Peter Willis v Repatriation Commission
[2014] AATA 326
•11 July 2014
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/2907
Veterans' Appeals Division )Re: PETER WILLIS
Applicant
And: REPATRIATION COMMISSION
Respondent
TRIBUNAL: Deputy President J W Constance
DATE: 11 July 2014
PLACE: Melbourne
CORRIGENDUM TO DECISION [2014] AATA 326
In accordance with section 43AA of the Administrative Appeals Tribunal Act 1975 (Cth), decision dated 27 May 2014 is amended as follows:
In the decision paragraph insert the words:
3.The effective date for the payment of the pension at the Special Rate to Mr Willis is 23 October 2013.
In the reasons for decision insert as paragraph 94 the words:
94.The effective date for the payment of the pension at the Special Rate to Mr Willis will be 23 October 2013.
………………[sgd]………………
Deputy President
[2014] AATA 326
Division Veterans' Appeals Division File Number(s)
2009/2907
Re
Peter Willis
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Deputy President J W Constance
Date 27 May 2014 Place Melbourne 1. The decision of the Veterans’ Review Board made 15 April 2009 is set aside.
2. In substitution for the decision set aside it is decided that the decision of the Repatriation Commission made 12 September 2007 is set aside and that Mr Willis is entitled to payment of a pension at the special rate in accordance with section 24 of the Veterans’ Entitlements Act 1986 (Cth).
.............................[sgd]...........................................
Deputy President J W Constance
Catchwords
VETERANS' AND MILITARY COMPENSATION – special rate of pension – type of remunerative work - whether applicant prevented from continuing to undertake that work by reason of incapacity from war-caused diseases (or any of them) alone – whether applicant suffered a loss of salary, wages or earnings on his own account by reason of his being prevented from undertaking remunerative work – whether applicant would be suffering the financial loss if he was free of the war-caused incapacity – decision under review set aside.
Legislation
Veterans’ Entitlements Act 1986 (Cth) sub-ss 24(1), 24(2), s 28
Cases
Repatriation Commission v Butcher [2007] FCAFC 36
Smith v Repatriation Commission [2014] FCAFC 53
Willis v Repatriation Commission [2012] FCA 399
REASONS FOR DECISION
introduction
Mr Willis is a veteran of the war in Vietnam and the recipient of a pension under the Veterans’ Entitlements Act 1986 (Cth). His pension is paid at 100 per cent of the general rate.
In August 2007 Mr Willis lodged a claim with the Repatriation Commission seeking that his pension be paid at the special rate, which is substantially greater than the general rate. The conditions of eligibility for the special rate payment are set out in section 24 of the Act.
The Commission decided that Mr Willis was not eligible for the special rate. The Veterans’ Review Board affirmed the Commission’s decision.
Mr Willis then sought a review of the Board’s decision by this Tribunal.
For the reasons which follow the decision under review will be set aside and in substitution it will be decided that Mr Willis is entitled to payment of the disability pension at the special rate in accordance with section 24 of the Act.
the legislative scheme
In the very recent judgement in Smith v Repatriation Commission [1], the Full Court of the Federal Court set out the legislative scheme of the Act as it applies to an application for an increase in the rate of pension payable, whether to the special rate or to the intermediate rate. As the Full Court’s approach to determination of applications for intermediate rate and special rate pensions differed from that taken by the Tribunal in the past I set out relevant parts of the description of the legislative scheme made by Buchanan J., with whom Rares J. agreed.
[1] [2014] FCAFC 53.
The legislative scheme
35Part II of the Act, which is entitled “Pensions, other than service pensions, for veterans and their dependants”, governs the questions which arise on the present appeal. Division 2 of Part II deals with eligibility for pension. There is no issue that the appellant is a veteran who is entitled to a pension. Division 3 (ss 13A to 21) deals with “Claims for pensions and applications for increases in pensions” and Division 4 (ss 21A to 29) deals with “Rates of pensions payable to veterans”. These are the two divisions of Part II which are most relevant.
36Section 14 of the Act permits a claim for a pension. Section 15 permits an application for increase in pension. Section 19 states the way in which claims and applications shall be determined. In the case of a veteran, like the appellant, who is already in receipt of a pension and who applies for an increase in the rate of pension, s 19(4A) directs that the application be dealt with in accordance with s 19(5A), (5B) and (5C) and be determined under s 19(5D). The scheme which proceeds thereafter is complicated, with a variety of intersecting provisions and requirements to be taken into account. Section 19(5B) provides:
19(5B)The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 26 and 30 are applicable in the particular case.
(Sections 25, 26 and 30 are not relevant in the present case.)
37For present purposes, therefore, s 19(5B) directs that an assessment must be made in accordance with whichever of s 22 (general rate of pension), s 23 (intermediate rate of pension) or s 24 (special rate of pension) applies to the case in question. The matters which must be assessed are stated by s 19(5C) in the following terms:
19(5C)The matters that the Commission must assess are:
(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable.
38Section 19(6) provides:
19(6)Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.
(Section 24A was not here relevant.)
39Section 19(5D) provides:
19(5D)After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.
40The effect of these statutory directions in the present case was that an assessment was required as to whether at any time during the “assessment period” a pension was payable in accordance with s 23 (intermediate rate) or s 24 (special rate). If so, the most recent such entitlement was to be determined as the rate of pension payable. The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.
…
42Sections 23 … of the Act (so far as relevant to the present case) provide[s] as follows:
…
24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) 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
... and
(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;
...
24(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 24 – Special rate of pension
47Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
48The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2)…
Section 28 makes further provision for the determination of capacity to undertake “remunerative work”.
facts
Unless stated otherwise the facts stated in the Introduction and the following findings of fact are based on the evidence of Mr Willis.
Mr Willis is 63 years old. He grew up in country Victoria and attended school until he was aged 15. He then worked in a small supermarket until he joined the Australian Army when he was aged 17 years and 9 months.
Mr Willis rendered “operational service” in Vietnam during 1970 and 1971. He was a front line infantry soldier. Following his tour of duty he was posted back to Holsworthy Army Base as an instructor of new recruits. He took an early discharge in 1973. His service in the Army between 2 October 1968 and 20 July 1973 is “eligible service” under the Act.
Mr Willis has the following conditions which have been accepted as “war-caused” under the Act:
·post-traumatic stress disorder;
·alcohol dependence;
·bilateral sensorineural hearing loss;
·bilateral tinnitus;
·tinea;
·diabetes mellitus;
·peripheral neuropathy.
For approximately three months after his discharge Mr Willis worked as a labourer in a brickworks stacking bricks. He then worked for several months in a casting plant.
For approximately 10 years following his discharge Mr Willis worked as a casual employee in vineyards and orchards in northern Victoria doing grape picking, vine pruning and replanting and fruit picking. At the end of the ten year period he found it increasingly difficult to get casual work by reason of mechanisation and an increasing supply of labour.
In 1984 Mr Willis moved to Melbourne where he worked as a labourer and as a storeman with a concreting business for approximately two and a half years. He then gained employment in car manufacturing as a machine operator and as a cleaner.
In approximately 1988 Mr Willis moved to the Yarra Valley. He worked as a labourer in a vineyard. After two years he was promoted to the position of foreman. His duties included pruning vines and supervising others doing this work. He held this position for approximately four and one half years.. His employment at the vineyard was terminated following arguments between him and his manager. He then obtained employment in a smallgoods factory as a labourer. He performed various tasks including sausage-filling, packing and operating a smoke machine.
For almost six months Mr Willis worked doing home-maintenance and worked on a flower farm. He then returned to work at the smallgoods factory.
In February 1998 Mr Willis injured his shoulder in a fall at home. He suffered neck pain radiating into his right shoulder. He had three months off work at the smallgoods factory as a result of this injury. When Mr Willis was ready to return to work at the factory there was no work available for him and he ceased that employment.
From about 1999 Mr Willis has suffered from pain in his lower back which on occasions radiated to his left upper leg. At times this caused his legs to feel weak.
When Mr Willis finished working at the factory he did not seek work in a vineyard as there had been further mechanisation of both picking and pruning. He was of the view that these methods were damaging to the vines and he did not agree with them.
After he left the factory he was self-employed doing home maintenance and gardening work for about 3 years. He did planting, pruning, weeding and clearing of gardens. On average he worked about 15 hours per week.[2] For part of the time he lived in a tent by the river. He worked in this manner until he moved to Swan Reach in 2000.
[2] Exhibit AA1 p.3.
In 2000, with the assistance of Mr Lindsay, his former Platoon Commander, Mr Willis moved back to Swan Reach. He found accommodation and began doing some “odd jobs”. His main source of income was a pension.
In 2002 Mr Willis moved into a cottage on a farm owned by Mr Cunningham. Mr Willis did casual work on the farm. He was not paid a regular wage. He received some payments from time to time and he was given milk from the farm. Mr Willis performed the following tasks, although at no time was he a full-time employee:
·setting up trays in a glass house for growing barley (he did this for approximately two hours daily for about two weeks);
·driving a truck picking up lucerne bales with a mechanical loader;
·helping in caring for a small number of pigs.
In 2005 Mr Willis injured his right shoulder when working in the garden of the house where he is now living.
Mr Willis ceased part-time work on the farm in about 2011. He said that light duties on the farm were within his physical capacity until his feet became very painful, especially at night. At the time he experienced difficulty in gaining his balance in the mornings. He said also that his mental problems made it difficult for him to regularly carry out his duties.[3]
[3] Exhibit AA2.
Since he ceased working on the farm Mr Willis continues to suffer a sense of foreboding which he describes as “a horrible sense that something is going to be bad soon.”[4] His pattern of alcohol consumption is to resist the urge to drink for one or two weeks and then to binge drink. He manages the pain in his shoulder and back with medication. He continues to have difficulty with his feet, which make it difficult to gain his balance in the morning. He takes one to one and a half hours to recover his balance in the mornings.
[4] Transcript 21.11.13.
Evidence of Mr Lindsay, Service Pensioner
Mr Lindsay was Mr Willis' Platoon Commander during the time he served in Vietnam. He provided statements dated 13 September 2012 and 20 October 2013.[5]
[5] Exhibits AA8 and AA9 respectively.
After Mr Willis was discharged from the Army, Mr Lindsay did not have contact with him until 2000 when Mr Lindsay located Mr Willis living in a tent under a bridge on the banks of the Yarra River. Mr Lindsay assisted Mr Willis to find his present accommodation on Mr Cunningham’s farm.
Between 2000 and 2002 Mr Lindsay had regular and frequent contact with Mr Willis and had the opportunity to observe his conduct.
In his statement dated 20 October 2013 Mr Lindsay stated, in part:
12 I found he seemed to suffer from hypervigilance, so that he was always on the alert for threats. He reacted uncontrollably to sudden sharp noises…. He had a serious anger management problem, and many times I witnessed him fly off the handle … Often after these outbursts he realised what he had done, and how inappropriately and uncontrollably he had acted, and would be afflicted with a bout of depression which could last for many days afterwards, rendering him incapable of achieving anything during that period.
13Peter informed me that he had fallen over several years earlier when drunk, whilst doing some cleaning or gardening duties, and had hurt his neck and shoulder, which in turn had caused him to lose his employment at Warburton at the smallgoods factory. By the time I caught up with him in 2000, I noticed no signs of any impairment in his shoulder, neck or back, and he made minimal complaints of discomfort in those areas to me. He was certainly well able to carry a carton of beer any time he wished, and he frequently did. As well as commercial beer, he readily consumed copious quantities of homebrew.
14In the two years that I was in regular contact with him, I did not observe any physical impediment to him working. Rather, I formed the view that he was, mentally, totally incapable of maintaining regular employment. He could not control his anger, and he could flare up at the smallest provocation, where most people would let the irritation ride. He did not have the flexibility to work with people which is required to maintain any regular employment. He was unreliable due to periods of black depression, when he was incapable of leaving the house for any purpose. Further, his alcoholism was a serious problem.
15I noticed he was an extremely keen gardener, and he has an encyclopaedic knowledge about plants. I got him a couple of jobs pruning fruit trees for people in the area, usually for something like $100 per day. However, I had to make the arrangements, and also drive him to and from the property to ensure he got there. Once involved in the task, he was brilliant. However, he was not able to persevere or to organise himself.
…
19… He seemed physically quite capable of satisfactory carrying out the several pruning jobs I organised for him, and I could see no physical reason why he could not undertake a successful handyman gardening service for domestic and small rural landowners …
Evidence of Mr Cunningham, Organic Dairy Farmer
Mr Cunningham is a part-owner of the dairy farm on which Mr Willis resides. He provided statements dated 15 March 2010, 20 August 2010 and 3 December 2013[6] and gave evidence.
[6] Exhibits AA3, AA4 and AA5 respectively.
In his statement of 20 August 2010 Mr Cunningham said, in part:
2During the time [Mr Willis] has lived on my property, there have been periods when he has been able to do one or two hours of work a day. The types of duties he has performed range from tending barley sprouts growing in a hothouse, to driving a truck on the farm, to helping distribute hay or other feed to cattle, to feeding the pigs.
3I do not have work available all the time but he has been useful, when able, particularly in driving a truck in tandem with my tractor, which typically will involve one or two hours at a time per day. I would reward him with provisions from the farm.
4We had an arrangement going for a while whereby he was responsible for caring for the pigs, primarily feeding them daily, which would take from half an hour to one hour per day, in return for which he would receive a pig every few months for eating. However, in recent months he has abandoned that task, and I have to do the job myself.
5This withdrawal by Mr. Willis from the pig caring arrangement is typical of his general presentation. When his mental state is good, Mr. Willis can perform light duties in an excellent manner. He could do a lot of work on my farm, and I believe he could perform similar work for other farmers in the district, as there is a demand for agricultural labour performed by a reliable worker in this area.
6However, this is the problem for Mr. Willis: he is not reliable, due to his mental state. He might be fine one day, then for several days his blinds will be drawn, curtains closed, and he is unfit mentally to even come out of his house, let alone do any work. I sometimes see lights on in his cottage at all hours of the night, then he will be too tired to wake up for work the following day. A potential employer has no way of knowing whether he will attend for work on any day, due to his mental problems.
7Physically, Mr. Willis appears perfectly capable of light duties employment on a farm. He would need to build up to longer hours gradually, as he has lost condition and endurance over the years, and he would have to learn to pace himself. I have seen him attack his garden with vigour one day, then be laid up, physically and mentally exhausted, the next day, because he has overdone things. He can be a willing worker, within his limitations, and has a desire to engage in work, but lacks the mental strength to stick to any task, which he finds frustrating.
8As mentioned above, during the last several months he has given up tending the pigs, and he has rarely been available to do any work for me spending most days shut up in his house with the blinds closed. He would not have been performing even one hour per week of labour during the last three months. Whilst his alcohol consumption has perhaps reduced to little, he still indulges in the occasional “bender”, and appears to drink consistently.
At the time he gave evidence in December 2013, Mr Cunningham said that at any time since Mr Willis began to live on the property he would have been willing to employ him as a farm-hand had he been a reliable worker and not dependent on alcohol. He was concerned that when working with animals and/or machinery Mr Willis may be injured by reason of his not being sufficiently alert. Mr Willis ceased driving a truck on the farm in about late 2011as he said the work was too stressful.
medical evidence
Dr Horsley, Occupational Physician
Dr Horsley has additional qualifications in Public Health and Occupational Medicine and has particular experience in assisting veterans with their return to work. She assessed Mr Willis in December 2009 and in June 2013.
Dr Horsley provided reports dated 16 December 2009 and 18 June 2013.[7] She also gave evidence.
[7] Exhibits AA6 and AA7 respectively.
In the opinion of Dr Horsley the accepted war-caused conditions suffered by Mr Willis and which were relevant to his ability to work are:
·post-traumatic stress disorder;
·alcohol dependence;
·diabetes;
·peripheral neuropathy.
It is to be noted that when Dr Horsley provided her reports and gave evidence, Mr Willis' condition of peripheral neuropathy had not been accepted as war-caused. The condition was diagnosed in 2011 and accepted as being war-caused on 29 January 2014.
Further, in the opinion of Dr Horsley, Mr Willis suffers from the following relevant medical conditions which are not war-caused:
·cervical spondylosis;
·right rotator cuff dysfunction;
·lumbosacral spine condition;
·sleep apnoea and restless legs.
Mr Willis' functional tolerances declined between Dr Horsley’s first assessment in December 2009 and the second assessment in June 2013. In June 2013 she assessed him as having the following tolerances:
·walking 1.5km;
·static standing 30 minutes;
·driving up to an hour in a manual vehicle;
·sitting varies from a few minutes to four to five hours;
·dynamic standing 30 minutes.
These are subjective assessments. Dr Horsley did not carry out a functional capacity assessment.
Dr Horsley expressed the opinion that the post-traumatic stress disorder and alcohol dependence are “major barriers” to Mr Willis’ returning to work although she deferred to the opinion of psychiatrists as to their impact. The development of peripheral neuropathy has resulted in balance issues which would impact on Mr Willis' capacity to work “in an environment that involved working at heights, climbing up and down ladders or any areas where balance was an issue.”[8] It has a significant impact on his ability to undertake manual work.
[8] Exhibit AA7 p.7.
When asked as to the limitations upon Mr Willis' employability based on the condition of his neck and right shoulder, Dr Horsley stated that he should limit lifting to 15kg and avoid above-shoulder activity and repetitive lifting. His lumbar spine condition also excludes heavy lifting.
Dr Horsley’s opinion is that Mr Willis is totally and permanently disabled by reason of his accepted conditions; his neck, shoulder and back conditions do not prevent his working although they may restrict the type of work he could undertake.
Dr Hayes, General Practitioner
Dr Hayes has been Mr Willis' general practitioner since 2006. He provided a report dated 16 October 2013 [9] and gave evidence.
[9] Exhibit RR6.
Dr Hayes is of the opinion that since Mr Willis ceased working part-time on the farm on which he now lives, he has been unable to work in any capacity as a result of his post-traumatic stress disorder. He agrees Mr Willis' lumbar spine condition would limit his ability to work – he could not do heavy duties, but he could do part-time light duties for 14-15 hours per week.
When Mr Willis consulted Dr Hayes he did not often complain of pain in his shoulder. Dr Hayes prescribed medication for pain in his lower back and legs.
Reports of Dr Holwill, Consultant Psychiatrist
Dr Holwill assessed Mr Willis in December 2009 and in June 2013 at the request of Mr Willis' solicitors for the purpose of these proceedings. He provided reports dated 16 December 2009 and 18 June 2013.[10]
[10] Exhibit AA10 and AA11 respectively.
Dr Holwill reported that in June 2013 Mr Willis suffered the following:
·agitation;
·hesitant speech;
·marked tremor;
·embarrassment arising from his failure to attend to questions and the need that they be repeated;
·moderate obesity;
·pain in the feet, aggravated by activity;
·disturbed sleep; despite taking medication he rarely achieves more than two hours sleep at a time;
·pronounced initial, middle and late insomnia;
·intermittent nightmares of his service in South Vietnam;
·impaired concentration;
·difficulty in reading by reason of impaired concentration;
·difficulty in driving by reason of impaired concentration;
·moderately lowered energy levels;
·moderately lowered interest level;
·persistently lowered mood;
·persisting moderately severe anxiety the symptoms of which are subjective tension, tremor, epigastric churning and poor concentration;
·persisting sense of foreboding or impending doom;
·hypervigilance and prominent startle response which has worsened since the first assessment;
·experiencing intrusive thoughts of his service in South Vietnam which occurs most days.
Dr Holwill expressed the following opinion in his report of 18 June 2013;
Mr Willis continues to present with a history of developing a moderately severe now chronic Post-Traumatic Stress Disorder with associated mild to moderate depression and moderately severe anxiety. He also presents with moderately severe substance abuse (alcohol).
…
Mr Willis is totally incapacitated for any form of work for which he might be reasonably suited by virtue of his age, education, training and background. He is incapable of working eight hours or more per week in any capacity.
… I would consider that the Post-Traumatic Stress Disorder was the most significant contributor to his incapacity, followed by the development of peripheral neuropathy. Those two conditions alone would render him totally incapacitated for any form of employment.
Report of Dr Strauss, Occupational Psychiatrist
Dr Strauss assessed Mr Willis in December 2009 at the request of the Department of Veterans’ Affairs. He provided a report dated 23 December 2009.[11]
[11] Exhibit RR7.
In the opinion of Dr Strauss, Mr Willis had partial incapacity for work on psychiatric grounds. He reported that “[h]e could not work for more than about ten or twelve hours a week in my opinion and he certainly could not work in a factory. He can only do agricultural work in a relatively isolated environment.”[12] Both Mr Willis' post-traumatic stress disorder and alcohol dependence had an adverse effect upon his ability to undertake remunerative work.
[12] Exhibit RR7, p.6.
Dr Strauss noted that Mr Willis had ceased work some years previously because of his shoulder injury but that his difficulty at work had been psychiatrically based. In his opinion if Mr Willis worked full-time he would experience interpersonal relationship problems and would become more anxious and tense; he would not have been able to cope.
Report of Dr Haynes, Consultant Occupational Physician
Dr Haynes assessed Mr Willis in June 2013 at the request of the Commission for the purposes of these proceedings. He provided a report dated 4 July 2013.[13]
[13] Exhibit RR8.
Dr Hayes was not able to assess Mr Willis' psychological condition other than to say that it was likely that it did impact significantly on his capacity to find and retain employment. He also expressed the opinion that his age and time out of the workforce is likely to impact significantly on his capacity to find and retain employment.
In the opinion of Dr Hayes, Mr Willis would have the physical capacity to perform part-time light process work and part-time work as a handy man. He stated further that “Mr Willis would have difficulty working as a labourer because of restrictions in regard to heavy lifting and forceful pulling and pushing and also in regard to prolonged standing and walking.”[14] Dr Hayes attributed the difficulty with lifting, pulling and pushing to Mr Willis' lower back condition.
[14] Exhibit RR8 p.9.
Report of Associate Professor Chambers, Consultant Neurologist
Professor Chambers assessed Mr Willis in June 2013 at the request of the Commission for the purpose of these proceedings. He provided a report dated 19 July 2013[15].
[15] Exhibit RR9.
As part of the assessment Professor Chambers arranged for Mr Willis to undergo nerve conduction studies. The results indicated a severe sensorimotor large fibre axonal peripheral neuropathy. Symptoms and clinical signs of this condition exhibited by Mr Willis are:
·gradual worsening pain in the feet at night;
·numbness and “pins and needles” in the feet;
·impairment of balance;
·stumbling when getting up at night;
·pattern of sensory loss bilaterally up to just below the knees;
·unsteadiness when walking heel-to-toe.
In the opinion of Professor Chambers the peripheral neuropathy does not impact significantly on standing and walking tolerances as the symptoms mainly trouble Mr Willis at night. In his view it does not impact significantly on his capacity to undertake remunerative work.
Report of Mr Rehfisch, Orthopaedic Surgeon
On 19 October 2005 Mr Rehfisch reported that in about August 2005 Mr Willis developed “a sudden onset of soreness and felt a ripping sensation in his right shoulder.”[16] The history taken indicated that Mr Willis was hammering a stake at the time. On examination Mr Willis had a good range of movement in the shoulder and some aching and soreness. An ultrasound suggested a supraspinatus tear. Mr Rehfisch was hopeful that other than physiotherapy and exercises, no further treatment would be required.
[16] Exhibit RR2, p.118.
Clinical notes and report of Dr White, General Practitioner
These notes indicate that in May 1999 Mr Willis consulted Dr White complaining of pain in his lower back, spreading to his hips.[17] On examination Mr Willis showed a “good range of movement” in his lower back.
[17] Exhibit RR3.
In a Work Ability Report completed in 1999, Dr White reported that Mr Willis suffered from “chronic pain in the neck and lower back.”[18]
[18] Exhibit RR1, T4.
Records relating to pain relief medication
Dr White’s clinical notes record that on 19 May 1999 Mr Willis was prescribed panadeine forte. The clinical notes of Dr McConville[19], Mr Willis’s general practitioner in late 2003 and in 2004, indicate that he was prescribed panadeine forte and celebrex during those years. It is not in dispute that these medications are an analgesic and anti‑inflammatory respectively.
[19] Exhibit R4.
The clinical notes from the Cunninghame Arm Medical Centre[20] show that Mr Willis was prescribed panadeine forte, celebrex and other analgesics between September 2004 and July 2012. The records indicate that whilst the prescriptions continued throughout this period, they were less frequent during 2009 – 2012 than previously.
[20] Exhibit RR2, ST1.
issues for determination
The Commission concedes that Mr Willis meets the requirements of subparagraphs (aa), (aab), (a) and (b) of subsection 24(1) of the Act. In brief these requirements are that:
·he is a veteran who has made a claim for an increase in the rate of a pension;
·he is under the age of 65 years;
·his degree of incapacity from war-caused injuries and diseases is at least seventy per cent;
·he is totally and permanently incapacitated.
I am satisfied on the facts before me that these are proper concessions.
In light of the Commission’s concession, the issues remaining for determination all arise in applying subparagraph 24(1)(c) as informed by the application of subsection 24(2). They are set out below.
(1)What was the “remunerative work” that Mr Willis was undertaking?
(2)Is Mr Willis prevented from continuing to undertake that work by reason of incapacity from his war-caused diseases (or any of them) alone?
(3)If so, is he suffering, by reason of that prevention, a loss of salary, wages or earnings on his own account?
(4)If so, would Mr Willis be suffering that loss if he were free of the incapacity?
consideration
Issue 1: What was the “remunerative work” that Mr Willis was undertaking?
In identifying the work which was being undertaken, it is the type of work which is relevant, not Mr Willis' last job.[21]
[21] Repatriation Commission v Butcher [2007] FCAFC 36, [13].
On the basis of the evidence of Mr Willis I am satisfied that he was undertaking the following remunerative work:
·as a labourer and/or foreman in vineyards and orchards engaged in tasks such as pruning, planting and harvesting;
·as a process worker in a factory;
·as a handyman doing light maintenance work and gardening;
·as a farm labourer engaged in tasks such as caring for livestock, working on crops and driving farm vehicles.
The parties agree that these are the types of remunerative work relevant to Mr Willis’ application.
Issue 2: Is Mr Willis prevented from undertaking this remunerative work by reason of his incapacity from his war-caused diseases (or any of them) alone?
In considering this question it is necessary to look at each type of remunerative work undertaken by Mr Willis.[22]
[22] Willis v Repatriation Commission [2012] FCA 399.
Dr Holwill, Consultant Psychiatrist, who assessed Mr Willis in both 2009 and 2013, is of the opinion that he is totally incapacitated for work and that his condition has worsened since 2009. In his view the conditions of post-traumatic stress disorder and peripheral neuropathy alone render him incapable of any form of employment.
Dr Horsley, Occupational Physician, is also of the view that Mr Willis is totally incapacitated for work of any kind. While Dr Horsley deferred to the views of psychiatrists, she regarded post-traumatic stress disorder and alcohol dependence as “major barriers” to Mr Willis returning to work.
Mr Willis' general practitioner, Dr Hayes, also is of the opinion that Mr Willis is unable to work in any capacity as a result of his post-traumatic stress disorder.
These views are consistent with the evidence of Mr Willis as to the reasons he ceased working on Mr Cunningham’s farm.
In considering the effect of Mr Willis’ neck, shoulder and back conditions, Dr Horsley said that they would restrict the type of work which Mr Willis could undertake as a lifting restriction would be appropriate. Dr Hayes agreed with the lifting restrictions and was of the opinion that Mr Willis could do part-time light duties for 14-15 hours per week. Dr Haynes was of the view that Mr Willis' physical injuries would not prevent his doing part-time light process work and as a part-time handyman. This is consistent with Mr Willis’ evidence that he has been able to manage pain in his shoulders and back with medication.
Dr Strauss, Occupational Psychiatrist, expressed a contrary view as to the effect of Mr Willis' psychological injuries. In his opinion Mr Willis' psychiatric condition would not prevent his working for 10-12 hours per week. Suitable work would be agricultural work in a relatively isolated environment. Importantly, Dr Strauss was of the view that by reason of his psychiatric condition, Mr Willis could not work in a factory.
I prefer the views of Dr Holwill, Dr Horsley and Dr Hayes to that of Dr Strauss. Dr Strauss has not assessed Mr Willis since 2009. In addition Dr Holwill and Dr Horsley have assessed Mr Willis' position in their particular specialities – Psychiatrist and Occupational Physician. As his general practitioner, Dr Hayes has had the benefit of observing Mr Willis' condition over several years.
Further Mr Cunningham provided lay evidence in support of the view I have accepted. Mr Cunningham said that initially Mr Willis was able to do useful work on his farm but ceased to do so in about 2011 because he was unreliable, which Mr Cunningham attributed to his mental state and his excessive alcohol consumption. Had Mr Willis been reliable and not dependent on alcohol, Mr Cunningham would have employed, and continued to employ, Mr Willis as a full-time farm worker. Mr Cunningham also gave evidence that similar work would have been available to Mr Willis in the district.
I am satisfied that Mr Willis’ post-traumatic stress disorder, alcohol dependence and peripheral neuropathy alone prevented his continuing to work as a farm labourer. I have taken into account that, apart from his psychological conditions, Mr Willis was unable to continue farm work by reason of the pain in his feet caused by peripheral neuropathy.
In relation to the work as a handyman I accept the evidence of Mr Lindsay that during the two-year period when he had regular contact with Mr Willis, he did not observe any physical impairment which appeared to prevent his working. His inability to maintain regular employment appeared to Mr Lindsay to arise from his unreliability, problems with alcohol and his inability to organise his work. On the basis of the medical evidence to which I have referred I am satisfied that these problems arose from his post-traumatic stress disorder and alcohol dependence.
Counsel for the Commission argued that the pattern of the prescription of analgesic and anti-inflammatory medication was evidence upon which I could be satisfied that when Mr Willis was working on Mr Cunningham’s farm his physical injuries did have an impact on his ability to work. I am satisfied that these physical injuries have caused, and continue to cause, Mr Willis to suffer some pain. However I am satisfied that these injuries have not prevented Mr Willis working at any time during the assessment period. I have accepted the medical evidence that the physical injuries would impose some limitations on Mr Willis' ability to work but would not have prevented his working. Further I have taken into account that Mr Willis has suffered from his back condition since 1999 and from his shoulder injury since 2005. He has been able to engage in some farm work since suffering those injuries.
As Counsel for the Commission correctly pointed out, Mr Willis ceased working in vineyards and orchards by reason, in part at least, of increasing mechanisation of the industry and his disapproval of the methods of agriculture being adopted. He ceased working in the factory by reason of the lack of an available position on his return to work after he injured his shoulder in 1998.
I am satisfied that, at least since 2011, when Mr Willis was diagnosed as suffering peripheral neuropathy, this condition, post-traumatic stress disorder and alcohol dependence alone have prevented his continuing to undertake any of the remunerative work that he has undertaken previously. Although at the times he last ceased working in vineyards and in a factory there were reasons for this which were not a result of his war-caused injuries, I am satisfied that since 2011 he has been prevented from seeking such work by reasons of those injuries alone.
Issue 3: Is Mr Willis suffering, by reason of his being prevented from undertaking remunerative work, a loss of salary, wages or earnings on his own account?
I accept the evidence of Mr Willis that he earned wages as a worker in vineyards and in factories. I am satisfied also that he earned an income on his own account when working as a handyman and as a farm worker. Although he worked in part on a barter system on the farm, he received some cash payments and some benefits in kind by way of food and livestock. He was able to convert the latter to cash.
On the basis of Mr Willis’ evidence, I am satisfied that he has lost all of these sources of income and earnings.
Application of subsection 24(2)
In deciding this issue it is necessary to consider the provisions of subsection 24(2) which is reproduced at page 5 of these reasons.
In Smith v Repatriation Commission[23] Buchanan J said:
48… Section 24(2)(a) supplements the requirements of s24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s24(2)(a)(ii))… The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
49Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity...
[23] [2014] FCAFC 53.
On the basis of the evidence of Mr Willis, Mr Cunningham and the medical experts, I am satisfied that Mr Willis did not cease to engage in the remunerative work of a farmhand for any reason or reasons other than his war-caused diseases alone. However I have found that Mr Willis did cease some forms of remunerative work (i.e. factory work and work in vineyards and in orchards) for reasons other than incapacity from his war-caused diseases. On this basis it appears that in accordance with subparagraph 24(2)(a)(i), Mr Willis is not to be taken to be suffering a loss of salary or wages by reason of his incapacity. It follows that he would not satisfy the requirements of subsection 24(1)(c).
It is necessary therefore to turn to the provisions of paragraph 24(2)(b) which Buchanan J. described as providing relief from the potentially harsh consequences of paragraph 24(2)(a).
Mr Willis is a veteran who has not attained the age of 65 years. Although he has been engaged in remunerative work in the past the paragraph is applicable. It is not to be interpreted as applying only to a veteran who has never engaged in such work.
In Smith v Repatriation Commission Buchanan J. referred to this situation:
… there may be circumstances … where a veteran will be entitled, notwithstanding earlier cessation of remunerative work (whatever the reason), to point to genuine efforts to re-engage in remunerative work. Such an approach does not subvert the operation of s 24(1)(c). It merely provides an alternative, and intended, method of satisfying s 24(1)(c).[24] [Emphasis added].
Later His Honour said:
Ceasing to work at a particular time for reasons other than war-caused injury or disease, including for reasons which might be entirely beyond the control of a veteran (such as redundancy for example), is not a permanently disentitling circumstance.[25]
[24] At paragraph 51.
[25] At paragraph 70.
On the basis of the evidence of Mr Willis and of Mr Cunningham I am satisfied that Mr Willis has genuinely sought to engage in remunerative work on Mr Cunningham’s farm. I am satisfied further that the incapacity arising from his war-caused diseases is the substantial cause of his inability to obtain such work or work on other farms in the district. In this regard Mr Cunningham gave evidence that he would have employed Mr Willis on the farm, but for his unreliability. Mr Willis said that the pain in his feet also contributed to his ceasing farm work. I accept this evidence. Both Mr Willis’ unreliability and the pain in his feet were contributed to by his war-caused injuries.
For these reasons I find that Mr Willis is to be treated as having been prevented by reason of his incapacity from war-caused diseases from continuing to undertake remunerative work that he was undertaking. On this basis he meets the requirements of paragraph 24(1)(c).
Subparagraphs (i) and (ii) of paragraph 24(2)(a) are disjunctive and therefore must be considered separately. As already determined, I am satisfied that Mr Willis is not incapacitated, or prevented, from engaging in any of the types of remunerative work in which he has been engaged, for any reason or reasons other than his war-caused diseases. On this basis, subparagraph 24(2)(a)(ii) does not disentitle him to receive a special rate of pension and he does not need to rely upon subsection 24(2)(b) in this regard. In reaching this conclusion I have noted that this subparagraph refers to the situation when the veteran is incapacitated from engaging in remunerative work. The situation to be considered is that of Mr Willis at the time of this decision.
Issue 4: Would Mr Willis be suffering the financial loss if he was free of the war-caused incapacity?
For the reasons already stated, I am satisfied that without the incapacity caused by post‑traumatic stress disorder, alcohol dependence and peripheral neuropathy Mr Willis could be employed as a farmhand. On this basis I am satisfied that he would not be suffering the financial loss referred to.
conclusion
For the reasons given I have decided that Mr Willis is entitled to a special rate of pension in accordance with section 24 of the Act. In these circumstances it is not necessary to consider his entitlement to an intermediate rate under section 23.[26]
[26] Smith v Repatriation Commission (supra) at para.73.
The decision of the Veterans’ Review Board made 15 April 2009 will be set aside.
In substitution for the decision set aside it will be decided that the decision of the Repatriation Commission made 12 September 2007 is set aside and that Mr Willis is entitled to payment of a pension at the special rate in accordance with section 24 of the Veterans’ Entitlements Act 1986 (Cth).
I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ........................[sgd]................................................
Associate
Dated 27 May 2014
Date(s) of hearing 21 November 2013; 3 & 4 December 2013 Counsel for the Applicant Mr C Thomson Solicitors for the Applicant Mr P J Liefman Counsel for the Respondent Ms C Dowsett Solicitors for the Respondent Australian Government Solicitor
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