Parkes and Repatriation Commission (Veterans' entitlements)
[2020] AATA 3358
•31 August 2020
Parkes and Repatriation Commission (Veterans' entitlements) [2020] AATA 3358 (31 August 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/3436
Re:KEVIN PARKES
APPLICANT
REPATRIATON COMMISSIONAnd
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:31 August 2020
Place:Brisbane
The reviewable decision of 9 April 2018 is varied with the Applicant to receive the disability pension at 100% of the general rate with the extreme disablement adjustment with effect from 5 September 2017.
..................................[SGD]......................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for disability pension – special rate – decision under review varied – extreme disablement adjustment
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Reidlinger and Repatriation Commission [2016] AATA 646
SECONDARY MATERIALS
Guide to Determining Impairment and Compensation 2016
REASONS FOR DECISION
Senior Member Katter
31 August 2020
APPLICATION
The decision under review affirmed the Applicant’s disability pension at 100% of the general rate.
BACKGROUND
The Applicant enlisted in the Australian Army on 21 January 1964 and was discharged on 20 January 1973[1]. The Applicant served in Vietnam from 21 May 1969 to 30 April 1970[2].
[1] Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions, paragraph 7.
[2] Exhibit 1, T-documents, T111, page 376.
By a claim form lodged on 27 November 2015, at part E, the Applicant stated as to details of new disabilities now claimed as war or defence caused and at part G stated reasons for the ‘application for increase’[3]:
[3] Exhibit 1, T-documents, T69.1, pages 239-241.
“Disability 1 Acquired Cataract
Signs and symptoms Partial loss of vision, dry eyes and reflections of lens in vision
How do you believe your service caused, contributed to, or aggravated this disability? Refer to statement by veteran
Veteran spent more than 2250 hours in tropical area whilst in service
Veteran was exposed to more than 0.5 Sieverts of atomic radiation
See Specialists Reports Attached …
Disability 2 Haemorrhoids
Signs and Symptoms Pain in rectum, straining at stool for all bowel movements, discharge of fluids, bleeding and inability to sit
How do you believe your service caused, contributed to, or aggravated this disability? Straining at stool whilst constipated two weeks prior to clinical onset of Haemorrhoids
See statutory declaration by veteran
See Attached specialists reports
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 6th April 1969
Disability 3 Malignant neoplasm of the prostate
Signs and Symptoms No symptoms
Clinical diagnosis by Dr Steven Lun and treated by Brachytherapy
How do you believe your service caused, contributed to, or aggravated this disability? Veteran spent 345 days on the ground in Vietnam
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 7th May 2014
…
Which of your accepted disabilities have become worse since they were last assessed by the Department and in what way?
Cervical spondylosis See MRI and spec. reports [by] Dr R Noonan
Problem has become more acute with intense pain in neck, arms and hands
Condition had been diagnosed with greater accuracy by Dr Richard Noonan on 12th December 2012
Dr Eric Guazzo (Neurosurgeon) is presently managing the condition and a copy of his report is included
Veteran is presently under a pain management programme overseen by his general practitioner.”
The statement with that claim form lodged on 27 November 2015 states[4]:
“ACQUIRED CATARACT
(a) having sunlight exposure to the unprotected eye for at least 2250 hours while in a tropical area, or having equivalent sunlight exposure in other latitude zones, before the clinical onset of acquired cataract.
Veteran served 345 days in South Vietnam (10 deg 26’ N) without eye protection. …
(f) having received a cumulative equivalent dose of at least 0.5 Sievert of atomic to the affected eye before the clinical onset of acquired cataract.
Veteran served in the instrument section of Northern Command Workshops (Bulimba) from 6th April 1972 to 19th December 1972. Instrument section was contaminated exposing all staffs to atomic radiation of approximately 10 Sievert per annum. Veterans exposure was approximately 1.58 Sievert.”
[4] Exhibit 1, T-documents, T69.10, page 250.
The statutory declaration attached to that claim form lodged on 27 November 2015 states[5]:
“From 20th March 1969 to 9th April 1969 I was at the Army Jungle Training Centre at Canungra in Queensland as a student doing a battle efficiency course prior to my deployment to 161 Independent Reconnaissance Flight in South Vietnam.
Being a combat readiness course the majority of the time was spent in the field doing combat drills and procedures.
On the 7th April 1969 I reported to the medical officer that I had bleeding and pain in my rectum. This was diagnosed as rectinal haemorrhoids.
During two week period prior to the diagnosis of haemorrhoids I had mostly been sustained on ration packs which are well known to cause constipation.
Every bowel movement or attempted bowel movement during this period was accompanied by “straining at stool”.
I have included a copy of my service record that details the time period that I was at the Jungle Training Centre and the entry of my medical records that show the diagnosis of rectinal haemorrhoids.
The medical officer at the time wrote the wrong date on the medical entry sheet. By memory the medical consultations were carried out at about 6am so a mistake of the incorrect date is possible. By 21st May 1969 I was in South Vietnam.”
[5] Exhibit 1, T-documents, T69.6, page 247.
On 8 August 2017 the Respondent stated that the Applicant’s disability pension was increased to 100% of the General Rate with effect from 27 August 2015[6].
[6] Exhibit 1, T-documents, T108, page 346.
The Respondent stated that the Applicant receives a disability pension for the following service-related conditions[7]: post-traumatic stress disorder[8]; sensorineural hearing loss[9]; tinnitus[10]; cervical spondylosis[11]; tinea of the skin[12]; osteoarthritis of the right knee[13]; osteoarthritis of the left knee[14]; osteoarthritis affecting both knees[15]; acquired cataract[16]; malignant neoplasm of the prostate[17]; right eye retinal detachment[18]; depressive disorder[19]; and, erectile dysfunction[20].
[7] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.
[8] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.1, accepted as service-related on 16 May 2013.
[9] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.2, accepted as service-related on 16 May 2013.
[10] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.3, accepted as service-related on 16 May 2013.
[11] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.4, accepted as service-related on 16 May 2013.
[12] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.5, accepted as service-related on 10 October 2013.
[13] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.6, accepted as service-related on 20 May 2015.
[14] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.7, accepted as service-related on 20 May 2015.
[15] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.8, accepted as service-related on 20 May 2015.
[16] T88 and Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.9, accepted as service-related on 1 September 2016.
[17] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.10, accepted as service-related on 14 October 2016.
[18] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.11, accepted as service-related on 1 June 2017.
[19] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.12, accepted as service-related on 21 June 2018.
[20] T116 and Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 9.13, accepted as service-related on 21 June 2018.
The Respondent stated that the following conditions have not been accepted as related to service[21]: osteoarthritis affecting both ankles[22]; callosities of feet[23]; rotator cuff syndrome of the right shoulder[24]; rotator cuff syndrome of the left shoulder[25]; haemorrhoids[26]; osteoarthritis left thumb[27]; carpal tunnel syndrome[28]; hypertension[29]; coronary artery disease[30]; and severe dental carries[31].
[21] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.
[22] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.2, rejected on 16 May 2013.
[23] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.3, rejected on 16 May 2013.
[24] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.4, rejected on 10 October 2013.
[25] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.5, rejected on 10 October 2013.
[26] T88 and Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.6, rejected on 1 September 2016.
[27] Supplementary Report of Dr Graeme Edwards, consultant occupational physician, dated 18 March 2019 and Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.7.
[28] Supplementary Report of Dr Graeme Edwards, consultant occupational physician, dated 18 March 2019 and Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.8.
[29] Supplementary Report of Dr Graeme Edwards, consultant occupational physician, dated 18 March 2019 and Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.9.
[30] Supplementary Report of Dr Graeme Edwards, consultant occupational physician, dated 18 March 2019 and Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.10.
[31] Supplementary Report of Dr Graeme Edwards, consultant occupational physician, dated 18 March 2019 and Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.11.
On 4 September 2017 the Applicant made a claim for disability pension and/or application for increase in disability pension[32]. At part E of that form as to details of new disabilities now claimed as war or defence caused and at part G the Applicant stated reasons for the ‘application for increase’[33]:
[32] Exhibit 1, T-documents, T109, pages 354-369.
[33] Exhibit 1, T-documents, T109, pages 360-362.
“Disability 1 DEPRESSIVE DISORDER
Signs and symptoms (ii) Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation).
(iv) Insomnia or hypersomnia nearly every day.
(vii) Feelings of worthlessness or excessive or inappropriate guilt.
How do you believe your service caused, contributed to, or aggravated this disability? (b) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
(m) having persistent pain of at least three months duration at the time of the clinical onset of depressive disorder;
See also attached statutory declaration.
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) Symptoms 1972-3
Disability 2 ERECTILE DYSFUNCTION
Signs and symptoms persistent or recurrent inability to develop or maintain an erection adequate for sexual intercourse.
How do you believe your service caused, contributed to, or aggravated this disability? undergoing a course of therapeutic radiation for cancer, where the lower abdomen, pelvis, penis or perineal region was in the field of radiation, within the ten years before the clinical onset of erectile dysfunction;
Brachytherapy for Prostate Cancer on 20 September 2014
An accepted Service Related Condition.
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) Early 2016
Disability 3 Psychological trauma from physical + psychological abuse – see attached stat declaration.
Signs and symptoms N/A
How do you believe your service caused, contributed to, or aggravated this disability? N/A
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) N/A
…
Which of your accepted disabilities have become worse since they were last assessed by the Department and in what way? Prostate Cancer is an accepted disability and the Erectile Dysfunction is a result of Radiation Therapy and is a more recent outcome.
There is also an increasing bladder and bowel incontinence associated with this condition that is becoming slowly but increasingly noticeable.
Depressive Disorder:
I have never been informed by my Psychiatrist or Psychologist that I have a Depressive Disorder. I only became aware of this when informed by the DVA Delegate Michelle V324 in letter of 8th August 2017.
Reading the symptoms of this condition it is now obvious that I have been living with this condition at least since early 1970’s when my Cervical Spondylosis was first diagnosed. I have lived with constant acute pain since that time.
I am also now aware that my time at the Army Apprentices School at Balcombe where all apprentices were subjected to physical abuses during their first year as a normal everyday occurrence had also impacted my psychological well being.
Please note Statutory Declaration forwarded with this claim regarding the abuses that ALL graduates from the Army Apprentices School at Balcombe endured.”
On 4 September 2017 the Applicant made application for internal review or appeal to the Veterans’ Review Board[34], as to the decision dated 8 August 2017[35], stating the following reasons for review or appeal[36]:
“Decision that claim was not admissible for Special or Intermediate rate as a major Depressive Disorder was mentioned in the medical report by my consulting psychiatrist Dr M Likely to DVA. I have never been notified that I have Depressive Disorder and as a result a claim for Depressive Disorder has never been lodged for same as service related.
This is being rectified at present.
Report by Dr Likely stated that disability was 70% PTSD and 30% Depressive Disorder.
There was no mention in reasons by delegate that inability to work was also exacerbated by pain from my Cervical Spondylosis and or loss of vision by Retina Detachment which are accepted medical conditions.
The DVA delegate in her letter of 08/08/2017 mentions a medical report by Dr. Likely dated 19/09/2017. How can this be?
I am requesting a review of this claim and I will lodge an appeal if necessary when I have had an opportunity to examine documents requested under Freedom of Information.
Rejection of Haemorrhoids as not being service related. Service and medical records record me as being at locality within 14 days of clinical onset of condition when I was being sustained on ration packs at Jung Training Centre, Canungra, Qld. Ration packs always induce constipation. Constipation always results in straining at stool.”
[34] Exhibit 1, T-documents, T110, pages 374-375.
[35] Exhibit 1, T-documents, T108, pages 346-353.
[36] Exhibit 1, T-documents, T110, pages 374-375.
By a letter dated 7 September 2017[37] a review officer of the Respondent under s 31 of the Act did not alter the decisions of the delegate of 1 September 2016[38] refusing haemorrhoids and the decision of 8 August 2017[39] as to the assessment of disability pension at 100% of the general rate[40].
[37] Exhibit 1, T-documents, T112, pages 397-398.
[38] Exhibit 1, T-documents, T88, pages 279-286.
[39] Exhibit 1, T-documents, T108, pages 346-353.
[40] Exhibit 1, T-documents, T112, pages 397-398.
On 9 April 2018[41] the Veterans’ Review Board decided to affirm the decision under review, being the decision dated 8 August 2017[42], as to the assessment of disability pension at 100% of the general rate[43].
[41] Exhibit 1, T-documents, T114.1, pages 402-410.
[42] Exhibit 1, T-documents, T108, pages 346-353.
[43] Exhibit 1, T-documents, T114.1, pages 402-410.
By correspondence dated 21 June 2018[44] the Respondent decided as to the disability pension claim lodged by the Applicant on 5 September 2017[45], accepting the claim for depressive disorder and erectile dysfunction, with that decision taking effect from 5 June 2017 and increasing the disability pension to the extreme disablement adjustment with effect from 5 June 2017[46].
[44] Exhibit 1, T-documents, T116, pages 423-431.
[45] Exhibit 1, T-documents, T109, pages 354-369.
[46] Exhibit 1, T-documents, T116, pages 423-431.
By an application for a review of decision form lodged on 22 June 2018, the Applicant stated as to why the decision is wrong[47]:
[47] Exhibit 1, T-documents, T1, page 5.
“The decision is incorrect because of:
(1) The VRB presumed medical conditions that post dated timing of incapacity.
(2) The VRB stated that issues of local economic conditions were part [of the] need to cease work.
(3) The VRB stated that haemorrhoids were a factor yet I had lived and worked with condition (including military service) since 1969 without impacting work or work output.
(4) VRB stated that Carpal Tunnel was a factor. Since operation for Cervical Spondylosis in March 2017 I have had no pain in hands at all from Carpal Tunnel.
(5) A comment by Dr Erikson in 2013 that I was short of breath during examination somehow resulted in a cardiac diagnosis of ischaemic heart disease by the VRB. How can a heart issue in 2018 be blamed for a total incapacity report from 2012 by loss of eyesight, cervical spondylosis and post traumatic stress disorder.
(6)A comment on 28th March by psychiatrist that I said I was planning to “retire soon” was used as evidence that my claims were fraudulent. In 2013 it was obvious that continuing operation of my business was not possible. I did not “retire soon”.
(7) The VRB did not [sic] consider my claim that Depressive Disorder being used as [a] non accepted heart condition had no procedural fairness as I never been informed that I had the condition. A claim to DVA in September 2017 for Depressive Disorder was accepted as service related on 21/6/2018.
(8) The VRB at no time demonstrated any intention to deliver an “impartial quality decision”.
(9) The continual mention of Alcohol Abuse by the VRB during interview was verging on slanderous. Since 1968 when as a serving soldier I was selected to service Army aircraft alcohol has never had any place in any workplace that I was involved in. This attitude is practiced to this day for domestic tasks that I am able to perform.
Incomplete document.”
On 7 October 2019 the Respondent made a determination that the Applicant’s alcohol use disorder was accepted with effect 26 December 2018, continuing his disability pension at the extreme disablement adjustment[48].
[48] Transcript, 10 October 2019, P-12, lines 5-10.
ISSUE
The contention between the parties was particularised at the hearing as being whether or not the Applicant satisfied specifically s 24(2A)(d) and (e) of the Act[49].
[49] Transcript, 10 October 2019, P-10, P-12 and P-61.
CONSIDERATION
Section 24 of the Act relevantly states[50]:
[50]Compilation No. 162, registered on 5 May 2020. Section 24 has the following legislative history: s 24 am No 106, 1986; No 134, 1988; No 228, 1992; No 98, 1994; No 157, 1997; No 52, 2004 (as am by No 89, 2007); No 66, 2007; No 174, 2015; No 59, 2017.
“Special rate of pension …
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war- caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and(h) section 25 does not apply to the veteran.”
The Applicant has made an application under section 15 for an increase in the rate of the pension that the Applicant is receiving[51]: s 24(2A)(a).
[51] Exhibit 1, T-documents, T69.1, pages 237-245; and T109, pages 354-369.
The Applicant had turned 65[52] at the time of the application on 5 September 2017[53]: s 24(2A)(b).
[52] Exhibit 1, T-documents, T2, page 15.
[53] Exhibit 1, T-documents, T109, pages 354-369. The Applicant was approximately 69 years of age at the time of the relevant application.
There has been an assessment as to the Applicant receiving 100% of the general rate, as referred to in sub-paragraph 24(1)(a)[54]: s 24(2A)(c).
[54] Exhibit 1, T-documents, T108, pages 346-353 and T116, pages 423-431.
Section 24(1)(b), as referred to in s 24(2A)(c), states that ‘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’. The Respondent did not submit that the Applicant was incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, with the Respondent submitting that the ‘alone’ test was not satisfied as to sub-paragraphs 23(3A)(d) and 24(2A)(d)[55].
[55] Exhibit 4, Statement of Issues, Facts and Contentions of the Respondent, paragraph 4.2, p 2.
Further to s 24(2A)(d), the Respondent submitted that the Applicant in the assessment period is, because of incapacity from war-caused injury or war-caused disease or both, alone, not prevented from continuing to undertake the remunerative work (last paid work) that the Applicant was last undertaking before he made the claim or application.
The Applicant’s entitlement is assessed in respect of any circumstance within the assessment period, which is from the date of application until the decision of the Tribunal[56].
[56] The Act, s 19(9). See also Richmond v Repatriation Commission [2014] FCA 272 at [107] per Dodds-Streeton J.
The Applicant gave oral evidence at the hearing[57]. The Applicant stated that his ‘expertise’ was in ‘fine measuring instruments’[58]. The Applicant stated that he had been working in that regard ‘on a continuous basis’[59] since 1968 in various capacities, including in aircraft, at the University of Queensland, at James Cook University and in the Applicant’s own business[60]. The Applicant stated that he had established two businesses, the first being “Parkes Instruments”[61], which had an ABN and was a partnership with the Applicant’s wife[62]. The Applicant stated that his second business was “Geo Positioning Services”[63], which had an ABN and again was structured as a partnership with the Applicant’s wife[64]. The Applicant stated that he and his wife ‘never drew a salary’ from either business, but instead ‘lived on the profits’ of both businesses[65]. The Applicant stated that both businesses were shut down in 2016[66]. The Applicant stated that it was ‘most likely’ that the last business to ‘provide’ remuneration was Geo Positioning Services on 27 November 2015[67].
[57] Transcript, 10 October 2019, P-19-39.
[58] Transcript, 10 October 2019, P-19, line 21.
[59] Transcript, 10 October 2019, P-19, lines 20-21.
[60] Transcript, 10 October 2019, P-19, line 22-23.
[61] Transcript, 10 October 2019, P-21, line 21-22.
[62] Transcript, 10 October 2019, P-22, lines 5-16.
[63] Transcript, 10 October 2019, P-22, line 35.
[64] Transcript, 10 October 2019, P-22, lines 35-46.
[65] Transcript, 10 October 2019, P-23, line 16-17.
[66] Transcript, 10 October 2019, P-23, line 11.
[67] Transcript, 10 October 2019, P-23-24.
The Applicant stated that what prevented him from continuing to work was that he ‘couldn’t see’[68]. The Applicant stated that despite having cataract surgery in 2010, one morning in 2011 he woke up and ‘was blind in my right eye’[69]. The Applicant stated that ‘things went on a downhill slide from that day on’[70] and that the ‘lack of vision in [his] right eye was the major reason why [he] was unable to work at all’[71].
[68] Transcript, 10 October 2019, P-24, line 44.
[69] Transcript, 10 October 2019, P-25, line 25-26.
[70] Transcript, 10 October 2019, P-25, line 27.
[71] Transcript, 10 October 2019, P-24, line 33-34.
The Applicant stated that on 14 January 2014, Dr Low diagnosed him with rotator cuff disease and impingement[72]. The Applicant stated that he was still experiencing pain in his shoulders in 2018 and that he continued to get pain in the shoulders, even on the day of hearing[73]. The Applicant stated that the day after the rotator cuff issue started he worked a full day[74] and that it didn’t impact him anymore than the day before, despite it being painful[75].
[72] Transcript, 10 October 2019, P-29, lines 41-42.
[73] Transcript, 10 October 2019, P-30, line 19.
[74] Transcript, 10 October 2019, P-37, line 47.
[75] Transcript, 10 October 2019, P-38, lines 1-3.
The Applicant stated that in 2012 he attempted to sell the ‘survey instruments and sales component’ of the business, but ultimately did not, because he ‘didn’t have any confidence in the people who wanted to buy it’[76]. The Applicant stated that by 2015 the operation of the businesses was no longer sustainable[77], because of the substantial decline in his ability to be productive[78].
[76] Transcript, 10 October 2019, P-31, line 43.
[77] Transcript, 10 October 2019, P-33, line 36-37.
[78] Transcript, 10 October 2019, P-33, lines 36-43.
The Applicant stated that he could walk considerable distances when using knee guards[79] and that he did not require crutches to move around[80]. The Applicant stated that he was able to drive a car, but that he needed to take fatigue breaks after one hour[81].
[79] Transcript, 10 October 2019, P-34, line 21.
[80] Transcript, 10 October 2019, P-34, line 23.
[81] Transcript, 10 October 2019, P-34, line 40-41.
Dr Edwards
Dr Edwards, an occupational and environmental[82] physician, gave oral evidence[83].
[82] Transcript, 10 October 2019, P-41, lines 31-32.
[83] Transcript, 10 October 2019, P-41, line 31.
Dr Edwards stated that in his report of December 2016, that the clinical state of the Applicant was that the Applicant was 100% impaired and not fit for his usual occupation[84]. The doctor stated that the impairment was not intended to be an assessment of the degree of impairment, due to the specific pathologies identified by the line descriptors in that report[85]. Dr Edwards stated that at the time of the retinal detachment in 2012, the Applicant was effectively totally and permanently disabled[86].
[84] Transcript, 10 October 2019, P-48, lines 27-34.
[85] Transcript, 10 October 2019, P-48, lines 34-36.
[86] Transcript, 10 October 2019, P-49, lines 10-17.
Dr Edwards stated that the Applicant had symptoms of osteoarthritis in the left thumb, meaning that it interferes with the dexterity and function of that digit[87], therefore being a contributing factor in the ability of the Applicant to undertake work.
[87] Transcript, 10 October 2019, P-51, lines 44-45.
In the report dated 18 March 2019, Dr Edwards stated that the Applicant’s non-accepted rotator cuff syndrome, osteoarthritis of the left thumb, carpel tunnel syndrome, haemorrhoids, severe dental caries and myocardial dysfunction contribute to preventing the Applicant from undertaking his last paid work[88].
[88] Exhibit 3, p 13-14; Exhibit 17, Letter from Dr Moynan dated 2 March 2020.
Dr Moynan
Dr Moynan, a general practitioner, provided a letter dated 2 March 2020 stating that the Applicant has not reported symptoms of rotator cuff syndrome or carpal tunnel syndrome since his anterior cervical discectomy in 2017.
CONSIDERATION
As to the “alone” requirement in s 24(1)(c), ‘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’[89].
[89]Repatriation Commission v Watkins [2015] FCAFC 10 per Kenny, Barker and Rangiah JJ reaffirmed at 41.
The Applicant submitted that haemorrhoids were not the cause of any days of work ‘lost’, stating that he ‘just had to live with it’[90]. The Applicant submitted that he had been living with haemorrhoids for 20 years and that it has never affected his ability to perform his last paid work[91]. As to the rotator cuff syndrome, the Applicant submitted that it occurred and that it continued to be painful[92], even on the day of the hearing, but that it did not prevent him from working[93]. As to the osteoarthritis in the left thumb, the Applicant submitted that it does not inhibit his activities in any way[94]. As to the carpel tunnel syndrome, the Applicant submitted that it disappeared with surgery for the cervical spondylosis condition[95].
[90] Exhibit 10, Applicant’s Submission dated 5 August 2018, p 2.
[91] Exhibit 11, Applicant’s Closing Submissions dated 25 November 2019, p 3.
[92] Transcript, 10 October 2019, P-38, lines 1-3.
[93] Transcript, 10 October 2019, P-37, line 47.
[94] Exhibit 11, Applicant’s Closing Submissions dated 25 November 2019, p 3.
[95] Exhibit 11, Applicant’s Closing Submissions dated 25 November 2019, p 3.
The Applicant submitted that he was able to continue working despite the non-accepted conditions until the effective loss of vision in his right eye. As referred to above, Dr Edwards stated that at the time of the retinal detachment in 2012, the Applicant was effectively totally and permanently disabled[96]. It is found, having regard to all the evidence, that the Applicant is, because of incapacity from the effective loss of vision in his right eye, alone, prevented from continuing to undertake his last paid work as to ‘fine measuring instruments’[97]. The other non war-caused factors did not play a part in preventing the Applicant from engaging in remunerative work, in that those factors were not secondary to the factor of his right eye and were not of themselves sufficient to prevent the Applicant’s remunerative work[98]. Therefore, the Applicant is prevented by the war-caused factor, of his right eye, from undertaking the last paid work as to ‘fine measuring instruments’.
[96] Transcript, 10 October 2019, P-49, lines 10-17.
[97] Transcript, 10 October 2019, P-19, line 21.
[98]Repatriation Commission v Watkins [2015] FCAFC 10 per Kenny, Barker and Rangiah JJ reaffirmed at 41.
In s 24(2A)(e) of the Act, there is also the question of whether the Applicant is suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free from that incapacity. The Respondent submits that the facts are similar to those in Reidlinger and Repatriation Commission [2016] AATA 646, where it was held that the Applicant in that Application did not satisfy sub-paragraphs (d) and (e) because the financial downturn of the business was a factor that contributed to preventing the Applicant from undertaking the last paid work as a self-employed business manager. The Respondent refers to the oral evidence of the Applicant, where the Applicant states that the business was unable to perform simply because the Applicant could not work the hours or do the productivity that was required to make it perform[99]. The Applicant stated that the business was not sustainable in that he was only able to produce less than 10% of his productivity with some periods of ‘zero’ input from the Applicant[100]. The Applicant stated that it was because of his visual impairment, psychiatric issues and cervical spondylosis that he was not capable of working enough hours without exhaustion and adverse reactions to allow successful continuance[101]. The Applicant stated that he was unable to sell his business and was ultimately forced to close the business on 18 December 2018[102] after contacting all businesses that had the required technical capacity to operate the business and advised them that the business was for sale[103]. The Applicant stated that in 2012 he attempted to sell the ‘survey instruments and sales component’ of the business, but ultimately did not, because he ‘didn’t have any confidence in the people who wanted to buy it’[104]. The Applicant stated that by 2015 the operation of the businesses was no longer sustainable[105], because of the substantial decline in his ability to be productive[106]. Therefore, the Applicant was attempting to sell the business some six years before the business finally concluded and by 2015 the Applicant stated that the business was ‘not sustainable’, before the beginning of the assessment period in 2017. It is found that the Applicant would not be operating the businesses in the assessment period after 5 September 2017 (and therefore not be suffering a loss of salary or wages or of earnings on his own account), including by reason of the conditions other than the conditions that have been accepted as related to service[107]. As stated in the second reading speech by the Minister as to the Veterans’ Entitlements Bill 1985: “I would not expect many veterans over the normal retirement age to qualify for payment of pension at this rate as there would usually be reasons other than the effect of a war-caused incapacity which precluded continuing in employment”. In the assessment period after 5 September 2017, it is found that the Applicant was not prevented from undertaking his last paid work and suffering a loss of salary or wages, or of earnings on his own account, if the Applicant were free from that incapacity.
[99] Transcript, 10 October 2019, P-32, lines 10-11.
[100] Transcript, 10 October 2019, P-33, lines 35-45.
[101] Exhibit 9, Applicant’s “Final Evidence and Arguments”, dated 9 July 2019, p 4.
[102] Exhibit 6, Statement of the Applicant, dated 29 August 2019, p 5.
[103] Exhibit 6, Statement of the Applicant, dated 29 August 2019, p 5.
[104] Transcript, 10 October 2019, P-31, line 43.
[105] Transcript, 10 October 2019, P-33, line 36-37.
[106] Transcript, 10 October 2019, P-33, lines 36-43.
[107] Respondent’s Statement of Issues, Facts and Contentions dated 26 April 2019, paragraph 10.
The findings above are applicable as to the intermediate rate, further to sections 23(3A)(d) and (e).
As to the extreme disablement adjustment, the Respondent contends that the Applicant is not entitled to the extreme disablement adjustment in that the evidence does not support a finding that the Applicant has a lifestyle rating of at least six points in accordance with Chapter 22 of the Guide to Determining Impairment and Compensation 2016[108]. As referred to above, by correspondence dated 21 June 2018[109] the Respondent decided as to the disability pension claim lodged by the Applicant on 5 September 2017[110], accepting the claim for depressive disorder and erectile dysfunction, with that decision taking effect from 5 June 2017 and increasing the disability pension to the extreme disablement adjustment with effect from 5 June 2017[111]. Further, as referred to above, on 7 October 2019 the Respondent made a determination that the Applicant’s alcohol use disorder was accepted with effect 26 December 2018, continuing his disability pension at the extreme disablement adjustment[112]. It is found, on the evidence, that the Applicant has a lifestyle rating of at least six points in accordance with Chapter 22 of the Guide to Determining Impairment and Compensation 2016 from the commencement of the assessment period on 5 September 2017. It is noted, as referred to above, that there is the existing decision of 21 June 2018, not the subject of this Application, that the Applicant is to receive extreme disablement adjustment from 5 June 2017.
[108]Paragraph 75 of the Respondent’s Statement of Issues, Facts and Contentions of the Respondent, lodged 26 April 2019.
[109] Exhibit 1, T-documents, T116, pages 423-431.
[110] Exhibit 1, T-documents, T109, pages 354-369.
[111] Exhibit 1, T-documents, T116, pages 423-431.
[112] Transcript, 10 October 2019, P-12, lines 5-10.
The reviewable decision of 9 April 2018[113] of the Veterans’ Review Board, which affirmed the decision under review, being the decision dated 8 August 2017[114], as to the assessment of disability pension at 100% of the general rate[115] will be varied, with the Applicant to additionally receive the extreme disablement adjustment.
[113] Exhibit 1, T-documents, T114.1, pages 402-410.
[114] Exhibit 1, T-documents, T108, pages 346-353.
[115] Exhibit 1, T-documents, T114.1, pages 402-410.
DECISION
The reviewable decision of 9 April 2018 is varied with the Applicant to receive the disability pension at 100% of the general rate with the extreme disablement adjustment with effect from 5 September 2017.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
..................................[SGD]......................................
Associate
Dated: 31 August 2020
Date of hearing: 10 October 2019 Date final submissions received: 5 April 2020 Applicant: Appeared in person Advocate for the Respondent: Mr J. Watts
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