Rigby and Repatriation Commission
[2005] AATA 198
•4 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 198
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/935
VETERANS’ APPEALS DIVISION )
Re ROGER RIGBY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date 4 March 2005
Place Brisbane
Decision The Tribunal sets aside the decision under review, namely that of the Repatriation Commission dated 19 June 2002, and substitutes the decision that the applicant is entitled to be paid disability pension at the intermediate rate with effect from 27 September 2002.
.................[Sgd]........................
M J Carstairs
Member
CATCHWORDS
VETERANS’ APPEALS – Veterans’ entitlements – disability pension – war caused injury during relevant service – application for special rate of pension – applicant’s war caused injury not the cause alone, of his being unable to work – applicant genuinely seeking to engage in remunerative work – applicant taken as being prevented from continuing to undertake remunerative work – applicant entitled to intermediate rate of pension – decision under review set aside and substituted accordingly.
Veterans’ Entitlements Act 1986 ss 19, 23, 24, 28
Hall v Repatriation Commission (1994) 33 ALD 454
Flentjar v Repatriation Commission (1997) 26 AAR 93; (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Cavell v Repatriation Commission (1988) 9 AAR 534WRITTEN REASONS FOR ORAL DECISION
10 March 2005 Ms M J Carstairs, Member 1. This is an application by Roger Rigby (the applicant) for review of a decision made by a delegate of the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board (the VRB) that the applicant was not eligible to be paid special rate of pension.
2. At the hearing the applicant was represented by Mr R Anderson instructed by Terence O’Connor Solicitor. The respondent was represented by its advocate Mr B Williams.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1-A2 for the applicant and R1 for the respondent.
4. On 4 March 2005 the Tribunal delivered oral reasons for decision. The applicant has requested written reasons and these reasons answer that request.
BACKGROUND
5. The applicant is aged forty-nine. He had 28 years service with the Australian Navy (the navy) enlisting at the age of seventeen, and taking his discharge in December 2000 at the age of forty-five. He reached the rank of Warrant Officer.
6. During his navy service the applicant trained as a quartermaster/gunner amongst other skilled roles.
7. The applicant has the conditions of lumbar disc lesion with sciatica and bilateral hearing loss with tinnitus accepted as related to his service. He has been assessed as eligible for payment of 100% of the general rate because of these conditions. He made an application for increase in the rate of pension on 27 September 2001
ISSUES AND LEGISLATION
8. The procedure which the respondent is required to follow in determining claims is provided for in s19 of the Veterans’ Entitlements Act 1986 (the Act). Section 19(5C)(a) of the Act requires the rate of pension to be determined during the assessment period and that term is defined in s19(9) of the Act in the following way:
“assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.”
9. The application day in this case was 27 September 2001 and the assessment period runs from that day. At the application day, the applicant was forty-five years of age.
10. The issue raised is whether the applicant meets the criteria for payment of an earnings-related rate of pension which is provided for s24 of the Act. As the applicant is under sixty-five years of age, the matters that need to be determined are whether or not he meets the requirements of paragraphs 24(1)(a), (b) and (c) of the Act. These read:
“24(1) This section applies to a veteran if:
(a) …..
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force;
……..
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and”
11. Section 23 of the Act provides for the intermediate rate of pension and is in similar terms except that the test entails establishing, amongst other things, that a person is incapable of working other than on a part time basis or intermittently.
12. The operation of s24(1)(c) is ameliorated for those aged under sixty-five by the provisions of s24(2)(b) of the Act which provides:
………
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Section 23(3)(b) similarly ameliorates the operation of s23(1)(c) of the Act.
EVIDENCE
13. The applicant gave oral evidence that, apart from a period of one year working as a draper’s assistant immediately after he left school at Grade 10, he had spent his working life in the navy, where he had undertaken a number of roles. He said that he was an ammunition and small arms specialist; had been a bosun for a period of two years; had the command of a non-commissioned ship; and had other roles as part of the command team including the responsibility for fifty-six personnel. He acknowledged that particularly in peace time operations he was required to utilise administrative skills.
14. The applicant said that he had been a very fit serviceman until he sustained an injury to his lower back in July 1995 when he was being lowered from a helicopter onto the deck of a ship. His back condition after this event worsened progressively, to the stage that he was immobilised and required bed rest for a period of some seven months. Surgery to his back took place in March 1996, after which his back condition seemed to improve. He was able to regain the required levels of fitness for sea duty that he had lost in the months following the helicopter incident.
15. The applicant said that he was capable of working when he left the navy and he had lined up work in Sydney that would utilise his skills in ammunition and training that he had developed in the navy. Some years earlier he had formed a friendship with Mr J Owens, proprietor of CompBase Training Services Pty Ltd who was providing outsourced training modules for service personnel and who wished to employ the applicant because he had specialised knowledge in this area. The applicant said that he intended not to work for six months after leaving the navy but that Mr Owens had pressed him to take up the position as he had training contracts with the navy, including one to undertake training in load shifting equipment for wharf side operations which was to be run for personnel serving on the last ship on which the applicant had served.
16. In a letter dated 9 January 2003, (T4 p42-43) Mr Owens said that he regarded the applicant’s considerable skill base as well-fitted to the operations of his company and he confirmed that employment was offered to the applicant, would have been a continuing prospect and that he had extended as much time as he could to the applicant to be able to take up the position once his back improved. He said he had delayed a contract to do so but the applicant was never able to rehabilitate his back to be able to take up the position that was being offered to him.
17. The applicant said in his oral evidence said that his back condition deteriorated after he left the navy, though he could recall no particular incident. He said that he could not travel in a car or plane and had to decline the offer of work with CompBase Training. During 2001 he was hospitalised for three days and given pethidine injections.
18. With regard to his back generally, the applicant said that he has day-to-day periods of immobility and cannot predict when these will occur. He said that he will usually be immobilised for days after undertaking mowing or gardening, but he said that this does not invariably happen. He said that he has undertaken voluntary work driving residents from Altera Age Care facility in Toogoolawah to Brisbane for medical appointments. He said that he is able to complete the return drive and wait for the patient during the appointment but he could not do this on an every day basis and indicated that he was likely to be immobilised on the following day as a result of having undertaken that amount of driving. He has only undertaken this activity on four occasions over the past six months.
19. The applicant said that he could not guarantee that on any particular day he could work at all but that on a good day he could work a couple of hours per day. He said that he can complete household tasks such as washing and cooking because for these tasks he can work at his own pace and can then sit when the need arises.
20. He said that he and his wife moved to a 20 acre property in Toogoolawah after having previously lived at Morayfield. He said that the reason that they moved was that they were unable to afford the rent once he was not taking up the work with Mr Owens. He also said that his wife had an interest in horses which they had the acreage for at Toogoolawah.
21. The applicant said that he now weighs 135kg after reaching 144kg and having been 118kgs at the time of his discharge. When he was shown his army medical records he agreed that he was recorded as weighing 125kgs at his discharge medical. The applicant said that he did not believe that his weight would have prevented him undertaking the training role with CompBase Training because of the nature of the duties involved in that training.
22. The medical reports included the following:
§ Report of Dr M Kahelin general practitioner dated 27 May 2002 (T4, p19), in which he stated that the applicant was unfit for work because of ongoing back degeneration and because of NIDDM (non insulin dependant diabetes) (less so)….
§ Report of the applicant’s general practitioner Dr P Alexander dated 16 November 2001 (T4) in which he stated that the applicant suffered from lumbar disc lesion with sciatica, hypertension and obesity and was unfit to work at all. He considered that the lumbar disc lesion with sciatica and the obesity were severe and disabling for many functions, but that the hypertension had a moderate effect on certain functions only.
§ Report of Dr J Morris dated 30 May 2002 (T4, pp20-24) in which he stated that the applicant had recently been diagnosed with late onset diabetes and high blood pressure. Dr Morris stated that the applicant’s diabetes caused him to become dizzy and weak. He said that the results of a CT scan showed that he had multi level degeneration of the spine with bulging at L4/L5. He said that the active contribution to the applicant’s incapacity to work was his lumbar disc lesion with sciatica, but that if it were only his back condition, without his obesity and diabetes, he would be able to work more than twenty hours per week. He said however that with his obesity and diabetes the applicant was not able to work twenty hours per week.
§ Report of Dr S Goode, specialist in occupational medicine dated 28 March 2003 (T4 pp 51-60) in which he diagnosed the applicant as having multi level degeneration of the spine, but he considered that if he lost weight the frequency and severity of acute recurrences of lumbar pain would reduce. Dr Goode said that obesity would serve to reduce aerobic capacity but other than this and it effects on his lumbar spondylosis, the obesity would not have other significant adverse effects on work capacity. Dr Goode said that the condition that very clearly and most adversely affects work capacity is the lumbar one. Dr Goode went on to say however that if the applicant lost weight he could theoretically consider part time office work clerical or administrative work of a sedentary kind for eight to twenty hours per week.
Dr Goode stated that the applicant told him that he could sit and stand for a few hours at a time, though needed to move about. He could walk for 1 kilometre before experiencing symptoms. He said the applicant told him that he was diagnosed with hypertension after his discharge from the navy, but it was well controlled with medication, as was hypercholesterolemia.
The applicant told Dr Goode that he could help around the 40 acre property; could feed the horses and dogs, and fix fences if called upon to do so. He said he was able to drive a manual four wheel drive utility truck though he experiences pain after an hour of driving. Dr Goode said that if the applicant were fully fit he would be capable of labouring work, retail assistant’s work or administrative positions, seaman’s work and a range of positions with marine supplies and training.
§ In a report dated 26 October 2004 (exhibit A1), Dr Goode stated that the applicant’s lumbar pain was unchanged, and that he had been able to reduce his weight slightly. He said:
With respect to the service related conditions the (lumbar disc lesion with sciatica) is by far the most significant. There is ongoing, chronic recalcitrant, subjectively reported lumbar back pain which, according to Mr Rigby, periodically results in extended periods of significant incapacity, even requiring bedrest for days at a time. It is to be noted that the underlying multilevel lumbar degeneration will be present in the long-term.
23. Dr Goode stated that with respect to the non-service-related disabilities his morbid obesity would adversely affect his ability to aerobically exercise but would not prevent the applicant returning to remunerative work. Dr Goode said that the applicant’s service-related lumbar condition was alone sufficient to prevent him returning to remunerative work for even eight hours per week.
24. In oral evidence Dr Goode said that the applicant’s obesity did not help his lumbar condition, but obesity would only impair, not prevent, work. He said that it was possible that if the applicant lost weight he would not be bedridden for days at a time when he is immobilised with back pain.
CONSIDERATION OF THE ISSUES
25. Mr Anderson submitted that the applicant met the requirements of s24(1)(b) as war caused injury of itself alone rendered him unable to work for eight hours per week. He said that the applicant’s remunerative work could be characterised as work involving weapons handling and training and the operation of seagoing vessels. He submitted that Dr Goode’s evidence showed that the applicant’s back condition was the most significant one in preventing him from working and that while his obesity had an impact it did not prevent him from working. He said that the only condition preventing him working was the unpredictable nature of episodes of back pain that result in immobilisation.
26. Mr Anderson submitted that the ameliorative provisions of s24(2)(b) applied in this case as the substantial cause was the applicant’s back condition. The applicant had made genuine attempts to work and was prevented from continuing in his efforts to obtain work because of the unpredictable nature of his back pain. He said that the Federal Court decision in Hall v Repatriation Commission (1994) 33 ALD 454 set the parameters of the test to be applied on this issue.
27. Mr Williams submitted that the Tribunal should prefer Dr Morris’ report to those of Dr Goode and as a consequence the applicant did not satisfy the test in s24(1)(b) which requires that the person be unable to work for eight hours per week, because war caused injury prevents this. He said that Dr Goode had at first considered that the applicant could work between eight and twenty hours per week, so that there was some support for payment at the intermediate rate under s23 of the Act. He said however that the applicant had moved to a semi-rural area and had no real intention of making himself available for work. He said that the applicant’s morbid obesity contributed to his incapacity.
28. After considering all the evidence in this case the Tribunal was not satisfied that the applicant meets the test in s24(1)(b) which requires that he be unable to undertake remunerative work for more than eight hours per week. The remunerative work envisaged by s24(1)(b) is spelled out in s28 of the Act.
29. There is no question that the applicant’s back condition rules out any physical work. However the applicant’s vocational skills and qualifications are wider than this and the Tribunal must also consider the kinds of remunerative work that the applicant might reasonably undertake. Taking into account the applicant’s work history and qualifications this certainly encompasses a range of skilled and unskilled sedentary or semi-sedentary occupations, and Dr Goode pointed this out in his first report.
30. In his first report Dr Goode clearly considered that the applicant could work between eight and twenty hours per week. Dr Morris thought that the applicant was able to work more than twenty hours per week, but he did not say how much more than twenty. The Tribunal preferred the views of Dr Goode as he is a specialist in occupational medicine and his views should be preferred to those of an orthopaedic surgeon when matters of work capacity addressed through particular occupations is in issue.
31. The Tribunal preferred Dr Goode’s conclusions in his first report that the applicant could work between eight and twenty hours per week. On the applicant’s evidence there was not a great deal of change in his condition between 2003 and 2004, the two times when he was seen by Dr Goode. Dr Goode’s second report reflects this as well. Dr Goode’s general description of the applicant was similar to his report in March 2003; the applicant was still able to sit for 70 minutes without obvious discomfort and without needing to change position; he was still able to use the ride-on mower at home for 90 minutes and undertake the lighter range of home tasks. Additionally the applicant had been able to lose 5kgs in weight since the last interview.
32. The Tribunal took into account the applicant’s evidence, as supported by Dr Goode, that he has unpredictable and totally disabling periods of back pain. However these are clearly intermittent. The applicant referred to them as day-to-day periods of immobility which he says will happen when he does anything strenuous, but will not necessarily happen even then. He said that if he remains reasonably sedentary there are fewer problems. The applicant said that he would be able to work a couple of hours a day, but could not guarantee his ability to work on any particular day.
33. Taken overall the Tribunal was satisfied that the applicant’s capacity for employment is better reflected in Dr Goode’s first report, and the Tribunal concludes that the applicant is rendered unable to undertake remunerative work except on a part time basis or intermittently by reason of war-caused disability alone.
34. This means that the applicant is not qualified for the special rate of pension under s24 of the Act because he fails to qualify at s24(1)(b).
35. The Tribunal is required to consider if he qualifies for intermediate rate under s23 of the Act. Section 23(1)(c) is in identical terms to s24(1)(c) of the Act and the same case law applies in considering the operation of the section.
36. The application of s23(1)(c) and s24(1)(c) involves a hypothetical exercise which requires consideration of what the applicant would probably have done from September 2001 (the start of the assessment period) in the absence of his accepted disabilities: Repatriation Commission v Hendy (2002) 76 ALD 47 at 54. If there are factors other than accepted disabilities which would have prevented the applicant from continuing to undertake remunerative work, his claim will fail.
37. The Federal Court in Flentjar v Repatriation Commission (1997) 26 AAR 93 said that a proper consideration of s24(1)(c) of the Act requires responses to the following questions:
“1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
38. In reaching a decision the Tribunal takes into account the written and oral evidence and the submissions. The Tribunal takes into account that in Cavell v Repatriation Commission (1988) 9 AAR 534 the court said that when considering the provisions of s24 of the Act a commonsense approach must be maintained.
39. The Tribunal takes into account that the applicant suffers from a number of medical conditions and that only the back condition and hearing loss are accepted as related to his service. From the medical evidence it was clear that the applicant suffers additionally from morbid obesity, hypertension (Dr Alexander, Dr Morris), NIDDM, and several other conditions including hypercholesterolemia, mild COAD and reflux, the last of which were not considered to be significant in any of the medical reports. The Tribunal took into account that two of the conditions, namely NIDDM and hypertension, are of recent onset and both Dr Alexander and Dr Morris considered that they were having an impact during late 2001 to mid 2002. It was also clear that by the time of Dr Goode’s first report in March 2003 both these conditions had settled with treatment and he considered that neither had any effect on the applicant’s capacity to work then. The Tribunal accepts that this is so.
40. The applicant has a very significant back injury, having lost 75% of the range of movement in his back, and the severity of his back condition is reflected in the respondent’s assessment of it as rating 90% under the applicable impairment tables on its own. This was a rating that took into account that he has a 75% reduction in the range of movement in his back, is restricted to walking 250 metres, at which point he must rest, and he suffers severe pain which does not respond adequately to medication.
41. When the applicant left the navy at the end of 2000 he was able to work and had lined up work that drew upon his skills in relevant naval training roles. He had a keen employer and the Tribunal accepts the evidence of Mr Owens that the position was earmarked for him and would have led to other work after an initial contract period. The Tribunal accepts that the applicant was prevented from taking up that position because of the condition of his back. The deterioration in his back condition was reflected in his being hospitalised in 2001 and having to take three months bed rest for his back.
42. Thus, applying the questions in Flentjar, in respect of question 1, the Tribunal finds that the remunerative work that the applicant was undertaking was as a seaman handling and operating sea going vessels; as an experienced, qualified defence force trainer; and, having had some administrative and supervisory experience in the defence forces, he had administrative skills that may have been transferable to civilian office-based employment of a clerical kind. In respect of question 2 the Tribunal accepts the clear medical evidence that the applicant was prevented from continuing to undertake his work in the defence forces by reason of his war-caused disability of lumbar disc lesion with sciatica.
43. In respect of question 3 the Tribunal accepts the evidence of the applicant about his back condition and that it renders him an unreliable worker in the sense that he cannot anticipate when immobilising back pain will occur with the result that he would have an unacceptable amount of absence from the workplace. This is supported by Dr Goode in his reports, when he says that an employer in the open competitive job market would quickly become intolerant of the situation. However the Tribunal was satisfied that the third of the Flentjar questions cannot be answered “yes” because there is a contribution from morbid obesity that is a factor preventing the applicant from continuing to undertake remunerative work.
44. The Tribunal accepts the evidence of Dr Anderson, Dr Morris and Dr Goode on this. Dr Anderson considered that both the applicant’s spinal condition and his obesity had a severe effect on many functions. Dr Morris considered that without the obesity the applicant could work more than twenty hours per week in light work but with obesity he could work less than twenty, from which it is an inescapable conclusion that the obesity is a factor preventing the applicant continuing to undertake remunerative work. Dr Goode considered that if the applicant lost weight he would have less frequent and less severe or acute recurrences of lumbar pain and that the obesity makes a contribution to his inability to work. Dr Goode stated that the obesity would not in its own right prevent the applicant returning to work. However this is not the test that the applicant has to meet in s23(1)(c) or 24(1)(c) of the Act.
45. The applicant therefore does not pass the third Flentjar test. For completeness the Tribunal does not accept, as pressed by the respondent, that the applicant’s age or time out of the work force had any role to play – at the application day he was aged forty-five and he had been out of the workforce for only nine months with an otherwise unbroken work history. It was not disputed by the parties that he passes the fourth test, and the Tribunal accepts the correctness of that concession.
46. However the Tribunal must then consider the effect of s23(3)(b) upon the operations of s23(1)(c). To satisfy this test the applicant must have been genuinely seeking to engage in remunerative work and that, but for incapacity, he would be continuing to seek to engage in remunerative work and that the substantial cause of the inability to obtain remunerative work is the war-caused incapacity.
47. The Tribunal accepts the submission of Mr Anderson that in Hall v Repatriation Commission (1994) 33 ALD 454 the Federal Court said that the question of whether a person is genuinely seeking to engage in remunerative work must be addressed in a realistic way taking into account the nature of the incapacity. The Tribunal was satisfied that the applicant left his employment with a genuine intention of taking up alternative work, and indeed appears to have spent some years setting up the foundations for that to occur with Mr Owens. During 2001 his back condition deteriorated, as is clear on the evidence of the need for bed rest and hospitalisation. The Tribunal was satisfied that but for the state of his back condition the applicant would have been continuing to seek to engage in remunerative work. He clearly had every intention of working when he left the navy, he was still young and he had a large range of skills that were in demand.
48. The Tribunal accepted the evidence of Dr Goode that the main reason for the applicant not being able to engage in remunerative work was his back condition. Dr Goode is a specialist in occupational medicine who is the most qualified to speak of the effect of medical conditions on workplace capacity. His reports were comprehensive, detailed and took account of the history of deterioration of the applicant’s back. It has clearly worsened since he left the navy and this is probably refected in a further increase in weight that he has experienced. After careful examination of the applicant’s condition Dr Goode was able to state convincingly that the substantial cause was the back condition. He agreed that the obesity was contributory but not majorly so.
49. The Tribunal was therefore satisfied that the ameliorative provision applies in the applicant’s case, so that he is to be taken as prevented by reason of the incapacity from continuing to undertake remunerative work that he was undertaking.
50. For these reasons the Tribunal was satisfied that the applicant is qualified for intermediate rate of pension. As to the date of effect of this decision the Tribunal takes into account that the date of the applicant’s application was 27 September 2001. However the Tribunal was not satisfied that the applicant was qualified at that time and in making that finding the Tribunal takes into account the evidence that the applicant was diagnosed with both hypertension and NIDDM in the application period. His own doctor considered hypertension significant enough in November 2001 to add this condition to the reasons the applicant was unable to work. Dr Morris referred to the diabetes being recently diagnosed in May 2002 and causing dizziness. By the time Dr Goode saw the applicant in March 2003 both conditions had been treated and stabilised.
51. It is unclear when the hypertension and NIDDM were at the stage of treatment that they no longer contributed to the applicant’s inability to work, but this must have occurred at some time between the consultations with Dr Morris and Dr Goode. The Tribunal considers that the date of effect for payment of the intermediate rate of pension should be taken as 27 September 2002.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Camille Banks
AssociateDate/s of Hearing 2 March 2005
Date of Decision 4 March 2005
Date of Written Reasons 10 March 2005
Counsel for the Applicant Mr R Anderson
Solicitor for the Applicant Terence O'Connor
For the Respondent Mr B Williams, Departmental Advocate
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