Parkin and Repatriation Commission (Veterans' entitlements)

[2017] AATA 272

Parkin and Repatriation Commission (Veterans' entitlements) [2017] AATA 272 (28 February 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2015/5957

Re:Allan Parkin

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:28 February 2017

Place:Sydney

The Tribunal affirms the decision under review.

.....................[sgd]...................................................

Senior Member J F Toohey

CATCHWORDS

VETERANS’ ENTITLEMENTS – whether veteran entitled to special rate of pension – whether veteran totally and permanently incapacitated by accepted conditions alone – whether veteran prevented from continuing in remunerative employment by accepted disabilities alone – intermediate rate of pension – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 ss 19, 23, 24, 28 and 120

CASES

Flentjar v Repatriation Commission (1997) 48 ALD 1

Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Hendy (2002) 76 ALD 47
Richmond v Repatriation Commission (2014) 140 ALD 380
Smith v Repatriation Commission [2014] FCAFC 53

Starcevich v Repatriation Commission (1987) 14 ALD 160

REASONS FOR DECISION

Senior Member J F Toohey

28 February 2017

Introduction

1. Mr Alan Parkin served in the Australian Army from 5 August 1975 to 23 September 1985.  He suffers from recurrent dislocation of both shoulders, muscle contraction headaches, sensorineural hearing loss with tinnitus, deep vein thrombosis, gastro-oesophageal reflux disease, lumbar and thoracic spondylosis, and depressive disorder, all of which have been accepted as related to his service.

2. Mr Parkin receives a disability pension at 100 per cent of the general rate.  He seeks review of a decision of the Veterans’ Review Board (the Board) on 20 October 2015 to affirm a decision of the Repatriation Commission that he is not entitled to the special rate of pension.  In particular, the Board decided that Mr Parkin’s morbid obesity, which is not related to his service, played a part in preventing him from continuing in remunerative work.

   The legislation

3. The relevant legislation is in the Veterans’ Entitlements Act 1986 (the Act).  Mr Parkin’s service is eligible defence service for the purposes of the Act.  In deciding whether he is entitled to the special or intermediate rate of pension, the standard of reasonable satisfaction applies: subsection 120(4).

4. To qualify for the special rate of pension, Mr Parkin must satisfy the criteria in subsection 24(1).  It is not in dispute that he had not turned 65 when he made his claim, and that he has at least 70 per cent incapacity as a result of his service.  He therefore meets subsection 24(1)(a).  His claim turns on whether he satisfies subsections 24(1)(b) and (c).

5. To satisfy subsection 24(1)(b), Mr Parkin must be totally and permanently incapacitated by reason of incapacity from his war-caused (or defence-caused) injury or disease alone.  Totally and permanently incapacitated in this context means unable to undertake remunerative work for periods aggregating eight or more hours per week.

6. In determining whether a veteran is totally and permanently incapacitated section 28 states that regard can be had 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).

7. Subsection 24(1)(c) comprises two limbs, the first of which requires a causal connection between the veteran’s war-caused incapacity, alone, and his or her inability to undertake the remunerative work he or she previously engaged in.  The second requires a causal connection between that inability to work and the veteran suffering a financial loss: Repatriation Commission v Richmond [2014] FCAFC 124.

8. If a veteran has ceased to engage in remunerative work for reasons other than the accepted incapacity, or if incapacitated or prevented from engaging in remunerative work for some other reason, he or she will not be taken to be suffering a loss of income by reason of his or her accepted incapacity: subsection 24(2)(a).  Subsection 24(2)(b) has an “ameliorating” effect on subsection 24(2)(a) that does not apply to Mr Parkin’s circumstances.

9. There is a lower test for qualification for the intermediate rate: a veteran must be rendered incapable of undertaking remunerative work for 50 per cent of the time ordinarily worked by persons engaged in work of that kind on a full-time basis, or for 20 hours or more per week: subsections 23(2)(a) and (b).  Section 23 more or less mirrors s 24, with adaptations to reflect the lesser impact of accepted conditions on a veteran’s capacity for work.

10. The assessment period is the period starting on the date Mr Parkin lodged his application and ending at the date of this determination: subsection 19(9).  The effect is that his application must be assessed by reference to any relevant circumstances that occur up to the time of the decision.

    Background

11. Mr Parkin served as a storeman technician in the Medical Corps of the Australian Army.  He was responsible for maintaining and purchasing equipment, and described his duties to the Tribunal as partly physical and partly administrative.  He was medically discharged in 1985 after suffering injury to his shoulders.

12. After leaving the Army, Mr Parkin worked as a security officer for eight to ten years.  His memory for precise dates is not good but nothing turns on this. During his time as a security officer, he worked up to the highest level of supervisor and control room operator.  His duties involved being out in the car for most of the day checking that others were performing their duties correctly. He would have to return to the office to complete paperwork.

13. Mr Parkin’s next position was as a prison officer at a correctional facility.  As best as he can recall, he was in that position for approximately two years before leaving because of concerns for his family’s welfare.  He had a short-lived attempt at setting up his own business but, unfortunately, it failed after his business partner made off with the money, forcing Mr Parkin to find employment again.

14. Mr Parkin next worked for several years, until around 2004, as a council ranger in two local councils. He described his duties, which included parking, littering and dogs, as 50 per cent in the field and 50 percent in the office.

15. After leaving the second council, Mr Parkin worked as a building operations manager for CB Real Estate (CBRE).  He started at the lowest level and worked his way up to a managerial position with responsibility for ensuring safety on high rise buildings all over the metropolitan area, including coordinating tradespersons and ensuring they met safety laws and policies.  He was more or less on call 24 hours a day from Monday to Friday.  During this time he obtained a double Certificate IV in building management.  Mr Parkin told the Tribunal that, initially, his role was paperwork only but, in time, it came to involve physical duties including climbing up buildings in a harness, climbing stairs and through manholes.  He suffered pain in his shoulders and his back, and needed more and more medication to cope.

16. Mr Parkin told the Tribunal that, had his duties at CBRE not changed to include the physical duties, he would most likely have been able to continue in that position.  He left CBRE on 31 July 2013 and had not been in paid employment since.  He spends two to three hours on Thursdays as a volunteer at his local RSL, “licking envelopes”.  He also serves as a volunteer welfare officer, mainly by telephone from his home, although he has not done much of this for a while.

17. For approximately 20 years to around 2006, Mr Parkin was an SES volunteer.  He estimates he would spend approximately 15 hours each week, after work and on weekends, running his local unit and overseeing training and coordination.  Mr Parkin told the Tribunal that he stopped because he got to the point that he felt he had done his bit.

18. The main area of dispute in this case concerns what, if any, part Mr Parkin’s obesity plays in any incapacity for remunerative work, and whether it is a factor in preventing him from continuing in remunerative work. 

    Medical evidence

19. The medical evidence comprises primarily reports from Mr Parkin’s general practitioner since 2007, Dr Waseem S Guirguis, Dr Tim Anderson, a specialist occupational physician who saw Mr Parkin for assessment on 3 June 2015.

20. On 22 May 2015, Dr Guirguis completed a Work Ability Report for the Department of Veterans’ Affairs.  He listed Mr Parkin’s medical conditions as obesity, recurrent dislocation of his shoulders, recurrent deep vein thrombosis, lumbar and thoracic spondylosis, and depressive disorder.  He noted that Mr Parkin weighed 161 kilograms.  He recorded that Mr Parkin’s last employment was as a buildings operations manager and noted “[h]ad to leave because of inability to perform lifting, climbing ladders, firestairs etc”.

21. Dr Guirguis stated in his report that Mr Parkin was able to work less than eight hours a week, and his shoulder dislocation, and lumbar and thoracic spondylosis, which were likely to deteriorate, were major contributing factors.  Asked if he considered Mr Parkin would be able to carry out any other type of work, Dr Guirguis indicated “Yes” and “Minimal clerical duties”. 

22. In a brief report dated 29 January 2016, Dr Guirguis wrote to that Mr Parkin stopped work “… [a] few years ago due to his accepted condition (shoulders and back pain). His weight was never a factor in ceasing work”.

23. Mr Parkin’s treating psychiatrist, Dr John Westerink, has completed forms and reports in connection with Mr Parkin’s claims for disability pension but none really throws light on the issues I have to decide here. 

24. Dr Anderson saw Mr Parkin for assessment on 3 June 2015.  He provided a report dated 5 June 2015 and gave oral evidence.  Dr Anderson noted Mr Parkin’s present complaints as: gross restriction on mobility; multiplicity of pains; inability to manage steps and stairs; gross restriction of use of his shoulders, particularly the left shoulder; incapacity for maintaining a fixed postural position, particularly sitting, for any length of time; and multiplicity of physical difficulties due to his gross excess weight.

25. Dr Anderson noted that Mr Parkin had lap band surgery in 2004 to help with weight loss, but it had only been partially successful. He noted that, in recent weeks, Mr Parkin’s weight had dropped from hundred and 181 kilograms to 162 kilograms. He had a “slightly reduced” range of movement of his cervical spine and a “very grossly restricted” range of movement of his lumbar spine.  Mr Parkin’s “capacity for locomotion was extremely limited”; he could only walk with a very short-paced “toddle” for a maximum of about 200 metres.

26. In Dr Anderson’s opinion, Mr Parkin’s excess weight was a major “common denominator” with many of his conditions and, if he successfully controlled his weight, there was a good chance his functional capacity would be significantly enhanced.  He thought the major restriction on Mr Parkin’s capacity for work was his “very gross excess weight”, as well as the gross restriction of functional capacity of his left shoulder, although, he thought “this would only be relevant in tasks of reaching outwards or upwards”. He thought none of the other conditions, whether accepted or not, would reasonably interfere with a “modest semi-sedentary occupation, particularly if this was run from his home environment”.

27. Dr Anderson said he could see no reason why Mr Parkin’s accepted conditions would prevent him from working more than eight hours a week since 30 August 2013. In particular, he took into account the coordinating nature of Mr Parkin’s duties as building manager and he thought that, his weight aside, Mr Parkin should be able to work at least 20 hours a week.  Dr Guirguis’ statement that Mr Parkin’s weight was never a factor in him ceasing employment did not cause Dr Anderson to change his opinion.

    Does Mr Parkin’s defence-caused incapacity, of itself alone, render him incapable of undertaking remunerative work for more than eight hours per week?

28. To satisfy subsection 24(1)(b), a veteran must be “totally and permanently incapacitated”.   Section 28 provides that, in determining whether a veteran is so incapacitated for the purposes of subsection 24(1)(b) regard can be had to the matters in section 28.

29. Mr Parkin has a broad range of skills, experience and qualifications built up over many years in what might broadly be described as managerial, supervisory and coordinating positions, and he has a double Certificate IV in building management. 

30. Dr Anderson believes that Mr Parkin’s obesity is the major factor standing in the way of him working for 20 hours or more a week under suitable conditions.  Dr Anderson made a number of what might be thought gratuitous comments, expressing surprise that some of Mr Parkin’s conditions had been accepted as resulted to his service; in my view, those comments were not necessary.  However, I accept Dr Anderson’s opinion concerning Mr Parkin’s capacity to undertake remunerative work and the role that his obesity plays in his incapacity.  He is a specialist occupational physician and undertook a detailed assessment of Mr Parkin.  To the extent that Mr Parkin’s capacity for employment is reduced, I am not satisfied that his accepted conditions alone render him incapable of working more than eight hours per week.

31. For the same reason, I am not satisfied that Mr Parkin’s capacity for remunerative employment is reduced by his accepted conditions alone to the extent required by subsection 23(1)(b) to qualify for the intermediate rate. 

    Is Mr Parkin prevented by that incapacity alone from engaging in remunerative work that he was undertaking?

32. Because I find that Mr Parkin does not satisfy subsection 24(1)(b), his claim for special rate must fail, and it is not strictly necessary to decide whether he satisfies subsection 24(1)(c).  For completeness, I will consider subsection 24(1)(c) as well. 

33. The questions to be asked when applying s 24(1)(c) were described by Branson J in Flentjar v Repatriation Commission (1997) 48 ALD 1 at [4] – [5] as follows:

    (i)what is the “relevant remunerative work that the veteran was undertaking”;

    (ii)is the veteran, by reason of war-caused incapacity, prevented from continuing to undertake that work;

    (iii)if the answer to question (ii) is ‘Yes’, is that incapacity the “only factor or factors” preventing the veteran from continuing to undertake that work;

    (iv)if the answers to questions (ii) and (iii) are ‘Yes’, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of income that he would not otherwise be.

34. If the answer to any of these question s is ‘No’, the veteran will not satisfy the “alone” test in subsection 24(1)(c).

35. The expression “continuing to undertake the remunerative work that the veteran was undertaking” is to be “…construed in a realistic and practical way so as to avoid underlying technical constraints on its application to a veteran whose income earning capacity has been completely or significantly impaired”.”: Smith v Repatriation Commission [2014] FCAFC 53 per Rares J at [17].

36. “Remunerative work” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past.  It is not limited to the last employment that the veteran actually undertook: Repatriation Commission v Hendy (2002) 76 ALD 47; Starcevich v Repatriation Commission (1987) 14 ALD 160.

37. Taking into account Mr Parkin’s history of employment, I find that, for the purposes of subsection 24(1)(c), the substantive remunerative work that he was undertaking was in the nature of management, supervision and coordination in operational or administrative roles.

38. If a non-service related condition was a factor, even if of secondary importance, in preventing Mr Parking from continuing to undertake remunerative work, then the “alone” test in subsection 24(1)(c) will not be satisfied:  Repatriation Commission v Alexander (2003) 75 ALD 329; Richmond v Repatriation Commission (2014) 140 ALD 380.

39. I accept that Mr Parkin found the physical demands of his work at CBRE too difficult because of his shoulder and back conditions, and that they were the principal reason he ceased employment.  However, I am not satisfied that his accepted conditions were the only factors preventing him from continuing his employment.  I accept Dr Anderson’s opinion that his weight is a real factor in his limited mobility and I am satisfied was a real factor in preventing him from continuing in paid employment. 

40. I prefer the opinion of Dr Anderson, who is a specialist in his field and conducted an assessment of Mr Parkin, to Dr Guirguis’ statement that Mr Parkin’s weight was never a factor in him ceasing employment.

    Conclusion

41. I have a good deal of sympathy for Mr Parkin.   He gave evidence that he always does his best at everything he does, and the obvious high regard in which he has been held in his various positions, as evidenced by his promotions, bears this out.  However, for these reasons, I am not satisfied that Mr Parkin qualifies for the special or intermediate rates of pension.

42. I affirm the decision under review.

I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

...........................[sgd].............................................

Associate

Dated: 28 February 2017

Date of hearing:	10 February 2017
Advocate for the Applicant:	Australian Peacekeeper & Peacemaker Veterans' Assoc. Inc.
Solicitors for the Respondent:	Ms E Baggett, Moray & Agnew Lawyers