ROBERT ROOSE and REPATRIATION COMMISSION
[2009] AATA 145
•9 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0753
VETERANS' APPEALS DIVISION ) Re ROBERT ROOSE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date9 March 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............[Sgd]................................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – special and intermediate rates of pension – back and knee injuries – capacity to undertake remunerative work – decision under review affirmed
Veterans’ Entitlement Act 1986 (Cth), ss 15, 19, 23, 24, 119, 120
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
9 March 2009 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr Robert Roose has a number of service related disabilities. He seeks the payment of a pension at the special rate. The respondent made a determination that he was entitled to be paid pension at 90 % of the general rate. That decision was affirmed by the Veterans’ Review Board. I have to decide whether Mr Roose is entitled to be paid an earnings-related rate of pension.
MATTERS OF PROOF
2. In considering this application, I bear in mind that Mr Roose does not bear any onus of proof: see s 120(6) of the Veterans’ Entitlement Act 1986 (“the Act”). I must determine his application to my reasonable satisfaction: s 120(4). I am required to make a decision in accordance with the substantial merits of the case: s 119(1).
ASSESSMENT PERIOD
3. I am required under the Act to assess the entitlement of Mr Roose during the assessment period: s 19(5C). This period is defined in s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined. Here, the assessment period started on 11 July 2006 and will conclude when the application of Mr Roose is determined.
CRITERIA FOR THE PAYMENT OF PENSION AT THE SPECIAL RATE
4. I must determine whether Mr Roose satisfies the criteria for the payment of pension at the special rate under s 24 of the Act. It is not in issue that Mr Roose was under 65 years of age at the time of his claim, nor that he is in receipt of pension at a rate greater than 70 % of the general rate: see ss 24(1)(aa), (1)(aab) and (1)(a)(i) of the Act.
5. It is certainly in issue whether the incapacity from his accepted disabilities is, of itself alone, of such a nature as to render Mr Roose incapable of undertaking remunerative work for periods aggregating more than eight hours per week: see s 24(1)(b).
6. It is also in issue whether Mr Roose is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking: s 24(1)(c).
BACKGROUND OF APPLICANT
7. Ms Roose, Mrs Roose and Mr Roose gave evidence in support of the case of the applicant.
Ms Roose
8. Ms Lynette Roose was the first witness to give evidence before me. Her statement of 8 May 2008 was admitted into evidence[1]. Ms Roose, the daughter of the applicant, confirmed that she started work with Haverford in August 2001 to help her father who was looking for reliable, trustworthy staff. Her father had been experiencing a lot of staff turnover due to unreliability and theft. Ms Roose stated that when she joined Haverford, she intended to stay with her father on a temporary basis until she found something that she wanted to do or her father could find a trustworthy employee.
[1] Exhibit D.
9. Ms Roose stated that her duties at Haverford were to unload containers and pack orders for clients. The work was very physical, as some of the nets she was working with weighed over 50 kgs. The nets were stored on high shelving. She and her father would have trouble pulling the nets down with a hook that was on a broom handle. She also stated that she would try to unload containers.
10. Ms Roose confirmed that her father was running the administrative part of the store.
11. She stated that her father would mainly do paperwork, such as invoices for orders, accounts and general book-keeping. He would also serve some customers who walked in, drive the forklift around and do the heavy lifting. She stated that he would get pains in his back if he had been walking around for too long and that once or twice a week he would leave halfway during the day.
Mrs Roose
12. Mrs Christine Roose gave evidence before me. Her statement of 8 May 2008 was admitted into evidence[2]. Mrs Roose stated that after her husband was discharged from the army, he purchased a house at Keperra with the intention to renovate the house. However, her husband’s back injuries hampered his ability to renovate the house himself and they needed to employ contractors. Over the years, her husband’s back, knees and ankles became more painful so that he was unable to work around the yard. They now have a lawnmower service. Her husband helps with the housework by dusting and wiping and hanging out the washing. In her statement, she remarked that Mr Roose has difficulty in vacuuming and mopping. In her evidence-in-chief, she stated that the vacuum cleaner he used has a motorised head but he was unable to bend under furniture. Mrs Roose stated that when he does his chores, he puts his transcutaneous electrical nerve stimulation machine onto his back. In cross-examination, Mrs Roose stated that Mr Roose can do a small amount of shopping.
[2] Exhibit C.
Mr Roose
13. Mr Roose gave evidence before me. His statement of 8 May 2008 was admitted into evidence[3]. After leaving school, he worked as a retail butcher for about five years. He joined the Army in 1978, stating at the time that he was physically fit. He was trained and employed as a storeman. His duties included the lifting and carrying of heavy stores and equipment. He was discharged from the Army in May 1993.
[3] Exhibit B.
14. After leaving the Australian Army in 1993, he commenced permanent employment with Sexton Trading Co as a storeman in their fishing department. Sexton Trading Co was the Queensland agent of Haverford Pty Ltd (“Haverford”). After about two years, Haverford decided to open a business in Queensland and Mr Roose accepted a position as a manager/storeman. The Queensland branch of Haverford was a two person warehouse. Mr Roose, in his evidence, confirmed that both people were required to share the workload. That workload included the loading and unloading of fishing equipment such as nets, rope and bags of sinkers.
15. Mr Roose stated that in the last five years of his employment with Haverford, he was taking time off work (an average of two days a week) due to the degeneration of his back and knee injuries, which caused him increased pain. He stated that his daughter being employed with Haverford facilitated him taking time off work without the knowledge of his employer. During the final two years of his employment with Haverford he had reduced his working week from five days to four.
16. Mr Roose stated that his daughter left Haverford in 2005. He had difficulty recruiting a suitable replacement. His employment with Haverford ceased on 31 August 2006, when Haverford closed the Brisbane warehouse and relocated the stock to Sydney.
17. Mr Roose stated that he has not sought re-employment, on the advice of his general practitioner and his physiotherapist. He has been unable to obtain employment as a storeman or retail butcher due to his injuries, which severely restrict his ability to undertake such work.
18. Mr Roose has worked in a part-time position at a volleyball centre where he works for six hours per week. His duties as a cashier/office clerk have mainly involved collecting money from players and noting their names.
Haverford
19. After Mr Roose lodged his claim for pension at the special rate, the managing director of Haverford provided a letter of separation as well as a reference, which are in evidence before me[4].
[4] Folios 52-53; T 4.
20. The reference outlines the nature of the duties of Mr Roose at Haverford:
“This is to certify that Mr Robert Roose … has been in our employ for the last 11 years. In that time he has always carried out his duties in a very satisfactory manner. Robert started as order/warehouse clerk in our Brisbane office. He progressed to become State-Manager – being responsible for handling customer sales, cash sales, receiving and sending of stock and orders, stock control, maintaining good order in both office and warehouse of the Brisbane depot. We had great faith and trust in Mr Roose to handle all the daily running of the Brisbane office, and have been very pleased with his efforts”[5].
[5] Folio 53 ; T 4.
21. According to evidence before me, the managing director of Haverford has stated that he was satisfied with the work performance of Mr Roose. The managing director in his reference of 31 August 2006 stated that the work performance of Mr Roose was “very satisfactory”. The Brisbane office of Haverford was closed when the employment of Mr Roose with Haverford ceased. The managing director in his reference has referred to “other logistical reasons” for the move of the “Brisbane operation back to Head Office Sydney”.
MEDICAL EVIDENCE
22. A number of specialists gave evidence before me. I will now discuss their evidence.
Dr K Outerbridge
23. Dr Kerry Outerbridge, orthopaedic surgeon, gave evidence before me. Dr Outerbridge examined Mr Roose on 25 August 2008 and his report, made on 29 August 2008, was admitted in evidence together with the letter of instructions from the respondent[6].
[6] Exhibit F.
24. His report states that Mr Roose, who was suffering from degenerative spondylosis, would be able to undertake remunerative work of more than eight hours per week if it did not require any heavy lifting or prolonged standing. Dr Outerbridge remarks: “He would be very suited for work which did not require him to remain standing or to do any heavy lifting”[7].
[7] Exhibit F, p 7.
25. In his report, Dr Outerbridge stated that the back symptoms of Mr Roose were relatively minor. Dr Outerbridge, asked in cross-examination why he came to this conclusion, stated that it was because Mr Roose had normal flexion and because of the result of the pinch and rotation tests.
26. In his report, Dr Outerbridge concluded there was some degree of exaggerated response on the part of Mr Roose. In cross examination, he explained he came to that conclusion because one would expect a different response if a person was rotated through the back rather than the legs. Mr Roose, however, complained of exactly the same symptoms and pain whether he was rotated through the back or the legs. People who complain of pain deep in the muscles would not normally complain about a pinch on the top of the skin, but Mr Roose did. Dr Outerbridge concluded that Mr Roose was either exaggerating his pain, or saying that he had pain when in fact he did not.
27. I should mention that when Dr Outerbridge was cross-examined, he stated that Mr Roose could stand for up to 30 minutes. He stated that “it’s just standing for, say, in excess of 30 to 40 minutes, something like that, creating his back symptoms”. Under cross-examination, he was asked why he nominated a time. Dr Outerbridge commented that the time was something that was “pulled out of the air”: in the circumstances I did not give that comment any weight.
Dr S Goode
28. Dr Steven Goode, occupational physician, assessed Mr Roose in his rooms on 5 June 2007. His report dated 9 June 2007 was in evidence before me[8]. In his report Dr Goode stated that, on the objective evidence, “Mr Roose should be capable of part-time [work] (eight to 20 hours per week) of physically lighter duties”. His report states that such work would be:
“rotating between sitting and standing tasks, whilst avoiding heavy lifting, repetitive bending and whole body vibration. Also, because of his knee condition, he would need to avoid or minimize any squatting, kneeling, manoeuvring in tight, awkward places, and mobilising for prolonged periods. Because of his NIHL/tinnitus condition, he would do better in a work environment with a lesser degree of background noise”[9].
[8] Folios 72-82; T 4.
[9] Folio 81; T 4.
29. Dr Goode also reports upon the fact that, since late 2006, Mr Roose has “lost a significant amount of weight, and he intends to continue doing so”. Despite this weight loss, Mr Roose states that his lumbar pain increased. Dr Goode comments upon this in remarking: “Weight loss should in fact improve the prognosis relating to his lumbar condition – and I’m not sure why he in fact reports that his lumbar pain has symptomatically worsened following this dramatic weight loss”.
30. Under cross-examination, Dr Goode agreed that Mr Roose does not have the education, training or experience to readily deploy to an office job. Dr Goode was also asked whether it was reasonable for somebody who had been a storeman for 28 years to retrain as a clerk. Dr Goode stated that Mr Roose would be capable of some limited retraining, although he later conceded that it would be difficult (although not impossible) to retrain him as a clerk.
31. Under cross-examination, Dr Goode was asked about his comment that there was objective evidence upon which he concluded Mr Roose could not perform all of his previous storeman duties, but that Mr Roose reported more significant symptoms than expected in view of his moderate multi-level lumbar degeneration. Dr Goode was asked whether there was no strict relationship between radiological findings and symptoms. Dr Goode conceded that there was no strict relationship. Dr Goode stated that there was evidence of abnormal illness/pain behaviour, raising the prospect of symptom magnification.
32. On re-examination, Dr Goode was asked about the remarks in his report concerning objective findings and subjective findings, and the conclusion in his report that: “On the objective evidence, he could potentially do the administrative/office/computer component of his previous Storeman work”[10]. Dr Goode commented that:
“on the subjective evidence, Mr Roose is reporting a lot of symptoms which – very severe symptoms and any potential employer – I think I said in the report, any potential employer, if he was taking time off work and so on because of his symptoms, they will quickly become intolerant of that. Subjective symptoms reporting, as we’ve already discussed, to me, based on the clinical finding of the imaging finding, was more than we could have anticipated in the circumstances”.
[10] Folio 81; T 4.
Dr M Wallace
33. Dr Malcolm Wallace, orthopaedic surgeon, was called to give evidence for Mr Roose. He examined Mr Roose on 12 June 2008. His report, dated 19 June 2008 together with the letter of instructions, were admitted as evidence[11]. In giving evidence at the hearing, Dr Wallace corrected an error in his report in which he stated: “He states that he has difficulty managing the shifts and can only currently work with the help of his daughter”. Dr Wallace stated that he erred in making those remarks and that they related to his previous employment at Haverford.
[11] Exhibit E.
34. Dr Wallace, in his evidence, stated that his examination of Mr Roose did not reveal any abnormal illness behaviour. In his evidence-in-chief, he stated that he normally makes a note of abnormal illness behaviour when there is evidence of it.
35. Dr Wallace, in his report, expressed the opinion that Mr Roose “is not capable of working in any capacity for greater than six hours per week”. In his evidence-in-chief, he was asked how he came to that opinion. Dr Wallace stated that he came to his conclusion on the basis of the history: Mr Roose was only able to do two shifts of three hours before his symptoms got so bad he had to stop.
36. When cross-examined, he was asked whether Mr Roose was able to do four two-hour shifts. He stated that Mr Roose could be trialled on four two-hour shifts. However, he could not answer that question with confidence.
CONSIDERATION
37. At the outset, I mention that, as Mr Roose is already in receipt of a pension, he is entitled under s 15 of the Act to seek an increase in the rate of pension.
38. I now turn to consider whether Mr Roose satisfies the requirements of s 24 of the Act for the payment of pension at the special rate.
39. As mentioned above, it is not in issue that Mr Roose satisfies s 24(1)(a)(i) of the Act, nor that he satisfies s 24(1)(aab).
Subsection 24(1)(b)
40. I have to consider the application of s 24(1)(b) of the Act, which requires that Mr Roose be incapable of undertaking remunerative work in excess of eight hours per week.
41. There is specialist medical evidence before me that Mr Roose is now unable to carry out the duties of either a butcher or a storeman. Dr Goode, who is a specialist occupational physician, concluded that Mr Roose is unable to perform the duties of either a butcher or a storeman. He also concluded that the level of disc degeneration would preclude heavy manual lifting. I accept that assessment.
42. Dr Goode also considers that Mr Roose should be capable of part-time work. Dr Goode has opined that his objective findings are that Mr Roose would be able to undertake physically lighter tasks. I have already mentioned Dr Goode’s statement that such tasks could be undertaken if Mr Roose was able to rotate between sitting and standing. I also accept this assessment, as I regard Dr Goode as having assessed the condition of Mr Roose comprehensively and fairly.
43. Dr Goode has been fair in referring to what he calls the subjective symptoms expressed by Mr Roose. In assessing whether I should accept the validity of those symptoms, I have taken into account that the evidence of Mr Roose has not been entirely consistent with the evidence before me. In particular, I refer to whether Mr Roose vacuums the house.
44. In recent years, Mr Roose told two medical specialists that he is unable to do the vacuuming. On 5 June 2007, Mr Roose told Dr Goode that his wife does the vacuuming. On 25 August 2008, Mr Roose also told Dr Outerbridge that he was unable to vacuum. Mrs Roose, in giving evidence before me, stated that her husband was able to vacuum but that he would not vacuum under furniture. However, in her tendered statement, she stated that Mr Roose “helps with the housework, but is limited to dusting and wiping tops of cupboards down”. I appreciate that Mrs Roose was endeavouring to give her evidence to the best of her recollection, but her evidence on this aspect of the condition contradicts that of Mr Roose.
45. I have accepted the considered medical opinion of Dr Outerbridge that there has been some degree of exaggerated response on the part of Mr Roose. Dr Outerbridge gave cogent reasons for his conclusion, and explained how one would expect a different response if a person was rotated through the back rather than the legs. However, Mr Roose complained of exactly the same symptoms and pain whether he was rotated through the back or the legs. This response, and the already mentioned “pinch test” result, makes it difficult to assess his condition.
46. I have already mentioned Dr Goode’s conclusion that there has been some degree of symptom magnification on the part of Mr Roose. I also accept his opinion, which is in accord with that of Dr Outerbridge.
47. Another aspect I have considered is that since 2006, Mr Roose has, in the words of Dr Goode, had a “dramatic weight loss”. This weight loss would, in the view of Dr Goode, ordinarily result in a decrease in lumbar pain. This aspect of the condition of Mr Roose is, in my view, also consistent with the fact that there is some degree of exaggerated response on the part of Mr Roose.
48. I have also considered the reports of Dr Craig Swanson, the treating general practitioner. On 11 April 2005, Dr Swanson reported that Mr Roose could work up to 30 hours a week. After a year, on 5 July 2006, Dr Swanson reported that Mr Roose was unfit to work for more than eight hours a week. However, at that time, Mr Roose was still employed at Haverford for more than eight hours a week. Mr Roose only ceased employment with Haverford on 31 August 2006, at a time when he was seeking to restrict his employment with that company to three days per week. In the circumstances, I can give no weight to the latter opinion of Dr Swanson.
49. I also refer, in my consideration of this application, to certain evidence given by Mr Roose. I have mentioned that Mr Roose gave evidence that he has a part-time position at a volleyball centre where he works for six hours per week. In cross-examination, he was asked whether he could work there three days a week. Mr Roose replied, “I probably could”. Mr Roose also indicated that there is some flexibility in performing his job as he can do his job either sitting or standing.
50. I have also referred to Dr Wallace being asked whether Mr Roose was able to do four two-hour shifts. Dr Wallace replied that Mr Roose could be trialled on four two-hour shifts. While he stated that he could not answer that question with confidence, he also did not rule out the possibility of Mr Roose being so trialled.
51. I have come to the conclusion that Mr Roose does not satisfy s 24(1)(b) of the Act, as in my view he is capable of undertaking remunerative work in excess of eight hours per week.
52. I should also mention that I accept the opinion of Dr Goode that Mr Roose is capable of working up to 20 hours per week. This finding would, in my view, preclude him being entitled to receive a pension at the intermediate rate: see s 23(2)(a).
Subsection 24(1)(c)
53. In view of my previous finding it is strictly not necessary for me to consider the application of s 24(1)(c) of the Act. However, as the applicant has made a comprehensive submission on this provision, I thought that I should set out my findings on the application of this provision. The respondent made no submissions on this issue.
54. The Full Court of the Federal Court of Australia in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 has outlined the various questions that should be answered in considering the application of this provision.
55. The first question relates to the nature of the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act.
56. I have reviewed the evidence before me concerning the work history of Mr Roose. I have had regard to the fact that he has been the State Manager of Haverford, with the responsibilities for running the Brisbane office. In that capacity, he was responsible for handling customer sales, cash sales, receiving and sending stock, and maintaining good order in both the office and warehouse of the Brisbane depot. There is also evidence before me that, during that time, he carried out his duties in a very satisfactory manner.
57. Having regard to the need to answer this question with “an eye to reality”, I would consider that the remunerative work was administrative work. This is the work that was last undertaken by Mr Roose in a satisfactory manner.
58. I now turn to the second question, namely whether Mr Roose, by reason of his accepted conditions, is prevented from continuing to undertake that work other than on a part-time basis or intermittently. Having regard to the report of Dr Goode, I give an affirmative answer to this question.
59. The third question, if the answer to the second question is yes, is whether the accepted condition or conditions are the only factor or factors preventing the veteran from continuing to undertake that work. I would answer that question “yes”. I accept the submission of Mr Harding of counsel that the depressive condition would not appear to have any major significance on the work capacity of Mr Roose. Dr Goode has stated that, whilst Mr Roose has had depression for some time (in 2007 he told Dr Goode that he had this condition for 10 years), his work performance at Haverford was said by the managing director of that company to be “very satisfactory”.
60. I now turn to the fourth question, which is based upon the statutory test in the second element of s 24(1)(c) of the Act. If the answers to the second and third questions are, in each case, yes, is Mr Roose, 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? I consider that the fourth question should be answered “yes”, as he is certainly suffering a loss of remuneration.
61. For the above reasons I have come to the conclusion that Mr Roose is not entitled to be paid a pension under the Act either at the intermediate rate or special rate.
DECISION
62. I affirm the decision under review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ...................[Sgd].........................................................
Matyas Kochardy, AssociateDate of Hearing 17 November 2008
Date of final submissions 30 January 2009
Date of Decision 9 March 2009
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Mr Terence O'Connor
For the Respondent Mr Jeff Kelly, Departmental Advocate
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