Rochford and Repatriation Commission (Veterans' entitlements)
[2020] AATA 4725
•26 November 2020
Rochford and Repatriation Commission (Veterans' entitlements) [2020] AATA 4725 (26 November 2020)
Division:VETERANS' APPEALS DIVISION
File Numbers: 2019/0470
Re:SHANE ROCHFORD
APPLICANT
AndREPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:26 November 2020
Place:Brisbane
The decision under review is varied with the Applicant to additionally receive the special rate pursuant to section 24 of the Veterans' Entitlements Act 1986 (Cth).
..................................[SGD]....................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – claim for special rate -– decision under review varied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Flentjar v Repatriation Commission (1998) 48 ALD 1
Forbes v Repatriation Commission [2000] FCA 328
REASONS FOR DECISION
Senior Member Katter
26 November 2020
APPLICATION
The Applicant seeks a review of the decision that a disability pension is not payable above the general rate in accordance with the Veterans’ Entitlement Act 1986 (Cth) (“the Act”)[1].
[1] Transcript, 17 July 2020, P-3 lines 19 and 20; T2, pages 3 - 21.
BACKGROUND
The Applicant served in the Royal Australian Air Force from 15 March 1976[2] for 29 years[3]. During the Applicant’s service, the Applicant spent 4 years working around the Mirage aircraft and 20 years on the F-111 aircraft[4].
[2] T5, page 39.
[3] Exhibit 3, paragraph 4.
[4] Exhibit 3, paragraph 4.
By an online lodgement form received on 30 November 2015[5] the Applicant applied for an increase in disability pension[6] stating as to the question, “ … which of your accepted disabilit[ies] have become worse since they were last assessed and in what way: all my conditions have become worse”[7]. In that form received on 30 November 2015 the Applicant stated[8]:
“Employment ...
Are your injuries or diseases affecting your employment, or ability to seek employment? (Including capacity to undertake self-employment) Yes
Are you currently employed? (Including self-employment) No
When did you cease employment? 01/03/2013
What is the type of work you performed for your most recent employment Manager
[5] T43, page 238.
[6] T43, page 238.
[7] T43, page 239.
[8] T43, pages 239-240.
What were the reasons for your ceasing work, or working reduced hours I ceased work due to my service related conditions.
Latest employment details
Type of employment Other
Employer’s name Royal Queensland Aero Club
Employer’s address Beaty Road Archerfield Aerodrome, Archerfield, 4108, QLD, Australia …
Lifestyle
As you are applying for a liability for an injury or disease under the Veterans’ Entitlements Act 1986 (VEA), or are [you] applying for an increase in disability pension [and] we need to know your lifestyle rating to assess any pension that may be payable.
Your lifestyle rating is based on the effects of your accepted or newly claimed disabilities on four aspects of your lifestyle.
These aspects are:
·personal relationships;
·mobility;
·recreational and community activities; and
·domestic and employment activities.
Please select your preferred Lifestyle rating option Option 2 – DVA will allocate an average rating based on your level of medical impairment.”
Previously, by a claim form received on 15 November 2002 the Applicant made a claim for a disability pension for disabilities that had not yet been accepted as service related[9]. The Applicant had not claimed a disability or service pension before that claim form received on 15 November 2002[10]. The Applicant by that claim form received on 15 November 2002 claimed as to the left knee[11], tinea[12], skin damage[13], cervical neck pain[14] and ‘tongue tingling related to radio-frequency exposure when maintaining the F-111 aircraft’[15].
[9] T4, page 30.
[10] T4, page 30.
[11] T4, page 31.
[12] T4, page 32.
[13] T4, page 32.
[14] T4, page 33.
[15] T4, page 33.
On 21 August 2003 a delegate of the Respondent, reviewing a decision dated 12 May 2003, accepted that tinea was service related with effect from 15 August 2002 and continued the disability pension at 30% of the general rate[16].
[16] T14, page 64.
By an application for increase in disability pension form received by the Respondent on 11 May 2005[17], the Applicant stated details of new disabilities claimed as war or defence caused[18]: prostate[19] and hearing loss with tinnitus[20].
[17] T17, page 78.
[18] T17, page 80.
[19] T17, page 80.
[20] T17, page 81.
By an application for increase in disability pension form received by the Respondent on 11 May 2005[21], the Applicant stated details of new disabilities claimed as war or defence caused[22]: smashed teeth[23], renal medical condition[24] and lower back pain[25].
[21] T19, page 93.
[22] T19, page 95.
[23] T19, page 95.
[24] T19, page 96.
[25] T19, page 96.
By a decision dated 28 July 2005, the Respondent accepted the claim for bilateral sensorineural hearing loss with tinnitus and lumbar spondylosis, with that decision taking effect from 11 February 2005[26]. The disability pension was increased to 50% of the general rate with effect from 11 February 2005[27]. That decision of 28 July 2005 stated that the claims for smashed teeth, renal condition and prostate “are still under consideration”[28].
[26] T20, page 102.
[27] T20, page 102.
[28] T20, page 102.
By a decision dated 29 August 2005, the Respondent ‘accepted’ the claim for traumatic fracture of teeth, with effect from 11 February 2005[29]. It was decided by the decision dated 29 August 2005 that polycystic kidney disease and benign prostatic hypertrophy are not related to service[30]. It was found that no medical condition “ … is present to answer [the] claim for ‘acute pyelonephritis’” and that that part of the claim was “therefore unsuccessful”[31]. The disability pension by that decision of 29 August 2005 was continued at 50% of the general rate[32]. The reasons for the decision dated 29 August 2005 stated a medical impairment rating of 30 points and a lifestyle rating of 2, combined to give a “degree of incapacity of 50%”[33].
[29] T21, page 108.
[30] T21, page 108.
[31] T21, page 108.
[32] T21, page 108.
[33] T21, page 113.
On 19 February 2008 the Veterans’ Review Board decided to vary the decision of the Respondent dated 29 August 2005[34] in relation to polycystic kidney disease “ … by amending the diagnosis to cystic kidney disease unspecified and affirming the decision”[35]. On 19 February 2008 the Board also decided to affirm the decision of the decision dated 29 August 2005 “ … in relation to benign prostatic hypertrophy and acute pyelonephritis”[36].
[34] T21, page 108.
[35] T28, page 133.
[36] T28, page 133.
By an application for increase in disability pension form received by the Respondent on 19 April 2011[37], the Applicant stated “reasons for [an] application for increase” where “previously accepted disabilities have become worse”[38]:
“Which of your accepted disabilities have become worse since they were last assessed by the Department and in what way?
My back, Neck and hearing have become worse”.
[37] T29, page 146.
[38] T29, page 150.
In the application for increase form received by the Respondent on 19 April 2011, the Applicant provided details of employment history, stating that from 2006 to 2011 the Applicant was the general manager at ‘ATAE Pty Ltd Archerfield’[39]. The Applicant further stated as to the question whether “the disabilities you are now claiming affected your employment or your ability to seek employment at any time? No”[40].
[39] T29, page 151.
[40] T29, page 151.
By an application for increase in disability pension form received by the Respondent on 23 September 2011[41], the Applicant stated details of new disabilities claimed as war or defence caused[42]: depressive disorder[43]. At Part G of that form received by the Respondent on 23 September 2011 the Applicant stated[44]:
“Which of your accepted disabilities have become worse since they were last assessed by the Department and in what way?
[A]ll of my accepted disabilities have degenerated to the extent they consume the better part of my waking day: Back, Knee, Neck, Hearing[,] Tinnitis[,] Solar
Karatosis; Teeth, Tongue.”
[41] T33, page 178.
[42] T33, page 180.
[43] T33, page 180.
[44] T33, page 182.
By a decision dated 15 November 2011 as to the application for increased disability pension lodged on 19 April 2011, the Respondent decided that the application for increased disability pension was “unsuccessful” and the disability pension was continued at 50% of the general rate[45].
[45] T37, page 211.
The reasons for the decision of 15 November 2011 state a combined assessment, using the guide, of an impairment rating of 30 points and a lifestyle rating of 2, combined to give a degree of incapacity of 50%[46].
[46] T37, page 213.
By a decision dated 6 January 2012 as to the application for increased disability pension lodged on 23 September 2011, the Respondent decided to “accept [the] claim for Dysthymia (chronic depression)”[47], with that decision taking effect from 23 June 2011[48]. The disability pension was increased to 70% of the general rate with effect from 23 June 2011 by that decision[49].
[47] T39, page 219.
[48] T39, page 219.
[49] T39, page 219.
The reasons for the decision of 6 January 2012 state a combined assessment, using the guide, of an impairment rating of 45 points and a lifestyle rating of 2, combined to give a degree of incapacity of 70%[50].
[50] T39, page 223.
By a claim for compensation form received by the Respondent on 30 November 2015 the Applicant applied for an increase in disability pension[51]. As to the question as to “which of your accepted disabilities have become worse since they were last assessed and in what way”, the Applicant stated[52]: “All my conditions have become worse”. In that claim form received by the Respondent on 30 November 2015 the Applicant stated that he ceased employment on 1 March 2013 “due to my service related conditions”[53].
[51] T43, page 238.
[52] T43, page 239.
[53] T43, page 239.
By a decision dated 1 September 2016 as to the application for increased disability pension received by the Respondent on 30 November 2015, the Respondent accepted the application for increased disability pension increasing the pension to 80% of the general rate with effect from 30 November 2015[54]. The reasons for that decision of 1 September 2016 as to the assessment of pension claim lodged on 30 November 2015 summarised the Applicant’s medical impairment rating under the guide to the assessment of rates with effect from 30 November 2015[55]:
[54] T71, page 385.
[55] T71, page 388.
Condition & Body System
Chapter
Impairment Rating
Impairment of Spine and Limbs
Lumbar Spondylosis
Cervical Spondylosis
Chondromalacia Patella Of The Left Knee
Chapter 3
0 points.
0 points.
10 points.
5 points.
9 points.
10 points.
Emotional and Behavioural Disorders
Dysthymia (Chronic Depression)
Chapter 4
11 points.
Gastrointestinal Impairment
Traumatic Fracture Of Teeth
Tingling On Tip Of Tongue
Chapter 6
0 points.
0 points.
Hearing Impairment and Tinnitus
Bilateral Sensorineural Hearing Loss With Tinnitus
Chapter 7
2 points.
5 points.
Skin Disorders
Solar Keratosis
Tinea
Chapter 11
3 points.
2 points.
Disfigurement & Social Impairment
Dysthymia (Chronic Depression)
Traumatic Fracture Of Teeth
Lumbar Spondylosis
Bilateral Sensorineural Hearing Loss With TinnitusTingling On Tip Of Tongue
Cervical Spondylosis
Solar Keratosis
Tinea
Chondromalacia Patella Of The Left Knee
Chapter 17
2 points.
The above ratings convert to a single value of 45. To achieve this impairment rating individual ratings are not added arithmetically but combined using the Combined Values Chart in the guide.
A report from the Respondent dated 9 November 2016 stated the following[56]:
“Accepted
[56] T73, pages 400-408.
15/08/2002, CHONDROMALACIA PATELLA OF THE LEFT KNEE, Accepted (VEA) …
15/08/2002, TINEA, Accepted (VEA) …
15/08/2002, SOLAR KERATOSIS, Accepted (VEA) …
15/08/2002, CERVICAL SPONDYLOSIS, Accepted (VEA) …
15/08/2002, TINGLING ON TIP OF TONGUE, Accepted (VEA) …
11/02/2005, BILATERAL SENSORINEURAL HEARING LOSS WITH TINNITUS, Accepted (VEA) …
11/02/2005, LUMBAR SPONDYLOSIS, Accepted (VEA) …
11/02/2005, TRAUMATIC FRACTURE OF TEETH, Accepted (VEA) …
23/06/2011, DYSTHYMIA (CHRONIC DEPRESSION), Accepted (VEA) …
02/07/2003, DIVERTICULOSIS, Accepted (SRCA) …
02/07/2003, BOWEL POLYPS, Accepted (SRCA) …
Not Accepted
19/02/2008, CYSTIC KIDNEY DISEASE UNSPECIFIED (A), Rejected (VEA) …
29/08/2005, POLYCYSTIC KIDNEY DISEASE, Rejected (VEA) …
19/02/2008, BENIGN PROSTATIC HYPERTROPHY, Rejected (VEA) …
29/08/2005, BENIGN PROSTATIC HYPERTROPHY, Rejected (VEA) …
19/02/2008, ACUTE PYELONEPHRITIS, No Incapacity Found (VEA) …
29/08/2005, ACUTE PYELONEPHRITIS, No Incapacity Found (VEA) … .”
The Veterans’ Review Board on 16 November 2018 decided to affirm the decision under review dated 1 September 2016 “regarding Special rate of disability pension”, meaning “that the decision of the [Respondent] is unchanged”[57]. Therefore, the pension remained at 80% of the general rate as stated in the decision dated 1 September 2016[58].
[57] T102, page 572.
[58] T102, page 573.
By an application for review of decision to this Tribunal dated 25 January 2019, the Applicant applied for review of the decision of the Board dated 16 November 2018, stating the following reasons for the application[59]:
“Initially the [Board] sent out reasons why they had disregarded my initial application and asked me to comment or answer there quires. I answered them with consultation with my DVA Representative
and I answered all with honesty and we believed we had covered all aspects. When the [B]oard convened they introduced new evidence which I did not have adequate time to prepare [for a]nd they did not fully listen to the answers that were presented. The Board highlighted most of this new evidence in the formal decisions & reasons why the application was formally denied.
My current Psychiatrist … reported that I have conditions which make working full time impossible but this evidence was ignored yet advice from another psychiatrist who only saw me once for a total of half an hour over road my current practitioner.There is a lot more instances which can be expanded upon at a later date when required.”[59] T2, pages 4-5.
ISSUE
The contention between the parties was particularised at the hearing as being whether or not the Applicant satisfied specifically s 24(1)(b) and (c) of the Act[60].
[60] Transcript, 17 July 2020, P-8, lines 6-10.
CONSIDERATION
Section 24 of the Act relevantly states[61]:
[61]Compilation No. 162, registered on 5 May 2020. The current compilation of the Act is No. 164, registered on 1 October 2020. Section 24 has the following legislative history: s 24 am No 106, 1986; No 134, 1988; No 228, 1992; No 98, 1994; No 157, 1997; No 52, 2004 (as am by No 89, 2007); No 66, 2007; No 174, 2015; No 59, 2017.
“Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:(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; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(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
(d) section 25 does not apply to the veteran(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(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.”The Applicant has made an application under section 15 for an increase in the rate of the pension that the Applicant is receiving[62]: s 24(1)(aa) of the Act.
[62] T43, page 238.
The Applicant had not turned 65 at the time of the application on 30 November 2015[63]: s 24(1)(aab) of the Act.
[63]T43, page 238. Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions dated 29 November 2019, paragraph 3.
There is no dispute between the parties that s 24(1)(a)(i) of the Act is ‘satisfied’[64].
[64] Transcript, 17 July 2020, P-9, line 8.
Section 24(1)(b) states that ‘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’.
The Applicant gave oral evidence at the hearing[65]. The Applicant confirmed[66] the correctness of a statement filed 13 June 2019[67] and a statement filed 18 October 2019[68]. The Applicant was employed with Aviation Training and for Aviation Engineers (“ATAE”) from 2006 until March 2013, having started as an instructor, then being promoted to assistant manager and to general manager in or about 2009[69]. The Applicant stated that the drive from his residence at Hatton Vale to the ATAE was a ‘61 Kilometer drive’ and with back, neck and knee injuries it would prevent him doing the trip without stopping, in that the pain of sitting would be unbearable[70]. The Applicant stated that the role was a ‘four-day a week one, from 8:00am until 4:00pm (32[71] hours a week), but that he would work until 6:00pm or 7:00pm’[72]. The Applicant referred to ‘having to stop more and more often on the drive to and from work’ and that he ‘was not enjoying work’, thereby resulting in ‘his decision to email his resignation as general manager’[73]. The Applicant stated that the two main factors influencing his decision to leave were the stress and the difficulty with the drive to the workplace[74]. The Applicant agreed that from 30 May 2011 until 25 October 2013, after concluding the employment, the Applicant did not seek any treatment in relation to the accepted conditions[75].
[65] Transcript, 17 July 2020, P9-27.
[66] Transcript, 17 July 2020, P-10, lines 8-31.
[67] Exhibit 5.
[68] Exhibit 7.
[69] Exhibit 5, paragraph 2(a).
[70] Exhibit 5, paragraph 2(c).
[71] Transcript, 17 July 2020, P-14, line 1.
[72] Transcript, 17 July 2020, P-13, lines 43-46.
[73] Exhibit 5, paragraph 2(f).
[74] Transcript, 17 July 2020, P-14, lines 9-11.
[75] Transcript, 17 July 2020, P-15, lines 10-20.
The Applicant stated that since March 2013 he has ceased activities with the volunteer fire brigade but has been involved with the Amberley Aviation Heritage Group restoring aircraft for up to six hours per day on two days per week[76]. The Applicant was involved in the planning as to the restoration of a Canberra aircraft[77], including the management of the logistics[78], without doing the actual ‘tools work’[79]. The Applicant stated that the six hours per day on two days per week is quite ‘flexible’ and that he often leaves after two hours[80]. The Applicant stated that the activities involved include machining and welding, with an ability to take time and sit down whenever he feels like it, not standing for more than fifteen to twenty minutes at a time[81]. Further, the Applicant referred to ‘occasionally lying down and often getting up and going for a bit of a wander’, with the activities suiting him because of ‘flexibility’ and the use of his skills[82]. The Applicant states that he cannot sit down and work as he is always “squirming in a chair” and that the only way that he can sit down for any length of time is on his recliner-type chair at home using a back support, which he also uses when he drives[83]. The Applicant stated that his volunteering with the museum is becoming “less and less”[84].
[76] Exhibit 5, paragraph 3(b).
[77] Transcript, 17 July 2020, P-21, line 2.
[78] Transcript, 17 July 2020, P-21, line 17.
[79] Transcript, 17 July 2020, P-21, line 19.
[80] Exhibit 5, paragraph 3(b).
[81] Exhibit 5, paragraph 3(b).
[82] Exhibit 5, paragraph 3(b).
[83] Exhibit 5, paragraph 3(b) and (c).
[84] Transcript, 17 July 2020, P-21, lines 44-45.
The Applicant also referred to working on vehicles and motorcycles at his home, where he has a workshop set up, with “cranes” and chairs (where he can sit down frequently), which are spread around the workshop[85].
[85] Transcript, 17 July 2020, P-18, lines 45-47 and P-19, lines 1-2.
The Applicant further stated, in the statement dated 18 October 2019, that as “a result of [his] accepted disabilities, [he has] difficulty walking any substantial distance, sitting or standing for long periods, [is] only able to drive for a short distance, cannot lift anything of significant weight, cannot climb ladders and ha[s] to avoid uneven ground and repetitive stairs, with difficulty in maintaining concentration”[86].
[86] Exhibit 7, paragraph 7.
The Applicant states that he is susceptible to mood swings and sees a psychiatrist once a month and a physiotherapist once a fortnight, with there being no employment reasonably open to him for which he is reasonably qualified[87]. The Applicant stated that his technical qualifications continue, but his physical ‘qualifications’ are not there for employment[88]. The Applicant stated that if there was a position that allowed him to take breaks, stand up and sit as needed, of a part-time nature, he did not think he would be able to do that[89]. The Applicant particularly referred to the requirement to test equipment in one phase, which may take four or five or more hours of checking[90].
[87] Exhibit 7, paragraph 7.
[88] Transcript, 17 July 2020, P-18, lines 18-20.
[89] Transcript, 17 July 2020, P-18, lines 21-24.
[90] Transcript, 17 July 2020, P-18, lines 26-30.
Dr Douglas
In a report dated 29 July 2016 Dr Douglas, an occupational physician, stated that[91]:
[91]T66, pages 333, 336, 337. Submissions of the Applicant dated 25 August 2020, paragraph 17, page 4.
“[The Applicant’s] back, neck and left knee pain are gradually worsening. They affect his ability to work. His left knee occasionally gives way. His back is aggravated by any lifting, bending or heavy work. His neck is limited in rotation and he had to avoid any sudden movements of the neck for otherwise he will get pain. … Standing is variable. He can walk on the flat up to 500 m on a good day or less than 100 m on a bad day without needing to rest. … [The Applicant] is primarily limited in working due to his back pain, neck pain and left knee pain. He should not climb ladders. He should avoid uneven ground. He should avoid repetitive stair climbing. He should not lift more than 10 kg and only between knee and bench height and only occasionally. He should avoid all awkward, repetitive postures, particularly under load. He is unfit for commercial employment in his previous field. However, he is fit to do voluntary community activities which give him social interaction and where he can self-dash pace his activities and rest as required … . The main factors affecting [the Applicant’s] ability to work [are] his back, neck and left knee pain. … [The Applicant] is prevented from undertaking employment solely as a result of these three conditions primarily his back.”
Dr Bookless
Dr Bookless, an orthopaedic surgeon, stated in a report dated 11 August 2016[92] that the Applicant was not prevented from undertaking full-time[93] sedentary employment of forty hours a week, solely due to the orthopaedic conditions of cervical spondylosis, lumbar spondylosis and chondromalacia left patella[94]. Dr Bookless stated that there was nothing orthopaedically preventing the Applicant from performing the work he had been previously doing[95].
[92] T68.
[93] T68, pages 353 – 354. Transcript, 17 July 2020, P-28, line 44.
[94] T68, page 354.
[95] Transcript, 17 July 2020, P-28, lines 46-47.
Dr Wong
Dr Patrick Wong, a psychiatrist, gave oral evidence[96]. The Applicant has been seeing Dr Wong on a continuing monthly basis[97], since in or about November 2017[98]. The doctor stated that the Applicant “cannot work as a result of his psychiatric disability”, with that opinion remaining as at the date of the hearing[99]. The doctor stated that he did not think that the Applicant could do any paid job to any degree consistently[100]. Further, Dr Wong stated that “if [the Applicant] were to do a solitary type of job without needing to have much concentration, enforced information processing and consistency, and without any dateline to meet, the Applicant could possibly do it, but it is difficult to … see how there is such a job, and also there will be days when [the Applicant] simply cannot do anything anyway”[101].
[96] Transcript, 17 July 2020, P-38-41.
[97] Transcript, 17 July 2020, P-39, line 3.
[98] Transcript, 17 July 2020, P-39, line 14.
[99] Transcript, 17 July 2020, P-39, lines 26-27.
[100] Transcript, 17 July 2020, P-40, lines 4-6.
[101] Transcript, 17 July 2020, P-40, lines 17-23.
Dr Ng
Dr Ng, a psychiatrist, gave oral evidence[102]. Dr Ng examined the Applicant on 26 July 2016[103] and gave a report dated 1 August 2016[104]. Dr Ng stated that the Applicant had a dysthymia, being depressive symptoms that are present and which persist for quite a long time, usually a minimum of two years[105].
[102] Transcript, 17 July 2020, P-42-49.
[103] Transcript, 17 July 2020, P-42, line 34.
[104] Transcript, 17 July 2020, P-42, line 35.
[105] Transcript, 17 July 2020, P-42, lines 41-47, P43, lines 1-2.
Therefore, as to the medical evidence referred to above, Dr Douglas states that the Applicant is “prevented from undertaking employment solely as a result of [the back, neck and left knee pain,] primarily his back”[106]. The Applicant has ‘accepted’ conditions of the back, neck and left knee[107]. Further, Dr Wong, who has been seeing the Applicant on a monthly basis, stated that the Applicant “cannot work as a result of his psychiatric disability”[108]. The Applicant has an ‘accepted’ psychiatric condition[109]. The Applicant’s entitlement is assessed in respect of any circumstance within the assessment period, which is from the date of application until the decision of the Tribunal[110]. In circumstances where the medical evidence is that the Applicant’s physical medical status is “gradually worsening”[111], the evidence of Dr Douglas and Dr Wong has greater ‘weight’ than that of Dr Bookless’ report of 11 August 2016 as to specific orthopaedic status and capacity at that time, solely due to the conditions of cervical spondylosis, lumbar spondylosis and chondromalacia left patella[112]. It is therefore found that the Applicant has incapacity from war-caused injury or war-caused disease, or both, which is of such a nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. That is that the Applicant is “totally and permanently incapacitated” as that phrase is used in sub-s 24(1)(b) of the Act.
[106] T66, page 337.
[107] T73, pages 400-408.
[108] Transcript, 17 July 2020, P-39, lines 26-27.
[109] T73, pages 400-408.
[110] The Act, s 19(9). See also Richmond v Repatriation Commission [2014] FCA 272 at [107] per Dodds-Streeton J.
[111]T66, page 333. Submissions of the Applicant dated 25 August 2020, paragraph 17, page 4.
[112] T68, page 354.
There is then the question in s 24(1)(c) of the Act. In Flentjar v Repatriation Commission (1998) 48 ALD 1 at 4-5 per Branson J (with whom Beaumont and Merkel JJ agreed), it was stated:
“ … [T]he issues before the tribunal … were as follows:
1. What was the relevant remunerative work that the [Applicant] was undertaking within the meaning of s 24(1)(c) of the Act?
2. Is the [Applicant], 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 [Applicant] from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the [Applicant] 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?”
Sub-section 24(2) is ‘for the purpose of’ s 24(1)(c). The Applicant submits that the Applicant “did not make any efforts to obtain work after leaving his last employment [and] he is [therefore] not able to rely upon s 24(2)(b) of the Act”[113].
[113] Submissions of the Applicant dated 25 August 2020, page 10, paragraph 32.
The remunerative work that the Applicant was undertaking, having regard to his work history, was as an avionics specialist trainer[114], manager and engineer[115] (question 1).
[114] Submissions of the Respondent filed 21 October 2020, page 13, paragraph 91.
[115] Submissions of the Applicant dated 25 August 2020, page 10, paragraph 37.
As to whether the Applicant by reason of war-caused injury or war-caused disease or both is prevented from continuing to undertake that work as an avionics specialist trainer[116], manager and engineer[117] (question 2), the Respondent submits that the Applicant did not cease work due to the incapacity resulting from his accepted conditions[118]. Having regard to the medical evidence referred to above, including the medical evidence that the Applicant’s physical medical status is “gradually worsening”[119], it is found that the Applicant by reason of war-caused injury or disease, or both, is prevented from continuing to undertake that work as an avionics specialist trainer[120], manager and engineer[121].
[116] Submissions of the Respondent filed 21 October 2020, page 13, paragraph 91.
[117] Submissions of the Applicant dated 25 August 2020, page 10, paragraph 37.
[118] Submissions of the Respondent filed 21 October 2020, page 9, paragraph 63.
[119]T66, page 333. Submissions of the Applicant dated 25 August 2020, paragraph 17, page 4.
[120] Submissions of the Respondent filed 21 October 2020, page 13, paragraph 91.
[121] Submissions of the Applicant dated 25 August 2020, page 10, paragraph 37.
As to whether the only “factors” preventing the Applicant from continuing to undertake work as an avionics specialist trainer[122], manager and engineer[123] are the war-caused injury or war-caused disease, or both (question 3), the Respondent submits that the Applicant resigned from the position with ATAE[124], has been out of the workforce since in or about March 2013[125], is of a particular age[126], now has a ‘retirement lifestyle’[127] and has a non-accepted condition of kidney disease[128]. It is contended by the Respondent that if any of those factors, separately or in combination, contributes to preventing the Applicant from continuing to undertake remunerative work, then the answer will be ‘no’ to this question[129].
[122] Submissions of the Respondent filed 21 October 2020, page 13, paragraph 91.
[123] Submissions of the Applicant dated 25 August 2020, page 10, paragraph 37.
[124] Submissions of the Respondent filed 21 October 2020, page 15, paragraph 101.
[125] T63. Submissions of the Respondent filed 21 October 2020, page 1, paragraph 8.
[126] Submissions of the Respondent filed 21 October 2020, page 14, paragraph 96.
[127] Submissions of the Respondent filed 21 October 2020, page 14, paragraph 96.
[128] Submissions of the Respondent filed 21 October 2020, page 14, paragraph 96.
[129] Submissions of the Respondent filed 21 October 2020, page 14, paragraph 97.
The Applicant submits that the Applicant’s statements of 29 January 2019 and 13 June 2019 as to his kidney disease being a factor ‘impacts’ upon his functional capacity and ability to work at times is “misconceived” and “reflect[s] fair concessions” by the Applicant[130]. Further, that the Applicant clarified those earlier statements, stating[131]:
“ … my ability to continue my employment was not impacted by any non-accepted disability. For instance, my left shoulder did not cause me any difficulty in performing my duties or other duties such as administrative duties and tasks. … The left shoulder … has never caused me a significant disability. Whilst I use the toilet … more frequently than average as a result of my kidney condition, this has never impacted on my ability to perform work and is not so frequent that it would prevent me from carrying out any required tasks or carrying out employment in administrative or managerial positions or any other employment reasonably open to me. … ”
[130] Submissions of the Applicant dated 25 August 2020, page 11, paragraph 43.
[131] Submissions of the Applicant dated 25 August 2020, page 11-12, paragraph 43.
The Applicant submitted that the Applicant’s shoulder and kidney conditions have a minor or inconsequential effect on the Applicant’s capacity for work. The Applicant refers to being aged from 59 to 64 over the course of the assessment period to date, submitting that he remains “still relatively young, having not yet reached the age at which he would qualify for the pension [and he] worked in his field for decades”[132]. Further, the Applicant submits that the only evidence before the Tribunal relevant to the issue is that of the Applicant’s former work colleague, Mr Smith, who remains working ‘in a trade role’ at 65. The Applicant submitted that Dr Douglas drew a distinction between the Applicant’s capacity to undertake some volunteer work and the ability to undertake commercial work.
[132] Applicant’s submission dated 25 August 2020, page 13, paragraph 50.
The Applicant submits that question 3 is a question of fact for the Tribunal, as to whether any factor having employment consequences played a part in the Applicant’s inability to work or to obtain and hold remunerative employment. The Applicant refers to Forbes v Repatriation Commission [2000] FCA 328 (“Forbes”) at [33] per R. D. Nicholson J, as to a finding in the affirmative being sufficient to displace the Applicant’s case for pension at the special rate[133]. The Applicant further refers to that decision in Forbes, where it was stated that “whether the veteran by reason of the war-caused condition alone has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. 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”[134]. This question has been described as a question of “hypothetical fact”[135]: the Tribunal “must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities”. Further, the requirement in this question is to investigate what is, in certain respects, a ‘highly artificial complex of facts’, taking into account the remunerative work which the Applicant had been undertaking and in which the Applicant might not have engaged in at all but for his war-caused injuries and then to speculate whether the Applicant would, at a given date, have still been deriving a certain level of remuneration from that work had it not been for the war-caused injuries[136]. Taking into account the remunerative work that the Applicant had been undertaking as an avionics specialist trainer[137], manager and engineer[138], but then hypothesising[139] whether the Applicant would in the assessment period have still been deriving a certain level of remuneration from that work had it not been for the war-caused injuries and diseases, it is found that the only factors preventing the Applicant from continuing to undertake that specific remunerative work are the war-caused injury or war-caused disease, or both (question 3). In the ‘artificial complex of facts’[140], in the assessment period, the other factors submitted by the Respondent, including the particular age of the Applicant, the non-accepted medical issues, his time out of the workforce and his present lifestyle, do not ‘interfere’ with the finding that the only factors preventing the Applicant from continuing to undertake that work are the war-caused injury or war-caused disease, or both. The test in section 24(1)(c) is not would the conditions alone prevent the Applicant from working but whether the conditions, alone, prevented the Applicant doing so[141]. Therefore, it is found that the war caused injuries or war caused diseases, or both, are the only factors preventing the Applicant from undertaking the remunerative work as an avionics specialist trainer[142], manager and engineer[143] (question 3).
[133] Applicant’s submission dated 25 August 2020, page 11, paragraph 40.
[134] Forbes v Repatriation Commission [2000] FCA 328 at [39] per R. D. Nicholson J.
[135] Repatriation Commission v Smith (1987) 15 FCR 327 at 337 per Beaumont J.
[136] Repatriation Commission v Strickland (1990) 12 AAR 351 at [15] per Davies and Ryan JJ.
[137] Submissions of the Respondent filed 21 October 2020, page 13, paragraph 91.
[138] Submissions of the Applicant dated 25 August 2020, page 10, paragraph 37.
[139] Repatriation Commission v Smith (1987) 15 FCR 327 at 337 per Beaumont J.
[140] Repatriation Commission v Strickland (1990) 12 AAR 351 at [15] per Davies and Ryan JJ.
[141] See Re Smith and Repatriation Commission [2004] AATA 1223.
[142] Submissions of the Respondent filed 21 October 2020, page 13, paragraph 91.
[143] Submissions of the Applicant dated 25 August 2020, page 10, paragraph 37.
The second limb of section 24(1)(c), it is to be read with section 24(2)(a) of the Act. By reason of the accepted conditions preventing the Applicant from continuing to undertake the specific work during the assessment period, the Applicant has been suffering a loss of salary or wages or of earnings on his own account, that the Applicant would not be suffering if the Applicant were free of that incapacity. Where the answers to questions 2 and 3 are, in each case, yes, it is also found that the Applicant by reason of being prevented from continuing to undertake that work is 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 (question 4).
Section 24 of the Act therefore applies, in that the Applicant is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the Applicant was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that the Applicant would not be suffering if the Applicant were free of that incapacity[144].
[144] Section 24(1)(c) of the Act.
DECISION
The decision under review is varied with the Applicant to additionally receive the special rate pursuant to section 24 of the Act.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
................................[SGD]....................................
Associate
Dated: 26 November 2020
Date of hearing: 17 July 2020 Date final submissions received: 6 November 2020 Counsel for the Applicant: Mr A. Harding Solicitors for the Applicant: Woods Prince Lawyers Advocate for the Respondent: Ms E. Baggett Solicitors for the Respondent: Moray & Agnew Lawyers
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