Quazer and Repatriation Commission (Veterans' entitlements)
[2019] AATA 712
•17 April 2019
Quazer and Repatriation Commission (Veterans' entitlements) [2019] AATA 712 (17 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2017/2880
VETERANS' APPEALS DIVISION )
Re: Robert Quazer
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM
TRIBUNAL: Member Mr A. Maryniak, QC
DATE: 23 May 2019
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.At page one and paragraphs [92] and [94], the date of effect as 24 November 2014 be deleted and replaced with the date 24 August 2014.
........................[sgd]...........................................
Member
Division:VETERANS' APPEALS DIVISION
File Number: 2017/2880
Re:Robert Quazer
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:17 April 2019
Place:Melbourne
The Tribunal sets aside part of the decision under review and substitutes a decision that the Applicant’s disability pension ought to be increased to the special rate with effect from
24 November 2014...............[sgd]..........................................................
Mr A. Maryniak QC, Member
Catchwords
VETERANS’ AFFAIRS – application for increase to special rate of pension from general rate of pension – Applicant aged under 65 at time of application – Applicant’s general rate of pension assessed at 100 per cent – Applicant’s incapacity from war-caused injuries or diseases renders him incapable of working more than eight hours per week – whether alone test at s 24(1)(c) is satisfied – decision under review set aside and substituted
Legislation
Veterans' Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission (1986) ALR 395; (1986) 6 AAR 113
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Peacock v Repatriation Commission [2004] FCA 1449; 40 AAR 143
Repatriation Commission v Alexander (2003) 75 ALD 329
Re MacRae and Repatriation Commission (1990) 21 ALD 612
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation v Van Heteren (2003) 37 AAR 533
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Repatriation Commission v Smith (1987) 15 FCR 327
Richmond v Repatriation Commission [2014] FCA 272; (2014) 140 ALD 380Smith v Repatriation Commission [2014] FCAFC 53; (2014) 220 FCR 452
Starcevich v Repatriation Commission (1987) 18 FCR 221Secondary Materials
Hansard HR Debates Vol 163, 20 October 1988
REASONS FOR DECISION
Mr A. Maryniak QC, Member
17 April 2019
INTRODUCTION
The Applicant seeks review of part of a decision of the Repatriation Commission dated
17 June 2015, affirmed by the Veterans’ Review Board on 3 April 2017. It resulted in a refusal to increase the Applicant’s disability pension beyond 100 per cent of the general rate under s 22 of the Veterans’ Entitlements Act 1986 (the Act).
On 24 November 2014 the Applicant made a claim under s 14 of the Act for pension for lumbar spondylosis, cervical spondylosis, post-traumatic stress disorder (PTSD), depressive disorder and alcohol use disorder in remission. The assessment period commenced on that date. The primary decision maker accepted that the Applicant had PTSD, depressive disorder, alcohol use disorder and the previously war caused disorders of sensorineural hearing loss, tinnitus and lumbar spondylosis.
The Act provides a regime for the payment of pensions to veterans.[1]
[1] Repatriation Commission v Alexander (2003) 75 ALD 32 at [9] to [10].
The Tribunal is to assess whether the Applicant is entitled to an increase of his pension to the special rate, pursuant to s 24 of the Act for the period from 24 November 2014 to the date of this decision.
BACKGROUND
The Applicant provided the following background which essentially was not disputed by the Respondent.
The primary decision maker accepted that the Applicant had:[2]
(a)PTSD;
(b)depressive disorder;
(c)alcohol use disorder; and
(d)previously war-caused disorders of:
(i)sensorineural hearing loss;
(ii)tinnitus; and
(iii)lumbar spondylosis.
[2] Veterans’ Review Board Decision, T193.
These were accepted as war-caused conditions at 100 per cent of the general rate.
The Applicant’s conditions that have not been accepted are:
(a)cervical spondylosis;
(b)right and left hernias;
(c)prostate disease; and
(d)osteoarthritis of the hips.
The Applicant was born Robert Charles Woulfe on 16 April 1953. He enlisted in the Royal Australian Navy on 30 May 1970 and was discharged on 29 June 1978 at the rank of Leading Seaman.[3] The Applicant completed schooling to year 11 and has no academic qualifications.
[3] Navy Extract of Service, T65.
MATERIAL BEFORE THE TRIBUNAL
In addition to the Applicant, the following witnesses gave oral evidence at the hearing, and were cross-examined and questioned by the Tribunal:
(a)Britta Freymann (Applicant’s partner);
(b)Bruno de Martin (Applicant’s former employer);
(c)Leonie Ivory (former employee of the Applicant); and
(d)Dr Robyn Horsley (occupational physician retained by the Respondent).
Documentary evidence was also accepted from all the above witnesses (save for Bruno de Martin) and from Dr Sonja Uecker (the Applicant’s treating general practitioner) and Dr Tony Balkin (the Applicant’s treating psychiatrist) together with other documentary evidence including the T documents (exhibits A1 to A7 and R1 to R7).
THE LAW
In Repatriation Commission v Alexander (2003) 75 ALD 329 (Alexander) Spender J (at [9]-[10]) set out a summary of the legislative scheme for veterans’ pensions as follows:
“[9]The regime for the payment of pensions to veterans provided for by the Act is as follows:
· the Commonwealth is liable to pay a pension where a veteran has become incapacitated from war-caused injury or war-caused disease
(s 13);· a veteran may make a claim for a pension (s 14);
· a veteran who is in receipt of a pension may make an application for an increase in the rate of pension (s 15);
· the Repatriation Commission is required to consider and determine the claim or application of a veteran (s 18);
· the Repatriation Commission is required to consider the rate or rates at which a pension would have been payable during the assessment period, and also the rate at which the pension is payable (s 19(5C));
· The assessment period commences on the day on which a claim or application is received, and ends on the day when the claim or application is determined (s 19(9)).
[10] A pension under the Act may be paid at the general rate (s 22), the intermediate rate (s 23), or the special rate (s 24).”
This Application is to be dealt with in accordance with ss 19(5A)-(5D) of the Act. The effect of these provisions requires the Tribunal to assess whether the Applicant is entitled to an increase to the special rate of pension pursuant to s 24.
Section 24 of the Act sets out the 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
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; 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; and
(d)section 25 does not apply to the veteran.
(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.
…
(2B)For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war‑caused injury or war‑caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3)This section also applies to a veteran who has been blinded in both eyes as a result of war caused injury or war caused disease, or both.
(4)Subject to subsections (5), (5A) and (6), the rate at which pension is payable to a veteran to whom this section applies is $919.40 per fortnight.
(5)Subject to subsections (5A) and (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
(5A)If:
(a)section 115D applies to a veteran because of subsection 115D(1A); and
(b)the veteran is engaged in remunerative work of more than 8 hours, but less than 20 hours, per week as a result of undertaking a vocational rehabilitation program under the Veterans’ Vocational Rehabilitation Scheme; then, subject to subsection (6) of this section, the rate at which pension is payable to the veteran is the higher of the following amounts:
(c)the amount worked out under subsection (5) of this section;
(d)the amount under subsection 23(4).
(6)If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4), (5) or (5A) of this section, reduced in accordance with section 25A.”
The parties contend, and the Tribunal agrees, that the Applicant satisfies s 24(1)(aa) and (aab)(a) of the Act.
The Applicant’s general rate of pension is assessed at 100 per cent and therefore he meets s 24(1)(a) of the Act.
The Applicant was born on 16 April 1953. He was less than 65 years at the time of the application and therefore s 24(2A) of the Act is not applicable.
The parties contend, and the Tribunal agrees, that the Applicant satisfies s 24(1)(b) of the Act, as his incapacity from war-caused diseases, PTSD, depressive disorder and lumbar spondylosis renders him incapable of undertaking remunerative work for more than eight hours per week.
The ‘Alone’ Test – s 24(1)(c)
The Applicant submits that the consensus of the medical evidence is that the Applicant is not capable of undertaking work for more than eight hours per week due to his war-caused injuries alone and therefore he satisfies the criteria in s 24(1)(c) of the Act.
When looking at s 24 of the Act, a common sense approach with an eye to reality must be taken.[4]
[4] Cavell v Repatriation Commission (1988) 9 AAR 534.
The assessment period to be examined is from the date of the application, being
24 November 2014, to the date of this Tribunal’s decision.[5] By reason of s 19(9) of the Act, eligibility for the earnings-related rates of pension (intermediate or special) must be assessed throughout the assessment period – not on the date when the Applicant gave up remuneration work. [6][5] Smith v Repatriation Commission [2014] FCAFC 53; (2014) 220 FCR 452; Richmond v Repatriation Commission (2014) 140 ALD 380 (per Dodds-Streeton J).
[6] Banovich v Repatriation Commission (1986); Re MacRae and Repatriation Commission (1990) 21 ALD 612; Repatriation Commission v Braund (1991) 23 ALD 591 see Hansard HR Debates Vol 163, 20 October 1988 at 2036.
In Flentjar v Repatriation Commission (1997) 48 ALD 1 (Flentjar), the Full Court held that the relevant questions to be asked in applying the criteria in s 24(1)(c) of the Act were:
“(1)What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(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?”
(emphasis added)
Remunerative work refers to the work undertaken by the veteran before he or she was prevented from continuing to undertake that work.[7] This does not refer to a job or employer in particular. The work is not merely the job last undertaken; rather it signifies the type of work.[8] On the evidence in this matter, the Applicant’s work could essentially be said to be that of nursery-man, catering and kitchenhand work.
[7] Repatriation v Van Heteren (2003) 37 AAR 533 (per Finn J).
[8] Starcevich v Repatriation Commission (1987) 18 FCR 221, 225.
The Applicant ceased working at his nursery when it was foreclosed in 2010.[9] The Applicant also worked in catering and as a kitchen-hand from 2010-2011 with Bruno De Martin.[10] The Applicant submits that it was his war-caused psychiatric illness that was the factor that prevented him from undertaking work, and that it was the only factor that did so. On the evidence, the preferred view is that this submission of the Applicant is correct, as from 2011.
[9] Employment Report, Self Employed, T217.
[10] Translated statement of Mr De Martin, T34-35.
Justice Buchanan explained s 24(1)(c) of the Act in Smith v Repatriation Commission [2014] FCAFC 53; (2014) 220 FCR 452 (Smith) at [47]-[48] where his Honour said:
“Section 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. The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason.”
The Full Court of the Federal Court explained in Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21 at [21]-[22] that:
Section 24(1)(c) has two main limbs, which may be informed by ss 24(2)(a) and (b). The first limb of the section is:
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 ...
The operation of this limb may be ameliorated to an extent by the operation of s 24(2)(b).
The second limb is:
the veteran ... 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.
In Richmond v Repatriation Commission [2014] FCA 272; 140 ALD 380, Dodds-Streeton J described this test at [108] and [109]:
“The authorities in my view establish that if there is a non war caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied. However, a factor which prevents or contributes to preventing the veteran from continuing to undertake the remunerative work, but is itself the consequence of the veteran’s war‑caused condition, will not constitute an independent preventative factor for purposes of defeating the “alone” requirement in s 24(1)(c).”
A factor which prevents or contributes to the veteran being unable to undertake the remunerative work that is a consequence of the war-caused condition will not constitute an independent preventative factor to defeat the “alone” requirements in s 24(1)(c) of the Act.[11] The hypothetical question posed by s 24(1)(c) (as to the veteran’s probable situation if he did not suffer the war-caused incapacities) is not limited to the fourth Flentjar question or the second limb of s 24(1)(c) but may also be relevant to the third question. This will be clearly so where factors such as a lengthy period out of the workforce prior to the assessment period could prevent the veteran from working during the assessment period.[12]
[11] Peacock v Repatriation Commission [2004] FCA 1449; 40 AAR 143 (note that Peacock was appealed though these findings were not the subject of the appeal).
[12] Ibid.
Section 28 of the Act directs the decision maker to have regard to certain matters set out within it, including the vocation, trade, professional skills and qualifications of the veteran, the kinds of remunerative work that a person with those skills might reasonably undertake and the degree to which the impairment of the veteran, as a result of the injury or disease or both, has reduced his or her capacity to undertake those kinds of work.
Section 120(4) of the Act requires that a veteran’s entitlement to an increased rate of pension be decided to the Respondent’s, and hence the Tribunal’s, “reasonable satisfaction”, which involves a civil standard of proof (Repatriation Commission v Smith(1987) 15 FCR 327 (Smith)). No onus of proof is imposed on the Applicant or the Respondent (see s 120(6) of the Act).
A reference to the incapacity of a veteran from a war-caused injury or a war-caused disease, in s 24(1)(c), refers to the effects of that injury or disease, not the injury or disease itself.[13]
CONSIDERATION
[13] Section 5D(2) of the Act.
Psychiatric injury
The Applicant submits that the Flentjar questions should be answered as follows:
“(1) Nursery man, and catering/kitchen hand.
(2)Yes. The Applicant by reason of his war caused psychiatric injury is prevented from continuing to undertake that work.
(3)Yes. The Applicant's psychiatric injury was the only factor preventing the veteran from continuing to undertake that work.
(4)Yes. The Applicant is by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages and earnings that he would not be suffering if he were free of that incapacity.”
Dr Tony Balkin, the Applicant's treating psychiatrist, provided a report of 16 February 2015. Dr Balkin found that the Applicant suffered from PTSD and alcohol abuse disorder. Dr Balkin's opinion was that the symptoms were so bad as to stop the Applicant from engaging in remunerative work.[14] His symptoms were, anxiety, depression, irritability, low frustration tolerance, sensitivity to stress, concentration, impairment, low interest, detachment and difficulties interacting with other people.[15] Dr Duke's report confirms that diagnosis. Dr Duke considered that the Applicant had no capacity for work for 8 or 20 hours per week.[16]
[14] Report of Dr Balkin dated 16 February 2015, T152.
[15] Report of Dr Balkin dated 16 February 2015, T152.
[16] R3, Report of Dr Duke dated 27 December 2017, 8.
Dr Horsley found that the primary disability impacting upon the Applicant's ability to work was his psychiatric status,[17] which was diagnosed in August 2014, under the care of Dr Balkin, the Applicant’s psychiatrist.
[17] R2, Report of Dr Horsley dated 11 December 2017, 13.
There were no independent preventative factors
Evidence was given in the proceeding about the Applicant’s personal bankruptcy and the foreclosure of the nursery business.
The Applicant submitted that the circumstances leading directly to his lack of employment by the closure of the nursery directly arose out of the symptoms which he was suffering for his war-caused psychiatric illnesses, and consequently that this was not an independent preventative factor within the meaning of s 24(1)(c) of the Act.
The Applicant stated that he was always able to cope with the physical demands of the nursery.[18]
[18] A1, Statement of Robert Quazer dated 8 May 2017, 3.
There was evidence about three different sets of legal proceedings in the lead-up to the foreclosure of the nursery business.
The Applicant described how he and his partner, Ms Britta Freymann, witnessed a car accident involving one vehicle. Ms Freymann confirmed the account saying that an older man who looked unwell drove into some side railing. They got out to help. They gave the driver Cutler their phone number.
In oral evidence, the Applicant explained he was phoned by RACQ, Cutler’s insurance company, in relation to a subsequent claim being made against him by Cutler. The Applicant yelled at the caller. The Applicant had no further involvement in the proceeding.
The Applicant was visited by a person who bought the debt which was the result of the car accident proceeding the Applicant had previously chosen to ignore after receiving the RACQ call. The Applicant chased them off the property. The Applicant's oral evidence was that he was not opening his mail at the time, and that he did not deal with the issue. He was behaving erratically and irrationally. He was very angry about the claim. He seemed to shut down at the time and go into a ‘form of denial’.
Evidence of letters opened a long time after, in the Applicant's Bundle of Documents, show that the Applicant did not defend the claim against him and that as a result of the debt was eventually made bankrupt.
The Applicant was comprehensively insured.[19] However, he didn't act on that insurance, because of his psychiatric injury.
[19] A7, Applicant's bundle of documents, letter of insurance cancellation which covered the 2008 period dated 26 November 2008.
The Applicant's evidence was that he became aware of the fact of his bankruptcy when he became involved in the Queensland Supreme Court proceedings.
Ms Leonie Ivory, a former employee of the Applicant, in her statement and under cross-examination described how the Applicant acted as a boss of the nursery. She described the Anstead (or Eden as it was known) business as successful. She described that the Applicant's behaviour had become neglectful of the business, and would avoid staff and be difficult to deal with. Ms Ivory described the Applicant's behaviour as worsening towards the closure of the nursery.
The documents produced from the Queensland Courts show how the nursery came to be foreclosed. These include:
(a)summary judgment against the Applicant and Ms Kat Quazer (now Gotke) on 7 April 2010 for the recovery of possession of land on 7 April 2010 by proceedings instituted by Permanent Custodians Limited;
(b)judgment against the Applicant, Ms Quazer and the Family Trust in the amount of $854,370.72 plus costs and orders issued for recovery of real property on 9 December 2009 in proceedings instituted by Secure Funding Pty Ltd (formerly Liberty Funding Pty Ltd);
(c)an appeal by the Defendants (including the Applicant in this matter) in the Secure Funding Pty Ltd proceeding which was dismissed by the Queensland Court of Appeal on 2 August 2010; and
(d)default judgment against the Applicant and Ms Quazer in the District Court of Queensland on 12 November 2010 for recovery of a motor vehicle plus damages to be assessed.
The Applicant's oral evidence was that he stopped repaying the loans because he sought to find out who the owner of the debts was. When he wasn't told who owned the debt, he stopped making repayments. Prior to this point the payments had always been made on time. The nursery was in good financial health. Ms Ivory described it as a successful business.
The Applicant had an offer to sell the Moggill Road (also Wybellina Road) property for $850,000.00 which was under contract.[20] There was a caveat on the property that prevented the sale.
[20] A7, Applicant's bundle of documents, contract of sale for the Moggill Road Property dated 2 May 2018.
The Applicant was represented by a person (who appeared to have previously been a lawyer, but was not now a lawyer) that he paid to assist him. The Applicant described his behaviour at the time as erratic and paranoid. He said he could have just paid the debts. But instead he went through the process of attempting to challenge them. The Applicant took a very irrational approach to the abovementioned matters during the relevant period, essentially caused by his psychiatric condition.
As he was a bankrupt, he was prevented from participating in the proceedings.
Dr Balkin, the Applicant’s treating psychiatrist, stated in 2014 that the Applicant had suffered significant financial loss over the five years prior and that this may be attributed to his health difficulties.[21]
[21] A6, letter from Dr Balkin to Dr Arvind dated 1 July 2014, 31.
The Applicant submits that the bankruptcy and the foreclosure of the nursery were both related to his psychiatric injury, and on that basis they cannot be said to have been independent of it. On balance, when analysing all the evidence, including relevant cross-examination, the Tribunal agrees.
Physical conditions
On balance, there was no substantive and persuasive evidence to suggest that any of the Applicant's physical conditions prevented him from working at the nursery. The evidence before the Tribunal can be summarised as follows:
(a)the Applicant had some mild discomfort in his lower back;
(b)the Applicant has some mild shoulder and neck pain;
(c)the Applicant considered these symptoms associated with his mental state;
(d)Ms Ivory was not aware of the Applicant suffering any physical conditions whilst they were working together up until 2010; and
(e)the Applicant's prostate condition, which was first diagnosed in 2006, did not affect his ability to work at the nurseries.
The Tribunal finds that the cause of the failure of the nursery business was directly related to the symptoms of the Applicant’s war-caused psychiatric injury as evidenced by:
(a)the Applicant's incapacity to deal with the Cutler incident, and his erratic and irrational reaction to that proceeding lead to him becoming bankrupt;
(b)the Applicant's erratic behaviour generally, as set out in the evidence in this matter; and
(c)the fact that the Applicant’s psychiatric injury overwhelmed his ability to essentially relate to the real world.
Hip condition
The Applicant’s hip condition is the only condition that Dr Horsley assessed as preventing him from undertaking work,[22] as at the date of examination on 11 December 2017.
[22] R2, Report of Dr Robyn Horsley dated 11 December 2017,14.
At 24 November 2016, the Applicant’s hip condition was completely asymptomatic. On this basis, this condition, on the evidence, only became a ‘preventing’ condition from
11 December 2017.Dr Uecker’s notes do not refer to the hip condition in any place or in any way that suggests the hip injury is reflective of a condition of significance.[23] She refers to a hip scan. The scan was not undertaken prior to the assessment date.
[23] Medical Examination Form. T207.
Dr Uecker referred the Applicant to Dr Patrick Weinrauch, Orthopaedic Surgeon, on 30 October 2017.[24] In that referral she stated that the Applicant has spondylosis of the back which makes it hard to differentiate where the most pain comes from. Dr Arvind referred the Applicant to Dr Simon Gatehouse, Orthopaedic Surgeon, for chronic back pain which radiated to the left leg.[25]
[24] A4, Clinical notes of Dr Uecker, 37.
[25] A6, Clinical notes of Forrest Lake General Practice, 23.
There was an ultrasound scan of the left hip done on 11 October 2017. This referred to a tear of the medius, articular surface irregularity and possible osteoarthritic change.[26]
[26] A4, Clinical notes of Dr Uecker, 13.
The Applicant complained of referred sciatic pain which radiated into his hips.
Dr Horsley described the condition as degenerative in oral evidence. She stated that the condition in 2017 was at an advanced stage. Dr Horsley described the condition as one that comes on after years or that could come on quickly in a matter of months – and that this related to the underlying morphology of the hips. Under cross-examination Dr Horsley agreed that she could not say one way or the other when the hip condition commenced.
The Applicant had a fall in October 2017 in his bathroom. This happened after the beginning of the assessment period.
Colm Coakley, Physiotherapist, assessed the Applicant on 19 October 2017 for left sided hip pain. Mr Coakley’s report, from 19 October 2017 is consistent with the Applicant having developed symptoms in September/October 2017[27].
[27] A4, Clinical notes of Dr Uecker, 70.
At the time that the assessment period commenced, there is no evidence to suggest that the Applicant’s hip condition prevented him from working.
The Respondent cross-examined the Applicant on a note by Dr Uecker about his “main pain neck, lower back and hips”. The Applicant’s explanation was that the hip pain related to his lumbar problems.[28] The Tribunal accepts this evidence.
[28] A4, Clinical notes of Dr Uecker, 9.
The Applicant’s evidence was that the first time he experienced problems with his hips was in 2017 after his fall. This was consistent with Ms Freymann’s evidence. Neither the Applicant, nor Ms Freymann, accepted that the Applicant’s hips were symptomatic prior to that fall. Ms Freymann stated in her statement that the Applicant’s hip pain commenced after his fall in 2017 and not before.[29] The Tribunal accepts this evidence.
[29] A2, Statement of Ms Britta Freymann dated 19 February 2018.
In Dr Uecker’s report of 7 October 2016, the only condition that she refers to as preventing or restricting the Applicant from working is that he needs to alternate standing and sitting.[30]
[30] A4, Clinical notes of Dr Uecker, Medical Examination Form, 101.
Cervical spondylosis
On 24 December 2014, the Applicant made a claim for this condition.[31] The first symptoms were described as being in the 1980s or 1990s.[32] They were said to have gradually worsened.[33]
[31] Cervical Spine Condition – Medical Impairment Assessment, T135-7.
[32] Claimant Report – Trauma, Cervical Spondylosis, T145.
[33] A4, Clinical notes of Dr Uecker, 113.
A medical assessment of the condition was done by Dr Uecker on 24 December 2014.[34]
[34] A4, Clinical notes of Dr Uecker, 9.
Dr Horsley diagnosed the Applicant with cervical spondylosis (confirmed by a CT scan taken 16 October 2014.)[35]
[35] A4, Clinical notes of Dr Uecker, 27.
In oral evidence, Bruno De Martin, the Applicant’s former employer, referred to the Applicant having neck pain, and getting a massage. Mr De Martin gave no evidence that this condition affected the Applicant’s ability to work.
When Dr Horsley examined the Applicant she noted that he had a good range of motion and did not suffer any symptoms of this condition.[36]
[36] R2, Report of Dr Horsley dated 11 December 2017,13.
The Applicant’s own evidence as to his neck pain was that it was reduced by relaxation techniques and managing his stress. There was no suggestion by the Applicant that it affected his ability to work.
In 2015, Dr Uecker noted that the Applicant’s neck pain was controlled because he was seeing a psychiatrist.[37] Dr Uecker’s notes show that at 16 May 2017 the condition was well controlled.[38]
[37] A4, Clinical notes of Dr Uecker, 8.
[38] A4, Clinical notes of Dr Uecker, 5.
Dr Horsley did not assess this condition as preventing the Applicant from undertaking work.
Benign prostatic hyperplasia
The Applicant suffered from this condition.[39] He used an indwelling or permanent catheter, periodically.[40] The basis for the diagnosis was clinical and ultrasound.
[39] Ultrasound Report dated 24 April 2014, T108.
[40] Claim for Disability Pension and/or Application for Increase in Disability Pension, T83.
The Applicant claimed in 2013 that he had an inability to undertake any physical activity greater than 3 Metabolic Equivalents for at least five years before clinical worsening. In the claim form, he stated he first became aware of the condition in 2004. In relation to his claim form, the Applicant said that “this was how he was feeling on that day” and described that his mental state impacted his prostate symptoms and if he was having a bad day, he was having a bad time with everything. The Applicant’s oral evidence was that the prostate disease had caused him some problems, but that it did not really affect him. The Applicant submits that his claim to be unable to undertake activities was reflective of his total state, rather than the effect of the prostate disease on him alone. On the totality of the evidence, the Tribunal agrees.
The Applicant was hospitalised from this condition in March 2014.[41]
[41] R2, Report of Dr Horsley dated 11 December 2017.
There was no evidence that the Applicant’s prostate disease had any impact whatsoever on the closure of the nursery in 2010 or his ability to work at the nursery or at Mr De Martin’s business.
In 2016, the Applicant had a prostate embolisation.[42] The referral suggested that he had long term catheter dependence, though his own evidence was that he used the catheter for convenience, and had used an overnight drainage bag for a couple of months. There was a minor decrease in prostate size after the embolisation.[43] At the review of the embolisation on 14 December 2016, the Applicant told Dr Morgan Pokorny, Urologist, that he was in pain however this, in the Applicant’s oral evidence, was said to be as a result of the operation.[44]
[42] A4, Clinical notes of Dr Uecker, 14.
[43] A4, Clinical notes of Dr Uecker, 16.
[44] A4, Clinical notes of Dr Uecker, 25.
Dr Horsley did not assess this condition as preventing the Applicant from undertaking work.
Inguinal hernia
An ultrasound of the Applicant’s right groin on 26 August 2014 found an inguinal hernia of 9mm.[45]
[45] Radiologist’s Report dated 26 August 2014, T105.
The Applicant had a hernia belt.[46]
[46] A4, Clinical notes of Dr Uecker, 128.
There was no evidence as to how the hernia affected the Applicant’s ability to work.
Dr Horsley found that there were no long term sequelae.[47]
[47] R2, Report of Dr Horsley dated 11 December 2017, 8.
Dr Horsley did not assess this condition as preventing the Applicant from undertaking work.
There was no direct evidence that the Applicant’s hernia had any impact whatsoever on the closure of the nursery in 2010 or his ability to work at the nursery or at Mr De Martin’s business.
Lumbar spondylosis
On 11 December 2017 Dr Horsley concluded that, as at that date, on “the basis of his back condition alone, and his chronic pain, I don’t believe he has any realistic capacity for work.” Hence, as from 11 December 2017, but not earlier, the evidence establishes an additional ‘preventive’ condition existing from that date.
The Respondent submits a contrary position is established by the evidence, namely that the Applicant does not satisfy s 24(1) of the Act because benign prostatic hyperplasia, osteoarthritis of the hips, cervical spondylosis and hernias contributed to the preventative effect. However, as stated above, on balance, the weight of the evidence does not support the proposition that during the assessment period up to 11 December 2017 these non-accepted conditions would prevent or restrict him undertaking the physical demands of a nurseryman and catering/kitchen hand. Such ailments were no more than a distraction and were amplified mentally by the applicant’s established psychiatric injury. It was the Applicant’s psychiatric injury itself which prevented the Applicant from being able to undertake work alone up to 11 December 2017.
CONCLUSIONS
On the evidence, the circumstances leading directly to the Applicant’s bankruptcy directly arose out of the symptoms which he was suffering from his war-caused psychiatric illnesses, and consequently this was not an independent preventative factor within the meaning of s 24(1)(c) of the Act and the Tribunal finds accordingly.
Further, none of the Applicant’s non-accepted illnesses or injuries prevented him from working during the assessment period up to 11 December 2017. By reason of s 19(6) of the Act, the Applicant is not disentitled to the special rate after 11 December 2017.
Section 24(2)(b) argument
In light of the Tribunal’s findings above it is not necessary for the Tribunal to analyse and rule upon this alternate issue.
DECISION
On the evidence in this matter, on balance, the Applicant’s disability pension ought to be increased to the special rate with effect from 24 November 2014 having regard to the operation of ss 14, 19(6), 20 and 177 of the Act.
Accordingly, the Tribunal sets aside that part of the decision of the Veterans’ Review Board of 3 April 2017 affirming that part of the decision of a delegate of the Respondent which refused to increase the Applicant’s disability pension beyond 100 per cent of the general rate under s 22 of the Act, such part to also be set aside.
In substitution, the Tribunal orders that the Applicant’s disability pension be increased to the special rate with effect from 24 November 2014.
I certify that the preceding 94 (ninety four) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.
......................[sgd].................................
Associate
Dated: 17 April 2019
Dates of hearing: 3 – 5 July 2018 Counsel for the Applicant: Ms N. Campbell Solicitors for the Applicant: Ms C. Kolovos
Williams Winter SolicitorsSolicitors for the Respondent: Mr K. Rudge
Department of Veterans' Affairs
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