Raymond Arthur Conway and Repatriation Commission
[2015] AATA 113
•27 February 2015
[2015] AATA 113
| Division | VETERANS' APPEALS DIVISION |
| File Number | 2014/0933 |
| Re | Raymond Arthur Conway |
| APPLICANT | |
| And | Repatriation Commission |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 27 February 2015 |
| Place | Melbourne |
The Tribunal sets aside the decision under review and substitutes a decision that Mr Conway is entitled to payment of disability pension at the special rate with effect from 23 July 2013.
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G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – special rate of pension – naval service - fitness instructor - spinal injury – whether incapacity from war-caused injuries ‘alone’ prevented the veteran from undertaking remunerative work
Veterans’ Entitlements Act 1986 ss 24(1)(a), (b),(c), 24(2)(a),(b)
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Giesen v Repatriation Commission [2005] FCA 846
Leane v Repatriation Commission [2004] FCAFC 83
Repatriation Commission v Hendy (2002) 76 ALD 47
Richmond v Repatriation Commission [2014] FCA 272
Smith v Repatriation Commission [2014] F CAFC 53
REASONS FOR DECISION
G. D. Friedman, Senior Member
27 February 2015
Raymond Conway is receiving disability pension at 100 per cent of the general rate and he now seeks the higher loss-of-earnings related payment known as special rate. He was discharged from the Royal Australian Navy in 1983 and he has not worked since.
The special rate of pension requires, among other things, that a person is prevented from continuing to undertake remunerative work, and cannot work more than eight hours per week, by reason of war-caused disability. The respondent says that Mr Conway is not entitled to special rate because there were factors other than his defence-caused disabilities of spondylyolisthesis, glare athenopia, deviated nasal sputum, bilateral sensineural hearing loss, recurrent capsulitis right shoulder with capsular tear, recurrent dislocation right shoulder, fracture of right zygoma & orbital margin and chronic sinusitis that prevent him from working.
LEGISLATIVE BACKGROUND
Section 24 of the Veterans' Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(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…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…
(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.
ISSUE
There was no dispute that Mr Conway satisfies s 24(1)(a) of the Act and the respondent did not argue at the hearing that Mr Conway does not satisfy s 24(1)(b) of the Act. The issue before the Tribunal is whether he satisfies s 24(1)(c) of the Act: the alone test.
DOES MR CONWAY SATISFY SECTION 24(1)(C) OF THE ACT: THE ALONE TEST?
Mr Conway told the Tribunal that he left school at the age of 15 years and joined the navy as a junior recruit on 13 July 1973. He commenced an Associate Diploma in Recreation but did not complete the course. During his navy service he went to sea and served in the Middle East and Asia. In 1978-1979 he completed a physical training course and spent the remainder of his service as a physical training instructor. He said that he first developed pain in his back in about 1979 at HMAS Cerberus in Victoria and after one further year at sea he was given a land-based posting as a member of a navy gymnastics display team, where his activities included somersaults, vaults, and landing in a hyperextended position or on his arms. He said that his back became stiff, particularly in the mornings, and the increase in pain in his back and right shoulder led to his removal from the display team in about 1982. He went to sea and was given other duties including running the café on the ship. He was discharged on medical grounds on 31 July 1983 and he has not undertaken any remunerative work since he left the navy.
In oral evidence Mr Conway told the Tribunal that he has been unable to work because of pain in his back and to a lesser extent in his right shoulder. He said that he and his wife purchased a house next door to his wife’s parents and that they have helped him over the years with child minding, cooking and household tasks because he has been unable to perform these activities. Mr Conway explained that after discharge from the navy he attempted to continue his studies in recreation at Footscray TAFE College, but he was unable to continue because of his back pain which prevented him from driving to and from classes and also from sitting in class.
Mr Conway assured the Tribunal that after leaving the navy he made every effort to work and wanted to be able to support his family. He applied to join the Police Force and also sought work at his local supermarket and other businesses. He said that in each case the potential employer refused to consider him when his back and shoulder conditions were disclosed. He stated that he has declined to undergo fusion surgery for his back after hearing about possible consequences of the surgery, and has relied on pain-killing medication. He said that he sleeps only two or three hours at a time because of the pain and discomfort. He wears a back brace from time to time. Mr Conway emphasised that he is able to walk about 200 metres before the pain forces him to stop.
Under cross-examination Mr Conway agreed that he has not done household tasks and did not play with his children as they were growing up because of his back pain. He said that he was unable to bend or squat, and he relied on his father-in-law for household assistance until his father-in-law’s death about two years ago.
Dr A Sillcock, occupational physician, stated in a report dated 3 September 2014 that she took a history that Mr Conway has difficulty standing for more than 10 to 15 minutes and cannot sit for more than 10 minutes. He tires easily because of pain in his back and hamstrings and is stiff in the mornings. He can drive a motor vehicle for about 5 to 10 minutes. Mr Conway attempted physiotherapy, swimming and exercises without much improvement.
On examination Dr Sillcock found tenderness over the lower lumbar spine and right shoulder, and a generalised reduction in range of movement. She concluded that the accepted conditions of spondylolisthesis and recurrent capsulitis of the right shoulder prevent Mr Conway from undertaking remunerative work for more than eight hours per week. She did not believe that he has any other disabilities that would prevent him from engaging in employment or undertaking other remunerative employment.
Dr R Horsley, occupational physician, stated in a report dated 10 July 2014 that Mr Conway suffers from chronic back and right shoulder pain. She found mechanical back pain and an underlying spondylolisthesis. Dr Horsley concluded that Mr Conway has significant employment barriers such as literacy and computer issues and a lack of formal qualifications which would prevent him working in an office-based environment. She said that she he is unemployable. She said that because Mr Conway was terminated on medical grounds secondary to his back condition, the primary reason for ceasing work in 1983 was his back condition, although the reasons for remaining out of the work force were multifactorial. She stated that his functional tolerances are poor because he is deconditioned, and he has no capacity for work.
Mr W M Wearne, orthopaedic surgeon, stated in a report dated 2 September 1985 that he first saw Mr Conway in 1983 and felt that the back pain was due to service in the navy and that a discharge on medical grounds was justified. However he said that in 1985 after 18 months as a civilian Mr Conway …looks very fit and never gives the appearance of somebody in severe discomfort…I believe that Mr Conway would be able to hold down a full-time job provided it was light, did not involve frequent bending or the lifting of loads in excess of 10 kilograms and there was ample opportunity for changes of posture or task. He expressed the view that …most people with spondylolisthesis go through life without requiring vigorous medical or surgical treatment. They just simply learn to live with the condition and avoid the postures or activities they know will aggravate it. Mr Wearne concluded that Mr Conway was not wholly incapacitated, but whether he was employable was another matter because of a limited education and was …lacking in some elements of motivation.
Dr W Kemp, consultant rheumatologist, stated in a report dated 20 December 2004 that Mr Conway was permanently unfit for work as a physical training instructor or for naval service because of his back and right shoulder conditions. Dr Kemp stated further that Mr Conway was unfit for physical work such as labourer or storeman, although with vocational assessment there might be some suitable light work up to twenty hours per week. Dr Kemp noted the limited work experience and education and described the musculo-skeletal conditions as permanent and stable.
Dr D Barton, consultant occupational physician, stated in a report dated 13 September 2006 that he did not believe that Mr Conway presented with clear evidence of any significant back problem or any particular shoulder problem that would account for the claimed incapacity. He concluded that from a physical point of view Mr Conway had the capacity to undertake a variety of full-time jobs such as unskilled process worker or labourer, although the lack of paid employment since 1983 made him effectively unemployable. Mr Conway told the Tribunal that he disagreed with the contents of Dr Barton’s report and that Dr Barton had been asked to carry out a medical assessment for claims relating to tinea and haemorrhoids, yet had made comments about work capacity based on an inadequate and biased investigation.
Dr N Phillips, consultant psychiatrist, stated in a report dated 26 August 2014 that Mr Conway does not suffer from any psychiatric condition. However his time out of the work force, limited education and lack of transferrable skills, his age and the chronic back condition are factors that mean he is unlikely to obtain employment in the future.
Dr A De Sousa, general practitioner, stated in a Work Ability Report for the Department of Veterans’ Affairs on 2 October 2013 that Mr Conway is totally and permanently incapacitated for any work, even light or sedentary duties, as a result of his spondylolisthesis, and his right shoulder condition contributes to the situation. Dr De Sousa said that the restriction of movement affects Mr Conway’s ability to perform minor repetitive tasks. He observed Mr Conway to be a genuine and reliable witness.
Consideration
In Flentjar v Repatriation Commission (1997) 48 ALD 1 the Full Federal Court described the test in s 24(1)(c) as:
(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 answer 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?
In Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J said that decisions regarding s 24(1)(c) should be made with an eye to reality and that common sense is the proper guide. This principle was supported in Forbes v Repatriation Commission (2000) 101 FCR 50.
In Banovich v Repatriation Commission (1986) 69 ALR 395 the Full Federal Court stated at 402-3:
…the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity – and by that incapacity alone – from continuing in that field of remunerative activity.
In Repatriation Commission v Hendy (2002) 76 ALD 47 the Full Federal Court stated at 54-5:
The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period.
In Richmond v Repatriation Commission [2014] FCA 272 Dodds-Streeton J stated at [169]:
Analysis of the relevant authorities nevertheless, in my view, indicates that the hypothetical question is not limited to the fourth question or the second limb of s 24(1)(c). The hypothetical comparison may be less consistently relevant to the third question, but will clearly be so where factors such as having been long out of the workforce prior to the assessment period could play a causal role in preventing the veteran from working during the assessment period. If the veteran would not have been out of the workforce but for the war-caused illness, that factor should not be treated as an independent preventative factor to defeat the “alone” requirement.
In applying Mr Conway's circumstances to the Flentjar test, the answer to question one is physical training instructor. On the material available to the Tribunal the answer to question two is yes.
In relation to question three the Tribunal takes into account the evidence from Mr Conway plus the medical evidence about the impact of the accepted conditions on Mr Conway's ability to work. The Tribunal accepts Dr Horsley’s evidence that when she assessed Mr Conway in 2014 he was unemployable because of his back and shoulder conditions and because of the other barriers such as literacy, time out of the work force, and lack of computer skills.
Taking all relevant matters into account the Tribunal concludes that Mr Conway’s accepted conditions of spondylolisthesis and capsulitis of the right shoulder were the major reasons that he was unable to continue to undertake the work as a physical fitness instructor that he had performed in the navy, but were not the only ones. Therefore the Tribunal finds that in the assessment period the accepted conditions were not the only factors preventing him from continuing to perform the type of work that he was undertaking, so the answer to question three is no.
As the answer to question three is no, there is no necessity for the Tribunal to consider question four. However, s 24(2)(b) may still operate in Mr Conway’s favour.
In Giesen v Repatriation Commission [2005] FCA 846 Gray J stated at [21]:
…the view has been expressed in a number of authorities that s 24(2)(b) of the VE Act is an ameliorating provision, of which a veteran who has ceased to engage in remunerative work may avail himself or herself, if he or she can show that war-caused incapacity is the substantial cause of inability to obtain remunerative work, which the veteran has been genuinely seeking.
In Leane v Repatriation Commission [2004] FCAFC 83 the Full Federal Court held at [28]:
The primary judge interpreted the word 'seeking' to mean 'attempting to' or 'trying to'. This may be accepted. Such a meaning involves something more than a mere wish or hope. It requires that a claimant 'do' something. On the other hand the word 'genuinely' is used in the sense of 'sincerely' or 'honestly'. It involves an assessment of the subjective intention or purpose of a claimant. What is required is that the claimant honestly be trying to engage in remunerative work.
The Court also stated at [32]:
As the Commission properly conceded, if the Veteran had satisfied the Tribunal that he had, at any time during the assessment period, complied with the requirements of s 24(2)(b) (including the requirement that he had been genuinely been seeking to engage in remunerative employment) then, at least from that time, the Veteran would have been entitled to a pension at the special rate, notwithstanding that at some later time he may not have established that he was genuinely seeking to engage in remunerative employment.
In Smith v Repatriation Commission [2014] FCAFC 53 Buchanan J stated at [70]:
…I see no reason why a veteran would be disentitled to make an application for an increase in pension if he or she had ceased to work for particular reasons at one point in time, then commenced genuine efforts to find work and was then prevented only by a war-caused injury or disease from obtaining such work. 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. Nor is it necessary to make efforts during an assessment period which might be futile and humiliating if there is adequate evidence before an application is made that genuine efforts have been made to obtain employment, those efforts have been without success, and the lack of success is due to the war-caused injury or incapacity. That is accommodated in terms by s 24(2)(b).
The Tribunal finds Mr Conway to be an honest and reliable witness and accepts his evidence that after leaving the navy he wanted to work and sought to engage in remunerative employment in positions as Police Officer, storeman, taxi driver, painter/labourer, traffic management controller, general hand and service station attendant, but when he raised his back and shoulder disabilities with potential employers he was told that he was unsuited to the work and was unsuccessful in all applications. The Commonwealth Rehabilitation Service could not assist.
The Tribunal places considerable weight on the evidence from Dr De Sousa, who is familiar with Mr Conway and has observed his condition and demeanour. The Tribunal also places weight on the report from Dr Horsley, who stated that the primary reason for ceasing work in 1983 was the back condition, and Dr Sillcock, who concluded that the back and shoulder conditions are the only conditions that would prevent Mr Conway from engaging in employment or undertaking other remunerative employment.
The Tribunal places less weight on the report by Mr Wearne. It was written in 1985, nearly 30 years before the assessment period, and Mr Wearne acknowledged that spondylolisthesis was the major cause of Mr Conway’s discomfort and that Mr Conway might be unemployable. There does not appear to be any basis for his conclusion that Mr Conway lacked some elements of motivation.
Similarly the Tribunal places less weight on the reports from Mr Kemp and Dr Barton. In 2004 Mr Kemp referred to Mr Conway being unfit for his previous employment or for work involving bending or lifting but recommended vocational assessment. Dr Barton’s report was made in 2006 and he was not called to give evidence or to refute the claims made by Mr Conway about the inadequacy of the assessment.
For these reasons the Tribunal finds that during the assessment period Mr Conway has been genuinely seeking to engage in remunerative work, and he would, but for his accepted conditions, be continuing to seek to engage in remunerative work. The Tribunal is satisfied that his incapacity from the accepted conditions is the substantial cause of his inability to obtain remunerative work in which to engage, so he shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that he was undertaking in the navy. Therefore Mr Conway satisfies s 24(2)(b) of the Act and consequently he satisfies s 24(1)(c) of the Act and is eligible for disability pension at the special rate.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that Mr Conway is entitled to payment of disability pension at the special rate with effect from 23 July 2013.
| I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
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Associate
Dated 27 February 2015
| Date of hearing | 23 February 2015 |
| Counsel for the applicant | Ms F Ryan |
| Solicitor for the applicant | Williams Winter |
| Advocate for the respondent Solicitor for the respondent | Mr K Rudge Department of Veterans’ Affairs |
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