Newcomb and Repatriation Commission (Veterans' entitlements)
[2020] AATA 124
•5 February 2020
Newcomb and Repatriation Commission (Veterans' entitlements) [2020] AATA 124 (5 February 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/1522
Re:John Newcomb
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member P J Clauson AM
Date:5 February 2020
Place:Brisbane
The decision under review is affirmed.
..........................[Sgd]............................................
Senior Member P J Clauson AM
CATCHWORDS
VETERANS’ AFFAIRS – military compensation – Veterans’ Entitlement Act 1986 (Cth) – disability pension – Special Rate – war-caused injury or war-caused disease – claim for cervical spondylosis condition and shoulder condition – alone test - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Banovich v Respondent (1986) 6 AAR 113
Hendy v Repatriation Commission (2002) 76 ALD 47
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Smith (1987) FCA 327
Repatriation Commission v Watkins [2015] FCAFC 10
Smith v Repatriation Commission (2014) 220 FCR 452
REASONS FOR DECISION
Senior Member P J Clauson AM
5 February 2020
INTRODUCTION
Mr John Newcomb, the Applicant, seeks a review of the Veterans’ Review Board (“VRB”) dated 20 February 2017 which refused the grant of the Special Rate of disability pension.[1] The Applicant performed service with the Royal Australian Navy (“Navy”) from 3 March 1968 to 3 March 1988 and then again from 14 November 2011 to 7 December 2013, at which time he was medically discharged.[2] In the interim, he served as a reservist in the Navy. At the date of the Hearing, the Applicant was 68 years old.
[1] Exhibit 1, T-Documents, T103, pages 592-600, Reviewable Decision of the VRB.
[2] Exhibit 1, T-Documents, T100, pages 575-580, Applicant’s ADO Service Record.
The Respondent has accepted the following conditions as being related to service:[3]
[3] Exhibit 1, T-Documents, T94, pages 489-506, Section 137 Report; Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2.
·Lumbar spondylosis with intervertebral disc lesions;
·Plantar warts;
·Hyperkeratosis and basal cell carcinomas;
·Bilateral sensorineural hearing loss;
·Bilateral tinnitus;
·Malignant neoplasm of the prostate;
·Osteoarthritis affecting both knees;
·Post-traumatic stress disorder; and
·Depressive disorder.
The Respondent has not accepted the following conditions as being related to service:[4]
·Carcinoma of the bladder;
·Cervical spine spondylosis;
·Gastro-oesophageal reflux disease; and
·Plantar fasciitis of the right foot.
[4] Exhibit 1, T-Documents, T94, pages 489-506, Section 137 Report; Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2.
THE CLAIM
On 5 November 2013, the Applicant lodged a Claim for Disability Pension and Applicant for Increase in Disability Pension that was received by the Department of Veterans’ Affairs (“DVA”) on 13 November 2013.[5]
[5] Exhibit 1, T-Documents, T55, pages 308-325, Claim for Disability Pension and an Application for Increase in Disability Pension.
On 15 May 2014, a Delegate of the Respondent decided that the Applicant’s disability pension was to be increased to 100% of the General Rate with effect from 13 August 2013.[6] The Delegate accepted the conditions of sensorineural hearing loss of the right ear, osteoarthrosis affecting both knees and post-traumatic stress disorder (PTSD). Cervical spondylosis and depressive disorder were determined to not be related to the Applicant’s service, and there was no medical condition present to answer the claim for osteoarthritis right foot.[7]
[6] Exhibit 1, T-Documents, T79, pages 417-428, Decision.
[7] Exhibit 1, T-Documents, T79, pages 417-428, Decision.
The Applicant then applied for further review by the VRB.[8] On 7 July 2015, the VRB set aside the decision of the Respondent, and in substitution found that the depressive disorder condition was defence-caused.[9] The decision was otherwise affirmed with respect to the cervical spondylosis and osteoarthritis right foot conditions. The matter was remitted to the Respondent for an assessment of the rate of disability pension.
[8] Exhibit 1, T-Documents, T81, pages 440-441, VRB Application for Review of Decision dated 15 May 2014.
[9] Exhibit 1, T-Documents, T83, pages 443-451, Reviewable Decision of the VRB.
On 4 December 2015, the Respondent made a decision to continue the Applicant’s disability pension at 100% of the General Rate.[10]
[10] Exhibit 1, T-Documents, T88, pages 468-473, Decision.
After further application from the Applicant,[11] the VRB made a decision on 20 February 2017 to affirm the 4 December 2015 decision of the Respondent, with the effect that the Applicant’s disability pension was continued at 100% of the General Rate.[12]
[11] Exhibit 1, T-Documents, T90, pages 484-485, VRB Application for Review of the Decision.
[12] Exhibit 1, T-Documents, T103, pages 592-600, Reviewable Decision of the VRB.
On 15 March 2017, the Applicant lodged an application for review with this Tribunal.[13]
[13] Exhibit 1, T-Documents, T2, pages 3-13, Application for Review of Decision.
LEGISLATIVE FRAMEWORK
The matter before the Tribunal is whether the Applicant satisfies the requirements of section 24(1) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) and thus qualifies for the Special Rate of pension.
It is not contested that the Applicant has rendered both operational service and eligible service. The Applicant rendered operational service on account of his service in Vietnam during: 13 November 1968 to 28 November 1968; 8 February 1969 to
25 February 1969 and 8 May 1969 to 30 May 1969.[14] The Applicant rendered eligible defence serve for the purposes of the Act during the period 7 December 1972 and 3 March 1988.[15]
[14] Exhibit 1, T-Documents, T100, pages 575-580, Applicant’s ADO Service Record; Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2.
[15] Exhibit 1, T-Documents, T99, pages 573-574, Document entitled “Veteran Community Details Report”; Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2.
A veteran who is in receipt of a pension may apply for an increase in the rate of pension on the ground that the incapacity of the veteran has increased since the rate of the pension was last assessed.[16]
[16] Veterans’ Entitlements Act 1986 (Cth) s 15.
To be eligible for pension at the Special Rate, the requirements of section 24 of the Act must be met. Section 24 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)…
(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; …
(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; …
(1)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.
Section 23 of the Act outlines the eligibility requirements for payment of the pension at the intermediate rate:
23 Intermediate 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's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from 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 from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3)For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
Section 28 of the Act provides:
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(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).
Standard of Proof
The standard of proof to be applied in this matter is outlined in section 120(4) of the Act.[17] Section 120(4) requires the Tribunal to determine the issues to its “reasonable satisfaction”. This means, as per section 120B(3) of the Act, that the Tribunal must decide, on the balance of probabilities, the correct rate of disability pension payable to the Applicant. In Repatriation Commission v Smith (1987) FCA 327, Beaumont J stated that the Tribunal should consider:
“...whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other...”
[17] Repatriation Commission v Braund (1991) 23 ALD 591; Banovich v Respondent (1986) 6 AAR 113.
Assessment Period
The assessment period for the Applicant’s eligibility commenced on the date he lodged his application for an increase in pension, and continues until the determination of the matter by the Tribunal. The veteran’s Claim for Disability Pension and an Application for Increase in Disability Pension was received by the DVA on 13 November 2013,[18] therefore that is the application day for the assessment period.
[18] Exhibit 1, T-Documents, T55, pages 308-325, Claim for Disability Pension and an Application for Increase in Disability Pension.
The Applicant must comply with the above eligibility criteria set out in section 24 of the Act within the “assessment period”.[19] Subsection 19(9) of the Act defines the “assessment period” as “the period starting on the application day and ending when the claim or application is determined”.
[19] Veterans’ Entitlements Act 1986 (Cth) s 19(9).
Pension and Pension Rate Threshold Criteria
In this matter, the question to be determined is whether the Applicant is entitled to payment of a service pension at the Special Rate.
The Applicant lodged an application for an increase in the rate of pension on 13 November 2013 under section 15 of the Act and that the Applicant had not turned 65 when the application was made.[20]
[20] Veterans’ Entitlements Act 1986 (Cth) ss 24(1)(aa) and 24(1)(aab); Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 15.
Further, the Applicant has been found entitled to payment of his disability pension at 100% of the General Rate, which is above the 70% of General Rate threshold.[21]
[21] Veterans’ Entitlements Act 1986 (Cth) s 24(1)(a); Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 15.
THE EVIDENCE
A Hearing was convened on 11 May 2018. The Applicant was represented by Mr Anthony Hornby of the Veterans’ Support Centre, and the Respondent was represented by Ms Rachel Blake of Moray & Agnew Lawyers. Both Parties were provided with an opportunity to provide final written submissions.
The Applicant
The Applicant provided a statement dated 14 December 2017 in the form of an email. This statement outlined the reasons why the Applicant cannot work or function in the workplace:
·He wakes up at night and loses a lot of sleep;
·He is continually tired;
·He has a lack of memory and lack of clear thinking;
·He is unable to interact socially;
·He has excess irritability and stress when under pressure;
·He has bouts of depression and suicidal thoughts;
·The thought of work frightens him because he knows he will not be able to perform; and
·It takes him weeks to build up enough confidence to pay bills and attend to other normal administrative requirements.
The Applicant’s statement also outlined why his shoulder and cervical spine do not play a part in preventing him from working:
·His neck was cured by physiotherapy before November 2011 and has not been a problem since; and
·His shoulder has slowed his swimming down and has occasionally given him pain when it is over used, but is able to be moved through the normal range and still have enough strength for normal activities.
The Applicant gave oral evidence at the Hearing. When giving evidence he spoke about how he went into the financial planning field after he was first discharged from the Navy in 1988. He remained with the same financial planning company from 1992 to November 2011. He confirmed that he re-joined the Navy full-time in November 2011, and was discharged in 2013. Under cross-examination, he explained that his reason for re-joining the Navy was partly due to financial reasons.
The Applicant gave evidence that he exercises regularly to keep fit, primarily by rowing, which he does competitively, and swimming.
The Applicant was asked about his discharge from the Navy in 2013, and he advised that he was medically discharged due to his prostate cancer and PTSD. It was put to the Applicant that the medical documentation for his invalidity retirement referred to a number of conditions relevant to his retirement, including his back and neck conditions which were said to cause ongoing daily pain and discomfort.[22] The Applicant disagreed with this, noting that it was just his back condition that was causing him problems at the time.
[22] Exhibit 1, T-Documents, T54, page 305-307, Invalidity Retirement from the Defence Force – Medical Information.
The Applicant confirmed that his bladder cancer was no longer problematic after receiving treatment in 2012.
When asked about seeking work since his discharge in 2013, the Applicant advised that when he was discharged he started studying again, going to seminars and networking lunches and applying for jobs in the financial planning industry. He stated that he eventually came to the conclusion that he could not go back into financial planning as he had periods of anxiety and depression, and his memory was slightly diminished. He did not feel confident providing financial advice.
Cervical Spondylosis
The Applicant gave evidence about the development of his neck pain, stating that it started to develop towards the end of his financial planning career, prior to re-joining the Navy. He explained that he obtained several opinions from orthopaedic surgeons and was treated with physiotherapy. His neck problem was rectified in 2010. He advised that he may have been treated by his physiotherapist for neck pain occasionally since then when he was a bit stiff, but he has not received any other treatment since 2011. The Applicant confirmed that he did not take any sick leave from the Navy in relation to his cervical spondylosis. He described being subject to small modifications to his workplace due to his neck pain, such as having his computer raised higher.
The Applicant was asked about the report of Associate Professor Peter Steadman of 11 September 2017, in which it was noted that the Applicant’s cervical spondylosis condition had a “minor effect on certain functions only”.[23] The Applicant stated that the minor effects he experiences were, for example, he had difficulty looking back when reversing a car, and used mirrors attached to his glasses to assist with looking back when rowing. He stated that the condition had no impact on working, as he had no difficulty using a computer or speaking with people face-to-face.
[23] Exhibit 4, Report of Associate Professor Peter Steadman dated 11 September 2019 and Letter of Instruction dated 23 August 2017, page 7.
In cross-examination, the Applicant was referred to a medical attendance record of 15 October 2015,[24] in which it was noted that the reason for visit was “cervical spondylosis”. The Applicant responded that he did not have neck pain at that time and had no understanding of why that was noted in the record. He recalled that at that time he had recently experienced a rowing accident where a boat struck him in the chest, and he likely had pain all over. He stated that he got over the pain with time and did not require any treatment, but he was initially worried as he was not sure what damage had been done.
[24] Exhibit 6, Summonsed Documents, page 30.
Shoulder Condition
The Applicant gave evidence that he first experienced shoulder pain in 2002 or 2003 when he tore a tendon. He explained that he underwent surgery, which he believed was very successful. He said that about four years ago he started getting shoulder pain again from swimming. He saw a physiotherapist and the same orthopaedic surgeon who did his original shoulder operation in 2003. He underwent an MRI which found a lot of atrophy, but was advised that an operation would not improve the issue. The Applicant explained that he was advised to swim more slowly, and since he has his shoulder has continued to improve. The Applicant was referred to a consultation record dated 11 May 2016,[25] in which the reason for visit was recorded as being right shoulder pain, and it was noted that the Applicant would follow up with physiotherapy and an orthopaedic surgeon as planned. The Applicant agreed that this was what he was referring to when he spoke about consulting his surgeon. The Applicant was also referred to a further consultation record of 24 April 2015,[26] where the reason for visit was noted as depression and right shoulder pain. It was recorded that the shoulder pain had been experienced “since August last year”, and the Applicant had been doing physiotherapy and seeing Dr David Sonnabend, orthopaedic surgeon. The Applicant confirmed that Dr Sonnabend was the surgeon he consulted.
[25] Exhibit 6, Summonsed Documents, page 36.
[26] Exhibit 6, Summonsed Documents, pages 27-28.
It was put to the Applicant that his shoulder had been a problem for quite a length of time, from 2014 to 2016. The Applicant did not disagree.
MEDICAL HISTORY AND EVIDENCE
In his claim form lodged 13 November 2013,[27] the Applicant confirmed that his claimed disabilities affected his employment or his ability to seek employment at any time, stating:[28]
“Conditions have lead [sic] to increased levels of stress in the work place: difficulty concentrating and remembering, have difficulty completing a full days work, irritability in the workplace. I have been advised that my contract with the RAN will not be renewed due to my workplace performance, which has been severely hampered.”
[27] Exhibit 1, T-Documents, T55, pages 308-325, Claim for Disability Pension and an Application for Increase in Disability Pension.
[28] Exhibit 1, T-Documents, T55, page 320, Claim for Disability Pension and an Application for Increase in Disability Pension; Exhibit 1, T-Documents, T56, page 330, Additional Information Sheet.
A Navy Officer Performance Appraisal Report dated 22 November 2013 recorded that the Applicant was “slow to settle in his role” and did not appear “to be able to cope with the workload”.[29]
[29] Exhibit 1, T-Documents, T59, page 344, Document entitled “Navy Officer Performance Appraisal Report”.
On 8 September 2013, the Applicant completed a statement regarding his history of anxiety and sleep disorder, and in that statement the Applicant stated:[30]
“…I have been making application for other positions in the Navy. None have come up and I am loosing [sic] confidence and interest. Last week I decided to take the Navy’s offer of a medical separation from the Navy on the grounds of issues surrounding a radical prostatectomy performed in 2012. I have been making application for a job in the same industry as I was in while out of the Navy. I just hope that they do not ask too many questions from my current employer.”
[30] Exhibit 1, T-Documents, T48, page 291, Applicant’s Statement (Anxiety and Sleep Disorder).
In an Employment Questionnaire dated 4 November 2015 the Applicant detailed his “anxiety and depression” conditions to be the main cause of his incapacity for employment and his medical discharge from Navy.[31]
[31] Exhibit 1, T-Documents, T86, page 465, Employment Questionnaire completed by the Applicant.
Dr Lee Hardwick, Psychiatrist
The Applicant was referred to Dr Hardwick just after re-joining the Navy in November 2011. Dr Hardwick’s clinical notes of their first appointment on 1 December 2011 state that the Applicant was experiencing depression and anxiety after his recent break-up with his partner.[32] Dr Hardwick noted that the Applicant had “re-joined RAN due to financial issues”[33], and that the Applicant had experienced a degenerative disc change in his lumbar and neck area.[34]
[32] Exhibit 1, T-Documents, T4, page 17, Applicant’s service medical records (extract).
[33] Exhibit 1, T-Documents, T4, page 18, Applicant’s service medical records (extract).
[34] Exhibit 1, T-Documents, T4, page 19, Applicant’s service medical records (extract).
Dr Hardwick’s report dated 22 January 2014 summarised her history with the Applicant.[35] She first saw the Applicant on 1 December 2011. The Applicant was referred to her again in August 2013, and she saw him on several occasions before his medical discharge in November/December 2013. Dr Hardwick stated:[36]
“At his initial referral he told me he had been assessed by a psychiatrist in approximately 2008, and had been diagnosed with Major Depression secondary to his previous Navy service…
When I assessed him in December 2011, he had a resurgence in his depressive and anxiety symptoms, and was in crisis following the sudden breakup with his partner, and her subsequent return to Queensland.
At that time, he had only been back in the Navy for about two weeks, and was keen to minimise his depressive symptoms because of the effect a possible medical downgrade might have on his Naval career. At that time I diagnosed him to be suffering from an Adjustment Disorder, secondary to his recent breakup...
In September 2013, on his review it became obvious that he suffered from long-standing anxiety/PTSD symptoms, dating back to his service as a clearance diver in the 1960’s and 1970s… These disabling symptoms then led to [the Applicant’s] discharge from the Navy as he could no longer cope with ADF.”
[35] Exhibit 1, T-Documents, T4, pages 55-56, Applicant’s service medical records (extract).
[36] Exhibit 1, T-Documents, T4, pages 55-56, Applicant’s service medical records (extract).
Dr Hardwick also spoke about the Applicant’s recent re-entry to the Navy, noting that when he returned to work it became “obvious that he is unable to work due to significant problems with ongoing anxiety and poor focus and concentration”.[37]
[37] Exhibit 1, T-Documents, T4, page 56, Applicant’s service medical records (extract).
In a medical statement dated 14 February 2017, Dr Hardwick recorded that the Applicant’s anxiety and depression symptoms should be considered as part of his PTSD.[38] She noted that the Applicant had been diagnosed with depression as a separate condition when it was not known that he suffered from PTSD.
[38] Exhibit 1, T-Documents, T101, page 581, Medical Statement of Dr Lee Hardwick, general adult psychiatrist.
Cervical Spondylosis
On 22 September 2008, an x-ray of the Applicant’s cervical spine found “moderate multilevel cervical spondylotic change”.[39] On 30 November 2010, an MRI of the Applicant’s cervical spine found severe, marked or moderate foraminal stenosis on both the left and right sides at several vertebrae.[40] A radiology report of 17 December 2010 confirmed that a periradicular injection was administered to the Applicant at the request of Dr Raoul Pope, neurosurgeon and spine surgeon.[41] A CT scan of the Applicant’s cervical spine performed on 21 April 2011 found “advanced degenerative disc changes”.[42]
[39] Exhibit 1, Service Medical Records, Volume 1, page 170.
[40] Exhibit 8, Bundle of Radiology Reports.
[41] Exhibit 8, Bundle of Radiology Reports.
[42] Exhibit 8, Bundle of Radiology Reports.
In an outpatient clinical record dated 20 October 2011 it was noted that the Applicant was unfit for deployment.[43] The reason was noted as “neck pain, cervical degenerative change and C5 radiculopathy…”. It was also noted that “at present member is functioning well, since neck injection Dec 2010”.
[43] Exhibit 1, Service Medical Records, Volume 1, page 137.
On 31 October 2011, it was documented in a Medical Employment Classification Review (“MECR”) record that the Applicant had a “history of neck pain, aggravated by physical activity”.[44] It was noted that the Applicant was a keen rower and sportsman. The record referred to the Applicant’s history with Dr Pope, neurosurgeon, noting that he was presently undergoing physiotherapy once a week and would see Dr Pope at the end of the year for a review.
[44] Exhibit 1, Service Medical Records, Volume 1, page 186.
On 16 April 2012, a MECR record again reported a “history of neck pain”, but documented that the neck symptoms were stable and that the Applicant was fit for deployment.[45]
[45] Exhibit 1, Service Medical Records, Volume 1, page 103.
In a Member’s Health Statement dated 31 October 2012 the Applicant reported, “I have not had any problems with my neck for over 18 months”.[46]
[46] Exhibit 1, Service Medical Records, Volume 1, page 26.
A Rehabilitation Assessment Report dated 22 February 2013 documented that the Applicant advised that he had sustained a neck injury at the beginning of 2011 and consulted a neurosurgeon who advised he did not require surgery.[47] It was also reported that the neck pain “resolved with physiotherapy”. The report confirmed that small ergonomic adjustments were completed at the Applicant’s workstation, such as adjusting the keyboard and mouse.
[47] Exhibit 1, Service Medical Records, Volume 1, page 39.
A Physiotherapy Discharge Summary dated 10 April 2013 noted that the Applicant had been referred due to “neck and lower back pain”.[48] The onset of the Applicant’s neck pain was recorded as 2009. It was documented that the Applicant rowed competitively, and participated in running, bike riding and swimming. The report recommended joint mobilisation and Pilates.
[48] Exhibit 1, Service Medical Records, Volume 1, page 35.
On 3 July 2013, a further MECR was conducted and it was determined that the Applicant was unfit for deployment.[49] The Applicant’s listed medical conditions referred to “significant degenerative changes in his cervical and lumbar spine”, but noted that “neck symptoms are stable”.
[49] Exhibit 1, Service Medical Records, Volume 1, page 10.
On 29 October 2013, Dr Chalker, general practitioner, completed an Invalidity Retirement from the Defence Force Medical Information form, which was signed by the Applicant.[50] Dr Chalker identified several medical conditions which led to the Applicant’s retirement from the Navy, including prostate cancer, transitional cell cancer of bladder, degenerative cervical and lumbar spine, adjustment disorder with depression and PTSD. He identified that the following conditions impacted on the Applicant’s functional capacity, but were not the primary cause of his retirement: reflux oesophagitis, osteoarthritis both knees and osteoarthritis of the right foot.
[50] Exhibit 1, T-Documents, T54, pages 305-307, Invalidity Retirement from the Defence Force – Medical Information.
Dr David Moore, general practitioner, has provided a history of clinical notes from his consultations with the Applicant. In a note dated 25 February 2014, Dr Moore noted that a referral for physiotherapy was needed based on a “history of lower back and neck pain”.[51] In a note dated 15 October 2015, Dr Moore recorded that the Applicant’s reason for visit was due to “Left Chest wall pain” and “Cervical spondylosis”.[52] He referred to the Applicant being struck in the ribs by the bow of a boat. He assessed that there was an “incidental combination of cervical radicular pain from spondylosis and rib injury in surf”. A further note of 27 November 2015 recorded, “chest discomfort finally resolved”.[53]
[51] Exhibit 6, Summonsed Documents, page 22.
[52] Exhibit 6, Summonsed Documents, pages 30-31.
[53] Exhibit 6, Summonsed Documents, page 32.
Shoulder Condition
On 27 February 2013, an Occupational Rehabilitation report recorded that the Applicant required ergonomic adjustments to reduce strain on his shoulders.[54]
[54] Exhibit 1, Service Medical Records, Volume 1, page 42.
A clinical note from Dr Moore recorded that the Applicant had experienced right shoulder pain “since August last year”.[55] He noted that the Applicant had been doing physiotherapy, and would be seeing Dr Sonnabend soon.
[55] Exhibit 6, Summonsed Documents, page 28.
Dr Sonnabend provided a report dated 19 May 2015.[56] In that report, he noted that he had originally repaired the Applicant’s right rotator cuff almost 13 years ago. He reported that the Applicant’s right shoulder had been fine until sometime last year when he noticed difficulty with his strenuous exercise regime, particularly rowing. Dr Sonnabend opined that surgical intervention at that stage would almost certainly make the Applicant’s condition worse. He anticipated that the Applicant would be able to continue rowing with minimal discomfort for “quite some time”.
[56] Exhibit 2, Applicant’s Statement of Issues, Annexure 6.
On 9 May 2016, the Applicant consulted with Dr Robert Matthews about shoulder pain he was experiencing.[57] It was recorded that, during a recent motorcycle ride, the Applicant “fell very heavily onto the right shoulder”. Dr Matthews noted the Applicant’s history of “right rotator cuff injury and repair”. He also noted that the Applicant had “rowed this morning and pain wasn’t too bad”. Following an MRI of his right shoulder, the Applicant consulted again with Dr Matthews on 11 May 2016.[58] Dr Matthews reported that the MRI revealed bone oedema, increased fluid and some bruising, but no fractures. He recorded, “pain is much improved”, and that the Applicant “has managed to continue rowing and swimming”.
[57] Exhibit 6, Summonsed Documents, page 35.
[58] Exhibit 6, Summonsed Documents, page 36.
Dr Michael Graze provided a report dated 31 May 2016 regarding his review of the Applicant’s right shoulder concerns.[59] He confirmed that the Applicant’s recent MRI revealed no change to his rotator cuff. It was noted that, “currently his symptoms are well controlled and he has functional range of motion”. Dr Graze also recorded that the Applicant was due to commence on an off-road trail bike safari in the coming weeks.
[59] Exhibit 2, Applicant’s Statement of Issues, Annexure 7.
Plantar Fasciitis of the Right Foot
An Occupational Rehabilitation report of 22 February 2013 recorded that the Applicant suffered from arthritis in his right foot was unable to run on it.[60] An x-ray of the Applicant’s right foot on 19 September 2013 confirmed that the foot was not fractured and no degenerative change was present.[61] The x-ray report noted the existence of “vascular calcification”.
[60] Exhibit 1, Service Medical Records, Volume 1, page 39.
[61] Exhibit 1, T-Documents, T49, pages 292-293, Radiological report – x-ray left knee.
A report of Dr John Stephen, orthopaedic surgeon, dated 20 December 2013 recorded that the Applicant’s right foot had given him “trouble on and off for the last 25 years”, and “it was probably getting worse”.[62] Dr Stephen documented that, at times, the Applicant “could barely walk”, while at other times he was “completely free from pain”. The episodes of pain occurred around every month or so and could last two or three days before going away. Dr Stephen stated:[63]
“I saw plain x-rays of both knees and both feet dated 19 September 2013. These x-rays were essentially normal for a man of 64. Indeed, they would have been normal for a man of 20 years younger.”
[62] Exhibit 1, T-Documents, T73, pages 384-390, Medical report of Dr John Stephen, orthopaedic surgeon.
[63] Exhibit 1, T-Documents, T73, page 386, Medical report of Dr John Stephen, orthopaedic surgeon.
He confirmed that there was no evidence of osteoarthritis, deformity, redness or swelling. Under diagnosis, Dr Stephen stated:[64]
“[The Applicant] appears to have intermittent arthralgia of unknown cause. Arthralgia is best defined as a painful joint without any accompanying physical signs such as swelling, redness and restriction of movement… .”
[64] Exhibit 1, T-Documents, T73, page 387, Medical report of Dr John Stephen, orthopaedic surgeon.
Capacity to Work
Various medical professionals have provided an opinion on the Applicant’s capacity to work in light of his medical conditions.
On 2 December 2010, Dr Pope reported that the Applicant had presented with “subaxial neck pain two years and left shoulder and arm pain four weeks”.[65] It was noted that the pain was worse after rowing but swimming, jogging or running did not affect the Applicant. It was also noted that the Applicant had been having weekly physiotherapy, which helped both his neck and arm symptoms. Dr Pope reported that “he can perform all activities of daily living normally”, including driving without limitations, using the computer for about five hours and walking for more than two hours. Dr Pope recorded that the Applicant had full range of movement in his neck.
[65] Exhibit 7, Report of Dr Raoul Pope dated 2 December 2010.
On 19 August 2011, Dr Pope reported that the Applicant was:[66]
“… functioning at a super high level and only if symptoms deteriorate to every day activities and his functional morbidity is suffering and can be documented then I may consider surgical intervention.”
[66] Exhibit 1, T-Documents, T36, pages 243-244, Medical report of Dr Raoul Pope, specialist neurosurgeon and spine surgeon.
Dr Pope’s report of 9 November 2011 recorded that surgery was not necessary for the Applicant at that stage.[67] Dr Pope noted that the Applicant had recently competed in a world rowing championship overseas, and during these seven weeks he had “very limited recurrence of his arm pain or his neck pain”. It was recorded that the Applicant’s symptoms “have not worsened and in fact improved”. Dr Pope considered that, from a neurological perspective, the Applicant was fit to return to active Navy service.
[67] Exhibit 1, Service Medical Records, Volume 1, page 190.
On 27 November 2013, Dr Chalker recorded in a Work Ability Report that the Applicant was capable of working between eight to 20 hours per week at that time, but also commented that eight to ten hours would be “more appropriate”.[68] The listed conditions which were said to be “major” in their contribution to the Applicant’s incapacity included “lumbar/cervical spondylosis”.
[68] Exhibit 1, T-Documents, T61, pages 359-362, “Work Ability Report” – Dr D Chalker, general practitioner.
On 27 October 2015, Dr Hardwick opined that the Applicant has no capacity for employment as a consequence of his major depression and PTSD conditions.[69] In a further letter dated 5 December 2017, Dr Hardwick confirmed that she has been the Applicant’s treating psychiatrist since 2011, and that the Applicant would be unable to work as a financial advisor for the foreseeable future.[70]
[69] Exhibit 1, T-Documents, T85, pages 463-464, Medical report of Dr Lee Hardwick, general adult psychiatrist.
[70] Exhibit 2, Applicant’s Statement of Issues, Annexure 2.
On 30 October 2015, Dr Moore completed a medical report regarding the Applicant’s ability to work.[71] Dr Moore considered that the Applicant was totally incapacitated for employment due to his major depression and PTSD conditions. The Applicant’s shoulder condition and right foot condition were also recorded as impacting on the Applicant’s ability to work, but were only given a rating of one out of five with respect to their impact on “functional effect”. In this report, Dr Moore recorded that the Applicant was experiencing a 50% loss of range of movement in his cervical spine.
[71] Exhibit 1, T-Documents, T84, pages 452-456, Medical Report – Ability to Work – Dr David Moore.
Dr Chris Oates, consultant occupational physician, completed a Capacity to Work Report on 28 November 2016 following his assessment of the Applicant.[72] Dr Oates recorded the Applicant’s medical conditions which had not been accepted by the Respondent, including his cervical spondylosis, plantar fasciitis of the right foot and malignant neoplasm of the bladder, and other medical conditions not claimed for including his right shoulder condition. Dr Oates noted that the plantar fasciitis, malignant neoplasm of the bladder, and cervical spondylosis conditions were not presently symptomatic.
[72] Exhibit 1, T-Documents, T97, page 537, Letter to the Applicant from the VRB.
In this report, Dr Oates listed the medical conditions which affected the Applicant’s capacity to work as PTSD, depression and anxiety, and lumbar spondylosis; sensorineural hearing loss and osteoarthritis in both knees were also listed as having a minor impact. Dr Oates considered that the Applicant’s PTSD and depression contributed to 85% of his incapacity. Dr Oates concluded that the Applicant would be capable of working up to eight hours per week initially, which could rise to 20 hours per week “in appropriate work in a highly structured and supportive work environment”. He reported that the Applicant could do well-supervised, routine administrative work with a low level of responsibility.
Dr Peter Steadman, Consultant Orthopaedic Surgeon
Dr Steadman provided two reports dated 11 September 2017 and 27 September 2017.[73]
[73] Exhibit 4, Report of Associate Professor Peter Steadman dated 11 September 2019 and Letter of Instruction dated 23 August 2017, page 7; Exhibit 5, Supplementary Report of Associate Professor Peter Steadman dated 27 September 2017 and Letter of Instruction dated 18 September 2017.
In his report of 11 September 2017, Dr Steadman confirmed that he examined the Applicant on that day. He stated that the purpose of his examination of the Applicant was to determine that the Applicant had no other physical complaints that would affect his ability to engage in employment. Dr Steadman noted that the non-accepted medical conditions of the Applicant within the scope of his speciality were the Applicant’s cervical spondylosis and plantar fasciitis of the right foot.
Dr Steadman noted that the Applicant reported:
·His neck does not currently cause him any symptoms;
·His neck pain occurred prior to him returning to full-time work with the Navy;
·If he does swimming or rowing he might experience some symptoms in his neck; and
·He cannot surf or ride a bike because he has trouble looking up, but he can sit at a computer for as long as he wants because his back usually causes him issues before his neck does.
In relation to his shoulders the Applicant reported:
·In 2002, his right shoulder required surgery, as he had a torn rotator cuff;
·He retained full range of motion in his shoulder and experienced no further problems;
·In 2014, something happened to his shoulder, caused by either an injury or swimming, and he required some further investigations which showed that the rotator cuff was intact with some minor tearing;
·After this he had some cortisone and had no further problems; and
·His left shoulder has never been troublesome.
The Applicant reported his cervical symptoms as “minor to moderate” while his right shoulder symptoms were “nil to minor”. He reported that the plantar fasciitis does not trouble him, although if he runs fast he may get some pain in his foot.
Dr Steadman found that his cervical spine had some limited movement bilaterally. The Applicant’s shoulders had full range of motion. His right foot revealed no specific tenderness and demonstrated full range of motion.
Dr Steadman concluded that the Applicant’s history does not suggest that he has substantial physical disabilities. He reported that the Applicant suffers from stiffness of the cervical spine and restricted range of motion in his neck, which was noted as “largely consistent with his age”. Dr Steadman recorded that the restriction was “reasonably substantial” and “certainly may impact upon certain tasks”. It was noted that the Applicant described his cervical spondylosis as having a minor effect on certain functions.
Dr Steadman concluded that the Applicant’s reporting of no symptoms in his shoulders, combined with a finding of no restricted range of motion, is not inconsistent with the radiology of his shoulders. It was noted that the Applicant described his shoulder condition as having no functional effect.
Dr Steadman ultimately opined that “most of his ailments are reportedly functioning at a high level today”.
In his supplementary report of 27 September 2017, Dr Steadman stated that “It would be reasonable to accept that there are two potential conditions that may affect [the Applicant’s] ability to engage in employment”: his shoulder and cervical spine conditions. Dr Steadman described the Applicant’s shoulder as a “potentially looming problem”, as he had had some further symptoms requiring treatment since his original surgical repair. He opined that it was feasible that “shoulder activity could be permanently limited if his shoulder became quite debilitating”.
Dr Steadman described the Applicant’s cervical spine condition as “potentially more problematic”. As he had restricted range of motion, “it would not be uncommon for such a physical condition to limit the ability to sit and work on a computer or lookdown (sic) and work on the desk”. However, Dr Steadman clarified that he did not think that desk work would lead to any further deterioration of the Applicant’s neck or shoulder.
At the Hearing, Dr Steadman gave evidence about the impact of the Applicant’s medical conditions on his functional capacity. He explained that his role was to consider potential problems, not to report on what he observed during his examination of the Applicant. He confirmed that the Applicant reported little to no symptoms at the examination. In terms of the impact of the conditions on the Applicant’s employment, Dr Steadman stated that at a minimum there would likely be a need for ergonomic adjustments, but if there was an episode of pain or the Applicant experienced further problems or “flare ups” that would cause limitations when working at a desk. Dr Steadman explained that flare ups could be very random; treatment might simply involve a heat pack, analgesics, or consulting a physiotherapist or other medical practitioner, but it could be more debilitating and require treatment such as an injection, like that which the Applicant received in 2010. He qualified that this opinion was “speculation”, but agreed that the speculation was based on radiology; he stated that you could almost guarantee that the Applicant would have another problem like he has had in the past, as arthritis is a progressive condition and does not go away, but the timing and severity are unknown.
Dr Steadman was also asked to elaborate on his opinion of the Applicant’s shoulder condition. He agreed that the Applicant’s shoulder did not present as an issue at the time of the examination. He clarified that he made the comment that the shoulder was a “looming problem” based on the Applicant’s clinical history; even though the Applicant had full range of movement in his shoulder, the relapse he experienced in 2014 demonstrated that, in theory, there may be future problems. Dr Steadman explained that the Applicant’s shoulder could just become sore again without a precipitating event, but this may not necessarily result in any restricted range of movement. When asked about the Applicant’s history of exercising, Dr Steadman stated that exercise could aggravate his condition or be of use in preventing further shoulder problems, depending on how much exercise the Applicant does.
SUBMISSIONS
Applicant’s Submissions
The Applicant has submitted that he meets all criteria outlined in section 24 of the Act. He has referred to section 19 of the Act, which he contends outlines that all Special Rate criteria must be met at the same point in time within the assessment period.
The Applicant relies on the evidence of Dr Hardwick in his contention that he is permanently unable to undertake remunerative work pursuant to section 24(1)(b).
The Applicant submits that there are three parts to the eligibility criterion outlined in section 24(1)(c) of the Act:
(a)The Applicant must be prevented from continuing to undertake remunerative work;
(b)The reason for the Applicant’s incapacity must be solely due to his accepted conditions; and
(c)This incapacity must result in a loss of salary or wages.
The Applicant submits that, for the identified non-accepted conditions to contribute to his inability to work, it must be shown that these conditions have a material contribution, not that they are merely present.[74] The Applicant referred to the medical statement of Dr Oates dated 28 November 2016, which states that the non-accepted conditions listed played no part in the reason for the Applicant ceasing work.[75]
[74] Kattenberg v Repatriation Commission [2002] FCA 412.
[75] Exhibit 1, T-Documents, T97, page 537, Letter to the Applicant from the VRB.
The Applicant observed that Dr Steadman did not mention any loss of productivity, reduced working hours or sick leave during the Applicant’s employment. The Applicant submits that he has consistently stated that his cervical spondylosis and shoulder conditions have little to no functional effect, and this is supported by the medical evidence. His shoulder condition has no impact on his ability to work, and his cervical spondylosis has a minor impact, at a level so low that it would not materially contribute to his inability to work.
The Applicant’s submissions referred to his history of frequent exercising, and contended that it could be assumed that if his shoulder had been of any concern to him his rowing and swimming would have been reduced or stopped, but that has not occurred.
With respect to the ameliorating provision, the Applicant relies on the opinion of Dr Hardwick that he could not be expected to actively seek work. In this regard, the Applicant claims to meet the ameliorating provision outlined in section 24(2)(b).
The Applicant seeks for the decision under review to be set aside. He submits that if he is found to be entitled to the Special Rate of disability pension, the date of effect should be 13 August 2013, being the date Applicant made a claim for pension.[76]
[76] Exhibit 2, Applicant’s Statement of Issues, page 10.
Respondent Submissions
The Respondent has submitted that the Applicant’s eligibility for both the Special Rate and intermediate rate of the disability pension must be considered under section 24 and section 23 of the Act respectively. The Respondent considers that the commencement of the assessment period is 13 November 2013, the date the claim was received by the Respondent.[77]
[77] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 15.
The Respondent accepts that the Applicant satisfies the threshold requirements for Special Rate of pension within sub-sections 24(1)(aa), (aab) and (a) of the Act, as he was under the age of 65 at the time of lodgement of the claim, and he is in receipt of the disability pension at 100% of the General Rate.
Section 24(1)(b)
The Respondent accepted that the weight of the evidence supported a finding that, during the assessment period, the Applicant was not able to work more than eight hours per week by reason of his accepted conditions, and the Applicant therefore satisfied section 24(1)(b).[78] The evidence of Dr Moore and Dr Hardwick supports that this was the case from October 2015. However, the Respondent also noted that the medical evidence, particularly, that from Dr Chalker, supported a finding that the Applicant was capable of performing work in an administrative/clerical field for eight to 20 hours per week at the commencement of the assessment period.
[78] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 15-16.
Alone Test
The Respondent considers that this matter turns primarily on whether the Applicant fulfils the “alone test” criterion.
The Respondent described the alone test as having two limbs, requiring:
(a)A causal connection between the Applicant’s incapacity from accepted conditions alone, and his inability to undertake remunerative work he has previously engaged in; and
(b)A demonstrated loss of earnings as the direct result of the service-related incapacity alone.
The Respondent noted that the Full Court in Repatriation Commission v Watkins [2015] FCAFC 10 (“Watkins”) referred to the decisions of Repatriation Commission v Richmond (2014) 226 FCR 21 (“Richmond”), Hendy v Repatriation Commission (2002) 76 ALD 47 (“Hendy”), Repatriation Commission v Butcher (2007) 94 ALD 364 and reaffirmed the principle that:
“… if non war-caused factors play a part in or contribute to preventing a veteran from engaging in remunerative work, even if those preventative factors are of secondary importance and not of themselves sufficient to prevent remunerative work, the “alone” requirement will not be satisfied.”
The Respondent submits that Watkins reaffirmed the settled principle that any non-war caused factors which have some effect, even if not wholly “preventative” on a veteran working and only of “secondary importance”, will be sufficient to disqualify a person from receiving the Special Rate of pension.[79]
[79] Repatriation Commission v Watkins [2015] FCAFC 10 [41].
The Respondent considers that the correct approach to the alone test is outlined in Hendy at [37]:
“The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s24(1)(c) of the Act...”
Richmond further explained at [57]:
“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 Respondent submits that, as observed by the Federal Court in Cavell v Repatriation Commission (1988) 9 AAR 534, the word “alone” requires a determination as to whether the Applicant’s loss of remunerative work is solely attributable to his accepted conditions, and the existence of any other factor which may impact on his employment and contributes to his inability to work or obtain work means that the alone test is not satisfied.
The Respondent referred to the Applicant’s submission that the alone test involves a determination on whether other factors “materially contribute”, and submitted that this is misconceived and inconsistent with the leading case authorities.
The Respondent submits that the Applicant does not satisfy the first limb of the alone test because there are further factors which have an impact on his ability to undertake remunerative work: namely, his non-accepted medical conditions (including his cervical spondylosis and right shoulder condition) and his age.
The Respondent submits that the medical evidence supports a finding that the non-accepted conditions were relevant to his medical discharge in December 2013, that the Applicant continued to suffer from these conditions during the assessment period, and that the conditions had an impact on his functional capacity and ability to engage in employment during the assessment period. The Respondent acknowledged that the evidence of Dr Steadman suggests that the Applicant’s cervical spondylosis and right shoulder conditions had improved as at the time of his assessment of the Applicant in September 2017, however the Respondent contends that these conditions are documented as having an impact on the Applicant’s functional capacity from the commencement of the assessment period. Therefore, the Respondent remains of the view that the Applicant’s non-accepted medical conditions would have an impact on his ability to re-enter the workforce.
The Respondent considers that the age of the Applicant is a relevant factor as at the commencement of, and during, the assessment period, as it would have an impact on the Applicant’s “attractiveness to prospective employers”.
The Respondent considers that the Applicant has been unable to establish that he suffered any financial loss during the assessment period by reason of his accepted conditions, and therefore does not satisfy the second limb of section 24(1)(c).
Section 24(2)(b) – Ameliorating provision
The Respondent considers that this provision can apply where a veteran has not been engaged in remunerative work and has been genuinely seeking employment, but his accepted conditions have rendered him unable to obtain employment.
The Respondent referred to the decision in Smith v Repatriation Commission (2014) 220 FCR 452 (“Smith”), which held that efforts made to obtain work prior to the assessment period are to be taken into account in applying this provision. The Respondent submits that this decision provides an alternative method of satisfying section 24(1)(c). Smith also held that the application of section 24(2)(b) is not limited to circumstances where a veteran has not been engaged in remunerative work at all since leaving the military or becoming incapacitated, such as in this case.
The Respondent acknowledged that the Applicant has not engaged in remunerative employment during the assessment period. The Respondent considers that the Applicant’s claim that he attempted to obtain work during the assessment period is not supported by the evidence; the Applicant has provided very limited particulars and no supporting documentation regarding any employment pursuits after his discharge from the Navy.
The Respondent considered that the Applicant’s claim that the provision applies on the basis that he ceased work prior to commencement of assessment period solely because of his incapacity arising from the accepted conditions, cannot be established by the evidence. The Respondent submits that the evidence supports a finding that when the Applicant ceased employment his non-accepted medical conditions of cervical spondylosis and bladder cancer were documented to have a “major” impact on his functional capacity and were relevant to his medical discharge. The Respondent submits that there were also other factors which impaired the Applicant’s capacity to work that ought to be considered significant factors relevant to his ability to obtain employment, including his age.
The Respondent also submitted that the evidence does not support a finding that the Applicant suffered a loss of salary or wages as a result of his accepted conditions.
Section 23 – Intermediate rate
The Respondent accepts that the Applicant satisfies the criteria under section 23(1)(a). The Respondent contends that the medical evidence supports a finding that the Applicant was, at the commencement of the assessment period, capable of engaging in employment for between eight to 20 hours per week.
The Respondent considers that the evidence fails to support a finding that the Applicant ceased working solely because of his accepted medical conditions, and as such he does not satisfy the intermediate rate “alone test” in section 23(1)(c). The Respondent submits that the Applicant is therefore not entitled to payment of the disability pension at the intermediate rate.
Applicant Submissions in Reply
The Applicant provided further written submissions dated 7 June 2018. In these submissions, the Applicant contested the Respondent’s consideration of age as a relevant factor to the Applicant’s inability to obtain or undertake remunerative work. The Applicant considers that the only issue in this matter is whether the Applicant’s non-accepted medical conditions of cervical spondylosis and a right shoulder condition contribute to why he can no longer work more than eight hours per week.
The Applicant considers that the Respondent has implied that the mere existence of non-accepted medical conditions is sufficient to make the Applicant fail the alone test. He submits that the Respondent has not shown that the non-accepted conditions actually contribute to preventing the Applicant from engaging in remunerative work, and they haven’t provided any recent medical evidence to support this. The Applicant contends that his evidence, along with the written and oral evidence of Dr Steadman, supports a finding that his non-accepted medical conditions did not contribute to preventing him from engaging in employment.
CONSIDERATION
The Applicant resigned from the Navy on 3 March 1988 following 20 years of continuous service.[80]
[80] Exhibit 1, T-Documents, T99, pages 573-574, Document entitled “Veteran Community Details Report”.
Between 1988 and the Applicant’s re-enlistment in 2011 with the Navy, he served as a reservist; and at the same time had been engaged in employment on his own account and working for others as a financial planner, amongst occupations associated with the finance industry. His personal and financial circumstances intervened and he then, as a result, sought a full-time position with the Navy as a reservist.
It is a matter of record that the Applicant, upon re-joining in 2011, served with the Navy until his medical discharge on 1 November 2013.[81]
[81] Exhibit 1, T-Documents, T100, pages 575-580, Applicant’s ADO Service Record.
The Tribunal accepts that the Applicant served with the Navy from 13 November 1968 to 3 March 1988. The Tribunal also accepts that from 1988 thereafter until his re-enlistment in 2011, the Applicant served as a reservist. The Tribunal accepts that the Applicant continued to serve with the Navy until being medically discharged on 1 November 2013.[82]
[82] Exhibit 1, T-Documents, T100, pages 575-580, Applicant’s ADO Service Record.
The Tribunal accepts the evidence in the material before it that the Applicant rendered service qualifying him as eligible for the purposes of the Act.[83]
[83] Exhibit 1, T-Documents, T99, pages 573-574, Document entitled “Veteran Community Details Report”.
The issue before the Tribunal is whether the evidence before it is supportive of the Applicant’s claim to have his entitlement to a disability pension increased from 100% of the General Rate to the level of the Special Rate.
An Applicant must, in order to be eligible for either the Special Rate or the Intermediate Rate of disability pension, satisfy the Tribunal that the criteria outlined herein have been satisfied. An Applicant must also satisfy the requirements at section 28 of the Act as outlined in this decision.
After his first period of service with the Navy, the Applicant worked as a financial planner. He furthered his qualifications into stockbroking and funds management before working as a principal and senior financial planner until 2011.[84]
[84] Transcript of Proceedings, pages 9-15.
The Tribunal notes that the Applicant gave evidence to the Tribunal that he had been through a divorce and property settlement that had left him in debt and he had decided to re-join the Navy to improve his financial situation.[85] He further stated that he was prompted to take this step because he had heard rumours that the franchise he was working for were looking at selling the business and he “didn’t want to move to another dealer”.[86]
[85] Transcript of Proceedings, page 16.
[86] Transcript of Proceedings, page 16.
During cross-examination, the Respondent put to the Applicant that the evidence to date has been that the Applicant has not sought work since 2013. The Applicant stated that this was not correct as:[87]
“On discharge from the Navy, I immediately started studying again, going to seminars, going to networking lunches, applying for jobs, in the financial planning industry.”
[87] Transcript of Proceedings, page 25, lines 40-44.
The Applicant expanded on this and stated:[88]
“Over the period of the next 12 months or even probably I decided before then, I came to the conclusion that I could not go back into financial planning. I was, and had been, realising that my memory was not as good as it used to be, that I was unable to clearly think, and I had periods of anxiety and depression. And I felt that I could not justify doing the very onerous job of giving people advice on their future finances. It concerned me that I would not be able to be of service to the property. The Tribunal notes that in relation to the Applicant’s attempts to find work upon his discharge from the service, there is a paucity of evidence available as to the attempts made to actually seek a position of employment. The Applicant did not, in the material lodged on his behalf nor in his oral evidence to this Tribunal, provide any corroborative support for the assertion that he had been actively seeking employment at the time of his discharge and shortly thereafter.”
[88] Transcript of Proceedings, pages 25-26, lines 45-5.
The Applicant was deemed capable, at the point of his discharge and shortly thereafter, of performing suitable and appropriately restricted duties for between eight and 20 hours per week. In a Work Ability Report dated 27 November 2013 prepared by Dr Chalker, it was observed that the Applicant was not coping with full-time employment and that: “8 to 20 hours per week could be more appropriate.”[89]
[89] Exhibit 1, T-Documents, T61, page 361, “Work Ability Report” – Dr D Chalker, general practitioner.
When considering the question as to whether the Applicant is eligible to receive a pension at the Special Rate, it is incumbent on the Applicant to satisfy certain criteria enunciated in section 24 of the Act at sometime within the “assessment period” to the reasonable satisfaction of the Tribunal.
The Respondent acknowledges that during the assessment period, medical evidence, particularly that provided by Drs Hardwick and Moore, supports a finding that the Applicant is prevented by reason of his accepted conditions from working for eight hours a week. The evidence supports such a conclusion as from October 2015.
The Respondent acknowledges that in considering the Applicant’s claim for payment of his disability pension at the Special Rate, the Applicant satisfied the requirements of section 24(1)(b) of the Act as from October 2015 based upon the medical evidence from Drs Moore and Hardwick.
This Tribunal accepts the evidence of these doctors and therefore accepts that the Applicant does satisfy the requirements of section 24(1)(b) of the Act in terms of the Applicant’s claim for consideration for his disability pension to be claimed at the Special Rate.
The evidence before this Tribunal is that upon his discharge from the Navy in 2013, the Applicant was suffering from a number of accepted medical conditions and, in addition to those defence-caused conditions, was suffering from a number of non-accepted conditions.
There is a history of these non-accepted conditions available to this Tribunal in the report of Dr Chalker.[90] It is noted that the cervical spondylosis from which the Applicant suffers was permanent, that the prognosis was poor and that it was classified as a major condition. Likewise, the Applicant’s bladder cancer was noted as permanent, that the prognosis was good and that it was classed as a major condition category.
[90] Exhibit 1, T-Documents, T61, page 362, “Work Ability Report” – Dr D Chalker, general practitioner.
The report also noted that the Applicant’s cervical spondylosis contributed to about a 50% loss in the range of movement of the cervical spine, that the Applicant suffered pain in the cervical spine when resting which improved after several hours rest or responded to medication or therapeutic measures.[91] Some intermittent loss of sensation in the left hand was noted, as was some mild reduction in strength in the upper left limb. Dr Chalker also noted that the Applicant was able to use his upper left limb reasonably well in most circumstances, but did suffer a minor loss of dexterity causing handwriting changes or difficulty in manipulation of small or fine objects and he summarised by observing that this condition affected the Applicant’s left hand more than his right.[92]
[91] Exhibit 1, T-Documents, T66, page 369, Medical impairment assessment – cervical spine condition – Dr D Chalker, general practitioner.
[92] Exhibit 1, T-Documents, T66, page 370, Medical impairment assessment – cervical spine condition – Dr D Chalker, general practitioner.
Dr Chalker also noted that the Applicant’s cervical spondylosis did cause excessive fatigue in both left and right upper limbs towards the end of the day and that the symptoms described in the report were “completely” due to the Applicant’s cervical spondylosis. The treatment described in the report of Dr Chalker is stated to be “NSAIDS, physiotherapy regularly”.[93]
[93] Exhibit 1, T-Documents, T66, page 371, Medical impairment assessment – cervical spine condition – Dr D Chalker, general practitioner.
The Tribunal accepts that the evidence in the Medical Impairment Assessment is based upon both the medical records and the examination and oral description of his conditions to Dr Chalker at or about the time the report was being prepared.
The Applicant’s medical report is described as Invalidity Retirement from the Defence Force Medical Information.[94] Question 17 notes “back and neck conditions caused ongoing daily pain and discomfort”. This information was prepared by Dr Chalker and dated 29 November 2013. It would therefore be reasonable to assume that Dr Chalker’s opinion of the Applicant’s impairment conditions was that both the accepted and non-accepted spinal conditions were not insignificant factors of causation in the Applicant’s leaving the Navy.
[94] Exhibit 1, T-Documents, T54, page 306, Invalidity Retirement from the Defence Force – Medical Information.
The Applicant’s evidence to this Tribunal was to the effect that the non-accepted conditions played no part in preventing him engaging in remunerative work. This assertion put forward by his advocate was that the sole cause of his inability to engage in remunerative work was the accepted impairment conditions. The Applicant’s principle argument to support his proposition was effectively stating that although he suffers from these other non-accepted conditions, they did not prevent his motorcycling, competitive rowing activities, and swimming for exercise and that thus he was therefore prevented from obtaining gainful employment by sole virtue of his accepted conditions because his non-accepted conditions played no part in restricting his physical activities. Thus, he argued that he satisfied the “alone” test to satisfy his receipt of his disability pension at the Special Rate.
The Respondent arranged for the Applicant to be examined by an, Dr Steadman, orthopaedic specialist. Dr Steadman provided two reports dated 11 September 2017 and 27 September 2017. He was available to provide oral evidence to this Tribunal. Dr Steadman conducted an in-person examination of the Applicant on 30 August 2017.
Dr Steadman provided evidence that he found the Applicant had a slight reduction of range of motion in the cervical spine and in both shoulders, had a full range of motion and that the Applicant reported little or no symptoms associated with that.[95] Dr Steadman also remarked that the Applicant had some treatment in 2010 for his cervical spine by way of an x-ray guided injection and noted that the Applicant reported some: “on and off symptoms in his neck but nothing too major”. Dr Steadman also gave evidence that the Applicant had reported some restrictions whilst swimming, rowing, and riding a surfboard because of having to look up and when riding a bicycle because of having to look down.
[95] Transcript of Proceedings, page 32.
In relation as to how these restrictions would affect the Applicant’s ability to work as opposed to the physical activities described, Dr Steadman stated that in the circumstances where the Applicant was in an office-based job, there might be need for some ergonomic adjustments, but that if the Applicant had an increasing episode of pain, such as he experienced in 2010, or suffered further problems with his neck condition, that those sorts of flare-ups would certainly cause limitations.
Dr Steadman divided the Applicant’s work capability into two scenarios. The first where he would be as he presented for examination, and the second where he would be suffering from a flare-up of the condition. Dr Steadman suggested that in the first scenario, the Applicant would need to make some ergonomic adjustments at the desk so he could continue to work without aggravating his neck condition, but if he was to suffer a flare-up of some description, that would lead, undoubtedly, depending on the length of the flare-up, to significant restrictions in terms of the Applicant’s ability to work at a desk, look at his computer and conduct business.
The Applicant’s non-accepted conditions at base level would, at the very least, require some ergonomic adjustments and Dr Steadman considered that subject to work conditions. For example, needing to look up or down for prolonged periods, that could hurt his neck and would require ergonomic adjustments at the desk to cope with them.
Dr Steadman also told the Tribunal that flare-ups of arthritis could be quite random and could affect a patient suffering from the condition at any time. He also stated that in general an arthritis sufferer who suffered flare-ups would, when symptoms increased in severity, have to resort to hot packs, low grade analgesics and, if necessary, the services of a physiotherapist, osteopath or chiropractor for exercises and some manipulations to help settle the symptoms. Dr Steadman indicated if that condition extended to the same complaint the Applicant suffered in 2010 when the quite severe left arm pain warranted the neck injection, then that would be:[96]
“A manifestation of the same arthritic condition but that would require much more treatment and be a lot more debilitating all the way through to the way it was expressed in the reports around that time from Dr Pope and Dr Ryan that, you know, operative intervention may be required to decompress the nerve and relieve the tension on the nerve, but that again is, I guess speculation that if it got to that extreme point that might occur.”
[96] Transcript of Proceedings, page 33.
Dr Steadman agreed that such speculation was based on the radiology of the Applicant’s cervical spine and shoulder condition.
During cross-examination, Dr Steadman expanded upon the Applicant’s shoulder upon which he had some past surgery to correct a torn rotator cuff. Dr Steadman, although agreeing that at the time of his examination of the Applicant there was a full range of movement of the shoulder, indicated that the history was such that since the surgery the Applicant had further issues in 2014 and had an ultrasound examination of the subject shoulder in December 2015.
Dr Steadman considered that even though at the time he examined the Applicant the shoulder exhibited no signs of impairment, the clinical history and repeat investigations indicated that there were more potential problems forming because of the fact that “he had had a relapse after his operation”.[97]
[97] Transcript of Proceedings, page 36, lines 47.
Dr Steadman also indicated that although the Applicant may not have had a restriction of motion, it was possible that the Applicant could suffer pain in the shoulder as he aged and that the rotator cuff material, the tendon, can get weaker and so could re-rupture or tear. Such an event complicates the complaint as an operation may not be able to manage the ongoing issues caused by such an additional event. It was indicated that when exercising it was essential to balance suitable activities to keep the shoulder muscle fit and strong with a need to ensure that the exercises that could harm the muscle are not undertaken as to exacerbate the existing condition.
There is no doubt that the Applicant’s non-accepted conditions, on the evidence of
Dr Steadman, clearly are, in his opinion, existing and a potential source of future increasing incapacity for the Applicant. The symptoms of the non-accepted conditions relating to the cervical spondylosis are well-documented by Dr Chalker in his Medical Impairment Assessment dated 27 November 2013.[98] Dr Chalker also noted in the Invalidity Retirement from the Defence Force Form which was signed by the Applicant on 29 October 2013, that the medical conditions identified as contributing or leading to the Applicant’s retirement were:(a)Prostate cancer;
(b)Transitional cell cancer of bladder;
(c)Degenerative cervical and lumbar spine;
(d)Adjustment Disorder with depression; and
(e)Post-Traumatic Stress Disorder.
[98] Exhibit 1, T-Documents, T66, page 369-371, Medical impairment assessment – cervical spine condition – Dr D Chalker, general practitioner.
It is to be noted that when the Applicant lodged his claim he included cervical spondylosis and osteoarthritis of the right foot as conditions contributing to his disability. Therefore, it would seem apparent that these conditions were viewed by the Applicant as presenting severe enough symptoms to warrant them being included as part of the basis for his claim.[99]
[99] Exhibit 1, T-Documents, T55, pages 308-325, Claim for Disability Pension and an Application for Increase in Disability Pension; Exhibit 1, T-Documents, T56, pages 326-333, Additional Information Sheet; Exhibit 1, T-Documents, T85, pages 463-464, Medical report of Dr Lee Hardwick, general adult psychiatrist.
The Tribunal has also noted the reports of Dr Hardwick, a psychiatrist, dated 27 October 2015 where she describes the Applicant as having no capacity for employment as a consequence of his major depression and PTSD conditions. In his medical report dated 30 October 2015, Dr Moore, in the process of assessing the Applicant’s condition on his ability to work noted that the Applicant experienced approximately a 50% loss of range of movement in his cervical spine and a 25% loss of movement in respect of his left shoulder, both being non-accepted conditions.
Given the evidence before this Tribunal relating to the Applicant’s non-accepted conditions, it is not unreasonable to accept based on the balance of probabilities, that these conditions together with the accepted conditions from which he also suffers, are contributing to his continuing inability to work. The settled principle enunciated in Watkins applies to the Applicant in this matter because his non-war-caused factors do have some effect,[100] although not wholly, “preventative” of his working and of “secondary importance”, to a sufficient degree to disqualify him from receiving a pension at the Special Rate.
[100] Exhibit 1, T-Documents, T85, pages 463-464, Medical report of Dr Lee Hardwick, general adult psychiatrist.
This Tribunal agrees with the approach to the “alone” test as outlined in Hendy by considering the other factors which apply to the Applicant’s situation in this matter and which may, even if not of themselves, prevent the Applicant from working.[101] The Applicant not only suffers from his non-war-related conditions as previously discussed, but has not worked since he was last in full employment just prior to his discharge from the Navy on 1 November 2013. He has therefore no contemporary work experience and his time out of the workforce for six years works against him given his age of 69 years.
[101] Exhibit 1, T-Documents, T85, pages 463-464, Medical report of Dr Lee Hardwick, general adult psychiatrist.
The Tribunal also considers the question of the operation of the ameliorating provision contained in section 24(2)(b) of the Act as it applies to the Applicant’s circumstances. When the Applicant retired from the Navy, he had been employed full-time up until his medical discharge on 1 November 2013. The Applicant told the Tribunal that upon leaving the Navy he had:[102]
“Immediately started studying again, going to seminars, going to networking lunches, applying for jobs in the financial planning industry.”
[102] Transcript of Proceedings, page 25.
The Applicant then went on to say he felt that he would not be able to service his clients properly. This is, of course, a personal judgement, however, no evidence has been adduced to the Tribunal by the Applicant as to the actual steps he took to apply for jobs and with whom. Given the Applicant was working full-time immediately prior to his discharge, I do not accept that he was unfit for work.
CONCLUSION
The Applicant initially served for 20 years in the Navy, retiring in 1988, and thereafter serving as a reservist whilst engaged in full-time civilian employment until his
re-enlistment in 2011. He then served with the Navy until his medical discharge on 7 December 2013 at 64 years of age. He could be considered to have enjoyed a usual span of working life.In 2013, the Applicant was discharged from the Navy on medical grounds which have been extensively canvassed herein. Prior to his discharge, he had been in full-time employment with the Navy and following his discharge was considered by Dr Chalker, in his Work Ability Report completed on 27 November 2013, to be capable of performing work at that time of between eight to 20 hours per week.
The Applicant has not been employed since and nor has any corroborative evidence of his applying for jobs been adduced either before or at the hearing of this matter. His evidence to this Tribunal was in fact, that he decided that he was unable to work and that he would not be able to service his clients properly. Be that as it may, this was a personal decision rather than one at the time based on medical advice and taken without consideration of what he may be able to do.
In relation to any incapacity the Applicant suffered, that incapacity referred to in section 24(2)(b) of the Act must be that incapacity induced by a war-caused injury or a war-caused disease. The Tribunal is not satisfied the Applicant’s war-caused incapacity alone caused him to cease remunerative work. The Applicant has been out of the workforce since 2013. He is now 69 years of age and in sound health. He rows competitively, swims, and cycles and is a proficient and adventurous motorcyclist. The medical evidence before this Tribunal supports the conclusion that his co-existing health conditions – both accepted and non-accepted - have a preventative effect on his employability and they preclude him from satisfying the “alone” test at section 24(1)(c) of the Act. The Tribunal had no evidence adduced by the Applicant outlining his job application history, thus it is untested as to whether he would in fact have been employable. There is no evidence before the Tribunal corroborative of the Applicant engaging in an active and genuine pursuit of remunerative work either as a financial planner or some other closely associated or similar role consistent with his vocational skillsets. The Tribunal cannot therefore be reasonably satisfied that he had fulfilled his obligations in this regard so as to enliven the ameliorative provisions of section 24(2) of the Act.
The Tribunal is therefore also reasonably satisfied that his war-caused incapacities alone were not the only substantial cause preventing him from obtaining appropriate remunerative work. He therefore did not suffer a loss of salary or wages by reason of his defence-caused incapacities alone. The Tribunal is satisfied that the Applicant did not genuinely seek to engage in remunerative work.
DECISION
The Tribunal finds that the Applicant is not entitled to disability pension at the Special Rate.
The Tribunal affirms the decision under review.
I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
.........................[Sgd].......................................
Associate
Dated: 5 February 2020
Date of Hearing: 11 May 2018 Advocate for the Applicant: Mr Anthony Hornby
Veterans’ Support Centre
Advocate for the Respondent: Ms Rachel Blake Solicitors for the Respondent: Moray & Agnew Lawyers
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