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

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.
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
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).
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).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 272
Decision Date: 28 February 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Parkin against a decision of the Repatriation Commission regarding his entitlement to a special or intermediate rate of pension under the *Veterans' Entitlements Act 1986* (Cth). The core of the dispute revolved around whether Mr Parkin was totally and permanently incapacitated by his accepted service-related conditions alone, or whether his obesity was a significant factor preventing him from continuing in remunerative employment. The Administrative Appeals Tribunal was required to determine the extent to which Mr Parkin's accepted disabilities, in isolation from his obesity, rendered him unable to work.

The Tribunal was tasked with assessing whether Mr Parkin met the criteria for the special or intermediate pension rates, which require a veteran to be totally and permanently incapacitated by accepted conditions alone, or to be prevented from continuing in remunerative employment by accepted disabilities alone. This involved evaluating the medical evidence to ascertain the primary cause of his inability to work and whether his accepted conditions were the sole or predominant reason for this incapacity.

The Tribunal preferred the opinion of Dr Anderson, a specialist occupational physician, over that of Mr Parkin's general practitioner, Dr Guirguis. Dr Anderson's assessment indicated that Mr Parkin's significant excess weight was a major contributing factor to his reduced functional capacity and was a "common denominator" with many of his conditions. While acknowledging the limitations imposed by Mr Parkin's accepted shoulder and back conditions, Dr Anderson concluded that his obesity was the primary impediment to his ability to work, and that controlling his weight could significantly enhance his functional capacity. Consequently, the Tribunal was not satisfied that Mr Parkin was totally and permanently incapacitated by his accepted conditions alone, nor that he was prevented from continuing in remunerative employment by those conditions in isolation from his obesity. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 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. 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”. 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”. 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”. 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. 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. 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. 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”.

Decision

Reasons for decision

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 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. I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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