Re Holden and Repatriation Commission
[2009] AATA 735
•24 September 2009
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0949
VETERANS' APPEALS DIVISION ) Re TROY HOLDEN Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM
TRIBUNAL: Dr P McDermott, RFD, Senior Member
DATE: 14 October 2009
PLACE: Brisbane
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:
The first sentence of paragraph 40 of the Tribunal’s Reasons for Decision should read:
Mr Holden states that his orthopaedic conditions do not prevent him from engaging in remunerative employment, I do not accept his evidence.
....................................................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] aata 735
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0949
VETERANS' APPEALS DIVISION ) Re TROY HOLDEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date24 September 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – claim for special rate of pension – non war-caused conditions prevent applicant from undertaking relevant remunerative work – decision affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 19(9), 23(1)(c), 24(1)(a), 24(1)(b), 24(1)(c), 24 (2)(b), 119(1), 120(4), 120(6)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Alexander (2003) 75 ALD 329
REASONS FOR DECISION
24 September 2009 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr Troy Holden has lodged a claim for a pension at the special rate. He has the accepted disabilities of depressive disorder and anxiety disorder. The respondent has assessed the rate of pension payable to the veteran as 100% of the general rate. I have to decide whether Mr Holden is entitled to be paid a pension at the special rate.
MATTERS OF PROOF
2. This is an administrative proceeding, not a civil case where Mr Holden bears any onus of proof: see s 120(6) of the Veterans’ Entitlements Act 1986 (“the Act”). I am required under the Act to determine this application to my reasonable satisfaction: s 120(4). I am also required to make a decision in accordance with the substantial merits of the case: see s 119(1) of the Act.
OPERATIONAL SERVICE
3. I am satisfied that Mr Holden has operational service under the Act. This is because from 15 June 2001 until 24 June 2001 he served on HMAS Kanimbla in the Solomon Islands.
ISSUES
4. In order to be entitled to pension at the special rate, Mr Holden has to satisfy the requirements of s 24 of the Act.
5. The respondent has conceded that Mr Holden satisfies the requirements of s 24(1)(a) and (b) of the Act.
6. What is in issue in this application is whether Mr Holden satisfies s 24(1)(c) of the Act.
7. It does not, in my view, follow that if Mr Holden satisfies s 24(1)(b) of the Act, that he also satisfies s 24(1)(c) of the Act. The distinction between s 24(1)(b) and s 24(1)(c) was adverted to in Repatriation Commission v Alexander (2003) 75 ALD 329 at [12] – [14] by Spender J, who explained that s 24(1)(b) “addresses the extent of the veteran’s war-caused incapacity” and s 24(1)(c) “is directed at quite a different question, causation”. The latter subsection has what His Honour referred to as, a “sole cause requirement”: the requirement being that incapacity from war-caused injury or war-caused disease or both “alone” prevent a veteran from continuing to undertake remunerative work that the veteran was undertaking.
RELEVANT REMUNERATIVE WORK UNDERTAKEN
8. I am required by the decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4 – 5 to consider what “relevant remunerative work” Mr Holden was undertaking within the meaning of s 24(1)(c) of the Act.
9. Mr Holden, in the first page of his statement dated 26 January 2009, has outlined his employment history.
10. I will first refer to his civilian employment. From April 1979 until December 1986, he was a station assistant with the State Rail Authority. He left that position for personal reasons. From January 1988, he was a head mill-operator with Comalco until his position was made redundant in September 1989. From September 1989 until July 1990, Mr Holden was a casual relief worker with an employment agency, where he undertook the duties of a forklift driver, a storeman and a picker and packer. He left that employment to have a job closer to home. From December 1990 until February 1991 he was a labourer, which position ceased because there was not enough work for him to do. Mr Holden worked as a security officer, from November 1993 until June 1994, but that employment also ended because there was not enough work for him. From March 1994, he was a handyman and gardener at a retirement village until that position became redundant in January 1997. Mr Holden was a “trades assistant” to an electrical firm from January 1997 to January 1999. That employment ceased when he joined the Army.
11. Mr Holden served with the Australian Army from January 1999 until June 2005. Mr Holden mentions in his statement that he was a terminal operator with the Australian Army. Dr D Walters also refers to this work in his report dated 31 January 2007. Dr Walters relates that Mr Holden informed him that he was a cargo specialist who participated in the loading and unloading of vehicles of all types. In his claim form and lifestyle questionnaire, Mr Holden describes his occupation as a “cargo specialist”. From April 2002, Mr Holden was involved in office work because of his medical state.
12. I should also mention that the material before me does not disclose Mr Holden as gaining any trade qualification during his service with the Army.
13. Mr Holden has always endeavoured to be gainfully employed. He has had a variety of employment. He does not have any trade qualification. I find that the relevant remunerative work Mr Holden was undertaking was general unskilled work with some element of physical activity.
whether war-caused injury or disease prevented the veteran from continuing to undertake that remunerative work
14. I am next required by Flentjar 48 ALD at 4-5 to consider whether the veteran, by reason of war-caused injury or war-caused disease, or both, was prevented from continuing to undertake that remunerative work other than on a part-time basis or intermittently.
15. The respondent conceded that it would be open to the Tribunal to give an affirmative answer to the second Flentjar question. I rely upon that concession to answer “yes” to the second Flentjar question.
whether the war-caused injury or disease is the only factor or factors preventing the veteran from continuing to undertake that remunerative work
16. As the answer to the second Flentjar question is “yes”, I am next required by Flentjar 48 ALD at 4-5 to consider the third Flentjar question: is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that remunerative work?
17. In considering this third Flentjar question, I have to make an assessment on matters of credit. The respondent, in its statement of facts and contentions dated 10 February 2009, indicated its intention to put into issue “the applicant’s credibility as a witness”.
18. After due consideration of the material before me, I have decided that the third Flentjar question must be answered in the negative. I find that the orthopaedic conditions of the left knee, foot and ankle of Mr Holden prevent him from undertaking the remunerative work. I will now set out my reasons for that conclusion.
19. The respondent has pointed to the fact that there are inconsistencies in Mr Holden’s case. This is certainly the case. However, my decision to answer the third Flentjar question in the negative is based not only upon the inconsistencies in Mr Holden’s evidence, but also in the medical evidence before me.
20. I have examined the medical evidence of Mr Holden’s orthopaedic conditions. The respondent arranged for Mr Holden to be examined by Dr J Maguire and Dr Walters, who are orthopaedic surgeons. Both of these orthopaedic surgeons have confirmed that Mr Holden has orthopaedic conditions of his left knee, foot and ankle.
21. I am satisfied that the orthopaedic conditions of Mr Holden will deteriorate with time. In 2005, Dr Maguire gave a prognosis that there would be progressive deterioration of the left knee. Dr R Williams, in a more recent report dated 16 June 2008, commented upon the possible deterioration of the knee lesions and the left foot. I have relied on these prognoses to form the view that the orthopaedic conditions will not improve.
22. I will now refer to what I consider to be significant aspects of the evidence concerning the orthopaedic conditions of Mr Holden.
23. In 2004, Mr Holden informed Dr P Vecchio of the fact that he has difficulties with both knees, and that he uses a walking stick for either knee “depending on which is worse”. Dr Vecchio then reported that Mr Holden remarked: “The right knee pain is so bad that he says he needs crutches or a wheelchair. He uses Tramal for analgesia[1]. A walking stick is used for either knee, depending on which is worse. The right knee collapses from time to time. He prefers stairs to ramps”. Dr Vecchio also related that “Mr Holden indicates that the right knee is very painful, and it significantly restricts his mobility”. Dr Vecchio also reported that the radiology of the right knee was normal.
[1] In 2008, Dr Williams reported that Mr Holden still took Tramal as well as pain-killers.
24. Dr Maguire also commented upon the left foot and ankle injury of Mr Holden in his report of 17 March 2005. He mentioned that Mr Holden had experienced ongoing degenerative change, and required surgery to his foot. In his diagnostic report of 3 March 2005, Dr Maguire reported that Mr Holden sustained a traumatic injury when 30 camp poles fell off a truck in 2000 and that there was a loss of half of the normal range of the “left ankle/foot”.
25. Dr Walters investigated the left foot condition of Mr Holden in his report of 31 January 2007. He reported that a post-operative X-ray of the left foot shows a bump on the first tarsometatarsal joint. Dr Walters remarked: “This is fairly common in the community and it has nothing to do with the poles falling on his foot in my medical opinion”. Dr Walters further reported: “Mr Holden walks with a walking stick and won’t mobilise without. He walks very slowly and stops often”. Dr Walters also reported that Mr Holden had a “very slow gait and difficulty on steps but this is contributed to largely by his knees and his back pain in my opinion”.
26. Dr Walters reported comments made by Mr Holden at the time of the assessment on 7 December 2006: “He gets left foot pain most of the time, especially when weight bearing … [h]e cannot run and he hasn’t run since 2003. He relates he can’t walk more than 20 metres without foot pain”.
27. On the basis of these reports from Dr Vecchio, Dr Maguire and Dr Walters, I have come to the conclusion, and I so find, that Mr Holden’s orthopaedic conditions of the left knee, foot and ankle do prevent him from undertaking the remunerative work of general unskilled work with some element of physical activity. These orthopaedic conditions are certainly not war-caused. Dr Vecchio, Dr Maguire and Dr Walters were not called as witnesses.
28. I have examined the report of Dr Williams dated 16 June 2008 in which he concluded: “I would not consider that Mr Holden’s constellation of physical injuries is a significant impediment to his pursuit of gainful employment”. However, in his evidence-in-chief, Dr Williams stated that “based on my observation of his orthopaedic status, I made the observation that he seemed unsuited to heavy work”. In his evidence, Dr Williams also remarked that it was “correct” that “his physical injuries were, as you say, a significant impediment to his pursuit of gainful employment”. Dr Williams stated that the impairment of Mr Holden in relation to his employment was “possibly” a combination of the psychiatric illness and physical illness rather than his psychiatric condition alone.
29. Dr Williams in his report had adverted to some light or non-manual occupations that could be undertaken by Mr Holden, such as clerical duties, call centre occupation, mail sorting work or as a car park attendant. However, in his evidence, Dr Williams stated that it is possible that Mr Holden may have experienced discomfort in various activities required of any occupation, including mobility around the workplace, travel to and from a workplace, and any degree of lifting that may have been required. In evaluating the evidence of Dr Williams, he had also mentioned that Mr Holden “did say that he was physically able to work when I interviewed him” but that Mr Holden had “referred more to his psychiatric illness as an impediment”.
30. Dr Williams was also provided with the lifestyle questionnaire of Mr Holden, which lists a number of things that Mr Holden states that he cannot do (these things are later mentioned in these reasons). In that lifestyle questionnaire, Mr Holden stated that he “can’t do any domestic activities”. In his report, Dr Williams did not refer to the statement made by Mr Holden in his lifestyle questionnaire, in which he requires the assistance of his wife as a carer. Dr Williams has, in my view, relied upon the self-report of Mr Holden as he states: “Mr Holden reports minimal disability in terms of daily living in respect of the multiplicity of injuries sustained”.
31. In his report, Dr Williams commented “Mr Holden reports being fully active in recreational pursuits including wood turning and the construction of various structures”. This self-report of Mr Holden is inconsistent with the limitations on his activities which he outlined in his lifestyle questionnaire. In that questionnaire, Mr Holden stated that he is unable to operate machines. Dr Williams was briefed with the report of Dr D Hilford of 19 February 2004, in which Dr Hilford states that Mr Holden “no longer plays sport or undertakes running, and can walk a maximum of approximately 800 metres before requiring to stop and rest”.
32. I should also mention that it was apparent in his evidence that Dr Williams was concerned about the long-term capacity of Mr Holden to undertake manual labour. In all strictness, I am only required to conduct an enquiry into the eligibility of Mr Holden during the assessment period which concludes on the date of my decision: s 19(9) of the Act.
33. My main findings have been made in relation to the orthopaedic conditions of the left knee, foot and ankle. On the state of the medical opinion, I am also prepared to find that the back condition of Mr Holden contributes to his difficulty in movement. I make this finding on the basis of the report of Dr Walters of 31 January 2007, and also the statement of Mr Holden in his lifestyle questionnaire that he requires a lumbar support.
34. Mr Holden signed a lifestyle questionnaire shortly after completing his claim for pension on 27 October 2004. In that claim form, he lists three conditions: major depressive disorder, left knee injury and left ankle injury.
35. In the lifestyle questionnaire, Mr Holden disclosed difficulties caused by his orthopaedic conditions, and stated that he requires the following assistance in moving around: “leg brace, walking stick, shoe inserts, lumbar support in car, wife’s assistance, painkillers”. He gave an affirmative answer to the question “Do you need someone to help you move around or to go with you?” by stating that, “My wife comes with me to all appointments and acts as my carer”. In the lifestyle questionnaire, Mr Holden also wrote of restrictions on his driving a car, namely, needing a lumbar support on the car seat, and needing to drive an automatic car because it was “very difficult to drive a manual car”.
36. In the lifestyle questionnaire, Mr Holden lists the following things that he cannot do: grocery shopping; house cleaning; washing up; light gardening (such as weeding and watering); heavy gardening (such as digging and pruning trees); lawn mowing; washing the car; lifting; sewing; and knitting. In that questionnaire, he states: “I can’t do any domestic activities”.
37. Having regard to this list of activities in the lifestyle questionnaire that Mr Holden has declared that he is unable to do, I cannot conclude that his orthopaedic conditions would allow him to undertake the remunerative work of general unskilled work with some element of physical activity.
38. On 9 November 2007, the Veterans’ Review Board made a finding that Mr Holden suffers “physical problems, which prevent him from continuing in remunerative employment of the nature of his prior physical and manual work”[2]. Since Mr Holden made his claim for pension, he has made a number of statements concerning his orthopaedic conditions and his condition of shortness of breath.
[2] T 5, folio 143 [31].
39. It is fair to say that there is quite a difference in the statements Mr Holden made before the decision of the Veterans’ Review Board and the statements he made after that decision. Before that decision, he complained that his various orthopaedic conditions were a severe impediment to his activities. He now claims that the orthopaedic conditions do not prevent his employment. As a decision‑maker, I have come to the regrettable conclusion that this difference is motivated by self-interest. I am satisfied that Mr Holden is aware of the significance of his evidence in this regard. I should comment that it is clear from the oral evidence of both Dr Williams and Dr M Likely, the treating psychiatrist, that Mr Holden told them both that his orthopaedic conditions do not preclude his employment. Dr Williams remarked: “I note that he did say that he was able to work when I interviewed him, and he sort of referred more to his psychiatric illness as an impediment”. Dr Likely referred to the “point that he’s trying to tell me that he considers that he’s physically well enough to carry on working”.
40. I do not accept the evidence of Mr Holden that his orthopaedic conditions prevent him from engaging in remunerative employment. Mr Holden, in his uncorroborated evidence, has claimed that he is able to undertake manual work such as building a fence, constructing a double garage or assisting in the building of a house. Dr Williams was asked during his evidence-in-chief: “Would it surprise you that he had been involved in constructing a fence, undertaking the manual labour associated with hole digging for a period of two months, in conjunction with a neighbour?” Dr Williams answered: “Yes. That would be inconsistent with the historical information gained at the time of the interview and the physical examination which I undertook at that time”. I should also mention that Mr Holden had not informed Dr Likely that he constructed the fence. I cannot accept the oral evidence of Mr Holden that he had been handling 20 kilogram bags of cement as well as handling 4.8 metre lengths of timber which weigh approximately 20 to 25 kilograms.
41. In evidence before me Mr Holden stated that he used a forklift from a transport firm near his house. He stated: “we’ve had some big stuff to move in our place before the fence went up, so we’ve asked if we could use one of the forklifts to do it”. This evidence is inconsistent with the statement that Mr Holden made in his lifestyle questionnaire that he was unable to “operate forklifts”. I should mention that Dr Williams expressed the opinion in evidence that Mr Holden “would probably” be able to operate forklifts but I do not regard that opinion as a definite expression of opinion. Dr Williams also stated that Mr Holden “may struggle with some of the more heavy tasks involved of a storeman, including pallet handling, stock handling and similar work”.
42. I regret to make the observation that I cannot accept the evidence of Mr Holden as being reliable. I give, as an example, the issue of whether he needs to use a lumbar support. I have already mentioned that the lifestyle questionnaire contains the comment that Mr Holden required a lumbar support when driving a car. This comment in the lifestyle questionnaire is quite inconsistent with the evidence that Mr Holden gave before me when he remarked: “I’ve never had a lumbar support”. Another inconsistency relates to whether he is able to mow a lawn. In his lifestyle questionnaire, he states that he is unable to mow a lawn, whereas in his evidence before me, he claims to be able to use a push mower.
43. Dr Likely, the treating psychiatrist, confirmed that Mr Holden had stated that his wife is responsible for most of the day to day activities around the house.
44. I should mention that there was no objective evidence before me to show that the orthopaedic conditions of Mr Holden do not prevent him from engaging in remunerative employment.
AMELIORATING PROVISION
45. I should also mention that I am not reasonably satisfied that the ameliorating provision in s 24(2)(b) of the Act has been met. Dr Likely gave evidence that Mr Holden has been following his recommendation not to seek work. I simply do not accept the evidence from Mr Holden that he has been genuinely seeking work. In his lifestyle questionnaire, he states that he is unable to use a forklift, yet in his evidence, he claims to have offered his services as a forklift driver to a neighbouring transport firm.
CONCLUSION
46. I have concluded that Mr Holden does not satisfy the requirements of s 24(1)(c) of the Act and is not entitled to pension at the special rate.
47. I also consider that Mr Holden is not entitled to pension at the intermediate rate as he is not, by reason of incapacity from war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that he was undertaking. He is not, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account that he would not be suffering if he were free from that incapacity. In my view, he does not therefore satisfy the terms of s 23(1)(c) of the Act.
DECISION
48.I affirm the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
Signed: .........................[Sgd]...............................................
Emily Clarke, Research AssociateDate of Hearings 18 February 2009 and 17 June 2009
Date of Submissions 27 July 2009
Date of Decision 24 September 2009
Counsel for the Applicant Anthony Harding
Solicitor for the Applicant John Cockburn
For the Respondent John Stoner, Departmental Advocate &
Martin Hanson, Australian Government Solicitor
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