Pawson and Repatriation Commission - [2002] AATA 1211

DECISION AND REASONS FOR DECISION [2002] AATA 1211

ADMINISTRATIVE APPEALS TRIBUNAL        Nº W2000/135
VETERANS'      APPEALS      DIVISION
  Re:         RONALD FRANCIS PAWSON
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             22 November 2002
Place:            Melbourne

Decision:The Tribunal varies the decision under review to provide as follows: pension is payable temporarily to the applicant at the special rate for the period 11 July 1997 to 9 January 1998 under s25 of the Veterans' Entitlements Act 1986.
In all other respects the Tribunal affirms the decision under review, namely the decision of a delegate of the respondent dated 25 February 1998.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – Special (TPI) Rate – whether applicant totally and permanently incapacitated from undertaking remunerative work as a result of war-caused injury or disease
Veterans' Entitlements Act 1986 ss 24, 28
Hendy v Repatriation Commission [2002] FCA 602
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Maloney (1993) 45 FCR 563

REASONS FOR DECISION

22 November 2002 M.J. Carstairs, Member

This is an application by Ronald Francis Pawson (the applicant) for review of two decisions made by the Veterans' Review Board (the VRB) on 23 March 2000. The VRB affirmed a decision of a delegate of the respondent, dated 25 February 1998, that disability pension continue to be paid at 100 per cent of the general rate, with effect from 28 August 1997.
At the hearing in Perth the applicant represented himself. Mr C. Ponnuthurai, an advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Tribunal also had before it exhibits marked A1 to A 2 for the applicant and R1 to R2 for the respondent.
BACKGROUND
The applicant is now aged fifty-five. He served in the Australian Army from 12 July 1967 to 11 July 1969 and from 15 November 1971 to 6 August 1976. His service in Vietnam was during the period 30 July 1968 to 3 December 1968.
The applicant left school in Year 8. After service he worked in a range of positions, several in the mining industry. During the period 1979 to 1982, he worked as a sales engineer. From 1982 to 1985, he worked as a branch manager. For the next ten years until 1995, he worked as a driller/manager. His last two jobs were in mechanical repairs (1995 to 1997) and as a supervisor/driller for a period of three months in 1997. He was dismissed from this position in July 1997 after he experienced severe breathing difficulties at the mine site as a result of machinery malfunction. He has not worked since.
On 28 August 1997 the applicant made a claim for an increase in pension. At that time he had accepted as attributable to war service the conditions of asthma, acoustic trauma to the left ear, and sensori-neural hearing loss (right ear). On 25 February 1998 a delegate of the respondent increased the rate of pension to 100 per cent of the general rate. The delegate considered that the applicant was capable of working in sedentary work in excess of 20 hours per week. The VRB agreed.
The applicant sought review of the decision with this Tribunal on 2 May 2000. On 30 January 2001 he made a further claim on the respondent for the condition of post traumatic stress disorder (PTSD). This further claim was granted on 1 August 2001. In accepting the claim for PTSD, the delegate decided that pension should be paid at the special rate under s24 of the Veterans' Entitlements Act1986 (the Act) from three months prior to the date of the claim.
Therefore, in the application before this Tribunal, the applicant is seeking payment of special rate of pension from a date earlier than 30 October 2000, based on the claim for an increased rate of pension made on 28 August 1997.
EVIDENCE
The applicant told the Tribunal that he left school at the age of fourteen. He had four to five years' of mining experience prior to his army service. After returning from Vietnam, he undertook a training scheme as "trainee accountant". However, he said that this did not entail any formal professional training and his work was best described as that of a debtor's clerk. When he left the trainee course he worked repairing lawn mowers and chain saws. In 1971 he rejoined the army. During this second period of service he trained in electronics. However, his electronics training became obsolete when valve technology was superseded in the electronics industry.
From 1982 to 1985, he worked as a branch manager of a company dealing in the sale of mining equipment. Between 1985 and 1995 he was self-employed in the drilling industry. After a downturn in the drilling industry, he said he returned to mechanical repair work for two years until 1997. In 1997 he secured the position as the drilling supervisor at the mine site, where he was employed before the severe asthma incident.
The applicant said that a malfunction of machinery at the mine site in July 1997 precipitated a severe asthma attack. The machinery was to control dust emissions during the drilling process. He said that immediately after the malfunction he experienced breathing problems, particularly at night. On one occasion he woke and was aware that he had stopped breathing. He reported the incident to the first aid station but he said the manager did not forward the report to the appropriate person. He said that the company reprimanded the manager when it was ascertained that the applicant's earlier report was not dealt with. He said that the next day he was told to pack up and report to the Perth office, where he attended a meeting at which the company had its solicitors present. He had not realised that his employment was to be terminated.
The applicant said that he lodged a worker's compensation claim but did not pursue it when a specialist diagnosed right phrenic nerve palsy. The applicant said that Dr M. Tandon, consultant thoracic physician, told him subsequently that this diagnosis was not correct. The applicant said that the worker's compensation claim lapsed.
The applicant said that by August 1997, when he put in the claim with the respondent for an increase rate of pension, he was not having the same difficulties with breathing when lying down, though he said that, even now if he lies down quickly, it hinders his breathing. He said that, after he lodged the claim, he was sent to Dr J. Cardwell, a departmental medical officer, for assessment in January 1998. The applicant said that he told Dr Cardwell that he was having difficulty with dressing and showering, so he could not understand that Dr Cardwell had assessed him as being symptomatic only at the level of 3-4 METs, which is a measurement of activity restrictions where breathing is compromised.
The applicant said that he was assessed by the respondent as permanently incapacitated for work so as to qualify for payment of service pension (paid under other provisions of the Act). He said also that he applied as a job seeker with Centrelink in August 1997. He said that he applied for other jobs, including as a driller as that was what he was qualified to do. He said he was considered one of the top 5 drillers in the state. However, he said that as it is a small industry, about 1000 drillers in all, once it became known that he had had a site accident he could not get another position. He said that he would have been able to work as a supervisor at a site then, if given an assistant.
The applicant said that he was willing to learn other skills, which was why he applied for retraining in July 1998 (T30). On 19 March 1998 in the claim for service pension (T25) he stated, in response to a question whether injury or illness would affect his ability to undertake work for which he was not currently skilled: I have not been assessed. In answer to a question as to how injury or illness would affect ability to undertake retraining he said: I would like to try. In response to a question from the Tribunal about his capacity for work if he had the retraining, the applicant said that, despite problems with his asthma, he was desperate to try anything and he thought that he would have been in a position to do sedentary work.
The applicant said that now he can do little. He has bought a small property at Toodyay. He and his wife moved there a couple of years ago. His wife does the lawn mowing, gardening and household duties. He is restricted to reading.
In regard to his condition of PTSD, the applicant said that it came as a surprise to him when it was diagnosed in 1999. He said that he felt that there was nothing wrong with his attitude when he was working, although he was aware that he preferred his own company. He said that he considered that co-workers found him easy to be with, although his wife noticed that he could be abrupt with people.
In a letter dated 22 January 1998 (T19), Mr R.M. King, Operations Manager, Drilling Services of Australia stated that the applicant was employed with Drilling Services from 1 April 1997 to 11 July 1997, and had been terminated as …not suitable for work position (T19). In a letter dated 12 March 2000 (T11), Mr King said that the applicant had suffered respiratory problems due to dust in an open pit operation. He stated:
…
The drill that Ron was operating was a grade control drill working in the main open pit. Because the ground was broken with explosives, it was difficult to seal the holes to limit the dust. In the main pit it was also dusty due to ore haulage trucks and wind blowing on the mullock dumps. It was therefore necessary to wear dust masks most of the time while drilling.
Because of some respiratory problem Ron found it difficult to work in this environment even after repairs were carried out to the drill to help limit the dust. I found it necessary to terminate Ron's employment.
In a written report dated 29 October 1997 (T15), Dr Tandon stated that the applicant had well-established asthma with symptoms of shortness of breath and episodes where the applicant felt as if he had stopped breathing. Dr Tandon commented that, on examination, the applicant had a fairly marked increased airflow obstruction with marked bronchial reactivity and much more severe asthma than he had seen before. Dr Tandon said that investigations had shown right phrenic nerve palsy. In a written report dated 29 November 2000 (exhibit A2), Dr Tandon again said that investigations had shown right phrenic nerve palsy without a cause being established. Dr Tandon said that in October 2000 the applicant's asthma was of moderate severity, with little benefit being gained from medication. He stated the asthma should preclude the applicant undertaking gainful employment and his superadded psychiatric disabilities further aggravate his asthma.
In a further report dated 2 May 2001(exhibit R2), Dr Tandon stated that phrenic nerve palsy did not cause or contribute to the applicant's asthma or shortness of breath as lung function on 28 April 1995 was better than normal. He said that, if there was any phrenic nerve palsy, vital capacity should have been reduced, and this was not the case.
In a written report dated 9 January 1998 (T16), Dr Cardwell stated that the applicant's Effort Tolerance tests showed that he was limited by respiratory difficulties at the level of 3-4 METs. This meant that, for activities such as an average pace of walking or doing light duties or gardening, breathing problems would restrict him. Dr Cardwell stated that the applicant was unfit for all heavy or manual work but fit for all sedentary types of work. He considered that he could work more than 20 hours per week. The applicant was assessed as having cardiorespiratory impairment of 55 points and hearing loss with tinnitus was assessed at 10 points under the Tables by Dr J. Yin, medical officer, on 25 February 1998 (T21).
In a form headed CRS Australia Assessment Report Veterans' Vocational Rehabilitation Scheme (undated and unsigned) the following was stated (T25):
…

Mr Pawson appears unable to conduct work in any capacity of a duration up to 8 hours per week due to his current medical status, in my professional opinion.
…
Client does not appear medically fit to conduct work in lieu (sic) of respiratory problems. If resolved client should be reconsidered for VVRS program.

In a written report dated 22 January 2001 (exhibit A1), Dr R Walkey, general practitioner, stated that he had treated the applicant since 1998 and in that time the main concern was shortness of breath which he believed was partly due to asthma and partly due to phrenic nerve palsy. Dr Walkey stated that anxiety had made the asthma worse but in the past the asthma was itself serious enough to have required treatment with oral steroids as well as Ventolin, Serevent and Flixotide. He stated also that, due to these conditions, the applicant was not capable of working more than eight hours per week.
In a written report dated 24 July 2001(exhibit R1), Dr W. Chiu, consultant psychiatrist and clinical director of the War-related Post Traumatic Stress Disorder Treatment Programme at The Hollywood Clinic, stated that the applicant had PTSD with a complication of major depression (the latter would resolve but was stated to be of marked severity by mid-2000). Dr Chiu stated that he considered the applicant's PTSD to be complex and intense, and that …the severity of his psychological distress was evident to all clinicians involved in Mr Pawson's treatment. He stated that the range and intensity of PTSD symptoms which affected the applicant's behaviour and personal relationships in work settings and impaired his concentration, meant that he would not be able to undertake paid employment again.
CONSIDERATION OF THE ISSUES
The legislation makes provision for payments at rates higher than 100 per cent of the general rate of pension in ss23, 24 and 25 of the Act. Section 24 (which mirrors s23 except that s23 refers to part-time or intermittent work) provides:
24(1) This section applies to a veteran if:
(aa)…
(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)…
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
…
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Section 28 provides for the meaning of capacity to undertake remunerative work:
28 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).
The applicant told the Tribunal that the full facts and information were not before the VRB when it made its decision. He said that in 1997 no mention was made of PTSD, so this was not a condition that should be taken into account on the earlier claim. He considered that the incorrect METs rating by Dr Cardwell had affected the decision-making. He submitted that it was inconsistent that he could be granted service pension on the basis of being permanently incapacitated for work, yet not be eligible for special rate of pension.
The respondent submitted that the test in s24(1)(b) of the Act was not met in this case. Dr Cardwell's evidence was that the applicant could work in sedentary work for 20 hours per week at the relevant time. Mr Ponnuthurai submitted that the applicant's evidence was that he could work in sedentary work. He submitted further that the applicant, in his varied working life, had shown that he had the capacity to do a range of work and this must be taken into account in s24(1)(b). He submitted further that both Dr Tandon and Dr Walkey refer to the applicant having a superadded anxiety. This, he said, cannot be taken into account until its acceptance as a war-caused disability with effect from October 2000. He contended that all the requirements of s24 must be met in order for an applicant to qualify for the special rate of pension and that the applicant failed to meet the tests under s24(1)(b) and s24(1)(c) until the time of the acceptance of the claim for PTSD.
The Tribunal reached its decision after taking into account the written and oral evidence and submissions at hearing.
Section 24 of the Act sets out a series of tests that are cumulative. As stated by the Federal Court in Hendy v Repatriation Commission [2002] FCA 602, s24(1)(b) and s28 are concerned with the veteran's incapacity for notional remunerative work. For the interpretation of s24(1)(c), the Court in Hendy referred with approval to the interpretation of that subsection set out in Flentjar v Repatriation Commission (1997) 48 ALD 1, in the following terms (at p4-5):
… the issues before the tribunal in this case were as follows:
1.What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

Looking at the first parts of s24(1) of the Act, there was no dispute, and the Tribunal finds, that the applicant meets the requirements of s24(1)(aa), (aab) and (a).
Section 24(1)(b) requires that a person be unable to undertake remunerative work (within the meaning of s28 of the Act) for eight hours per week for reason of war-caused disability alone. At the time of the decision under review, that is at the time of the claim in August 1997, the applicant had the accepted war-caused disabilities of asthma, acoustic trauma to the left ear, and sensori-neural hearing loss (right ear). In 2001 he was granted the condition of PTSD. PTSD is not an injury that can be taken into account as being a war-caused injury within the meaning of s24 at the time of the claim made for an increase in pension in August 1997: Repatriation Commission v Maloney (1993) 45 FCR 563. As the Full Federal Court said in Maloney's case :
…Section 19(7) requires the commission to make an assessment of a veteran's entitlement having regard to all his/her war related disabilities … In the case of a claim for an additional disability, this provision entitles the commission to backdate payment of the increased amount to a date three months before the receipt of the claim for the additional disability … In framing Part X parliament was apparently unwilling to give the Administrative Appeals Tribunal Act the general discretion on backdating conferred on the commission ... Its (the Administrative Appeals Tribunal Act's) power to make an order backdating a particular increase depends upon it having granted the increase in the review … in which the order is made. It is not enough that the AAT had granted the increase pursuant to an earlier application for review.
Thus in the present case, where the Tribunal has not granted the claim in regard to PTSD, the Tribunal cannot backdate a higher rate of pension by taking into account the effects of PTSD as a war-caused disease. However this does not mean that the applicant might not be eligible for special rate at the time of the earlier claim, based, alone, on the accepted disabilities at that time. The applicant worked continuously until 1997, without an awareness of the condition of PTSD, which was diagnosed only in 1999. The Tribunal accepts the applicant's evidence that the diagnosis of PTSD came as a surprise to him and he did not consider that it affected him in the workplace when he was working.
Therefore the Tribunal must consider whether the applicant was able to meet the criteria in s23(1)(b) or s24(1)(b) at the time when his accepted war-caused disabilities were asthma, acoustic trauma to the left ear, and sensori-neural hearing loss (right ear) alone. The applicant's hearing difficulties are mild and it is not part of the respondent's case that these have played any significant part in the applicant's ability to work. Therefore, the Tribunal must consider whether the asthma, alone, was of such as nature as to render the applicant incapable of undertaking remunerative work for more than 8 hours per week (s24(1)(b)).
The Tribunal accepts the evidence of Dr Cardwell (T16) that in January 1998 the applicant was capable of doing light sedentary work of more than 8 hours and not more than 20 hours per week. The Tribunal took into account the applicant's submission that Dr Cardwell assessed him wrongly in the Effort Tolerance test (T16), but does not accept that submission. Dr Cardwell has rated the applicant after discussion and assessment, as well as on the basis of respiratory function measured by spirometry. On the basis of a considering both, Dr Cardwell has awarded 50 impairment points under the Tables to the condition of asthma, which is a rating that gives clear recognition to the severity of the impairment (T16, T21). Yet Dr Cardwell considers that the applicant was able to do light work for more than 20 hours per week. Dr Cardwell's assessment accords with the applicant's own evidence that he felt that he was capable of work at that time and would have been able to rehabilitate if the assistance were given to him. Against this evidence was the note made of the contact with the CRS in mid1998 (T25). However, as it is not possible to ascertain from that unsigned document the consideration that was given to the rehabilitation prospects for the applicant, or the qualifications of the person preparing the document to draw the conclusion client does not appear medically fit to conduct work …If resolved client should be reconsidered for VVRS program.
The incident of severe asthma at the mine site clearly ended the applicant's last employment, and the Tribunal accepts the applicant's evidence that the industry was small enough that this reputation of a site injury made the profession of drilling and related activities less open to him. However, taking into account the relevant matters in s28 of the Act, the Tribunal finds that the applicant, on the basis of his varied working life, both self-employed and as an employee, had a range of skills well suited to sedentary occupations and light skilled work: s28(1)(a),(b). In his own assessment, he could have continued as a supervisor in the drilling industry on the basis of his extensive experience, with an assistant doing the heavier work. Further, his evidence was that he was willing and keen to retrain in order to secure employment at the time when he lost his employment. Whilst he acknowledged he had difficulties at that time sitting in chairs, his recollection was that he was desperate to try to work. He said that now, some four years later, he is unable to do half an hour's continuous work, and he finds difficulty in undertaking day-to-day domestic tasks.
The Tribunal prefers the evidence of Dr Cardwell that by January 1998 the applicant was able to perform sedentary work for periods of time that disentitled him to special or intermediate rates of pension, that is for more than eight hours and more than twenty hours per week. The applicant's evidence gave support to that assessment of his ability at that time.
Section 25 of the Act provides:
25(1) Where the Commission is satisfied that:
(a)a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b)if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
The Tribunal considered the period from the cessation of employment due to the dust-induced asthma attack in July 1997 to the time when Dr Cardwell assessed the applicant in January 1998. The evidence of Dr Tandon who has treated the applicant's asthma over a number of years and who reported in October 1997 (T15) was that his asthma was much more severe than I had seen before. The applicant's evidence about the severity of symptoms at that time and as set out in his claim in August 1997 (T12) make it clear that his asthma was in an uncontrolled state. Dr Tandon reports prescribing different medications but lung function remained unchanged (T15). The Tribunal considered whether the diagnosis of right phrenic palsy was to be taken into account. However, the evidence is not clear that such a diagnosis was established, or that as a condition it would have contributed to any inability to work. Dr Tandon refers to it as a diagnosis made, but does not adopt it. Dr Walkey (exhibit A1) stated that it affected shortness of breath. However, Dr Tandon rules this out in his report (exhibit R2).
The Tribunal prefers the evidence of Dr Tandon, as the specialist, and is satisfied that right phrenic nerve palsy is not a condition that would disentitle the applicant to the temporary payment of pension at the special rate during the period 11 July 1997 to 9 January 1998. The Tribunal is also satisfied that the applicant's PTSD, which on the medical evidence has produced symptoms limiting capacity to work , does not rule out the payment on a temporary basis between July 1997 and January 1998. There is no suggestion that PTSD was affecting the applicant's asthma in the period 1997 to early 1998. There is such evidence later, in the report of Dr Tandon (exhibit A2) and Dr Walkey (exhibit A1). On the basis of the applicant's evidence and the medical evidence the Tribunal is reasonably satisfied that from the time of the cessation of employment (11 July 1997) until the report of Dr Cardwell (9 January 1998) the applicant was qualified for temporary payment at the special rate under s25 of the Act.
As the Tribunal has concluded that apart from the temporary payment at the special rate, the applicant is not qualified under s24(1)(b) of the Act, the Tribunal does not need to address the matters under s24(1)(c) of the Act as the tests in s24 are cumulative. This means that every part of s24 must be met and for the reasons given, the Tribunal is satisfied that after 9 January 1998 the applicant was unable to satisfy s24 or s23 of the Act.
DECISION
The Tribunal varies the decision under review to provide as follows: pension is payable temporarily to the applicant at the special rate for the period 11 July 1997 to 9 January 1998 under s25 of the Act. In all other respects the Tribunal affirms the decision under review, namely the decision of a delegate of the respondent dated 25 February 1998.
I certify that the forty-two [42] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  19 September 2002
Date of Decision:  22 November 2002
Solicitor for the applicant:           Nil — IN PERSON
Advocate for the respondent:       Mr C. Ponnuthurai, Advocacy Section, Department
  of Veterans' Affairs