Robert Lansom and Repatriation Commission
[2013] AATA 813
[2013] AATA 813
Division VETERANS' APPEALS DIVISION File Number
2012/5595
Re
Robert Lansom
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 15 November 2013 Place Brisbane The decision under review is affirmed.
....................[Sgd]....................................................
Dr M Denovan, Member
CATCHWORDS
VETERANS’ AFFAIRS – Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 19, 24, 120
CASES
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 58 ALD 394
REASONS FOR DECISION
Dr M Denovan, Member
15 November 2013
Mr Robert Lansom is the applicant in these proceedings. He served in the Australian Army for two years from July 1969 to July 1971. Mr Lansom has a number of medical conditions that have been accepted as service caused; ischaemic heart disease, thoracic spondylosis, anxiety disorder, hypertension, erectile dysfunction, lumbar spondylosis, sensorineural hearing loss and tinnitus. He also suffers from gout, scoliosis and sleep apnoea, conditions, which have not been determined as service related.
Mr Lansom has worked in the food industry since the early 1980s. He has owned a number of corner stores and take-away shops. In 1998 the applicant and his wife went into a partnership with another couple. They bought a take away chicken shop located in Ballina. Twelve months later a third couple joined the partnership and they bought a second chicken take-away shop located in Byron Bay. In 2001 Mr Lansom suffered a heart attack. Mr Lansom resumed his normal duties within six months. The second business was sold, however there was no change to the partners, and the three couples continued to operate the busier more successful shop located in Ballina, until 2008 when it was sold.
On 13 September 2011 a delegate of the Repatriation Commission increased
Mr Lansom’s pension to 100% of the general rate from 18 October 2009. The Veterans’ Review Board affirmed that decision on 24 October 2012. Mr Lansom disagrees with that decision, as he believes he meets all the requirements for pension above the general rate that is at the special rate of pension. He claims to be incapable of working more than eight hours per week due to incapacity from accepted disabilities alone, and that for the same reason, he had to sell the chicken shop.
The requirements which must be satisfied before the special rate of pension can be paid are set out in s 24 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The eligibility criteria are different for applicants who are under 65 years of age, with s 24(1) of the Act dealing with veterans who are under the age of 65. For Mr Lansom, who was under 65 years of age when he lodged his claim, to be eligible for the special rate he must, amongst other things:
(1) have a degree of incapacity due to a war-caused injury or disease, or both, of at least 70% (s 24(1)(a)), and
(2) be incapable of undertaking remunerative work for more than 8 hours per week (s 24(1)(b)), and
(3) the war-caused injury or disease, or both, alone, prevented him continuing to undertake remunerative work that he was undertaking, and because of this, he is suffering a loss of salary, wages or earnings that he would not be suffering if he were free of his service related incapacity (s 24(1)(c)).
A veteran who ceased to engage in remunerative work for reasons other than a war caused incapacity, or is unable to engage in remunerative work for some other reason, will not be regarded as suffering loss of salary, wages or earnings (s 24(2) of the Act).
Section 19(5C) of the Act adds an additional qualification for assessment. An applicant must meet all of the above criteria at some time within the ‘assessment period’.
The assessment period runs from the date the application was received, and ends on the date of determination of this application by the Tribunal.
The parties agreed at the outset of the hearing that Mr Lansom satisfies s 24(1)(a) and
s 24(1)(b) of the Act.
I must decide whether Mr Lansom satisfied the requirements of s 24(1)(c) of the Act.
CONSIDERATION
I will approach my consideration of s 24(1)(c) of the Act, having regard to the four questions propounded in Flentjar v Repatriation Commission (1997) 48 ALD 1,
by Branson J at 2.
1. What was the relevant work that Mr Lansom was undertaking within the meaning of s 24(1)(c) of the Act?
After completion of his military service, Mr Lansom returned to the job he had had prior to enlisting, at Pine Board as a forklift driver. He remained there in a full-time position for three years. He was then employed full-time as a mechanic for nine years. He later spent four years as a full-time employed driver, for Tip-Top.
For the majority of the 30 years prior to his retirement Mr Lansom was self-employed,
in a full-time capacity in the retail and fast food industries. For the first 20 years,
he worked alongside his wife, for the final 10 years he and his wife continued to work full-time in the same industry, joined in partnership with two to four other individuals.
2. Is Mr Lansom, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
Yes, according to the evidence of two specialists, Dr Greg Apel and Dr Nicholas Burke. Dr Apel and Dr Burke have provided reports dated 6 August 2013[1] and 13 May 2013,[2] respectively, and oral evidence in the hearing for this matter. Psychiatrist Dr Apel, examined Mr Lansom for two hours, and took, amongst other things, a detailed work history. He opines that due to his psychological condition of anxiety disorder,
Mr Lansom is unable to work.[3] Dr Burke, Consultant Occupational Physician, opined that due to his various work related disabilities Mr Lansom would be prevented from working in a retail capacity for more than eight hours per week.[4]
3. If the answer to question two is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing Mr Lansom from continuing to undertake that work?
[1] Exhibit 2.
[2] Exhibit 3.
[3] Exhibit 2, p. 9.
[4] Exhibit 3, p. 9.
I find, for the reasons given below, the answer to this question is no.
Mr Lansom has sleep disturbance and sleep apnoea, both of which impact on his capacity to work, according to Dr Burke. The cause of these conditions has not been identified, however neither of these conditions are accepted disabilities, and there is no evidence which allows me to be reasonably satisfied that either condition is secondary to an accepted condition.
Mr Lansom says he has had disturbed sleep since returning from Vietnam. He has great difficulty getting to sleep, and he generally wakes up every night around 3 am or 4 am.
In April 2010 Mr Lansom was referred to Respiratory Physician Dr Michael Thompson.
Dr Thompson recorded the history of Mr Lansom as a heavy snorer, he can wake up with a choking sensation if he is sitting in a chair and dozes off, he sputters on occasions during the night, he is unrefreshed in the morning, doses easily when sedentary, has poor concentration and memory, has difficulty driving long distances and, at times, falls asleep at traffic lights. Dr Thompson opined that Mr Lansom has significant obstructive sleep apnoea (“OSA”). He recommended a sleep study.[5][5] Exhibit 1, p. 90.
A sleep study was performed on 30 July 2012, and reviewed by sleep provider
Dr Jeff Williams. Dr Williams reported Mr Lansom has moderate OSA. Dr Williams opined sleep apnoea is the cause of Mr Lansom’s sleep disturbance.[6][6] The report of Dr Williams is not in evidence, however Dr Burke had access to it when he wrote his report: see exhibit 3, p. 4.
Dr Burke is not convinced sleep apnoea is the cause of Mr Lansom’s sleep disturbance. Dr Burke said he is aware that general practitioner Dr Colin McDonald, considers
Mr Lansom’s sleep disturbance to be related to psychological factors, and not to OSA.
Dr Burke considers the sleep disturbance has been incompletely treated at this stage, and needs further investigation, medication and possible treatment.
Although he does not definitively accept OSA to be the course of Mr Lansom’s sleep disturbance, Dr Burke stated the symptoms Mr Lansom described to Dr Thompson, including memory loss and poor concentration, are consistent with a diagnosis of OSA.
Dr Apel considers there are two causes of Mr Lansom’s current inability to work. Firstly, the effects of organic brain damage sustained in his heart attack in 2001, and secondly chronic anxiety disorder secondary to his military service.
Dr Burke indicated that Mr Lansom may be able to work around eight hours per week, when each of his many conditions accepted and non-accepted, are taken on their own merit. However, due to the accumulative effect of his conditions and his age, Mr Lansom is unable to work eight hours per week. Dr Burke identified Mr Lansom’s sleep disturbance and his diminished concentration as factors that are currently preventing him from returning to any of his former employment roles.
Dr Burke is an occupational physician. In deciding what conditions are affecting
Mr Lansom’s capacity to work, I prefer his evidence to that of Dr Apel, as he has greater expertise in matters of employment.
Dr Burke indicated Mr Lansom’s sleep disturbance needs further investigation and treatment. Without that treatment it is not possible to decide whether the sleep disturbance is a result of Mr Lansom’s accepted anxiety condition, or due to some other cause which has not been accepted as service related. Although Dr Burke is of the opinion that Mr Lansom’s sleep disturbance is not related to his OSA, I prefer the opinion of sleep provider Dr Williams. Dr Williams is an expert in the field, and I presume he is very familiar with the nature of sleep disturbances that result from OSA.
Even if sleep disturbance was a result of an accepted condition, as stated above, Dr Burke identified poor concentration as a factor which is currently preventing Mr Lansom returning to work.
Dr Apel is of the opinion that Mr Lansom’s poor concentration is a consequence of his organic brain disease. Dr Burke said that he was unaware that
Mr Lansom had any organic brain damage, noting he had not detected any evidence of this when he examined him. Dr Apel diagnosed Mr Lansom with organic brain damage on the basis of an oral test he administered. That test included simple arithmetic questions, some memory questions, and required Mr Lansom to interpret diagrams.
Dr Apel acknowledged that an MRI performed in June 2013 showed no abnormality.[7]
Dr Apel explained that his diagnosis was inconsistent with the MRI findings, because had Mr Lansom suffered hypoxic brain damage at the time of his heart attack, it would be likely, but not necessary, for some abnormalities to be detected on the MRI. Dr Apel acknowledged moderate OSA might also be the cause of Mr Lansom’s poor concentration.
[7] Exhibit 2, p. 6.
Dr Apel is not a qualified neurologist. His diagnosis of organic brain disease is not confirmed on the MRI, and Dr Burke did not observe any signs or symptoms of the condition when he examined Mr Lansom. I am not reasonably satisfied that Mr Lansom does have organic brain disease.[8] Considering the evidence of the respiratory physician and that of Dr Burke, I find the most likely cause of Mr Lansom’s poor concentration is OSA. Dr Burke indicated a trial of CPAP would be necessary to confirm this.
[8] See s 120(4) of the Act.
Taking into account the reasons given above, and the report of Dr Thompson, I find, OSA is the likely cause of Mr Lansom’s poor concentration.
Mr Lansom has other none accepted conditions, namely gout. Psychiatrist, Dr Elsa Yeung also identified the condition of adjustment disorder, and raised the possible diagnosis of alcohol abuse.[9] After considering all the evidence, I am satisfied these conditions have no impact on Mr Lansom’s capacity to work.
[9] Exhibit 8.
Mr Lansom was working very long days in his last employment. He would work in a three-day cycle, one day he would work 14 hours, the next day he would work two three to four hour shifts during the busy periods, and the third day would be a day off. He had practically no holidays for seven years. Occasionally he and his wife would take a week off. With age I would anticipate that such a lifestyle would become increasingly arduous, and would not be possible indefinitely. Mr Lansom was 61 years old at the date of claim, and is now 64 years old. I agree with Dr Burke, that age is a factor that would currently be affecting Mr Lansom’s capacity to continue the remunerative work he was previously undertaking. I consider that to have been the case even at the start of the assessment period.
Poor concentration, sleep disturbance, and age are factors that are currently impacting on Mr Lansom’s capacity to work more than eight hours per week. Whilst each factor in itself may not prevent Mr Lansom from working eight hours, that is not the test. In the matter of Forbes v Repatriation Commission (2000) 58 ALD 394, Nicholson J stated at 401:
The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognized in the third conceptual environment identified in the applicant’s case. Furthermore it is consistent with the application by a Tribunal of a common sense approach “with an eye to reality.
… it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
Mr Lansom’s war-caused injury or war-caused disease, or both, are not the only factor or factors preventing him from continuing to undertake the work he was previously engaged in, so it is not necessary for me to answer the fourth Flentjar question. I will however briefly address the matter for the sake of completeness.
4. Is Mr Lansom 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?
Mr Lansom has claimed that back pain due to the demands of heavy lifting, and the anxiety of dealing with people are the reasons he felt the need to sell.[10] Mr Lansom claims that it was largely the result of these symptoms worsening after his heart attack in 2001 that led to his decision to cease working. The shop was placed on the market
18 months prior to its sale in December 2008.[10] See also Exhibit 4.
There is no contemporaneous evidence to support Mr Lansom’s claim that he ceased work due to incapacity from his accepted conditions. Mr Lansom was not diagnosed with a psychiatric condition until 2010. There is no contemporaneous medical evidence to support a conclusion that he was suffering from symptoms due to his now accepted psychiatric condition, or his accepted back conditions.
Mr Lansom, along with his partners, employed additional staff. Mr Lansom indicated these staff worked the same hours whether it was himself and his wife, or one of the other couples running the shop. During the six months after his heart attack additional staff were employed and the other partners worked some extra time. This arrangement did not continue after Mr Lansom returned to work on a full-time basis. Presumably this arrangement could have been continued or resumed if Mr Lansom was experiencing difficulties as he claimed. Although Mr Lansom claims his wife was in effect doing the work of two people, this is difficult to accept as a large amount of the work required manual lifting, something I doubt Mrs Lansom would be able to continue doing at all, and certainly not for a period of seven years.
Other than the six months following his heart attack in 2001, Mr Lansom had almost no time off for a period of seven years. Mr Lansom, in spite of any incapacity from accepted disabilities worked in excess of what is regarded as usual. He was working approximately 40 hours per week, for 51 weeks per year. Additionally, there was always work relating to the business, necessary to be done on the couples day off.
Mr Lansom may have experienced some anxiety and some back pain, however he did not take any time off, and he did not seek medical attention. He was capable of working in excess of 40 hours per week, and continued to do so until a buyer was found for the business. Mr Lansom did this without the benefit of medical treatment for the conditions that, according to his statement,[11] are now so severe that he is in chronic pain the majority of the time, unalleviated despite large amounts of medication.
[11] See Exhibit 4.
Mr Lansom was nearly 60 years old at the time he sold his shop, although he claims his age was not a factor when he put the shop on the market, because the shop took
18 months to sell, and he was therefore only 58 when he decided to sell. I am not making a finding on whether age was an issue that influenced Mr Lansom’s decision to cease work, however I note Mr and Mrs Lansom have bought and sold a number of shops. They had difficulty selling the shop located in Byron Bay. When considering whether to sell, they would have been aware that businesses do not necessarily sell quickly.Mr Lansom said that when he suggested selling the business one other couple, younger than he and his wife, also wanted to sell. There reason was they had had enough, and wanted a change.
I am not able to decide exactly why Mr Lansom and his wife decided to sell the business. It may be that they too had had enough of the long hours, and inability to have infrequent holidays for more than one week at time. After seven years it would be a factor that would certainly influence many people. I am not reasonably satisfied that incapacity due to accepted disabilities alone was the reason Mr Lansom ceased working.
DECISION
The decision under review is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of
Dr M Denovan, Member...................[Sgd].....................................................
Associate
Dated 15 November 2013
Date of hearing 5 November 2013 Counsel for the Applicant Mr Matt Black Counsel for the Respondent Mr Nigel Bunn
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