Reid and Repatriation Commission (Veterans' entitlements)

[2021] AATA 877

Reid and Repatriation Commission (Veterans' entitlements) [2021] AATA 877 (15 April 2021)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2019/3187

Re:Malcolm Reid  

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Member A Ward

Member Dr L Stephan

Date:15 April 2021

Place:Adelaide

The Tribunal affirms the decision under review.

........................[Sgnd]............................

Member A Ward

Catchwords

VETERANS’ AFFAIRS – compounding injuries and illness – ability to undertake remunerative work – whether the Applicant’s war-caused disease alone prevents them from undertaking remunerative work – whether the Applicant is entitled to the special or intermediate pension rate – decision under review affirmed 

Legislation

Veterans’ Entitlements Act 1986

Administrative Appeals Tribunal Act 1977

Cases

Smith v Repatriation Commission (2014) 22 FCR 452

Repatriation Commission v Richmond [2014] FCAFC 12

REASONS FOR DECISION

Member A Ward

Member L Stephan

INTRODUCTION

1. On 17 May 2019, the Veteran’s Review Board affirmed a decision of the Repatriation Commission that the Applicant’s rate of pension remain at 100 percent of the General Rate (“GR”) of pension.

2. The Applicant contended that he met the requirements of the Special Rate (“SR”) of pension pursuant to section 24 of the Veterans Entitlement Act 1986 (“VEA”). 

3. The Applicant served as a member of the Defence Force in the Army from 14 January 1978 to 13 February 1984. During the course of that service, he suffered an injury to his lumbar spine, along with hearing loss and tinnitus. The issue is the extent to which the lumbar symptoms have continued to affect him. More importantly, the extent to which his lower back injury has prevented him from continuing to undertake remunerative work. The Applicant suffers from a number of other medical conditions which have also impacted on his working ability.

4. Whilst the Applicant applied for the SR of pension, this Tribunal has also given consideration to the applicability of the Intermediate Rate (IR) as well.[1]

   [1]  Smith v Repatriation Commission (2014) 22 FCR 452.

   Military employment

5. During his first two years of service in the Army, the Applicant’s speciality was as a driver.  He drove semi-trailers and trucks.  Following the injury to his lower back in 1980, he undertook easier work, often driving the Unit Commander’s vehicle.  This work did not involve manual handling, on his evidence. 

6. The injury was noted when he was participating in a 5-kilometre run. He told doctors that he felt and heard a crack in his lower back and fell to the ground. He was unable to get up and he said it felt like a knife was going through his back. This incident occurred in Queensland and he was transported to the Townsville Hospital where he was an inpatient for a week with bed rest and analgaesia. He was not mindful at that stage of pain radiating into his legs.

7. He continued to experience back pain following discharge from hospital. His discharge from service in February 1984 was not on medical grounds. 

8. Following leaving his military service, he worked for private contractors. He was able to sustain a variety of employment mostly full time. This involved moderate to heavy manual work that included lifting and carrying. He drove heavy vehicles such as graders and operated large plant equipment. His evidence was that he had flare-ups of symptoms and there were periods when he could not work. He told the Tribunal he drove a bus in Alice Springs, often in relation to Aboriginal Health for the Nganampa Health Services and he also worked as a grounds maintenance person for the Department of Aviation for twelve months. He has worked as a grader operator for the Alice Springs Town Council and on occasions at Mount Darling Station.  Towards the end of his working career, he had the job working for the Alice Springs Town Council and his final job was driving a bus for the Council, finishing in 2005. 

9. Dr Byok, who examined him on behalf of the Respondent, provided a report on 22 April 2012.  It noted there was no further period of hospitalisation for his back pain as there had been during his Army service. The use of rammers for star droppers would aggravate his shoulders as well as his back. His job driving passengers aggravated his shoulders and back due to him having to lift suitcases.[2]

   [2] Exhibt 5, Report of Dr Byok dated 22 April 2020, p 3.

10. Whilst the Applicant concentrated on his lower back being the cause of him leaving his various employments outlined above, this is not consistent with the contemporaneous medical evidence. For example, during his work at Mount Darling Station, he noted increasing right shoulder pain which put that work beyond his capabilities and he stopped his work there in early 2002.  He had surgery on his right shoulder in July 2002 which put him out of the workforce until January 2003.  His shoulder problems have continued to affect him in both shoulders.

11. He has had significant radiological investigation and treatment for his left shoulder in the period between January 2003 to April 2014, having 8 different procedures over this time. At the time of the Hearing he had been on a wait list for surgery to his left shoulder.

12. In December 2014 he had an X-ray and CT scan of his neck. He had CT – guided facet joint injections in his neck in February and April 2015. His neck continued to affect him up to the time of the Hearing, with restriction of movement arising from the pain affecting his ability to drive.

13. He had a left groin ultrasound in October 2015 following complaints of pain in this area. He had pelvis and right hip examinations in November 2016 and an abdominal X-ray and a further groin investigation in November 2016. All such investigations arose after he complained of problems in these relative areas to his treating doctors.

14. This contrasts to investigations and treatment of his back. Notwithstanding the high level of complaint and impact on all the activities he has asserted for his DVA claims, radiologically he has been examined on three occasions since 2003. The first being a CT in May 2003, an MRI in June 2004, and an X-ray in 2012.[3]

    [3] Exhibit 5, Report of Dr Byok dated 22 April 2020, p 10 and 11.

15. In addition to the back problem and the hearing loss which have been accepted under the VEA, the Applicant has suffered the following medical conditions:

    (a)Shoulder injury, which he attributed to digging with picks and shovels and putting in fence posts with a rammer to fix star pickets in place.

    He gave evidence that since he has not been working his shoulder injuries have not been as symptomatic as they were whilst undertaking that heavy work, however it is of note that the Applicant was scheduled for left shoulder surgery but it has been delayed, partly due to him changing his location. 

    His evidence was that his shoulders would not withstand the sort of work he was doing such as fencing, noting bluntly that he would be “buggered”. His evidence to the Tribunal was that if he were to hold his arms above his head he would feel burning in the rotator cuff area. His shoulder symptoms are clearly ongoing throughout his evidence and there is reference to them in the GP notes.

    (b)The cervical spine which was diagnosed as arthritic in 2014.  As noted above, he sought treatment with his GP and was sent for CT scans and injections. This occurred twice in 2015. He continues to experience these neck problems. He has restrictions in his neck movement which effect his ability to drive and he admitted in his evidence to the Tribunal that his neck is a continuing issue.

    (c)Type 2 diabetes diagnosed in 2011.  Initially he was treated with oral medication, but this has been increased with insulin now incorporated into his treatment.

    He was frank in his evidence to the Tribunal as to the effect the diabetes has upon him. It impacts on his ability to undertake activities, and on his evidence, it gave rise to his heavy vehicle licence being revoked due to medical evidence of disease-related disability.

    (d)During his consultation with Dr Byok, he reported that swollen legs had affected him over recent years and for a time he was taking the drug, Frusemide, to treat this. 

    (e)Hypertension is referred to in the GP notes and he is on medication for it.

    (f)He also has gastric and abdominal pain for which he has received treatment over the last ten years.

    (g)In addition, he has had treatment for bilateral hernias.

    (h)The case notes indicate a cortisone injection into the right trochanteric bursa where X-rays have revealed degenerative change in his right hip joint.

16. By way of history, the Applicant was injured in his back in 1975 playing football, prior to enlisting in 1978. This has no bearing on his accepted back condition.

17. Consideration of the Applicant’s GP notes reveals many attendances for the problems that are listed above. It is clear then, that if the Applicant has a medical complaint (such as his neck) he will attend on the GP to report it. It will be investigated and treated, as necessary.

18. What is missing in the GP notes is any particular reference to the lower back issue upon which he has based his claim. Reports of lower back pain would be made but when they are referred to, it is in direct connection with his claim for benefits under the VEA. He is perfectly entitled to do that, but there is a marked absence of any visit to the doctor due to an increase of lower back pain or the doctor referring him for investigation and treatment of it if necessary. The Tribunal had to consider this. It does not mean there is no increase in pain if it is not recorded in the GP notes after every consultation, but it appears here in stark contrast to the other areas such as the neck, shoulder and diabetes as set out above.

19. The Applicant’s treating General Practitioner, Dr Telfer, supported the Applicant’s claim for the increase in the rate of his entitlement in various letters and reports. He also gave evidence in the hearing. He supported the Applicant and has made no attempt to conceal that level of support.  His evidence is received on the basis that he was trying to do the best for his patient. He was not able to explain the absence of investigation and treatment of the Applicant’s back when it was discussed at consultations. As noted above, it was usually referred to in the context of this claim and what was necessary for the claim. 

20. Thus, Dr Telfer referred the Applicant to Mr Gavin Shepherd, Occupational Physician, for his chronic lower back pain - but in the context of the Applicant’s appealing the classification of his DVA Pension.  Dr Telfer set out the nature of the Applicant’s dispute with the DVA (as the Applicant and Dr Telfer perceived it) and asked the Applicant to take his paperwork with regards to the DVA assessments to the appointment. Dr Shepherd was not able to give evidence in person for the hearing, but the Tribunal had access to the report he wrote to Dr Telfer in which he noted:

    “Feel free to copy this letter to Malcolm and his representatives for DVA purposes”. 

21. The Tribunal has no doubt as to the genuineness of the intentions of the General Practitioner. However, the Tribunal has to assess these matters appropriately between the parties. Medical evidence which is more in the nature of advocacy must be viewed with caution when making an independent assessment of facts. The opinions of the General Practitioner have lower weight in this setting, but the notes and their contemporaneous complaints are important. The importance of this medical evidence here is that clinically the lower back is only referred to in the context of a claim. If the Applicant was having such serious symptoms (assessed by the applicant as 8/10 on the pain scale as the norm) for such a long period of time, if we accept the assertions, it does not make sense not to have them investigated and treated. This is in contradistinction to all the other conditions described above.

22. Dr Byok assessed the Applicant in the capacity of an expert witness as provided for across all courts and tribunals to give evidence to assist the decision-maker, not act as an advocate. She noted the various other debilitating medical conditions that have affected him. She formed the view that there was a combination of factors limiting the Applicant’s work capacity. The Tribunal accepts her opinion, given our findings of the evidence upon which it is based.

23. There is no getting away from the fact that the Applicant has a number of illnesses that have affected his ability to work. He had demonstrated an ability to work following his discharge from the Army in a similar type of work he was doing in the services. That has not been the case for some time leading up to this hearing.

24. The Tribunal has applied the reasonable satisfaction standard of proof as per s 120(4) of the VEA.

25. The Tribunal is mindful of the test for entitlement as set out in ss 23 and 24 of the VEA. The Tribunal notes the following concessions and assertions of the Respondent:

    (a)The Applicant has made a claim under s 15 for an increase in the rate of pension that he is receiving. 

    (b)The Applicant was under 65 years of age when the application was made.

    (c)The degree of incapacity of the Applicant arising from war-caused injury has been assessed by the Respondent at 100 percent of the General Rate.

    (d)The Applicant’s incapacity from war-caused disease or injury prevents him from continuing to undertake remunerative work for more than 8 hours per week.

    (e)The Applicant’s incapacity from war-caused disease or injury alone does not prevent him from continuing to undertake the kind of remunerative work that he had been undertaking.

26. The ‘alone’ test comes from ss 23 and 24 of the VEA. That is effectively that the war caused condition alone causes the incapacity.[4]

    [4]  The war caused condition is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work…

27. The Tribunal is mindful of the decision of Repatriation Commission v Richmond[5], referring to the first instance decision in that case with which the appeal court agreed:

    “The authorities in my view establish that if there is a non-war caused factor which prevents or contributes to preventing the veteran from continuing to undertake the relevant remunerative work, even if only of secondary weight and insufficient in itself to prevent the veteran from continuing, the ‘alone test’ will not be satisfied.”

    [5] [2014] FCAFC 12.

28. The Appeal Court noted this might seem harsh in its operation, but it reflected the plain words of the Act.

29. That is certainly the case here with the other injuries and illnesses clearly impacting on the Applicant’s ability to work. One points to the issue that his inability to hold a heavy vehicle licence, which was important to him for the type of work he undertook following his military service, arose as a consequence of his diabetic condition.

30. The Applicant has not actively sought work since finishing up in 2005. He gave an honest account as to the debilitating nature of his other medical conditions in his evidence.

    DECISION

31. This Tribunal, in accordance with s 43(1) of the Administrative Appeals Tribunal Act 1977, affirms the reviewable decision of the Veterans Review Board on the 17 May 2019 that the applicable rate for the Applicant is 100 percent of the General Rate of pension. The Applicant did not meet the requirements of the Special Rate of pension nor, for these purposes, the Intermediate Rate of pension.

    DECISION

32.     I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for the decision herein of Member A Ward and Member Dr L Stephan.

   ……………[Sgnd]……………………

  Administrative Assistant Legal

 Dated: 15 April 2021

Date of hearing:	25 March 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ashley Burgess, Sparke Helmore Lawyers