Re Mitchell and Repatriation Commission
[2007] AATA 2087
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2087
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200500273
VETERANS' APPEALS DIVISION ) Re CRAIG LESLIE MITCHELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date21 December 2007
PlaceAdelaide
Decision The tribunal sets aside the decision under review and in place of that decision determines that the applicant is entitled to pension at the intermediate rate provided for in s 23 of the Veterans Entitlements Act 1986 (Cth) with effect on and from 2 January 2004 until 12 February 2007 inclusive, and is entitled to pension at the special rate provided for in s 24 of that Act with effect on and from 13 February 2007.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension – rate of pension payable – special rate – incapacity to undertake remunerative work for more than eight hours per week – intermediate rate – accepted conditions including post-traumatic stress disorder, major depressive disorder, lumbar disc degeneration and osteoarthritis of both knees – physiotherapist working reduced hours – part-time continuation of work applicant had previously undertaken – meaning of “continuing to undertake remunerative work that the veteran was undertaking” – decision set aside – applicant entitled to pension at intermediate rate for part of assessment period, and then to pension at special rate.
Veterans Entitlements Act 1986 (Cth), ss 23(1)(b) and 24(1)(c)
Browne v Dunn (1893) 6 R 67
Carter v Repatriation Commission (2001) 33 AAR 343
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Haskard (2002) 126 FCR 1
Repatriation Commission v Smith (1987) 15 FCR 327
Wright v Repatriation Commission (2005)] 144 FCR 302
REASONS FOR DECISION
21 December 2007 Deputy President D G Jarvis 1. The applicant, Craig Leslie Mitchell, is a Vietnam veteran. He currently has accepted disabilities of post concussional syndrome, sensorineural deafness, lumbar disc degeneration, plepharitis and bilateral pingueculae, post-traumatic stress disorder (PTSD), major depressive disorder, irritable bowel syndrome, and osteoarthritis of both knees, in addition to specific injuries including various fractures for which liability has also been accepted.
2. Mr Mitchell was first granted a pension on 1 July 1971 at ten per cent of the general rate. This was increased in 1993 to eighty and then ninety per cent of general rate, and in June 1995 to 100 per cent of the general rate. On 2 January 2004, Mr Mitchell lodged an application for increase in disability pension for his previously accepted disabilities. The Repatriation Commission refused this application in October 2004, and continued the pension at 100 percent of the general rate. The Commission’s decision was later affirmed by the Veterans’ Review Board (VRB). Mr Mitchell has applied to this tribunal for review of the Commission’s decision.
3. Mr Mitchell claims that he is entitled to pension at the special rate. If his claim does not succeed, it is also necessary for me to determine whether he is entitled to pension at the intermediate rate. These matters are to be determined under ss 23 and 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”), which set out the criteria for pension at the intermediate and special rates.
Issues for Determination
4. The issues before the tribunal are as follows:
· whether Mr Mitchell’s incapacity from his war-caused injuries or war-caused diseases, or both, are, of themselves alone, of such a nature as to render him incapable of undertaking remunerative work for periods otherwise than on a part-time basis or intermittently (which would not be the case if he is undertaking, or capable of undertaking, remunerative work for more than twenty hours per week) see ss 23(1)(b) and 23(2)(b) of the VE Act; and
· whether Mr Mitchell’s incapacity from war-caused injuries or war-caused diseases, or both, are of such a nature as, of themselves alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week (s 24(1)(b)).
5. Mr Mitchell practises as a physiotherapist, and has continued to work in that capacity during the assessment period. The assessment period is the period between the date when the application was lodged and the date when it is determined (ss 19(5C) and 19(9) of the VE Act; Repatriation Commission v Braund (1991) 23 ALD 591). The Commission contends that at times during the assessment period, Mr Mitchell has worked for more than eight hours per week, and accordingly, he is not incapacitated from working for periods aggregating more than eight hours per week. Mr Mitchell disputes the Commission’s contention.
6. The Commission accepts that Mr Mitchell satisfies the first criterion for pension at the special rate, namely an entitlement to pension at a rate higher than seventy percent of the general rate. In addition, as further discussed below, the Commission did not dispute that Mr Mitchell is by reason of incapacity from his war-caused injuries, alone, prevented from continuing to undertake remunerative work that he had been undertaking.
7. By virtue of s 28 of the VE Act, the veteran’s working capacity must, for the purpose of ss 23(1)(b) and 24(1)(b), be determined by reference to the kinds of remunerative work which a person with the same skills, qualifications and experience as the veteran might reasonably undertake. However, it was not suggested that Mr Mitchell had any capacity to work other than as a physiotherapist. I will therefore consider his capacity to work as a physiotherapist.
Background
8. When Mr Mitchell lodged his application for increase in disability pension he was fifty-eight years of age. He is now sixty-two. He has been a qualified physiotherapist since 1974, and commenced practising at his present premises in 1979. He employs two part-time receptionists and a part-time practice manager, who he said attends to all administrative details.
9. Mr Mitchell gave evidence that when he started at his present rooms, he treated acute injuries, sporting injuries and necks and backs, and worked probably seven days a week. He said that his practice has changed in that he is no longer associated with many sporting clubs, so therefore he does no after hours work and does not work seven days a week. When he was asked in examination-in-chief whether he had found it necessary to, as it were, wind down his practice, he agreed that he had. Later he explained that he had stopped marketing his practice probably in the early 1980’s or the late 1970’s. He said that these days his patients are acute back or neck patients, and they are mainly self-referred, by which he meant people he had seen before, or who were referred by their friends or by word of mouth. He said that his patients respond to treatment very quickly and do not come back many times because their condition is such that they do not need to.
10. Mr Mitchell said that the treatment he provides is mainly manipulative type treatment or mobilisation, which is a gentler form of manipulation. He also uses an inferential therapy unit, a device which emits a gentle pulsating wave to relieve intense muscle spasm. Sometimes he issues collars to patients, or supplies such things as elbow straps, or other supportive braces or belts. On occasions he also supplies a medication called glucosamine.
11. He contrasted his manipulation type treatment with the practice adopted by other physiotherapists, whom he referred to as the more traditional physiotherapists, and who provide massage and heat type treatment.
Applicant’s availability to treat patients
12. Mr Mitchell also gave evidence as to the hours when he attends his rooms and is available to treat patients. He said that he puts a cross in his practice diary to indicate to his staff the times when he is available for appointments. These times are as follows:
·Mondays and Fridays: 12 noon to 12.45 pm, and 3.00 pm to 6.15 pm
·Tuesdays and Wednesdays: 3.00 pm to 6.15 pm
·Thursdays: 8.00 am to 11.00 am.
13. The practice diaries provide for appointments to be made at fifteen minute intervals, with provision for two patients to be seen at the same time. On Mr Mitchell’s assessment, an appointment at the last of the available appointment times would take no more than fifteen minutes on the assumption that two patients were booked for that appointment time, so that for example on Mondays and Fridays, Mr Mitchell would be available to treat patients from 12 noon until 1.00 pm and from 3.00 pm until 6.30 pm.
14. A review of Mr Mitchell’s appointment diaries for 2005 (exhibit A4), from 1 January to 12 September 2006 (exhibit A3), 18 September to 31 December 2006 (exhibit A5) and 1 January to 16 July 2007 (exhibit 6) indicates that on some occasions, Mr Mitchell saw patients outside of the above times. Sometimes this appears to have been because of imminent public holidays or times when Mr Mitchell was going to be away, presumably on holidays. I also note that on a number of Thursdays since the first day of the hearing in this tribunal, the diaries are marked “not working”, or the commencement of availability on Thursday mornings appears to be 8.45 am or 9.00 am rather than (as before) 8.00 am. I also note that on some occasions the exhibits show that Mr Mitchell saw patients on Thursday afternoons as well as on Thursday mornings, but at other times apparently in the afternoon instead of in the mornings.
15. Mr Mitchell gave evidence that except for a recent change to his working availability on Wednesdays, his availability to take appointments would have followed the above pattern since 1979. The recent change was that previously he worked from midday on Wednesdays and his last appointment was at 12.45 pm. He was vague about when this change occurred. On being pressed, he said that he had not consciously dropped off that part of his availability on Wednesdays, because this was dependent on patient demand, but he assumed that this had happened sometime after the hearing in the VRB which preceded the application to this tribunal.
Hours engaged in remunerative work
16. Mr Mitchell’s estimates in relation to the aggregate number of hours per week for which he has been engaged in remunerative work have varied over the period since he claimed an increase in pension.
17. In his claim form dated 24 December 2003 he said in answer to Question 23 (relating to which of his accepted disabilities had become worse since they were last assessed by the Department, and in what way):
“1. PTSD, unable to work more than 8 hours per week.
2. O.A., both knees, unable to work more than 8 hours per week.”
In answer to Question 25 in the same form, he indicated that he was currently self-employed, and in answer to the consequential question of how many hours per week he worked, he wrote “10-12” (see exhibit R1, T6, pages 26 and 27).
18. The number of hours for which Mr Mitchell was engaged in remunerative work was explored in the hearing by the VRB, and in the proceedings before me the Commission tendered a copy of the transcript of that hearing. In a passage commencing on page 4 of the VRB transcript of 16 March 2005 (exhibit R5), he was asked what was the range of the duration of consultations, and he answered:
“You try and do – the legal requirement is between 10 minutes and quarter of an hour. Some take an hour, some take 20 minutes, depending – some take, you know, quarter of an hour. No less than about that.” (exhibit R5, page 5.5)
19. Later Mr Mitchell told the VRB that he did not work more than eight hours a week, and for those eight hours he did a maximum of probably thirty-eight to fifty patients in those eight hours. When further questioned by the VRB, he said that he did not do four consultations at the same time, but said that he could “treat that many people concurrently so the patient might end up staying an hour or so and I divide my time with them as they progress during that period of time” (exhibit R5, page 6, line 18).
20. Mr Mitchell’s 2005 diary (exhibit A4) reveals that the figures he gave to the VRB for the numbers of patient treatments in an eight hour week, namely thirty-eight to fifty, were significantly less than the number of patients he had seen in the three weeks preceding the day when he appeared before the VRB. In the immediately preceding week, there were seventy-three patient treatments, in the week before that there were seventy-six patient treatments, and in the week before that again there were seventy-eight patient treatments. If one goes back three further weeks to the week commencing Monday 31 January 2005, there were sixty-three, fifty-one and fifty-seven patient treatments respectively (working backwards).
21. At the hearing before me, Mr Mitchell produced various summaries of the times that he spent treating patients. He also produced a floor plan of the premises (exhibit A1). This shows a waiting room at the front, then what appear to be three treatment areas, and to the rear of them, a kitchen, two offices and a toilet.
22. Mr Mitchell relied on information in his practice diaries to indicate that he does not work more than eight hours per week. In support of this proposition he first prepared and tendered an analysis based on his diary for 2006 of the patients he treated in March and April 2006. The analysis consisted of a summary showing each week during the above period, the hours worked on each day, and the total hours worked for the week. The summaries are exhibits R4(a) and R4(b). I note that a number of days are crossed off in Mr Mitchell’s practice diary during this period, apparently because they were public holidays or he did not wish to see patients on those days, and exhibit R4(a) indicates that he was on medical leave and unfit for work in the week commencing 20 March 2006. The duration of work shown in the summaries of the above weeks varies from a low of four hours and fifty minutes in the week commencing 17 April to a high of six hours and fifteen minutes in the weeks commencing 6 March 2006 and 24 April 2006.
23. In his evidence Mr Mitchell explained the summary for the four weeks in April 2006 in detail, by reference to his practice diary. He said that he had calculated the times for which he worked by allowing fifteen minutes to treat two patients who had been booked in at the same time (or who may have been booked in at different times but could be treated together because they were both present at the same time) and ten minutes per patient where he was only treating one patient at a time.
24. Mr Mitchell also said that on those days when he had commenced work at 12 noon, he would cease work when he had seen his last patient. He would then go to his office and have lunch and read a book, or go down the street, and he would not start work again until he started to treat his afternoon patients, whose appointment times started at 3.00 pm. He also said that if there was a gap in between patients he would read a book in his office.
25. It was also Mr Mitchell’s practice to regularly add up the number of patients he had seen each week. He said he had followed this practice for many years. From the information in the practice diary for 2006, the number of patients in the period covered in his summaries (that is, the weeks from 6 March to 28 April 2006) varied from a low of thirty-five in the week commencing 17 April 2006 (when, however, he did not work on the Monday) to a high of sixty-one patients in the week commencing 6 March 2006 (which, however, included three patient treatments on the Saturday of that week, and two patient treatments on the Sunday). It is clear that whenever Mr Mitchell referred to numbers of patients, he was referring to patient consultations, since it was common for patients to return for repeat consultations.
26. It emerged from cross-examination that in a number of instances, Mr Mitchell had calculated his times on the basis that he had treated two patients at the same time, even though in some cases the appointment time of one of those patients was fifteen minutes, and sometimes thirty minutes earlier or later than the appointment time of the other patient. He gave evidence in these cases as to which patient had arrived early or late. He also said that his patients had become aware of the system he used in his rooms, and that they would be treated in order of their arrival, and it was common for patients to arrive early. He said further that whenever he went to receive a patient from the waiting room, it was common for patients to be waiting in the waiting room, and that further explained why he had in many instances calculated his times on the basis that he had treated two patients together.
27. The evidence that Mr Mitchell gave to this tribunal to which I have referred in paragraphs 21 to 26 above was given on the first two days of the hearing in September 2006. The matter was then adjourned to enable updated medical evidence to be obtained. When the hearing resumed just over one year later, on 28 September 2007, Mr Mitchell produced further diaries covering his appointments since the earlier hearing. He also produced a further schedule (exhibit A7) summarising his calculation of the times he had spent treating patients over the interval since the adjournment. Unfortunately this schedule contains certain acknowledged errors of addition. If these errors in addition are corrected, the times calculated by Mr Mitchell vary from a low in the week commencing 23 December 2006 of one hour and thirty-three minutes to a high in the week commencing 21 May 2007 of six hours and twenty-five minutes, when the patient treatment numbers were sixty. He said that the new summaries comprised a more accurate record than his earlier calculations based on fifteen minutes for two patients at once and ten minutes for one patient at a time, because after the previous hearing he had started to keep a running sheet of the treatment times, and he then transposed the resulting figures on to the summaries.
28. On the final day of the hearing, Mr Mitchell also produced another summary (exhibit A8) which he said showed the time he had spent with each patient during a five week period commencing on 30 April 2007. He said that these were working papers that he had retrieved from his rooms over the luncheon adjournment that day, and that that summary had in turn been transposed at the end of the day or the end of the week from pieces of scrap paper in his pocket. He said that the pieces of scrap paper have been destroyed, as had a number of the working papers for other periods, but exhibit A8 is apparently an example of a working paper that still exists.
29. Exhibit A8 shows that the times assigned to each patient were in every case either six minutes or seven minutes. Mr Mitchell said that those were not the times when the patients were at his premises or even the times when the patients were in the treatment areas, but were the times when he was actually treating the patients. As I understand his evidence, he meant by that the times when he was actually with the patients, and this included assessing their condition, carrying out any manipulative or any other treatment, discussing their condition and making any requisite patient notes.
Legislation
30. Section 23 of the VE Act sets out the criteria which a veteran must satisfy in order to be entitled to the intermediate rate of pension, and s 24 sets out the criteria for entitlement to pension at the special rate.
31. As I have indicated above, the issue that has arisen in the present case is the extent of Mr Mitchell’s incapacity from his war-caused injuries or war-caused diseases.
32. In the case of claims for pension at the special rate, the veteran must be incapacitated from undertaking remunerative work for periods aggregating more than eight hours per week, in order to satisfy s 24(1)(b). This provides that the section applies to a veteran if:
“(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 …”
33. Section 23 provides for claims for pension at the intermediate rate. Under the relevant parts of ss 23(1)(b) and 23(2), the veteran must be incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently, and that would not be the case (relevantly) if the veteran is undertaking, or is capable of undertaking, that work for twenty or more hours per week. Section 23(1)(b) provides that s 23 applies to a veteran if:
“(b)the veteran’s incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently …”
34. Section 23(1)(b) provides relevantly as follows:
“(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who has undertaken or is capable of undertaking, work of a particular kind:
…
(b)… if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week. ”
35. The expression “remunerative work” is defined in s 5Q very broadly to include any remunerative activity.
36. For the sake of completeness, I also refer to the “alone” test in ss 24(1)(c) and 23(1)(c). These two paragraphs are in identical terms, and provide relevantly that they apply to a veteran if:
“(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 …”
Consideration
37. Under s 120 (4) of the VE Act, the Commission, and this tribunal standing in its shoes, must decide the issues that have arisen in these proceedings to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Nothing in the VE Act entitles the decision-maker to presume that a claimant or applicant is entitled to be granted a pension, allowance or other benefit under the Act (s 120(5)(d)). Neither party has an onus of proof (s 124(6)), and the decision-maker must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
38. The very large majority of the hearing time in this tribunal was devoted to the question of the hours during which Mr Mitchell undertook remunerative work as a physiotherapist. This no doubt occurred because the Commission contended that in fact Mr Mitchell had worked for periods aggregating more than eight hours a week, and as a consequence it could not be said that he was incapacitated from undertaking work as a physiotherapist during the assessment period. For his part, Mr Mitchell adduced a good deal of evidence with a view to demonstrating that he had not in fact worked for periods aggregating as much as eight hours per week during the assessment period.
39. However, the primary issue that arises under s 24(1)(b) is whether the veteran is “totally and permanently incapacitated”, and that concept is explained to mean that “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.” This is, of course, a question of fact.
Evaluation of applicant’s evidence
40. There was very little direct reference in Mr Mitchell’s evidence to the nature of his incapacity or the effect it had on his capacity to work as a physiotherapist.
41. At the outset of the hearing, I was advised that the parties had formally agreed certain facts, including that Mr Mitchell had worked full time as a physiotherapist from 1993 to 2003. However, Mr Mitchell’s evidence was inconsistent with this proposition, in that he said that his practice has been gradually winding down over a period of time, and he did not say that he changed from full time to part time work in 2003. He also said that he had not changed the periods for which he was available to take appointments apart from the midday to lunchtime on Wednesday’s time slot, and as mentioned above, he assumed that he had made this change some time after the hearing in the VRB.
42. Mr Mitchell also said that he had not monitored the number of patients he takes per week with a view to keeping them below a certain figure, and that had been the position since he lodged his application for the special rate pension. He said he recorded the numbers of patients in his diaries and did not turn patients away; if they came he treated them, if they did not come he did not treat them. He said there had been nothing about his medical condition that made him consciously change the times of his availability, because the patient numbers had dropped off. He added that if he had been overloaded with patients he would have had to make a conscious decision whether to employ an associate or to do less.
43. As Mr Mitchell has continued to work during the assessment period, I will now examine the evidence as to the aggregate number of hours he has worked as this is relevant (although not conclusive) in determining his capacity to undertake remunerative work.
44. I have referred above to the varying evidence given by Mr Mitchell as to the time he spends treating patients. Mr Mitchell was not an impressive witness; he was frequently evasive, and I found his evidence to be unreliable, and that he has underestimated the time he has spent with patients, and in other activities related to his practice, over the assessment period. As mentioned above, he claimed that he commonly treated two patients together, notwithstanding that their appointments were fifteen or even thirty minutes apart, and when he was asked about particular working days some months earlier, he proceeded to say which patient had arrived earlier than another. I found his evidence as to such matters quite unconvincing, and do not accept it. Another explanation for there always being patients in the waiting room is that the treatment of some patients took longer than Mr Mitchell estimated, and I find that this is a more likely explanation of his being able to treat two patients at once in circumstances where their appointment times differed.
45. I also do not accept Mr Mitchell’s evidence as to the timing of treatments over the period since September 2006, when the matter was first before me. In particular, I find it hard to believe that all of the treatment times recorded over the period covered in exhibit A8 were either seven minutes or six minutes, as appears in that exhibit. Those times are quite inconsistent with Mr Mitchell’s evidence to the VRB to which I referred above, and I do not accept his explanation that he was then referring to legal requirements or health fund requirements. Further, the times shown in exhibit A8 are also inconsistent with his evidence on the first day of the hearing as to the duration of treatments according to whether he treats two patients at once or one patient at a time. I think it likely that the true position is that the duration of treatment times, and the number of patients who can be treated per hour, will vary according to the patient’s condition, the range of treatment that Mr Mitchell provides, and such matters as whether the patient is a new patient or is returning for follow up treatment.
46. I do accept Mr Mitchell’s evidence that because of the nature of his treatment regime as a manipulative physiotherapist, the time he spends with patients is relatively shorter compared with that spent by traditional physiotherapists. In the absence of reliable evidence as to working hours, some guide is afforded by considering Mr Mitchell’s practice in scheduling appointments. He provides for two appointments each quarter hour, and this would equate to a maximum of eight patients an hour. If the average duration of an appointment is assumed to be seven and a half minutes then treating sixty-four patients in a week would equate to a treatment time of eight hours in aggregate a week. This analysis is, I think, generous to Mr Mitchell, because according to his practice diaries, he often does not fill his appointment times to the extent of eight patients per hour, and it is quite common for only one appointment, not two, to be made at each quarter-hour appointment time, or for there to be gaps of two or more quarter-hour times between patients. This means that there would often be time for him to spend more than seven and a half minutes with patients if this were appropriate, and having regard to his evidence to the VRB and his estimates in his evidence on the first day of the hearing in this tribunal, I think it likely, and find, that he would do so several times each week.
47. The above approach would assume that Mr Mitchell is not engaged in remunerative work except for treatment time, that is, when he is actually involved with patients. This entails assessing their condition, obtaining a history, providing treatment, issuing any devices such as straps or braces, and preparing any necessary notes.
48. However, I do not think that it is correct to confine the duration of Mr Mitchell’s remunerative work to actual treatment time. Mr Mitchell is the proprietor of his practice. Even though he employs staff to carry out the administrative tasks, he must inevitably spend some of his own time in liaising with staff and in dealing with matters related to the equipment he uses in his practice, his stocks of such devices as straps and supports, and attending to patient queries. Mr Mitchell was cross-examined in detail about these matters, including his use of a message book, and his responses were evasive. I find that he would spend more than the minimal time on such matters that he was prepared to concede.
49. I have also considered whether Mr Mitchell could be said to have been engaged in remunerative work when he was at his rooms and waiting in between patients, and where there were gaps in appointment times. I do not refer to the period between lunchtime and 3.00 pm, when Mr Mitchell would either remain in his office and read, or go out if it was a sunny day. I accept that he was not then engaged in remunerative work. Further, if there were long gaps between patients, because appointment times had been grouped together, and (as he says was his practice) he retired to his office and read, then I accept that he would not be engaged in remunerative work. However, if (contrary to his evidence that there are always patients in the waiting room) there are some relatively short gaps between patients, I think that his time waiting for his next patient should fairly be regarded as an incident of his practice as a physiotherapist, and that he should be treated as being engaged in remunerative work during such periods, even if he filled in his time by reading or in some other way that did not relate to his professional practice.
50. Taking into account all of the evidence before me, and the considerations to which I have referred above, I find that Mr Mitchell is likely to have worked an aggregate more than eight hours a week whenever he conducted more than say fifty-five to sixty patient treatments in a week. On that analysis, and using the figure of fifty-five patients, it would appear by reference to the practice diaries that he worked for more than eight hours in aggregate per week in eighteen weeks in 2005, eleven weeks in 2006, and three weeks in the period from 1 January 2007 to 13 July 2007. Using the figure of sixty patients in a week, and by reference to the diaries, he would have worked for more than eight hours in aggregate per week in fifteen weeks in 2005, and four weeks in 2006, but not in the period from 1 January 2007 to the final day of the hearing. On the above basis, it also appears that there were two continuous periods of several weeks in succession of more than eight hours work a week in 2005, and (using fifty-five patient treatments as the cut off point) one period of five weeks in succession in 2006. In a number of cases he conducted more than fifty-five to sixty patient treatments working only a four day week. There was no evidence that conducting the numbers of patient treatments Mr Mitchell had in fact undertaken in the relevant weeks had caused him any undue difficulty.
51. Prior to the final day of the hearing, counsel for Mr Mitchell, Mr Swan, contended that Mr Crowe had not cross-examined Mr Mitchell about whether he had worked for more than eight hours per week in cases where he had conducted significant numbers of patient treatments, in breach of the rule in Browne v Dunn (1893) 6 R 67. In the context of proceedings in this tribunal, which is not bound by the rules of evidence, the rule in Browne v Dunn should be observed in the interests of procedural fairness, but also bearing in mind the need to control prolix cross-examination, having regard to the requirement for this tribunal to pursue the objective of providing a mechanism for review that is “fair, just, economical, informal and quick” (s 2A of the Administrative Appeals Tribunal Act 1975 (Cth)). In the present matter Mr Mitchell was cross-examined extensively as to his estimates of patient treatment times, and it was clear that his estimates were being contested. Whilst the cross-examination focussed on particular weeks, it was also clear that those weeks were regarded as representative of the time he spent with patients. The aggregate number of hours for which he had contact with patients could be calculated arithmetically from his own estimates, on the first day of the hearing, of treatment times when he saw patients singularly or two at a time. There was no basis on the evidence for Mr Swan’s hypothetical proposition that there could be other explanations applicable to a particular week, such as the possibility that a second physiotherapist might have been assisting Mr Mitchell in a particular week. Mr Mitchell did not seek to proffer that, or any other explanation, at the resumed hearing, even though he was recalled then, and Mr Swan did not then pursue his above contention.
52. It is also significant that Mr Mitchell grossly under-estimated the number of patients he had treated in the weeks preceding the hearing in the VRB. He admitted that he had not realised that he had treated so many patients in that period until this was pointed out to him. Indeed, he described one of the relevant preceding weeks as a good week. These matters also suggest that he had not had any particular difficulties from his accepted conditions in coping with more than eight hours work during that period. Further, the evidence to which I referred in paragraph 42 above suggests that he had not been conscious of a need to change the times of his availability for appointments, or to restrict the number of patients he saw each week, (although I am mindful that this evidence was given in September 2007, and that the numbers of patients he had seen over the period since the first two hearing days in September 2006 appears to have reduced.)
Evaluation of medical evidence
53. I now turn to the relevant medical evidence as to incapacity. Dr M Ewer gave evidence as to the effects of the psychiatric conditions from which Mr Mitchell is suffering. In his first report, dated February 2004 (exhibit R1, T18, page 70), Dr Ewer diagnosed chronic PTSD, major depressive disorder and alcohol dependence, and said that Mr Mitchell had started drinking excessively six months previously. Dr Ewer recited the information he had obtained, including the history provided by Mr Mitchell to the effect that Mr Mitchell described successive reductions in his work hours, culminating (according to this history) in a reduction in work hours to ten to twelve hours per week, and then since December 2003 not working more than eight hours per week because of emotional problems. Later in his report he narrated a history of problems in the workplace. Dr Ewer than proceeded to quantify Mr Mitchell’s disability by reference to the Guide to the Assessment of Rates of Veterans’ Pensions (GARP), 5th Edition. In the course of this he said (exhibit R1, page 75):
“Table 4.4 occupation
I believe that Mr Mitchell is totally incapacitated for work as a result of the psychiatric symptoms I have described above. This equates to an impairment rating of 8.”
54. In October 2006 the Commission sought a further report from Dr Ewer, and drew his attention to an apparent difference between his narration in his earlier report of Mr Mitchell’s working hours, and his subsequent opinion that Mr Mitchell was totally incapacitated for work. In a report in response dated 13 October 2006, Dr Ewer said that at the time of his earlier report it was his understanding that Mr Mitchell had not worked more than eight hours per week, not that he was not working at all. He went on to say that on his understanding, if a veteran is unfit to work eight hours per week then the Department of Veterans’ Affairs considers the veteran unable to work and the veteran may be eligible for a pension at the special rate. He said that therefore in many of his reports he used “a form of shorthand by indicating that if a veteran cannot work eight hours per week I describe them as being unfit for paid employment or totally incapacitated for work.”
55. I find the above explanation of the apparent contradiction in the earlier report of 6 February 2006 unsatisfactory and unconvincing. In his earlier report Dr Ewer said expressly that he was assessing Mr Mitchell’s impairment rating under the GARP, and he attributed an impairment rating of 8 under Table 4.4. The GARP shows that this is the impairment rating where the veteran “cannot work”. Presumably that was Dr Ewer’s then opinion. If (as he said in his later report of 18 October 2006) he had considered that Mr Mitchell could work, but not for more than eight hours a week, I would have expected Dr Ewer to have assessed an impairment rating of 5, being the rating that applies under the GARP where “an employed veteran will have major difficulties at work, which may be manifested by job modification or restriction of career opportunities. …”
56. In his final report, dated 13 February 2007, Dr Ewer confirmed his earlier psychiatric diagnosis, including that of alcohol dependence, and expressed the opinion that Mr Mitchell “could currently work less than 8 hours per week in total due only to his psychiatric problems” (exhibit R10, page 6). He added that Mr Mitchell had said that he was unaware of any other problems interfering with his capacity for work. He also said that Mr Mitchell’s ability to work had probably deteriorated a little since he last saw him (which was in February 2004).
57. I am not satisfied from Dr Ewer’s reports or evidence that Mr Mitchell is incapacitated as a result of his psychiatric conditions from undertaking work as a physiotherapist for more than eight hours a week. I find a number of aspects of Dr Ewer’s reports and evidence to be unsatisfactory. These aspects (which I have not attempted to arrange in any order of priority) are as follows.
(a) Dr Ewer’s diagnosis included a diagnosis of alcohol dependence. The T-Documents (exhibit R1) indicate that PTSD and major depressive disorder have been accepted as war-caused, but there is no reference to alcohol dependence having been so accepted. I must of course assess Mr Mitchell’s claim by reference only to his accepted conditions of PTSD and major depressive disorder, and Dr Ewer has not differentiated between the effects of the three conditions he had diagnosed.
(b) As mentioned above, I find Dr Ewer’s explanation for the apparent contradiction in his first report of 6 February 2004 to be unconvincing, and I am satisfied that Mr Mitchell was not (as Dr Ewer then said) totally incapacitated for work at that time as a result of the psychiatric conditions that he had diagnosed.
(c) Dr Ewer apparently had doubts as to whether Mr Mitchell’s work as a physiotherapist was effective. I accept that in some circumstances, if a veteran’s work was wholly deficient, it might be said that the veteran was unable to engage in remunerative work, but this would be a matter of degree; if the lack of effectiveness was of less significance, for example because the veteran was taking longer to perform tasks or was more inclined to make errors or to perform them less adequately, I do not think that the veteran could necessarily be said to be incapacitated from undertaking remunerative work.
(d) Dr Ewer had made it clear in his second report, namely the report of 13 October 2006, that he did not regard it as his role as a medical expert to decide what the facts of a particular case may be, and that this was a matter for the court (or in this case, this tribunal). It is clear that the opinions he has expressed are based on certain assumptions as to difficulties that Mr Mitchell was having in practising as a physiotherapist.
(e) As to those assumptions, I note that Mr Mitchell said that he only practised as a manipulative physiotherapist in areas where he felt comfortable treating patients, and did not take on difficult cases. Dr Ewer said when giving evidence that he did not go in to the detail of what kind of physiotherapy practice Mr Mitchell conducted, and acknowledged that it would be helpful to Mr Mitchell if he saw “easier patients” or patients with problems that he was more familiar with, and if he did not endeavour to treat patients whom he did not think he would be able to help.
(f) Dr Ewer also understood when assessing Mr Mitchell’s capacity to work that he was only seeing two patients per hour, whereas previously he had been seeing eight to ten per hour. This was clearly a mistake on Dr Ewer’s part, because Mr Mitchell had shown him his practice diary and also a summary of various weeks’ appointments, but Dr Ewer’s mistake was in my view a significant one in the context of making an assessment of Mr Mitchell’s capacity to work as a physiotherapist.
(g) Dr Ewer also referred to Mr Mitchell having a number of other difficulties, including suffering from a lack of concentration leading to difficulties that might arise from interruptions such as telephone calls, being unaware why patients did not return for follow up treatment, being unable to keep abreast of new developments in his profession, difficulties in keeping notes of his patients’ conditions, turnover of staff and intolerance of patients. However, in the course of his evidence, Mr Mitchell said that his staff dealt with telephone calls (except after they left work at 5.30 pm), that he had little cause to take notes of his patients’ condition because he could assess their condition from their presentation, that he had no need to keep up with reading of current trends in his profession because of the nature of his practice and the nature of the conditions he treated, and that he regards his staff as working colleagues and friends. He did not say in his evidence that he had lost staff due to any emotional problems. Further, he said that he had little need to write letters for patients, because he now receives few referrals from doctors, and his letters comprise an occasional letter to a gym to assist patients to have their membership suspended while they are under treatment. He referred to patients not returning for subsequent treatment, but gave no indication that this was because of any conflict with patients; rather, he understood that this was because they had recovered. He also said in evidence that he had no difficulty in obtaining histories from patients, and that it had not “been pointed out to (him)” that communicating with patients was an ongoing problem (transcript, 28.09.07, page 35, line 34).
58. The Commission also referred Mr Mitchell to an occupational physician, Dr R T Gun. He examined Mr Mitchell first on 1 June 2005. In a report of 3 June 2005 Dr Gun concluded that Mr Mitchell’s disability from his war-caused lumbar disc degeneration and osteoarthritis in both knees was “incompatible with the workload in his physiotherapy profession of any more than eight hours per week” (exhibit R1, T31, page 129). He repeated this opinion in his report of 20 October 2006 (exhibit R6).
59. Dr Gun examined Mr Mitchell for a second time on 13 February 2007. In his report of that date, Dr Gun said that in summary, Mr Mitchell had extensive degenerative disease of both knee joints and his lumbar spine, and that both conditions were deteriorating symptomatically and radiologically. He again repeated his opinion as to the maximum period for which Mr Mitchell could work.
60. It appears from his reports that Dr Gun had an imperfect understanding of the time spent by Mr Mitchell with patients, because he said that he presumed that the average duration of a consultation was fifteen minutes and he estimated that he had been working about two hours per day. Nevertheless, Dr Gun provided a detailed assessment of the relevant musculoskeletal conditions, and it is obvious that he considered them to be serious and deteriorating. He says in his last report that the knee symptoms have regressed to the point where Mr Mitchell is contemplating bi-lateral knee replacements.
61. Having regard to my analysis of the aggregate periods for which Mr Mitchell must have worked during a number of weeks in the year 2005, and the absence of evidence that this caused him undue difficulty, I do not accept the opinion expressed by Dr Gun in his first report of 3 June 2005 as to the effect on Mr Mitchell’s working capacity of his musculoskeletal conditions. However, Dr Gun found that by 13 February 2007 Mr Mitchell’s condition had deteriorated. In response to the question “How many hours per week do you consider Mr Mitchell to be capable of working?” he said that “an eight-hour week (was) a reasonable maximum with which Mr Mitchell can work without an unacceptable degree of discomfort”.
62. Dr Gun was not required for cross-examination, and no other medical evidence was led to contradict his opinion. His opinion was based solely on Mr Mitchell’s physical condition, and his accepted emotional problems are likely to have some added adverse effect on his capacity to work. There were only three isolated weeks from 1 January to 13 July 2007 when Mr Mitchell conducted more than fifty-five patient treatments. Contrary to the position in 2005 and 2006, there is no evidence (using my above findings to compute the number of hours for which he was engaged in remunerative work) that Mr Mitchell worked for any extended periods of more than eight hours in aggregate per week after 13 February 2007 (being the date when Dr Gun re-examined Mr Mitchell). For all of these reasons, I accept Dr Gun’s opinion as to Mr Mitchell’s working capacity.
Conclusion
63. I have carefully considered all of the evidence before me. I am not satisfied that Mr Mitchell’s incapacity from his war-caused conditions was of such a nature as to render him incapable of undertaking remunerative work periods aggregating more than eight hours per week during the period from the date of lodgement of his application for increased pension until 12 February 2007. However, for the above reasons I am satisfied that he has been so incapacitated on and from 13 February 2007, and so is entitled to pension at the special rate on and from that date.
64. The evidence adduced at the hearing before me related virtually exclusively to the question of whether there was an incapacity to work for more than eight hours per week. Ultimately the Commission did not contend that Mr Mitchell was not incapacitated from working for twenty or more hours per week. There is no evidence that during the assessment period he worked for periods aggregating anywhere close to twenty hours per week. I am accordingly satisfied that Mr Mitchell’s incapacity from his war-caused conditions were of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently during the period from the date of lodgement of his application up to 12 February 2007 inclusive, so that he satisfies the criterion for s 23(1)(b) of the VE Act.
Is part-time work remunerative work that the applicant had previously undertaken?
65. At the commencement of the proceedings Mr Swan contended that the “alone” test in s 24(1)(c) was satisfied, because Mr Mitchell had previously worked full time as a physiotherapist, but was now working for limited hours. As mentioned in paragraph 7 above, the Commission accepted this position, and that the “alone” test in s 24(1)(c) was therefore not in issue.
66. The question of whether a veteran could be said to be “continuing to undertake remunerative work that the veteran was undertaking” for the purposes of s 24(1)(c) involves characterising the remunerative work that the veteran had previously undertaken. I am not aware of any definitive authority on whether this aspect of s 24(1)(c) would be satisfied where a veteran is undertaking part-time remunerative work of the same type as the full-time remunerative work that he was previously undertaking. It has been held that the above expression is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223.
67. In Repatriation Commission v Haskard (2002) 126 FCR 1, Hill J considered a case involving a valuer who had previously worked full time, but had then reverted to part-time work as a valuer because of his incapacity for work from war-caused injury. His Honour said that he was inclined to think that it would be appropriate to classify the veteran’s initial remunerative work as full-time work. As a result, he doubted whether the later part-time work should be characterised as work of the same type: see at [32] and [38].
68. The advocate for the Commission, Mr Crowe, drew my attention to a contrary approach in the later case of Wright v Repatriation Commission (2005) 144 FCR 302, but invited me not to follow this contrary approach. I note that in Wright the court did not refer to those parts of Hill J’s judgment to which I have referred above.
69. In Haskard, Hill J referred to comments of Branson J in Carter v Repatriation Commission (2001) 33 AAR 343 at 348, where her Honour doubted whether full-time work as a partner in an accounting practice would be characterised as work of the same kind as limited and irregular audit work undertaken on a contract basis. Of course, that conclusion was no doubt clearer on the facts of that case than in the present matter, because in Carter, the difference was not only the difference between full and part-time work, but also the difference between work as a partner in an accounting practice with two other partners, and audit work on a contract basis. Further, her Honour was considering the proper application of s 24(2A)(d) of the VE Act, which refers to “remunerative work that the veteran was last undertaking” (emphasis added), and that is different from the words used in s 24(1)(c), namely “remunerative work that the veteran was undertaking”. Nevertheless, Hill J treated her Honour’s comments as providing some support for his view.
70. In Carter, Branson J referred to the proposition that the paragraphs of s 24 that her Honour was there considering dealt with two distinct issues. That is the position in the present matter. Section 24(1)(b) deals with the extent of incapacity for remunerative work (as well as causation), and s 24(1)(c) deals with whether there are other causes that are contributing to incapacity (as well as whether loss results from incapacity). It could often happen that upon becoming disabled, a veteran would turn to part-time work in the same field of work that he or she had previously undertaken on a full-time basis. If a veteran satisfies the criterion dealing with the extent of incapacity for remunerative work in s 24(1)(b) it seems to me that it would not be appropriate to characterise part-time work as “remunerative work that he or she was (previously) undertaking” for the purpose of s 24(1)(c) where he or she had previously undertaken work of the same kind on a full-time basis. To adopt that interpretation might often lead to veterans being deprived of pension at the special rate, even though they satisfied the criteria for being totally and permanently incapacitated provided for in s 24(1)(b). I therefore prefer, with respect, the approach of Hill J in Haskard. I consider that it was appropriate as a matter of law for Mr Crowe to make the concession to which I have referred above, and I accordingly find that Mr Mitchell has satisfied the criteria in s 24(1)(c), and the corresponding criteria in s 23(1)(c).
Decision
71. The tribunal sets aside the decision under review and in place of that decision determines that the applicant is entitled to pension at the intermediate rate provided for in s 23 of the VE Act with effect on and from 2 January 2004 until 12 February 2007 inclusive, and is entitled to pension at the special rate provided for in s 24 of that Act with effect on and from 13 February 2007.
I certify that the 71 preceding paragraphs are a true
copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
L.. Wunderer AssociateDate/s of Hearing 13 and 21 September 2006 and
28 September 2007
Date of Decision 21 December 2007
Counsel for the Applicant Mr N Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr A Crowe
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