the field.[26]
[26] Ibid.
When he returned to Australia, the Applicant was posted into the ADF warfare centre in Williamstown, but his wife remained in Canberra. This centre is the major joint training unit for the ADF. All junior and intermediate level officers go to the centre to get trained to learn how to plan operations.[27] The Applicant’s role at the centre was as an instructor / trainer.[28] He was in the training unit for a few years, but eventually moved out because he was not able to support its military objectives.[29]
[27] Ibid, 23.
[28] Ibid.
[29] Ibid.
Background to discharge from RAAF
The Applicant told the Tribunal that had a ‘bit of a bad time coming back’ from Afghanistan and he thinks he had a ‘nervous breakdown’ in February 2012.[30] He was putting himself under too much stress trying to get the job done and not taking care of himself.[31] This was ‘the first significant event that was brought to the attention of [his] health people.’[32]
[30] Ibid, 22.
[31] Ibid, 23.
[32] Ibid, 28.
The Applicant’s wife eventually returned to Williamstown with their children, and they remained there for a couple of years. His wife then started being posted for work and he remained at home as the primary carer of their children. This affected their marriage, and they started getting counselling for the children as ‘things weren’t looking good’ for their relationship.[33]
[33] Ibid, 22.
In September 2014, the Applicant was nominated by RAAF headquarters as the only RAAF representative to do the Kokoda track trip.[34] They thought that it might ‘give [him] a restart’. He was trying to get his ‘career back on track’ and he ‘had made some significant leaps.’[35] He had done well at losing weight and getting his fitness back. However, he now realises that ‘a lot of what [he] was doing was just putting band-aids over all the problems that [he] was having with [his] head and with [his] body.’[36]
[34] Ibid, 28, 29.
[35] Ibid, 28-29.
[36] Ibid, 29.
The Applicant told the Tribunal that at the end of the Kokoda trip he ‘was absolutely physically exhausted’, and when he returned home his health ‘just declined dramatically’.[37] Dr Michael O’Donoghue made a decision to send him home to convalesce as he was not coping.[38] The Applicant commenced the claims process through the Department of Veterans Affairs (‘DVA’), and the conclusion was reached that because of all his injuries and his mental health problems he was ‘unsuitable for further service.’[39]
The Applicant was discharged from the RAAF in January 2016. He told the Tribunal, ‘they put me out to pasture because I was too broken.’[40] He explained that ‘all the problems with my head’ were ‘putting too much stress on me’ as did the responsibilities he had as a logistics officer.[41]Invalidity Retirement Form
[37] Ibid.
[38] Ibid.
[39] Ibid.
[40] Ibid, 22.
[41] Ibid, 23.
In an Invalidity Retirement from the Defence Force – Medical Information Form dated 28 August 2015 (‘Invalidity Retirement Form’), Dr O’Donoghue listed the following conditions as having led to the Applicant’s retirement:[42]
• Depression and anxiety
• Obesity and hyperlipidaemia
• Right arm injury
• Cervical spine degeneration
• Lumbar spine degeneration.
[42] T-Docs, T43, 205.
Dr O’Donoghue noted the nature and extent of the restrictions caused by these conditions:
• Unable to life heavy weights
• Can only run at restricted pace
• Cannot march
• Cannot handle weapons
• Unable to carry loads
• Requires dietary control.[43]
[43] Ibid.
The Applicant told the Tribunal that Dr O’Donoghue had only occasionally treated him before this point in time, but he took care of him at the end because he ‘was a complex case’. Dr O’Donoghue was the Chief Officer of the unit and he ‘thought it was important to process [the Applicant] out of the Air Force and do it properly.’[44]
[44] Transcript, 29-30.
Invalidity Benefits decision
In a decision dated 1 September 2016 under Rule 22 of the Military Superannuation and Benefits Act 1991 (Cth), (‘Invalidity Benefits decision’),[45] a delegate of the Commonwealth Superannuation Corporation reported the Applicant’s retirement impairments:[46]
·Depression
·Post-traumatic stress disorder
·Obesity
·Hyperlipidaemia
·Cervical, thoracic and lumbar spine spondylosis
·Internal derangement right knee
·Chondromalacia patella of the right knee
·Degenerative medical meniscal tear left knee
[45] T-Docs T19, 119-127.
[46] Ibid T19, 119.
The delegate made the following findings:
a)the relevant kinds of civil employment which a person with Mr New's vocational, trade and professional skills, qualifications and experience might reasonably undertake are Labourer, Security Officer and Guard, Clerical and Administrative Worker, Vocational Education Teacher and Specialist Manager;
b)Mr New's retiring impairments are depression, post traumatic stress disorder, obesity, hyperlipidaemia, spondylosis of the cervical, thoracic and lumbar spine, internal derangement and chondromalacia patella of the right knee and degenerative medical meniscal tear of the left knee; and
c)The retiring impairment diminished his capacity to undertake the kinds of civil employment listed in (a) by an overall large degree and that he be classified 80% Class A with effect from 1 February 2016, being the day after his discharge date.[47]
[47] T-Docs, T19, 126.
Activities following retirement
The Applicant told the Tribunal that he has ‘been asked by various people to do a short summary of [his] qualifications’ but he has ‘never sat down and done a full CV.’[48] He said that following their discharge, the ADF will pay for former members to get assistance to prepare a resumé. However, because he was told by his medical specialist that he was unsuitable for work, he never got around to obtaining this assistance.[49]
[48] Transcript, 25.
[49] Ibid.
In his statement dated 30 March 2021 the Applicant wrote:[50]
Because I have been reasonably busy with my volunteer work and veteran social activities, I have been quite reluctant to look for any real employment.
[50] Covid Bundle, A8, 26, [9].
During cross-examination, the Applicant told the Tribunal that he was the club president at the Wanderers Rugby club while he was in the service. He had previously been a rugby player and they asked him to get involved in coaching the kids. He did this for his son’s team for three years.[51] When his daughter started playing basketball he got involved in this too. He said that none of this was ‘physically demanding’ and it was a ‘low stress, high fun thing.’[52]
[51] Transcript, 31.
[52] Ibid.
After he had been discharged from the RAAF, the Applicant’s children had moved into the Nippers program at Merryweather Surf Club. Due to his background in logistics, one of the committee members asked if he would be interested in helping them out doing some marketing work which would not involve more than half an hour a week. He also was asked to organise the rostering for the barbeques on the Sundays or when the children were doing their Nippers. He told the Tribunal this ‘was really a no stress job’ and ‘all very very easy’.[53] He did not get involved in any of the ‘physical stuff’ such as taking the children down to the beach and running around. It was ‘a very sedentary job’ and it was his ‘pleasure to help them out.’[54]
[53] Ibid.
[54] Ibid.
The Applicant told the Tribunal that he was involved in setting up the Defence Shed in Newcastle. He was one of the first members, but he was not involved in ‘any major organising capacity.’[55] He explained to the Tribunal that the Defence Shed was ‘a social thing’ where [members] would turn up and chat with each other about ‘all things defence and veterans’.[56] He also was involved with the school Anzac Day services for one year which involved him ‘sitting there listening to a few people and providing some advice about what it’s like to be a veteran’.[57] In addition, he attends monthly meetings with the RSL’s sub-branch.[58]
[55] Ibid, 34.
[56] Ibid.
[57] Ibid.
[58] Ibid.
Parenting responsibilities
The Applicant was the primary caregiver for his three children for a four-year period from 2016 to 2019 when his wife was posted for one year each to Adelaide and Wagga, followed by a two-year posting to Canberra.[59] He did ‘[e]verything that a single parent would have to do’ for the children. His children were ‘very organised’ and would make their own lunches the night before school. He always ‘did a lot of running around’ for the children and he volunteered to do the canteen at the school once a week for half an hour.[60] He also would transport his children to sporting practice and games. [61]
[59] Ibid, 33.
[60] Ibid, 32.
[61] Ibid.
Rehabilitation
During cross-examination, the Applicant told the Tribunal that he first became involved in a rehabilitation program because he was told to do so by DVA and he ‘followed the instructions.’ He could not specifically recall attending a consultation with Dr Cynthia Parker, psychiatrist, on 23 August 2017, nor that she had referred him to Axis Injury Management, rehabilitation providers.[62]
[62] Ibid, 39.
In an email dated 24 August 2017 Rehabilitation Consultant Ms Angela Hassab reported that DrParker and the Applicant had contacted her the day before to request that the Applicant be considered for a rehabilitation assessment referral.[63] During cross-examination, the Applicant stated that he does not recall the conversation with Ms Hassab, but he said that ‘you have to infer by that that I was quite happy to do rehab.’[64]
[63] ST-Docs, T26, 160.
[64] Transcript, 40.
On 24 August 2017, the Applicant spoke with a staff member from the Respondent. He stated he was not receiving incapacity payments as he had class A superannuation and was not working. He confirmed he wanted the support of rehabilitation services.[65]
[65] ST-Docs, T24, 158.
On 4 September 2017, the Applicant signed a “Non Return to Work Rehabilitation Rights and Obligations” form. The form stated that DVA rehabilitation services ‘focuses on all elements of your life which could improve your wellbeing and independence.’[66]
[66] ST-Docs, T29, 166.
In a Rehabilitation Assessment Report for the Applicant dated 29 September 2017, Mr Nigel Wind, Rehabilitation Provider, Direct Solutions reported as follows:
… Mr New was motivated to engage in active rehabilitation and recovery. Although he advised that he is “limited” by his physical capacity and ongoing psychological symptoms.
…
Mr New advised that he was unable to be permanently employed in his sedentary role in the Air force and he was medically discharged in early 2016. He reports that he has had little involvement with the military since this time.
Direct Solutions and Mr New discussed the possibility of vocational assistance and explored possible part time roles, but he advised that he has no motivation to resume employment given that he is financially secure at present. Prior to his enlistment in the Air force Mr New advised that he worked as a Sail maker for five years before enrolling in the armed services to become an Aircraft support fitter, where he worked for the next twelve years. Mr New advised that he also completed additional study through the military, completing a bachelor’s degree in Business through the University of Toowoomba.
Mr New advised that he is currently receiving the following treatment:
- Reviews with Dr Russo (pain management physician) as required. He advised that he received “pain blocks” from the Hunter Pain clinic in early August 2017 and will attend for a follow up consultation in the near future.
- Fortnightly reviews with Dr Allan Sacco (General Practitioner) as required. Direct Solutions have attempted to liaise with Dr Sacco through verbal and written correspondence (fax) with nil success at this stage.
- Monthly psychological sessions with Ms Meg Spry. Direct Solutions liaised with Ms Spry who confirmed that has she been providing treatment to Mr New for an extended period with sessions approximately once a month at present. She advised that Mr New has greater capacity than he believes and he needs to be challenged. Ms Spry suggested that the main barrier is physical not psychological. Ms Spry reports that Mr New continues to struggle with motivation and does not implement a number of the strategies and techniques that she has suggested and recommended. Ms Spry stated that Mr New and his wife had previously engaged in marriage counselling with nil success. She agreed that Mr New would benefit from a vocational review to consider suitable volunteer and vocational options.
- Weekly physiotherapy at Broadmeadow physiotherapy with Mr Pratik Ahuja and weekly sessions with Exercise Physiologist Emily Kavanagh with benefit. Direct Solutions have attempted to liaise with both practitioners through verbal and written correspondence (email) with nil success at this stage.
- Regular home program exercise program consisting of core strength and flexibility work.
- Monthly reviews with Dr Cynthia Parker at Lakeside Clinic. Mr New reports that Dr Parker reviews his progression through treatment and revises his medication regime pending his symptoms at the time. He reports that Dr Parker has also reportedly suggested that he may benefit from group Interpersonal Therapy at lakeside clinic. After further investigation it has been confirmed that Dr Parker has not recommended group therapy at this stage.
Mr New confirmed that he continues to experience the following symptoms:
- Difficulty concentrating due to constant pain and discomfort.
- “Aching” within the neck, upper and lower back, bilateral knees and right shoulder.
- Rare “shooting pain” within the neck, right arm and upper back,
He rated the intensity of his symptoms at 7 to and 8 out of 10 (where 0 = no pain and 10 = extreme pain). Mr New advised that there has been little reduction of his symptoms over the past twelve months.
…
Mr New advised that the medication provides temporary symptomatic relief. He reports that he finds it “difficult to function” when his medication regime is disrupted..
Mr New confirmed that he is approximately 186cm tall and reports to weight > 120kg. He acknowledged that his weight is an issue and he is attempting to reduce his weight through diet and suitable exercise with limited success.
.
…
Current psychological status: Mr New advised that he is managing his discharge and current symptoms with minimal psychological impact. He advised that he becomes frustrated with his ongoing restrictions and inability to perform physically demanding leisure chores, but is managing these symptoms at present.
Mr New completed a DASS 21 during the course of the initial assessment. He scored on the moderate scale for Depression and Anxiety.
Mr New has been supplied with a dog called Rosie (border collie) who is a trained support dog that provides ongoing emotional support. He reports that he takes Rosie to all appointment when outside of his home.
…
Vocational/training status: Mr New and Direct Solutions discussed vocational options and the need to be actively engaged in work (part or full time) rather the solely focused on his children. Mr New advised that he was not highly motivated to consider other vocational options at present and had no interest in additional volunteer work.
.
…
Attitude and identified barriers to rehabilitation: Mr New advised that he wants to achieve “greater quality of life”, but he is reluctant to consider vocational options, increased community involvement and other opportunities to spend his time other than with his children. It appears that he has little emotional and family support from his wife and friends.’[67]
[67] ST-Docs, T30, 169-170.
During cross-examination, the Applicant was asked whether he agreed with Mr Wind’s report that he had no motivation to resume employment given that he was financially secure at the time. He told the Tribunal that he does not remember saying this and does not even remember being interviewed by Mr Wind.[68]
[68] Transcript, 42.
On 21 September 2017, the Applicant attended an appointment with Dr Alan Sacco. They discussed his relationship with his wife and his neck pain. The Applicant advised that he had recently had a rehabilitation facilitator appointed.[69]
[69] Covid Bundle, R5, 85.
On 2 October 2017, Mr Wind emailed Ms Patricia Murphy, DVA rehabilitation coordinator, and confirmed a rehabilitation plan had been developed for the Applicant. He stated:
I have recently developed a rehabilitation plan for Mr New which you should receive shortly. It does not include any psychosocial goals as the vet had no interest in working in this area. I am not sure how much value I will be able to add given that he is only willing to consider a job of < 8hrs per week to avoid adverse affect on his payments and his treatment needs appear to be covered at present. I agreed with Mr New to look at a basic plan and then review in a few months to see how we go.’[70]
[70] ST-Docs T31, 174.
The Applicant told the Tribunal that he has no recollection of speaking to Mr Wind about his concerns about having a job of eight hours or more per week.[71]
[71] Transcript, 44.
In an email to Ms Murphy dated 3 October 2017, Mr Wind stated the Applicant should have capacity for more than eight hours per week, and that he may need to look at completing a case conference with the Applicant’s GP to get the Applicant on board and engaged in a possible work trial or with vocational assistance.[72]
[72] ST-Docs T31, 173.
During cross-examination, the Applicant said that he had no memory of this conversation with Mr Wind.[73]
[73] Transcript, 46.
In a letter to the Applicant dated 6 October 2017 enclosing his rehabilitation plan, Mr Wind wrote:
During the assessment your rehabilitation plan was developed in consultation with you and with your agreement. Your rehabilitation plan identifies your goal and the activities that will help you reach those goals.
Mr New will participate in vocational redirection
Vocational assessment and vocational counselling
Parties involved Mr New and the rehabilitation consultant
Job seeking training and assistance to secure a suitable role may include a work trial. Direction Solutions to ensure regular liaison with all relevant professionals to confirm the suitability and progress of vocational redirection.[74]
[74] ST-Docs T33, 178.
During cross-examination, the Applicant said that he does not have any recollection of receiving the plan or the letter.[75]
[75] Transcript, 47.
In an email to Ms Murphy dated 1 November 2017, Mr Wind reported ongoing difficulty establishing contact with Dr Sacco to arrange a nominated treating doctor case conference which the Applicant had agreed to.[76]
[76] ST-Docs T35, 187.
During cross-examination, the Applicant said that he does not have any recollection of agreeing to a case conference with Mr Wind and Dr Sacco.[77]
[77] Transcript, 47.
In an email to Ms Murphy dated 2 November 2017, Mr Wind reported:
I did have a quick chat with the GP and he wanted to have an open discussion with Mr New, but I think he may push the conservative position which is backed by Mr New, as he is very resistant to consider any return to work. I thought that I would tackle it from recommendations of his Psychologist and Physiotherapist to consider returning to work and possibly request 10 – 12 initially and work up from there. I will let you know how things go.[78]
[78] ST-Docs T35, 185.
In a letter to Mr Wind dated 1 November 2017, Dr Parker reported:
I saw Terry today. Unfortunately, as a result of involvement with a rehabilitation provider, Terry has decompensated. He is now extremely stressed about having to return to work at some time in the future. He has decreased motivation and has not been able to exercise. He has also given up on his diet – all things that we had started to work on a couple of months ago.
I therefore feel that he is unfit for medical rehabilitation, vocational rehabilitation, and psychosocial rehabilitation and would like you to close his case. In particular, he felt the thought of somebody coming to his appointments was too intrusive and he has become acutely overwhelmed…[79]
[79] Ibid, T38, 191.
During cross-examination, the Applicant said that he did not agree that it would be open to the Tribunal to draw an inference that he indicated to Dr Parker that he wanted to cease the rehabilitation program.[80] The Applicant did not agree with the proposition put to him that Mr Wind’s insistence or pursuit of helping him to pursue employment was the reason he wanted end the rehabilitation program.[81]
[80] Transcript, 48.
[81] Ibid, 49-50.
In a letter to the Applicant dated 2 November 2017, the Respondent confirmed that his rehabilitation case had been closed.[82]
[82] ST-Docs T39, 192-193.
In an email to Ms Murphy dated 2 November 2017, Mr Wind confirmed the Applicant’s rehabilitation case was closed. He stated, ‘I thought that he would go down this track with Dr Parker. Happy to close off my involvement …’[83]
[83] Ibid, T40, 194.
Capacity to undertake paid work
The Applicant told the Tribunal that he currently is in receipt of the disability pension and an invalidity pension from CommSuper. He said that he is not aware of any time or working hours restrictions for his CommSuper payments.[84]
[84] Transcript, 44.
In his statement dated 30 March 2021, the Applicant wrote:
As I’m allowed to work up to eight hours a week without it affecting my retirement status, it’s important that I look to a job that will give me some social benefits rather than just a need for extra dollars. Some world class professional satisfaction and, most importantly, being a minimally stressful position to enhance rather than hinder my health.[85]
[85] Covid Bundle A8, 26, [9].
The Applicant was asked during cross-examination whether his reference to eight hours work per week related to his claim for the Special rate of pension. He said that it did not,[86] and that his statement was written immediately before starting the Tribunal process which is ‘lightyears away’ from where he was when he ‘was going through all that confusion.’[87]
[86] Transcript, 49.
[87] Ibid.
In his email to the Respondent dated 1 November 2017, Mr Wind reported that he had discussed with the Applicant the possibility of him undertaking suitable work. The Applicant he had said that he was performing volunteer work, was heavily involved in his kids’ activities in band, basketball, previously rugby, and peace keeping. He reported further that the Applicant was ‘adamant that volunteer is completely different to paid work [and] he also raised concerns that working >8 hrs will adversely affect his pension.’[88]
[88] ST-Docs T35, 187.
During cross-examination, the Applicant said that he does not have any recollection of a conversation with Mr Wind at the end of October 2017 during which he raised these concerns.[89]
[89] Transcript, 48.
The Applicant was asked whether the report by Mr Wind that he was concerned about having a job of less than eight hours per week to avoid adverse effect on his pension related to his application for Special rate.[90] He said that he had no idea about what was going on at that time in his life, and Special rate was not something that was even mentioned to him by his advocate. He said that he knew about Special rate ‘as a general concept’ but it did not concern him at the time because he was dealing with other things in his life.[91]
[90] Ibid, 44.
[91] Ibid, 45.
The Applicant was asked what he meant when he said to Mr Wind that ‘volunteer work is completely different to paid work.’ He stated:
That’s not an original thought by me. That has been made very clear from everybody involved, including DVA, and all the healthcare providers say it’s not the same as paid work at all, because paid work you get paid to provide an outcome, right? Outcomes provide stress, all right? And if there’s an expectation of outcome, then you can link mental illness directly to the stress provided by a paid job. With volunteer stuff, everybody is just happy to have you there, right? No one is going to have a go at you for just being there and supporting. And lots of people do it at different levels of support, you know? So, yes, all the healthcare providers all made it quite clear that – that it is not the same. You know, you could go out and do, you know, all this full time volunteer stuff.[92]
[92] Ibid, 35.
During cross-examination, the Applicant was asked whether it is the productive side of work that creates stress for him and therefore he feels the need to avoid it. He stated:
I haven’t necessarily avoided it, I’ve just been told that I am not ready for rehabilitation. Now, if you go back as far as the assessment that was done by Professor Ghabrial, he did a full assessment of my musculoskeletal issues, and he made it quite clear that I was unsuitable to go back into any sort of work. He – I think I can safely quote off the top of my head, he said something like sedentary lifestyle.[93]
[93] Transcript, 36.
Disability Employment Services registration
The Applicant signed a registration form for Disability Employment Services on 15 March 2021.[94] In answer to Question 4, “Do you have a disability, injury, or health condition which may impact on your ability to work?” the Applicant wrote, “Spinal, knees, mental health, PTSD, anxiety, depression”.
[94] Covid Bundle A7, 16.
In his statement dated 30 March 2021, the Applicant wrote:[95]
But on advice of my advocate, I have looked into possible part time employment through a career’s agency called Job Centre Australia. They specialise in trying to place people with disabilities in work.
[95] Ibid, A8, 26, [9].
A Job Plan for the Applicant for the period 5 August 2022 to 1 November 2022 states:
I agree to research potential employers and prepare job applications with the help of Omnia Inclusive Employment Solutions from 05/08/2022to 01/11/2022.
…
I agree to undertake activities to look for work for 15 hours or more per week at or above the relevant minimum wage from 05/08/2022 to 01/11/2022.
…
I understand that I can have my job plan reviewed at any time to reflect any changes in my circumstances and ways my provider will help me.[96]
[96] Covid Bundle A7, 20-22.
The Applicant was asked whether he made any applications for jobs during this period. He told the Tribunal:
With the disability employment service, they’re a very hands-on group unlike some other employment services. I mean, I’ve never used regular ones anyway. I’ve been in the Air Force for 30 odd years. So, I can’t say, but, I mean, I talk to my case officer down there all the time, at least once a week, once a fortnight, sometimes, anyway, and she lets me know that they haven’t found any suitable employment, and, you know, I’ve just – okay. Right. Well, they actively look for their people because of the disability. It’s a – that’s how they work.[97]
[97] Transcript, 52.
He told the Tribunal that he has not put together a CV or submitted any job applications as part of this Job Plan because ‘they’ve not found any employment for me to apply.’[98]
[98] Ibid.
The Applicant was asked to confirm whether 15 hours per week is the number of hours identified by Disability Employment Services as being appropriate for his circumstances. He stated:
That’s just a … marker that they put in there. I asked that question of them, and they said, no, that’s fine. That’s – yes, so, I didn’t – all I am trying to do is test the water and see if there is any employment out there for me. That was the whole idea. And thus far they have not found any employment for me.[99]
[99] Ibid.
The Applicant agreed that he had not sought a review or change to the 15 hours or more per week that he agreed to undertake activities to look for work.[100]
[100] Ibid, 54.
The Applicant was asked to explain how his medical condition has restricted his ability to seek employment from August to November 2022. He stated:
I followed the advice of my doctors, my specialists, who tell me right, and I will reiterate this over and over again to you, right. That for my mental illnesses and for my physical illnesses have said I am not ready for rehabilitation, right? And I am not fit to seek work, right? I put my foot into the ring with a disability employment service to test the water to see if it was possible that there would be some work out there for me, right? And when I have my meetings with my disability employment assessor who – case manager, right? I say, “You got anything for me?” and she goes, “No, not yet”, right? And I go, “Okay, right.” So what I do between – you know, I’m not going to lift a finger to do anything, right, unless there’s something out there for me to – I’d be quite happy to sit down with someone and say, “So you want to employ me. This is my background”, and go through it with them, right? I think I’m more than well qualified to actually achieve that without any piece of paper, right? I’ve even had compliments from various other people about my ability, right? But the fact that I’m doing that doesn’t mean that I’ll take the job on because my doctors, my specialists, have told me that I should not do that, right? I’m not telling them to say this to you; they are saying it to you, right? And you are ignoring what they are saying.[101]
[101] Ibid, 55.
The Applicant confirmed that other than the Job Plan and the form he filled out with Disability Employment Services, he has not undertaken any job-seeking activities.[102]
[102] Ibid, 56.
The Applicant agreed ‘to a certain extent’ with Dr Davey’s view that his obesity has had an impact on his ability to engage in work. He said that it depends on the type of employment.[103]
MEDICAL EVIDENCE
[103] Ibid.
Dr Marc Russo, Pain Specialist
In a letter to Dr Donoghue dated 25 February 2015, Dr Russo reported the Applicant’s history of injury and his current pain symptoms:
… pain present over his neck, both shoulders, interscapular region, mid-thoracic region, low back, both elbows, both hands, both knees and both ankles. The pain is dull and aching in nature and he rates it on a numerical rating scale between 3- 7/10; averaging 4/10 in any given week. He finds it particularly interferes with his mood, normal work, sleep and enjoyment of life from the pain.[104]
[104] Covid Bundle, R7, 284-285.
In a letter to Dr Donoghue dated 19 June 2015, Dr Russo reported:
[The Applicant’s] predominant ongoing pain is low back pain and I suspect, given his age, that he has symptomatic zygapophyseal joint arthralgia to explain that. It would be appropriate, therefore, for him to proceed with diagnostic medial branch block series of the lumbar facet joints to see if he would be a candidate for lumbar facet joint radiofrequency neurotomy.[105]
[105] Ibid, 279.
In a letter to the Commonwealth Superannuation Commission dated 27 June 2022, Dr Russo reported in relation to the Applicant:
Given the refractory nature of Mr New's pain condition, it is my opinion that it is unlikely that he will ever be gainfully employed in the capacity for which he is reasonably qualified.[106]
[106] Ibid, A11, 32.
Dr Joe Ghabrial, Orthopaedic surgeon
In a medical/impairment assessment dated 9 June 2016, Dr Ghabrial reported:[107]
Mr New was involved in heavy activities during his employment in the RAAF between 1985 and 2005. He is considered to be totally unfit for any type of employment for which he is qualified to perform by reasons of education, training or experience. I believe his disabilities are likely to deteriorate slowly over the years and at some stage he may require bilateral total knee replacement surgery. Surgery to the spine is not an option for his problem.
He has not worked since September 2014 and I believe that, taking into account his illnesses and injuries during his employment in the RAAF, he is not fit for any type of employment. I doubt he would even be able to perform any employment up to 8 hours per week.
He has been advised to lead a sedentary life avoiding all the activities mentioned earlier in my report.’
[107] T-Docs T19, 128-129.
Dr Alan Sacco, General Practitioner
In an Ability to Work report dated 25 June 2019, Dr Sacco wrote:[108]
[108] Ibid, T18, 86.
I have known Mr New, and been his treating doctor since the early 2000's. Initially at RAAF Base Williamtown, and then at my practice in Elermore Vale.
In 2011/2012, Mr New started to suffer with anxiety and depression, and probably some PTSD as well. I was involved in caring for Mr New during this period.
I stopped working at RAAF Base Williamtown in 2014.
Mr New was medically discharged from the RAAF in 2016, due to depression/anxiety, and neck, back and bilateral knee pain. It was obviously the decision of the MEC Board that Mr New was not fit for work in the RAAF.
In 2015 Mr New consulted me in general practice.
He was continuing to get psychological and psychiatric help with his mental state. He continued to get treatment on his neck, back and knees. Including physiotherapy, Exercise Physiologist, Pain Management Clinic. Excess stress caused his mental health to deteriorate, and walking/standing for periods longer that 30-60 minutes exacerbated his knee and back pain.
He has improved his mental state, but the physical conditions still cause limitations in what he can do physically.
Incapacity Details
…
0. No functional effect
1. Minor effect on certain functions only
2. Moderate effect on certain functions only
3. Severe effect on certain functions only
4. Severe or disabling effect on many functions
5. Overwhelming effect on all relevant system functions
Accepted Conditions known by DVA
Temporary or Permanent
Functional Rating 0-5
Adjustment Disorder
Likely Permanent 3 Major Depressive Disorder
? Permanent 4 Cervical Spondylosis
? Permanent 4 Thoracic Spondylosis
? Permanent 3 Osteoarthritis both knees ? Permanent, will eventually need
knee replacements
2 Lumbar Spondylosis
? Permanent 4
Non-Accepted Conditions known by DVA
Temporary or Permanent
Functional Rating 0-5
Hypertension
Permanent
1
Hyperlipidaemia
Permanent
1
Metabolic syndrome
Permanent
1
Capacity to work
…
What was his/her last occupation and the reason for cessation of employment?
Staff Officer in RAAF.
Mental and physical disabilities as above.
On what date did his employment cease?
31/01/2016
…
In your opinion, can the veteran work? Not at all – the combination of mental and physical issues, make it difficult to see any work the (sic) Mr New could do on an ongoing basis.
He could possibly do some volunteer work, where he can decide to not attend if depressed, or go home when his back and neck get stiff and painful.
…
In what way do the veteran’s conditions affect his capacity to work? Mr New gets depressed, anxious and distressed in some social/work situations.
He has constant knee, back and neck pain, which occasionally gets quite severe and needs spinal injections to settle the pain.
…
Please comment on the veteran’s suitability for rehabilitation and retraining. I do not believe that at 57 years old, with the mental and physical problems, that Mr New is suitable for rehabilitation.’
In a letter dated 19 January 2021, Dr Sacco, reported:[109]
[109] Covid Bundle A6, 12-13.
Mr New has disability attributable to both mental and physical disorders. I understand that most of the injuries/disorders have been accepted by DVA/VRB through either VEA or MRCA. However there appears to be some belief by DVA/VRB Assessors that Mr New might become fit for some more significant employment in the future. This assessment is incorrect and will be addressed below.
The disabilities, and the extent of the disabilities have changed over the years, with some improving e.g. the PTSD/Anxiety has slightly improved with removing the stress of work, regular visits and treatment by Dr Cynthia Parker (Psychiatrist) and Ms Meg Spry (Psychologist), as well as the affection of Rosie (assistance dog) and regular exercise.
There also appears to be some confusion about the diagnosis PTSD and adjustment disorder. In 2012 Dr Parker (Psychiatrist) diagnosed Mr New with PTSD, as he most closely fitted the DSMlV criteria for PTSD at that time. Ms Meg Spry (Psychologist) agreed with this diagnosis. As Mr New's mental health evolved after discharging from the RAAF, Dr Parker revised the diagnosis to Adjustment disorder with anxious mood, as Mr New now fitted more with the DSMV criteria for this new diagnosis. The two diagnoses are on a continuum, and moving from one to the other depends on the predominant symptoms at the time of diagnosis, or at review of the diagnosis.
But the knees have become significantly worse (he will require a knee replacement in the medium future), and at times there are flares of the back and neck pain, incapacitating Mr New. This improves for a period after treatment by Dr Mark Russo (pain specialist), but slowly worsens with time and some activities.
Currently I would rate Mr New's disability due to mental disorders at about 30% of total disability:
15% due to Major Depressive Disorder, and
15% due to Adjustment Disorder with Anxiety (Post Traumatic Stress Syndrome/ Disorder).
I would rate his physical disabilities at 70% of the total disability:
21% Lumbar Spondylosis,
14% Cervical Spondylosis,
8 % Thoracic Spondylosis,
21% Right Knee Osteoarthritis, and
7% Left Knee Osteoarthritis.’
Dr Andrew Davey, General practitioner
In his oral evidence at the hearing, Dr Davey told the Tribunal that he has worked at the Elermore Vale General Practice since 2014, and the practice has recently relocated and been renamed to the New Lambton Family Practice. The Applicant has been a patient at the practice since October 2015, and Dr Davey has been involved with the Applicant’s care since April 2016. When Dr Sacco retired in 2021, Dr Davey became the Applicant’s primary doctor. [110]
[110] Transcript, 3.
Dr Davey was asked whether he agreed with the Workability Report prepared by Dr Sacco dated 19 January 2021 with respect to the Applicant.[111] He told the Tribunal that he does not dispute any of the findings in this report, however he is not trained in assessing levels of disability.[112]
[111] Covid Bundle A5, 10-11.
[112] Transcript, 3.
In relation to the report provided by Dr Reza Sabetghadam, Occupational Physician, Dr Davey observed that Dr Sabetghadam’s statement that a psychiatrist had not provided any comment about the Applicant’s psychological diagnosis is incorrect as Dr Parker had provided a diagnosis.[113] In his view, this ‘calls into question just how accurate or useful the report is.’[114]
[113] Transcript, 4.
[114] Ibid.
After noting that Dr Sabetghadam examined the Applicant remotely via video, Dr Davey told the Tribunal that he ‘would be wary of drawing conclusions where somebody’s observing on a screen … particularly when you’re assessing the musculoskeletal system.’[115]
[115] Ibid, 4-5.
Dr Davey agreed that the Applicant’s obesity impacts his ability to engage in work. He stated:
It does because it exacerbates the – yes, the musculoskeletal and the spinal pain because simply the weight force that a person’s body carries will exacerbate where there are – where there’s degenerative disease and whether it’s – there have been previous injuries which have resulted in chronic persistent pain.[116]
[116] Ibid, 9.
Dr Cynthia Parker, Consultant Psychiatrist
In a letter to the Respondent dated 3 November 2015 Dr Parker confirmed that she had been treating the Applicant since 8 August 2012.[117] She diagnosed the Applicant with Post-traumatic Stress Disorder and Depression, and attributed 50% of the Applicant’s incapacity to each condition.[118]
[117] Covid Bundle R8, 96.
[118] Ibid, 106, 477-486.
In a letter dated 8 June 2016, Dr Parker reported:
In regard to his psychiatric issues, Mr New has seen me on a monthly basis and sees Meg Spry for psychotherapy on a two-weekly to monthly basis. Mr New’s progress has been slow and at times such as now, he has regressed. There appear to be multiple factors that contribute to his regression, with variable levels of conscious awareness around these. I believe he is about to start Marital Therapy as well due to ongoing conflict in his marital relationship.
…
Both Depression and Posttraumatic Stress are relapsing and remitting conditions. They can get better or worse with time, depending on the circumstances. Their course is therefore largely unpredictable. Mr New’s progress has largely been backwards, he appears to have regressed overtime and particularly in the context his loss of role from the RAAF and neck pain. As mentioned above there are probably multiple issues at play here. It is my opinion he is unlikely to improve in the next few years and he will not improve from his current level of disability.
…
At this point in time it is unlikely that Mr New could be employed in the next four to five years. His psychosocial needs are high. At the moment he feels invalidated and unappreciated by most of the people around him. It is going to take some time for him to manage the anger that he has in reaction to this. In my opinion he would be helped by a psychotherapeutic group to start with, to help validate him with members outside his family. It would also be helpful in trying to understand his psychosocial needs.[119]
[119] Ibid, R8, 488.
In an incapacity assessment of the Applicant dated 16 August 2018, Dr Parker wrote:[120]
‘…main conditions causing the veteran’s inability (or reduced ability) to work? Major Depression – 50%, Adjustment Disorder – 50%.
…
Mr New was a Logistics Officer. Therefore he’s qualified to organise exercises, co-ordinate manpower & other resources for events.
Ability to undertake these roles currently: 0 hours per day, 0 days per week, 0 hours per week. He is too disorganised & amotivated.
Workability
[120] T-Docs T15, 74.
Moderate – Heavy Physical Work (e.g. trades, gardener, cleaner, transport driver, labourer, factory hand)
Recommended maximum hours
0 hours per day, 0 days per week, 0 hours per week.
Which conditions are likely to limit the ability to do this type of work?
Depression
Describe how these conditions affect the veteran’s ability to perform these occupations.
He is irritable, amotivated & disorganised. His physical fitness is low. He presents as unkempt.
Light unskilled / semi-skilled
(e.g. administration, caretaker, fast-food workers, security, artist)
Recommended maximum hours
0 hours per day, 0 days per week, 0 hours per week.
Which conditions are likely to limit the ability to do this type of work? Depression
Describe how these conditions affect the veteran’s ability to perform these
occupations.
Irritable, amotivated, disorganised
Customer Service Work (e.g. hospitality, retail, sales, telephone work)
Recommended maximum hours
0 hours per day, 0 days per week, 0 hours per week.
Which conditions are likely to limit the ability to do this type of work?
Depression
Describe how these conditions affect the veteran’s ability to perform these
occupations.
Unkempt & disorganised.
Professional / Clerical Work
(e.g. manager, technician, instructor, teacher, clerk)
Recommended maximum hours
0 hours per day, 0 days per week, 0 hours per week.
Which conditions are likely to limit the ability to do this type of work?
Depression
Describe how these conditions affect the veteran’s ability to perform these occupations.
Unkempt, disorganised, irritable, amotivated.
…
Vocational Rehabilitation
Vocational Rehabilitation
(e.g. online learning, classroom learning, improving social skills, on-the-job supervision, work trials)
Recommended maximum hours
1-2 hours per day, 1-2 days per week
Which conditions are likely to limit the ability to undertake rehab?
Amotivation from Depression
Describe how these conditions affect the veteran’s ability to undertake vocational rehab. Not motivated to seek a sense of purpose outside looking after his children.
In a letter dated 17 October 2018, Dr Parker wrote:[121]
Mr New has asked me to clarify the relationship between his accepted conditions of Adjustment Disorder and Depressive Disorder.
Mr New suffers an Adjustment Disorder secondary to his deployments to East Timor and Afghanistan in warlike circumstances. On his return home, he was subsequently posted into a job that he did not want to be in, which meant that he was unaccompanied by his family and therefore completely unsupported. The job he was doing was also one outside his usual field of expertise and therefore caused him significant stress on top of being unsupported.
The fact that he was suffering with an Adjustment Disorder and that he was newly returned home to an uncomfortable and unsupported position caused his Major Depression. Therefore, his Adjustment Disorder was part of the causation of his Depressive Disorder.
As mentioned in previous reports, the onset of the Depressive Disorder was in 2011/2012.
[121] Covid Bundle, R8, 497.
In a letter to the VRB dated 25 November 2019, Dr Parker stated her opinion in relation to the cause of the Applicant’s mental health condition:[122]
In my opinion, Mr New was predisposed to Major Depression by his previous deployments to both East Timor and Afghanistan through the subsequent Adjustment disorder he suffered. Additionally, his disappointment about how he was treated by the RAAF and his disenfranchisement from his family on his return from Afghanistan over a 2 year period caused his Major Depressive Disorder.
Additionally, his skeletal conditions would have added to his mental health burden. Stressors are cumulative and tend to have a ‘snowballing effect’ if not treated adequately and in a timely fashion.
Therefore the Adjustment Disorder, feelings of disappointment in the RAAF, disenfranchisement from family and skeletal issues all caused his Major Depressive Disorder.’
[122] Ibid, 498-499.
In a letter to Dr Sacco dated 4 November 2020, Dr Parker reported the Applicant was looking at some part-time employment to try and stimulate his brain as his children were getting older and things with his wife were becoming clearer. He continued to be involved in the Defence Shed, the school ANZAC services, and the RSL sub-branch. Dr Parker stated that the Applicant seemed to be functioning as well as could be anticipated.[123]
[123] Ibid, 414.
In a letter to Dr Sacco dated 11 March 2021, Dr Parker reported that the Applicant and his wife were working through their financial separation. He continued to struggle with left knee pain and was getting significantly overweight, as was his assistance dog due to their lack of exercise secondary to his knee issues.[124]
[124] Ibid, 413.
In a letter to Dr Sacco dated 5 May 2021, Dr Parker reported the Applicant said he had ceased contact with his psychologist and only saw her on an ‘as needs’ basis.[125]
[125] Ibid, 412.
In a letter to Dr Sacco dated 26 August 2021, Dr Parker reported the Applicant was generally doing okay even though he and his children were home-schooling during lockdown. The Applicant had some knee issues but was trying to exercise with his dog and was still walking to the beach. He caught up online with his veterans’ coffee morning group and was getting along as well as he could with his estranged wife.[126]
Dr Reza Sabetghadam, Occupational Physician
[126] Ibid, 411.
Dr Sabetghadam provided a report dated 18 May 2022,[127] a supplementary report dated 18 July 2022,[128] and gave oral evidence at the hearing.
[127] Ibid R2, 41ff.
[128] Ibid R4, 56-57.
In his first report, Dr Sabetghadam reported the Applicant described his current complaints and symptoms to include left and right knee pain, intermittent neck pain, upper back and lower back pain, hearing loss and tinnitus, and symptoms related to adjustment disorder and PTSD.[129]
[129] Ibid R2, 44.
Dr Sabetghadam diagnosed the Applicant with degenerative changes in his spine, including spondylosis, and degenerative changes in his right knee. He noted that the degenerative changes in the Applicant’s left knee had been treated by arthroplasty. He also found that the Applicant suffers from hearing loss and tinnitus, PTSD and an adjustment disorder.[130]
[130] Ibid, 48.
Dr Sabetghadam undertook an assessment using “GARP M”. He provided the following impairment ratings for the Applicant’s accepted disabilities:[131]
[131] Ibid, 49.
(a) Thoracolumbar spine: 9%
(i)Thoracic spondylosis
(ii)Lumbar spondylosis
(b)Cervical spondylosis: No impairment assessed/described.
(c)Tinnitus: 5%
(d)Sensorineural hearing loss: Unable to provide a calculation as no audiometry available.
(e)Osteoarthritis of the left knee: 9%
(f)Osteoarthritis of the right knee: 9%
(g)Adjustment disorder: No impairment assessed/described.
With respect to lifestyle effects, Dr Sabetghadam assessed 5% under Table 22.1, 2% under Table 22.2, 4% under Table 22.3, and 4% under Table 22.4. These values combined to 15%.[132]
[132] Ibid, 50.
With respect to the Applicant’s capacity for work, Dr Sabetghadam considered the Applicant’s ability to undertake remunerative employment had been affected by the disability in his knees, as well as his non-specific back pain related to spondylosis and restricted range of motion.[133] He concluded the Applicant was not capable of working a full-time job without restrictions, although he was capable of working in a part-time job. He did not specify the number of hours the Applicant was capable of working.[134]
[133] Ibid, 51.
[134] Ibid.
Dr Sabetghadam opined that the Applicant was able to work in logistics management or any type of management for which he is trained, and he could undertake office work.[135] He noted that considering the Applicant’s age and ongoing disabilities, it would be difficult for him to secure a position, especially in the location where he lives.[136]
[135] Ibid.
[136] Ibid, 52.
In his supplementary report dated 18 July 2022, Dr Sabetghadam clarified the number of hours the Applicant was capable of working. He opined that the Applicant was ‘probably’ able to work part-time between 20-30 hours, depending on how he feels and how active he is. He stated that an average of 20 hours per week was reasonable within the Applicant’s restrictions, limitations and modifications.[137]
[137] Ibid R4, 56.
In his oral evidence at the hearing, Dr Sabetghadam was asked to comment on the Applicant’s concerns that he conducted the examination of him via video conference. Dr Sabetghadam stated that because he was evaluating the Applicant for impairment and his capacity for work, he considered that video conferencing was sufficient.[138] He told the Tribunal that the examination ‘plays a very small part’ in an assessment, and he had reviewed all the documents provided to him.[139]
[138] Transcript, 62.
[139] Ibid, 85.
Dr Sabetghadam was asked to comment on the concerns the Applicant had raised in relation to him not providing a psychological evaluation for the purposes of the assessment. He explained why he did not undertake such an evaluation:
I am an occupational physician, I have trained to screen someone for psychological conditions, but I don’t have expertise to diagnose psychological conditions and comment about the work capacity, it’s not psychological conditions, that’s a different area of expertise requires independent psychiatrist evaluation. And it is also a scope of general practitioner as well (indistinct words). And then the only thing that I could say, I can generally screen the person for a psychological condition and comment on that if I am suspicious of serious psychiatric conditions, debilitating. But I cannot provide a detailed comment because that’s out of my expertise, it requires a psychiatric evaluation.[140]
[140] Ibid, 62-63.
Dr Sabetghadam told the Tribunal that in his screening of the Applicant he ‘did not notice any signs or symptoms of significant substantial or (indistinct), a psychiatric condition which could compromise someone’s capacity for work.’[141] From his observations, he did not get the impression that the Applicant suffers from major depressive disorder or PTSD.[142] He noted that whereas the Applicant had been diagnosed with mental health conditions by Dr Parker, there is no current diagnosis in the documentary material.[143]
[141] Ibid, 63.
[142] Ibid, 74.
[143] Ibid, 79.
Dr Sabetghadam stated that he does not believe the Applicant is incapacitated for work as a result of his knees, and that he could undertake a role such as consulting or office work.[144] He stated:
I’m not saying that [the Applicant] should go do diesel mechanic today or carpet layer today or air craft engineer today. I’m not saying he should go and work in process mine or abattoir. I’m saying [the Applicant] have objective strength, flexibility and endurance to work in office space to – as a consultant.[145]
[144] Ibid, 63.
[145] Ibid, 85.
In relation to the Applicant’s spondylosis, Dr Sabetghadam stated that he does not believe that it impacts his ability to work.[146]
[146] Ibid, 64.
Dr Sabetghadam explained the distinction between capacity and tolerance:
The concept of capacity and tolerance is different. I don’t have a doubt if [the Applicant] had a pain in his lower back due to existing underlying medical condition, but I do have a doubt if he claims that he’s totally incapacitated with his pain. The pain perception in each individual is different, and it’s very symptomatic. And some people can put up pain, and – and do their job. I just provide this one, not based on my personal experience and also AMA guides. For example, myself, having spondylosis, and I put out face every day, and tolerate the pain; can do my job, provided the work either emotional or financial. But it doesn’t mean I am incapacitated from my work.
…
Capacity is [the Applicant’s] flexibility, endurance, and his strength to tolerate the inherent requirement of an occupation to participate in the employment; yes, he has a capacity. He has the capacity to sit in the office, in comfortable chair, in (indistinct) setting, or work as supervisor in the field, or work as a trainer and assessor, assess people for specific roles. And he has quite, you know, experience with army. It doesn’t mean he’s incapacitated for work because of back pain. But he had the back pain, and – on and off, and we don’t deny that, and people with back pain dislike many activities, such as prolonged sitting, prolonged standing, prolonged walking, prolonged driving, lifting and carrying, pushing and pulling. But this does not imply these activities are going to aggravate the underlying medical condition.
…
… based on [the Applicant’s] education, training, background, experience, and age, I do anticipate, he would be able to work in some type of activities …[147]
[147] Ibid, 65.
He explained that an assessment of incapacity depends on making a diagnosis and then reference to the medical literature to determine whether the diagnosis makes someone incapacitated. Pain is not a diagnosis; it is a symptom.[148] He agreed that well-managed and/or minimal pain is unlikely to have an incapacitating effect on a person’s ability to work.[149]
[148] Ibid, 84.
[149] Ibid, 88.
Dr Sabetghadam told the Tribunal that in his view the Applicant’s pain is not totally incapacitating and he could manage to work for 20 hours per week. He referred to studies that have found that work is beneficial for pain. In his opinion, part-time work would provide benefits for the Applicant, as him not doing anything impacts his psychological well-being and heightens his pain perception and poor tolerance.[150]
[150] Ibid, 66.
In Dr Sabetghadam’s opinion, although the Applicant is in obese category 3, this does not mean he is incapacitated for work.[151]
[151] Ibid, 70.
CONSIDERATION AND REASONS
The Tribunal has considered the material before it, including the evidence of the Applicant and the expert medical evidence, and the oral submissions of the parties. The Tribunal is satisfied that the parties have had an adequate opportunity to present their case.
The material before the Tribunal must positively persuade the Tribunal in relation to the Applicant’s satisfaction of the eligibility criteria for pension at the Special rate contained in the legislative tests in section 24 of the Act:
(a) The Applicant’s degree of incapacity from war-caused injury or war-caused disease, or both, (‘service-caused incapacity’) must be at least 70% (s 24(1)(a) of the Act);
(b) The Applicant’s service-caused incapacity must be of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for more than eight hours a week (s 24(1)(b) of the Act). This criterion can be understood correctly only by applying the criteria in section 28 of the Act which dictate whether a veteran has an incapacity to undertake remunerative work.
(c) The Applicant’s service-caused incapacity alone must prevent him from continuing to undertake the kind of remunerative work he had been undertaking at the application day. He must be suffering a loss of income that he would not otherwise be suffering by reason of being prevented from continuing to undertake that kind of work (s 24(1)(c) and, in effect, s 24(2A) of the Act).
There is no dispute that the Applicant’s claim satisfies the requirements of ss 24(1)(aa) and 24(1)(aab) of the Act, because he made a valid application for a pension increase under s 15 of the Act and he had not yet turned 65 when making his claim. The assessment period commenced on 1 July 2016, being the date the Respondent received the Applicant’s claim. His degree of service-caused incapacity has been assessed at 100% per cent of the general rate, and he therefore satisfies s 24(1)(a)(i) of the Act.
The issues for determination are whether the Applicant satisfies the criteria in s 24 of the Act. In Smith v Repatriation Commission (‘Smith’),[152] Buchanan J elaborated upon these legislative requirements:[153]
Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (‘a veteran who isincapacitated...’). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
Is the Applicant incapacitated from working more than eight hours per week from the commencement of the assessment period by virtue of his service-caused incapacity relevant to s 24(1)(b) of the Act?
[152] [2014] FCAFC 53; (2014) FCR 452.
[153] at [47] – [49].
Subsection 24(1)(b) requires an examination of whether the Applicant’s incapacity from the service-caused conditions of itself alone renders him totally and permanently incapacitated to the requisite degree, that is whether he is incapable of undertaking remunerative work for more than eight hours a week. Section 28 of the Act provides the three criteria for determining whether a veteran is incapable of undertaking remunerative work.
(a) What are the Applicant’s vocational, trade and professional skills, qualifications and experience?
This is not limited to the type of work previously undertaken or for which the veteran is qualified by training or experience. In Chambers v Repatriation Commission,[154] the Federal Court explained:
... A person's skills are not confined to those acquired in formal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly "qualifications" means (Oxford Shorter Dictionary and Macquarie Dictionary) "a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person's experience is not necessarily restricted to that acquired in employment or formal training.[155]
[154] [1995] FCA 1144; (1995) 129 ALR 219.
[155] at 234.
The evidence before the Tribunal detailed in paragraphs [30]-[33] above is that the Applicant gained qualifications and developed numerous skills prior to and during his three decades serving in the RAAF. These include qualifications and skills in logistics, operations management, administration, training and assessment.
(b) What kinds of remunerative work might a person with the Applicant’s skills, qualifications and experience reasonably undertake?
This requires an examination of all the different kinds of work that a hypothetical person with the Applicant’s skills and experience might reasonably undertake: Repatriation Commission v Buckingham.[156] The term ‘remunerative work’ is broadly defined to include ‘any remunerative activity’.
[156] [1996] FCA 1218.
In Repatriation Commission v Butcher,[157] the Full Court stated:
It is settled law that the subsection requires consideration of ‘remunerative work’ by having regard not to particular tasks and duties involved in specific jobs, but rather to the type of substantive work undertaken by the veteran considered at a higher level of generality...[158]
[157] [2007] FCAFC 36.
[158] at [7].
In the Invalidity Benefits decision, the delegate concluded that the relevant kinds of civil employment which a person with the Applicant’s vocational, trade and professional skills, qualifications and experience might reasonably undertake are Labourer, Security Officer and Guard, Clerical and Administrative Worker, Vocational Education Teacher and Specialist Manager.
(c) To what degree do the Applicant’s service-caused conditions reduce his capacity to undertake these kinds of remunerative work?
This requires consideration of the degree to which the Applicant’s service-caused conditions reduce his capacity (in hours per week) to undertake the kinds of remunerative work referred to in (b) above. The Tribunal must disregard all the Applicant’s non-accepted conditions or any other factors that might have an impact on his capacity to undertake these kinds of remunerative work. The question for determination is whether the Applicant’s service-caused conditions of themselves alone render him incapable of undertaking those kinds of remunerative work for more than eight hours a week.
The Applicant contends that the medical evidence supports a finding that his service-caused conditions render him totally and permanently incapacitated.[159] The Invalidity Benefits decision dated 1 September 2016 found that the Applicant’s retiring impairment diminished his capacity to undertake the identified kinds of civil employment ‘by an overall large degree’ and that he be classified 80% Class A.[160] The Report of Defence Force Retirement and Death Benefits Scheme Review Committee of June 1990, which considered the Military invalidity classifications, states that Class A Members are ‘total, or near total, invalidity, unlikely to work in a job for which the member is reasonably qualified by education, training or experience’.[161]
[159] ASFIC [32].
[160] T-Docs T19, 126.
[161] Ibid.
The Applicant also relies on Dr Ghabrial’s report dated 9 June 2016 in which he reported that taking into account the Applicant’s illnesses ‘he is not fit for any type of employment’ and doubted that ‘he would even be able to perform any employment up to 8 hours per week.’[162] This view is supported by the reports of the Applicant’s general practitioner, Dr Sacco, who consistently reported that the Applicant’s service-caused conditions are such that he ‘will never be fit for full time work and would struggle even with minimal part-time work’.[163] Most recently, on 27 June 2022 Associate Professor Russo opined that ‘given the refractory nature of [the Applicant’s] pain condition … it is unlikely that [he] will ever be gainfully employed in the capacity for which he is reasonably qualified.’[164]
[162] Ibid, 129.
[163] ASFIC, D, 19.
[164] Covid Bundle A11, 32.
The Respondent contends that the Applicant has been capable of remunerative employment for more than eight hours a week and he therefore does not satisfy s 24(1)(b) of the Act.[165] It relies on the opinion of Dr Sabetghadam in his reports dated 18 May 2022 and 18 July 2022 that the Applicant can work more than eight hours.[166] It also relies on the assessment of the Applicant’s rehabilitation provider, Mr Nigel Wind, in September/October 2017 that the Applicant should have a capacity for work for more than eight hours per week.[167] In relation to Dr Russo’s letter dated 27 June 2022, the Respondent contends that this is inconsistent with materials produced under summons by Hunter Pain Specialists, which indicate the Applicant’s neck and back pain have been responsive to periodic radiofrequency, neurotomy and medication.[168]
[165] RSFIC [115].
[166] RSFIC [117].
[167] RSFIC [119].
[168] RSFIC [120].
The opinions of the medical experts are inconsistent in relation to the extent to which the Applicant is capable of undertaking work for more than eight hours per week. The Tribunal has given greater weight to the opinions of the Applicant’s general practitioner, Dr Sacco, who was involved in his care for approximately a decade, and Dr Russo who has treated the Applicant since 2015. It notes that Dr Sacco’s view that the Applicant ‘will never be fit for full-time work and would struggle even with minimal part-time work’ reflects the opinion of Dr Ghabrial in relation to the Applicant’s very limited capacity for work. The Tribunal has preferred the opinions of Dr Sacco and Dr Russo over that of Dr Sabetghadam for reason that his conclusion about the Applicant’s capacity to work is based on one examination of the Applicant via video-conference and a review of the written documentation.
On the basis of the evidence before it, the Tribunal is satisfied that the Applicant is incapacitated for work for more than eight hours per week and therefore the requirements of s 24(1)(b) are satisfied.
(2) Are the Applicant's service-caused conditions alone the only factors preventing him from continuing to undertake work from the commencement of the assessment period resulting in his suffering a loss of salary or wages that he would not have but for that incapacity such as to satisfy the requirements of section 24(1)(c) of the Act?
In Flentjar v Repatriation Commission,[169] Branson J outlined a methodology for the application of s 24(1)(c):[170]
1)What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2)Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3)If the answer to question 2 is ‘yes’, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4)If the answers to questions 2 and 3 are, in each case, ‘yes’, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
[169] [1997] FCA 1200; (1997) 48 ALD 1.
[170] At 4-5.
If the answers to any of questions 2, 3 or 4 is ‘no’, the Special rate of pension is not payable.
Whereas this methodology provides guidance for the decision-maker in determining the application of the provisions, the ultimate guide is the words of the legislation. As Middleton, Murphy and Rangiah JJ cautioned in Repatriation Commission v Richmond (‘Richmond’):[171]
We do not approach the task of interpreting s 24(1)(c) by reference to the Flentjar questions. While the appeal requires close attention to what was said in Flentjar and other authorities the application of s 24(1)(c) is not be ascertained by construing the words in the authorities as if they were the words of the statute ...[172]
1) What was the Applicant’s earlier remunerative work?
[171] [2014] FCAFC 124; 226 FCR 21.
[172] 34 at [50].
The correct approach to determining this first issue was explained by Whitlam, Emmett and Stone JJ in Repatriation Commission v Hendy:[173]
The Tribunal’s task was to assess what the Veteran probably would have done, if he had none of the service disabilities during the assessment period. The requirement to consider “remunerative work that the Veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the Tribunal undertook. The Tribunal was not bound to limit its consideration to the last employment that the Veteran actually undertook.[174]
[173] [2002] FCAFC 424; (2002) 76 ALD 47.
[174] at [36] - [37].
The reference to “remunerative work” in s 24(1)(c) includes the main or chosen field of endeavour and not necessarily the last remunerative work undertaken by a veteran: Starcevich v Repatriation Commission.[175]
[175] [1987] FCA 342; (1987) 18 FCR 221.
During the last 11 years of the Applicant’s career, he worked as a RAAF logistics officer and at the ADF warfare centre as an instructor / trainer. The Tribunal finds that if he had none of his service-caused conditions during the assessment period he would have undertaken work of this nature with the ADF.
2) Is the Applicant, by reason of his service-caused conditions, prevented from continuing to undertake that work?
The evidence before the Tribunal is that the Applicant’s service-caused conditions have prevented him from undertaking his earlier remunerative work.
3) Are the Applicant’s service-caused conditions the only factors preventing him from continuing to undertake that work?
The first limb of s24(1)(c) requires the Applicant to demonstrate that, by reason of incapacity from his service-caused conditions alone, he is prevented from continuing to undertake remunerative work that he was undertaking (the ‘alone’ test).
In Forbes v Repatriation Commission,[176] Nicholson J explained:
The question whether the veteran by reason of the war-caused condition "alone" has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists.[177]
[176] [2000] FCA 328; (2000) 101 FCR 50.
[177] at [39].
In Richmond, the Full Court explained the requirements of the first limb of s 24(1)(c):
The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
In our view the authorities on the alone element of the test in the first limb are clear. In Cavell (at 539-540) Burchett J expressly approved the Tribunal’s statement that the use of “alone” in s 24(1)(c) means that any non war-caused factor which plays a part in the applicant’s inability to work or to obtain and hold remunerative employment is sufficient to displace the applicant’s case for a pension at the special rate.[178]
[178] at [57]-[59].
The Full Court noted that this interpretation of the provision was consistent with the expressed intent of the legislation:
… While this may be seen as a harsh result, it arises from the plain words of the section. The special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans.[179]
[179] at [65].
The reasoning in Richmond was upheld in Repatriation Commission v Watkins.[180] In Summers v Repatriation Commission,[181] the Full Court stated:
In Richmond at [67]-[69] the Full Court reviewed the authorities in relation to the “alone” test and respectfully disagreed with Bromberg J. The Court held that s 24(1)(c) requires that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is of only secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied. Then, in the appeal from Bromberg J’s judgment in Repatriation Commission v Watkins [2015] FCAFC 10, per Kenny, Barker and Rangiah JJ, the decision at first instance was overturned. The Full Court said (at [61]) that the decision in Richmond was correct and applicable. We also consider Richmond to be correct.[182]
[180] [2015] FCAFC 10; (2015) 228 FCR 573.
[181] [2015] FCAFC 36; (2015) 230 FCR 179 (‘Summers’).
[182] at [194].
The evidence before the Tribunal is that the only psychiatric condition that has been accepted under the Act as service-caused is the Applicant’s Adjustment Disorder.[183] His Depressive Disorder, PTSD and obesity have not been accepted as service-caused under the Act.
[183] See [26]-[27] above.
The Respondent’s submission is that the Applicant cannot rely on his Major Depressive Disorder and Adjustment Disorder as representing a single psychological disability, as this is not supported by the medical evidence.[184] It contends that the Applicant’s Major Depressive Disorder has contributed to preventing him from continuing to undertake his remunerative work throughout the assessment period.[185] The Respondent further contends that the Applicant’s obesity has contributed to preventing him from continuing to undertake his remunerative work throughout the assessment period.[186]
[184] RSFIC [122].
[185] RSFIC [123].
[186] RSFIC [126].
The medical evidence before the Tribunal supports a finding that the Applicant’s psychiatric conditions, including Depression and PTSD, and his obesity have contributed to preventing him from continuing to engage in remunerative work. The reasons for the Applicant’s invalidity retirement given by Dr O’Donoghue in the Invalidity Retirement Form dated 28 August 2015 included ‘Depression and anxiety’ and ‘Obesity and hyperlipidaemia’.[187] The Invalidity Benefits decision dated 1 September 2016 specified the Applicant’s Depression, PTSD, Obesity and Hyperlipidaemia as contributing to his retirement from work.[188]
[187] ST-Docs T43.
[188] T-Docs T19.
In her report dated 3 November 2015, Dr Parker diagnosed the Applicant with PTSD and Depression and attributed 50% of the Applicant’s incapacity to each condition. In an incapacity assessment for the Applicant dated 16 August 2018, Dr Parker reported that the main conditions causing his inability (or reduced ability) to work were Major Depression – 50% and Adjustment Disorder – 50%. Most recently, Dr Sacco reported on 19 January 2021 that the Applicant’s psychological disorders represented about 30% of total disability: 15% due to Major Depressive Disorder, and 15% due to Adjustment Disorder with Anxiety (Post Traumatic Stress Syndrome/Disorder).
In his oral evidence, Dr Davey agreed that the Applicant’s obesity impacts his ability to engage in work. The Applicant himself is reported by Mr Wind in his Rehabilitation Assessment Report dated 29 September 2017 to have ‘acknowledged that his weight is an issue’.[189] In his oral evidence at the hearing the Applicant stated that he agreed ‘to a certain extent’ with Dr Davey’s view that his obesity has had an impact on his ability to engage in work.[190]
[189] ST-Docs T30.
[190] Transcript, 56.
On the basis of the medical evidence before it, the Tribunal finds that the Applicant’s Depressive Disorder, PTSD and obesity have contributed to preventing him from continuing to undertake remunerative work throughout the assessment period. The authorities cited above make clear that if there is a non-service-caused factor ‘which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is of only secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.’[191] Accordingly, the Tribunal finds that the Applicant does not satisfy the requirements of the first limb of s 24(1)(c).
4) Is the Applicant by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of the service-caused conditions?
[191] Summers at [194]; Richmond at [57]-[59].
The second limb of section 24(1)(c) requires the Applicant to demonstrate that by reason of him being prevented from undertaking that work he is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of the service-caused conditions(the ‘loss’ test).
This operates subject to s 24(2)(a) of the Act, which deems a veteran who is incapacitated from service-caused conditions to fail the ‘loss’ test if the veteran:
(i)has ceased to engage in remunerative work for reasons other than incapacity from the service-caused condition, or
(ii)is incapacitated or prevented from engaging in remunerative work for some other reason.
In Magill v Repatriation Commission,[192] Drummond J explained:
Unlike s 24(2)(b), which ameliorates the operation of the first limb of s 24(1)(c), s 24(2)(a) only explicates the second limb of s 24(1)(c) by emphasising that a veteran will not be able to satisfy that limb if, though suffering a loss of earnings that may be causally related to a war-related injury or disease, there are other reasons that are also causally related to the veteran’s having ceased to engage in work or related to the veteran’s being prevented from engaging in work.[193]
[192] [2002] FCA 744.
[193] At [11].
The Respondent contends that the Applicant does not satisfy the second limb of s24(1)(c), by application of subsection 24(2)(a)(i), as he ceased to engage in remunerative work for reasons other than his incapacity from his service-caused conditions.[194] These reasons include his motivation to maintain benefits under the Act for the Special pension rate.[195]
[194] RSFIC [129].
[195] RSFIC [130].
The Respondent further contends the Applicant does not satisfy the second limb of s24(1)(c) by application of subsection 24(2)(a)(ii), as he is incapacitated, or prevented, from engaging in remunerative work for some other reason, namely the preventative effect of his non-service-caused psychiatric conditions and obesity.[196]
[196] RSFIC [131].
Having regard to the provisions of s 24(1)(c) and s 24(2)(a) and the relevant authorities, for the reasons which follow, the Tribunal is not satisfied that the Applicant’s service-caused conditions were the only factors preventing him from continuing to engage in remunerative work, nor is it satisfied that he is incapacitated or prevented from engaging in remunerative work solely for reason of his service-caused conditions.
The evidence before the Tribunal is that the Applicant was not motivated to engage in remunerative work following his invalidity retirement for a number of reasons. In his statement dated 30 March 2021, the Applicant wrote that he had ‘been quite reluctant to look for any real employment’ for reason that he had been reasonably busy with [his] volunteer work and veteran social activities.’ His oral evidence to the Tribunal is that his parenting responsibilities and his volunteer work, particularly around his children’s sporting activities, contributed to his reluctance to seek remunerative work.
The Rehabilitation Assessment Report dated 29 September 2017, and correspondence from Mr Wind, the Applicant’s rehabilitation provider dated 2 October 2017 and 1 November 2017 record that the Applicant was said to be ‘only willing to consider a job of < 8 hrs per week to avoid adverse effect on his payments…’ and to have ‘raised concerns that working >8 hrs will adversely affect his pension.’ In his oral evidence the Applicant stated that he had no recollection of making these statements to Mr Wind. However, in his statement dated 30 March 2021, the Applicant wrote, ‘I’m allowed to work up to eight hours a week without it affecting my retirement status’, and he told the Tribunal that he is not aware of any time or working hours restrictions for his CommSuper payments.[197] This indicates that the Applicant was concerned that his invalidity benefits would be impacted if he were to engage in remunerative work for more than eight hours per week.
[197] Transcript, 44.
Based on the evidence before it, the Tribunal finds that the Applicant does not satisfy the second limb of s24(1)(c), by application of subsection 24(2)(a)(i), as he ceased to engage in remunerative work for reasons other than his incapacity from his service-caused conditions.
The Tribunal also finds that the Applicant does not satisfy the second limb of s24(1)(c) by application of subsection 24(2)(a)(ii), as he is incapacitated, or prevented, from engaging in remunerative work for some other reason, namely the preventative effect of his Major Depressive Disorder, PTSD and obesity.
For the reasons outlined above, the Tribunal finds that the Applicant does not satisfy the requirements of s 24(1)(c) and is therefore ineligible for the pension at the Special rate.
Ameliorating provision
As the Applicant was under 65 years of age at the time of his claim, the ameliorating provision of s 24(2) of the Act must be considered. Subsection 24(2)(b) creates a beneficial easing of the ‘alone’ test. It applies where a veteran has not been engaged in remunerative work and satisfies the decision-maker that he or she:
·has been genuinely seeking remunerative work;
·would, but for the incapacity, be continuing so to seek to engage in remunerative work; and
·the incapacity is the substantial cause of his or her inability to obtain remunerative work.
Where these requirements are satisfied, the veteran is treated as having been prevented, by reason of their service-caused incapacity, from continuing to undertake remunerative work that the veteran was undertaking.
The correct approach to applying s 24(2)(b) was outlined by Rares J[198] and Buchannan J[199] in Smith. Buchannan J explained:
Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (i.e. loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.[200]
[198] at [21].
[199] at [49]-[51].
[200] at [49].
There is considerable Federal Court jurisprudence and guidance on what is meant by the requirement to genuinely seek remunerative work. In Leane v Repatriation Commission,[201] Emmett, Conti and Selway JJ stated:[202]
It may be accepted that, in the ordinary course, a person in the position of the Veteran would have difficulty in establishing that he or she was honestly trying to engage in remunerative work unless there were some ‘objective signs of active pursuit of remunerative work’. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the Tribunal that:
·he or she honestly wished to engage in remunerative work;
·he or she had made a reasonable assessment of his or her disabilities;
·he or she had reasonably concluded that he or she could only be employed in a particular type of work;
·he or she was checking employment advertisements on the look out for such employment; but
·he or she had not yet identified any such employment prospects.
[201] [2004] FCAFC 83; (2004) 81 ALD 625.
[202] at [29].
The Respondent contends that section 24(2)(b) of the Act is not applicable because:
(i)the Applicant has not genuinely sought to engage in remunerative work;
(ii)there is no evidence that, but for any incapacity, the Applicant would be continuing to seek to engage in remunerative work; and
(iii)nor is there evidence that any incapacity is the “substantial cause” of the Applicant’s inability to obtain remunerative work in which to engage. [203]
[203] RSFIC [134].
The evidence before the Tribunal is that in September-October 2017 the Applicant briefly engaged with a rehabilitation provider, Mr Wind. The documentary evidence, including emails between Mr Wind and Ms Murphy demonstrates that the Applicant was resistant to any vocational options or engagement in work as he was concerned about the impact on his pension rate of working more than eight hours per week. Whereas the Applicant claims he does not recall making these representations to Mr Wind, his own evidence is that he had ‘been quite reluctant to look for any real employment’. The Applicant’s rehabilitation case was closed in November 2017 following advice from Dr Parker who reported that as consequence of the Applicant’s involvement with the rehabilitation provider, he had ‘decompensated’ and became ‘extremely stressed about having to return to work at some time in the future.’
The evidence also demonstrates that the Applicant registered with Disability Employment Services in March 2021. The Applicant’s evidence to the Tribunal is that he registered with the employment agency on the advice of his advocate.[204] A Job Plan was prepared for him by the agency for the period August to November 2022. There is no evidence that any job plans were prepared for the Applicant during the period from March 2021 to July 2022. The Applicant’s evidence is that he has not prepared a resumé for the purpose of seeking employment nor has he submitted any job applications. He told the Tribunal that during the period of the Job Plan he had fortnightly calls with the agency, but they were unable to find him any employment, and he was ‘not going to lift a finger to do anything … unless there’s something out there for [him]’.[205] He confirmed that he had not taken any steps outside the Job Plan to look for employment.
[204] Transcript, 53.
[205] Ibid, 55.
The Tribunal finds, based on the evidence before it, that the Applicant did not seek to engage in remunerative work at any time during the assessment period. Accordingly, he does not satisfy the ameliorating provision in s 24(2)(b).
The Tribunal therefore finds on the basis of the evidence before it, and on the balance of probabilities, that the Applicant does not satisfy the requirements of s 24(1)(c) of the Act.
Accordingly, the Applicant does not meet the criteria to be eligible for payment of pension at the Special rate.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 183 (one hundred and eighty - three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
..................................[SGD]......................................
Associate
Dated: 16 June 2023
Date(s) of hearing: 1 & 2 December 2022 Advocate for the Applicant: MR W FORSBEY AND MR R KELLOWAY Advocate for the Respondent: MS V GINNANE Solicitors for the Respondent: MORAY & AGNEW LAWYERS
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