Ross Cunningham and Repatriation Commission
[2015] AATA 391
•4 June 2015
[2015] AATA 391
Division Veterans' Appeals Division File Number
2014/2022
Re
Ross Cunningham
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Ms G Ettinger, Senior Member
Date 4 June 2015 Place Sydney The Tribunal affirms the decision under review.
............................[sgd]............................................
Ms G Ettinger, Senior Member
Catchwords
VETERANS’ AFFAIRS – disability pension – Special rate of pension – whether the Applicant is prevented from continuing to participate in remunerative work for more than eight hours a week due to his accepted conditions alone – whether loss of salary, wages or earnings suffered – decision under review affirmed – Veteran not eligible for pension at the Special rate
Legislation
Veterans’ Entitlements Act 1986 ss 24, 120
Cases
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Connell (2011) 197 FCR 2
Smith v Repatriation Commission [2014] FCAFC 53Repatriation Commission v Richmond [2014] FCAFC 124
REASONS FOR DECISION
Ms G Ettinger, Senior Member
4 June 2015
SUMMARY
Mr Ross Cunningham, the Veteran, who is 65 years old, served in the Australian Defence Force on operational service from 18 March 1971 to 19 May 1971. On 16 May 2012 he made a claim for pension at the Special rate pursuant to section 24 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). He was under 65 years old on that date. The Repatriation Commission, the Respondent in these proceedings, refused the claim, and continued Mr Cunningham’s disability pension at 100% of the General rate. After unsuccessfully challenging that decision at the Veterans’ Review Board, Mr Cunningham now applies for review by this Tribunal.
Mr Cunningham suffers from a number of accepted defence-caused conditions including:
·amputation of distal phalanx of index finger;
·bi-lateral tinnitus;
·solar keratosis;
·pterygium;
·non melanotic malignant neoplasm of the skin;
·Post Traumatic Stress Disorder (PTSD);
·Non-Hodgkins Lymphoma.
I heard oral evidence from Mr Cunningham as well as Dr C Vun, his treating haematologist, Dr T Rosenthal, occupational physician, and Dr R Chase, occupational physician. I have taken all their evidence, and all the evidence in the documents before me into account in reaching my decision.
I have decided that Mr Cunningham does not meet the criteria in section 24(1)(b) and (c) of the Act, and is accordingly not eligible for pension at the Special rate. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
I have to decide whether Mr Cunningham is entitled to disability pension at the Special Rate.
RELEVANT LEGISLATION
Mr Cunningham will be eligible for a pension at the Special rate if he meets the criteria set out in section 24 of the Act, which follows as relevant:
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
…
(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; …
Mr Cunningham contends that his defence-caused conditions alone, particularly PTSD and Non-Hodgkins lymphoma (lymphoma), render him incapable of undertaking remunerative work for periods aggregating more than eight hours a week, with a consequent loss of earnings, and as such his pension should be assessed at the Special rate. In order to decide that, I must consider the application of sections 24(1)(b) and (c) of the Act.
Since Mr Cunningham was under the age of 65 when he ceased work, an additional consideration is the ameliorating provisions in sections 24(2)(a) and 24(2)(b) of the Act. They would apply if he had genuinely sought remunerative work, and was substantially prevented from obtaining employment due to his accepted conditions. Mr Cunningham’s evidence was that he did not look for work after closing his air conditioning business in May 2012, and hence those sections of the Act do not come into play.
The standard of proof in this matter is on the balance of probabilities, pursuant to section 120(4) of the Act.
BACKGROUND
Mr Cunningham served on operational service in Vietnam from 18 March 1971 to 19 May 1971. He commenced a sheet metal fabricating company and air conditioning installation service with a partner in 1990, which he shortly thereafter operated on his own up until 2008, using sub-contractors as necessary.
Mr Cunningham told me that from 2008 he was winding down because he was finding the work hard, he suffered lethargy, and he became more aggressive without knowing the cause. He said that there was an increased work load, new rules and regulations, and safety issues arose.
Mr Cunningham stated that from 2008, he was experiencing abdominal pain as well as tiredness and lethargy. The evidence was that he does not sleep well due to his PTSD, which was diagnosed in 2008 by Dr White, a psychiatrist. Dr White’s later report, made in 2013, supported Mr Cunningham in his claim that he ceased work in May 2012 due to the effects of his lymphoma.
Mr Cunningham reported his lethargy to his general practitioner, Dr Scott Brown, and was referred to Dr C Vun, a haematologist, who made the diagnosis of lymphoma in 2010. Dr Vun stated that this remained dormant when he last saw Mr Cunningham in May 2014. Dr Vun’s written evidence was before me, and he gave oral evidence by telephone at the hearing. Mr Cunningham told me that he has recently sought advice from another haematologist.
In Dr Scott Brown’s letter dated 21 January 2014 to the Department of Veterans’ Affairs, he stated that:
…the reason Mr Cunningham ceased work was due to lethargy caused by his chronic lymphoma … As with any individual of Mr Cunningham’s age, he has other medical problems but the reason he stopped work was due to lymphoma induced lethargy.
Mr Cunningham described how his lifestyle has been impacted by his illness, including his social isolation, anger and moodiness. He also mentioned his non-accepted disabilities, being low back pain, a left shoulder condition (from 1990), and osteoarthritis in his knees.
Mr Cunningham told me that he managed the non-accepted disabilities with medication, and with cortisone injections in the shoulder. He told me that he had a pinched nerve in his back, and that he managed his knee problems. He was convinced that the non-accepted disabilities did not impact on his decision to retire from work and wind up his company in May 2012.
I am satisfied that in part due to impairment and pain from his orthopaedic non-defence accepted conditions, (Exhibits R3 and R4), Mr Cunningham’s active physical participation in the business was reduced to part-time from approximately 2007/2008, and that he used the services of contractors more than previously. Exhibit R3, the clinical notes of Dr Scott Brown to which Mr Cunningham was taken in cross-examination, revealed many instances of Mr Cunningham seeking assistance for his non-accepted conditions. I referred also to Exhibit R4, the ‘Lifestyle Questionnaire’ dated 20 October 2011, where at Question 12 Mr Cunningham replied that he had difficulty doing various activities because of his disabilities. He detailed those as knee joint pain, shoulder pain and back pain.
Mr Cunningham told me that he had won major contracts, and had work outstanding at the time he stopped working in May 2012, and the business ceased. He told me that he had worked mainly in Canberra between 2006 and 2012. He described large and small projects, including work at Parliament House. Mr Cunningham said that in May 2012 he felt that he could not continue as he was suffering lethargy, which he attributed to his lymphoma, and the effects of his PTSD.
CONSIDERATION
Section 24(1)(a), 24(1)(aa), 24(1)(aab) and 24(1)(a)(i) of the Act
The Respondent agrees, and I accept, that Mr Cunningham satisfies the tests in sections 24(1)(aa), 24(1)(aab) and 24(1)(a) of the Act in that he made an application for increase in pension, he had not yet reached the age of 65 when that application was made, and that his degree of incapacity was determined to be at least 70%.
Section 24(1)(b) of the Act
In considering the application of section 24(1)(b) of the Act, I have to decide whether, during the assessment period, Mr Cunningham is totally and permanently incapacitated, that is to say, whether his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
I have noted from the evidence which Mr Cunningham did not disclose to all the doctors who examined him, that as a member of the Rural Fire Service in February 2014, he injured his left knee, recorded by Dr Scott Brown as a twisting injury (Exhibit R3, p.12). Dr Chase commented that the work involved in being a fire fighter was far more physical than the supervisory managerial role Mr Cunningham had been playing in his air conditioning business in the years leading up to 2012. Mr Cunningham’s evidence regarding the fire fighting was that he was called to a fire in Cooma, but that he acted only in the role of driver, and that, in any case, the fire was almost out at that point.
I moved then to consider the medical evidence.
The Medical Evidence
Dr Chee Vun, Haematologist
Dr Vun was Mr Cunningham’s treating haematologist from 2010 – May 2014, and it was he, on referral from Mr Cunningham’s general practitioner Dr Scott Brown, who diagnosed the lymphoma in 2010. Dr Vun’s reports were dated 23 March 2013 (Exhibit R3, p.43), 19 January 2012 (Exhibit R3, p.96), 19 April 2012, (T10), 17 January 2013 (Exhibit R3, p. 59), 9 January 2014 (Exhibit R3, p.52), 8 May 2014 (Exhibit R3, p. 16), and 10 February 2015 (Exhibit R5).
In his oral evidence given by telephone to the Tribunal, Dr Vun reiterated, as documented in most of his reports before the Tribunal, that Mr Cunningham’s lymphoma was dormant, and that he did not experience sleep disturbance. I have noted that he kept a watchful eye on Mr Cunningham, and ordered blood tests on a regular basis. Dr Vun’s evidence was that the lymphoma was discovered because there are presently very sensitive tests available, but that without those, the level of the lymphoma was so minimal that it could otherwise not be detected. He did not discern the need to treat the condition.
In Dr Vun’s report dated 19 January 2012, he recorded that: His energy is good. …. The lymphoma remains low grade. No treatment is required for asymptomatic disease.
In his report dated 19 April 2012, Dr Vun wrote, amongst other things: … He complains of tiredness. In the same report, Dr Vun recorded: The tiredness is not congruent with the CLL.
Dr Vun also recorded in his report of 19 April 2012: … There is no night sweat. He is planning for retirement. Mr Cunningham disagreed that he had reported no night sweats, and disagreed that he had informed Dr Vun he was planning for retirement.
Dr K Gordiev, Orthopaedic Surgeon
In her reports of 27 October 2008 and 20 November 2008, located at T-11, Dr Gordiev noted that Mr Cunningham was referred with a very painful left shoulder the function of which she rated as 25% of normal. Dr Gordiev reported that:
The radiographs show ossification apparently within the subscapularis insertion. There is also evidence of subacromial bursitis and tears in subscapularis and supraspinatus. The tear in supraspinatus is 1.5 cm.
On both occasions when she saw Mr Cunningham, Dr Gordiev discussed future management of the condition, including the possibility of surgery.
Dr Rosenthal, Specialist Occupational Physician
Dr Rosenthal gave oral evidence before the Tribunal by telephone. His report dated 21 July 2014 was Exhibit A2.
Dr Rosenthal mentioned each of Mr Cunningham’s medical conditions, both those accepted as defence-caused, and those which are not, and discussed them individually in his report.
Dr Rosenthal noted that Mr Cunningham stopped work in 2012 after he was diagnosed with lymphoma, and noted he was experiencing significant lethargy at the time. This implied that Mr Cunningham was diagnosed with lymphoma in 2012, whereas further on in his report, Dr Rosenthal correctly refers to the diagnosis of lymphoma by Dr Vun in 2010. Dr Rosenthal noted that Dr Vun’s report of 19 April 2012 indicated Mr Cunningham was getting some lymph node enlargement and was tired, but not experiencing night sweats. He also noted Dr Vun’s opinion that the lymphoma remains dormant, and that tiredness is not congruent with the CLL diagnosis. When giving his oral evidence, Dr Rosenthal acknowledged Dr Vun’s opinion that tiredness is not congruent with the CLL diagnosis. He opined however, that whilst as a general rule that was correct, individuals exhibited their own particular symptoms.
Dr Rosenthal also commented on Mr Cunningham’s non-accepted conditions. In that regard he noted that Mr Cunningham has arthritis in both his knees. He mentioned that the left knee had become symptomatic after a twisting injury arising out of fire fighting activities in February 2014. He also remarked that the left knee was not impacting on Mr Cunningham while he was still at work. Dr Rosenthal stated Mr Cunningham told him that with physiotherapy the knee problems did not impact on his work as he had not been required to do any prolonged standing or walking. This information corroborates Mr Cunningham’s evidence that in his latter years at work, he undertook a supervisory role, and sub-contracted his air conditioning installations.
Dr Rosenthal noted that Mr Cunningham has had a torn tendon and biceps injury in the left shoulder for some 25 years. He mentioned Dr Gordiev’s 2008 report, and commented that there was no significant impact on Mr Cunningham’s work from that injury around the time he stopped work.
In regard to Mr Cunningham’s back pain, Dr Rosenthal noted that Mr Cunningham has suffered intermittent low back pain for quite a while, and that he reported that he managed it with physiotherapy. As to the abdominal pain Mr Cunningham reported; Dr Rosenthal stated that that had been related to his gall bladder which was subsequently attended to.
Dr Rosenthal answered a number of questions in his report in regard to symptomology Mr Cunningham suffers from his accepted disabilities. When replying to the question:
How frequently does Mr Cunningham experience these symptoms?
Dr Rosenthal stated:
He has symptoms, as noted, from his post-traumatic stress disorder and non-Hodgkins lymphoma which he experiences on a daily basis. He has symptoms now in regards to his left shoulder and left knee in particular as well.
In reply to a question regarding what work Mr Cunningham could do, Dr Rosenthal replied that:
… he possibly could do some supervisory work on reduced hours, but he is now restricted generally because of his lethargy and poor concentration, essentially making him unable to continue his normal type of employment.
Dr Rosenthal also opined that Mr Cunningham is precluded from working more than eight hours a week due to the effects of his lymphoma and PTSD.
In reply to the question regarding to what extent Mr Cunningham is prevented from seeking remunerative employment due to his non-accepted conditions, Dr Rosenthal opined:
… I would state that the non-accepted conditions would have only a minor impact on him seeking remunerative employment. Much would depend on the type of work he was looking for, but if it was purely supervising then the non accepted conditions would have no impact. If he was doing the physical activities of air-conditioning installer, then there would be a minor impact.
Dr R Chase, Occupational Physician
Dr Chase provided a report, dated 18 August 2014, and a supplementary report dated 6 November 2014 (Exhibit R7). In reply to a question from the Respondent inquiring whether Mr Cunningham’s accepted physical disabilities of themselves alone prevent him from engaging in his former paid work, Dr Chase commented both upon the diagnosis of PTSD and the lymphoma. Dr Chase stated that he relied upon evidence given to him that Mr Cunningham never saw combat, and noted that he did not report flashbacks or nightmares to him. Dr Chase stated that he deferred to psychiatric expertise as to PTSD, but doubted that Mr Cunningham was suffering PTSD, and opined that:
the PTSD (or whatever psychiatric condition he may suffer), never had any impact upon his ability to engage in paid employment or to run his own air conditioning business.
Dr Chase opined that Mr Cunningham’s symptoms:
are now largely lethargy and these appear to have developed around the time of his subsequent diagnosis of B-cell lymphoma. He is not reporting the symptoms of PTSD but most of the lethargy would appear to be related to a depression. … As noted above it is more likely that the lethargy he reports is related to depression and lack of motivation.
I noted that Dr White, psychiatrist, in his report of 25 September 2013, agreed with Dr Chase’s opinion that the lymphoma caused Mr Cunningham to feel depressed. He referred also to recurrent abdominal pain which, as the Tribunal has heard, was due to Mr Cunningham’s gall bladder problem, and was attended to.
When referred to Dr Vun’s opinion that the tiredness Mr Cunningham reports is not congruent with the CLL diagnosis, Dr Chase stated that lethargy can be part of a lymphoma diagnosis. However, in reference to Mr Cunningham, he noted the very low pathology recorded in relation to the lymphoma, and opined that the lethargy he reported was related to depression and lack of motivation.
Regarding the non-accepted disabilities, Dr Chase referred to low back pain, left shoulder restriction in the range of motion and osteoarthritis of the knees, none of which he considered prevented Mr Cunningham from engaging in paid work.
Dr Chase referred to Mr Cunningham’s injury sustained in February 2014 while fire fighting, opining that: This indicates a much higher level of physical activity in which he engages than he alleges he is capable of performing. He also commented that Mr Cunningham raises beef cattle on a small acreage.
In his supplementary report of 21 July 2014, Dr Chase commented on Dr Rosenthal’s report and stated that he disagreed with Dr Rosenthal’s conclusions that Mr Cunningham is essentially restricted from work due to the general lethargy surrounding his non-Hodgkins lymphoma and also the post traumatic stress symptoms. Dr Chase disagreed with Dr Rosenthal’s opinion that Mr Cunningham cannot work more than eight hours per week.
Dr Scott Brown, Mr Cunningham’s General Practitioner
Dr Scott Brown’s clinical notes were Exhibit R3. Mr Purcell, who appeared for the Repatriation Commission, referred Mr Cunningham to many pages of the 135 page bundle of notes dated between 2005 and 2014. Many of the notes referred to consultations involving Mr Cunningham’s non-accepted disabilities, including at Exhibit R3:
·back pain (28 January 2005, p.2) and (20 July 2006, p.3)
·the twisting injury to the left knee (10 February 2014, p. 12)
·MRI of the knee (6 March 2014, p.30)
·Abdominal pain and investigations of that condition (p.14, p.17, p.26, p.71, p.82)
·At page 73 of Exhibit R3, there was a report of a whole body bone scan of Mr Cunningham dated 9 August 2012 with findings of mildly active degenerative change throughout the vertebral column and mildly active osteoarthritic changes in the shoulder, wrist, knee and 1st MTP joints. He had been referred because of nocturnal back pain, and lymphoma diagnosed in 2010.
Dr Scott Brown’s replies to a questionnaire dated 22 June 2012 in regard to Mr Cunningham’s ability to work were at Exhibit R3, p.84 – 89. In reply to a question regarding what medical conditions prevented or restricted the veteran’s capacity to work he recorded:
Lymphoma leading to lethargy
PTSD leading to emotional difficulties
Osteoarthritis of the left and right knees
Left shoulder tendonitis leading to decreased movement in left shoulder
…
That included the non-accepted conditions of osteoarthritis of the left and right knees and the left shoulder tendonitis.
The Tribunal’s deliberations regarding section 24(1)(b) of the Act
In coming to a decision regarding whether Mr Cunningham meets the tests in section 24(1)(b) of the Act, I have taken into account his evidence and that of the doctors who have treated and examined him which I have detailed above. Mr Cunningham has, amongst other accepted conditions which I have listed above, PTSD and lymphoma. PTSD, and in particular, lymphoma, are the conditions upon which he relies to assert that he is totally and permanently incapacitated, that is to say, that his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
Mr Cunningham relied on a loss of concentration which he attributed to his diagnosis of PTSD, made by Dr B White, a psychiatrist in 2008 and 2013. I noted that Dr White, in his 2013 report noted that Mr Cunningham was not seeing any psychologist or psychiatrist. He was taking no medication for his PTSD. Dr White noted that Mr Cunningham’s main concern when he saw him in 2013 was his lymphoma.
I noted Dr Chase stated that he deferred to psychiatric expertise as to Mr Cunningham’s diagnosis of PTSD, but opined that he doubted Mr Cunningham was suffering PTSD at all. He opined that the PTSD (or whatever psychiatric condition he may suffer), never had any impact upon his ability to engage in paid employment or to run his own air conditioning business. Whilst noting that Mr Cunningham worked less hours than previously after 2008, I am nevertheless satisfied that he set up and continued to operate a successful sheet metal and air conditioning business after his return from service.
I have noted Dr Chase’s doubts about the diagnosis of PTSD, but am mindful that Dr White, who made it, is a psychiatrist, and that PTSD has been accepted as defence caused. I have noted also that Dr White recorded in 2013 when he saw Mr Cunningham that he was not receiving any treatment for his PTSD, and that the lethargy he reported which he associated with his lymphoma was his primary concern.
As noted above, Mr Cunningham relied in particular on his feelings of lethargy, which he associated with the lymphoma, notwithstanding Dr Vun’s statements that:
His energy is good. …. The lymphoma remains low grade. No treatment is required for asymptomatic disease.
…
… He complains of tiredness. … The tiredness is not congruent with the CLL.
Dr Rosenthal agreed with Dr Vun in general terms with regard to the tiredness not being congruent with the CLL, and opined that as a general rule that was correct, but that individuals exhibited their own particular symptoms.
Dr Rosenthal also opined that Mr Cunningham possibly could do some supervisory work on reduced hours, but he is now restricted generally because of his lethargy and poor concentration, essentially making him unable to continue his normal type of employment. He also opined that Mr Cunningham is precluded from working more than eight hours a week due to the effects of his lymphoma and PTSD.
In reply to the question regarding to what extent Mr Cunningham is prevented from seeking remunerative employment due to his non-accepted conditions, Dr Rosenthal opined:
… I would state that the non-accepted conditions would have only a minor impact on him seeking remunerative employment. Much would depend on the type of work he was looking for, but if it was purely supervising then the non accepted conditions would have no impact. If he was doing the physical activities of air-conditioning installer, then there would be a minor impact.
Dr Chase opined regarding Mr Cunningham’s symptoms that they are:
… largely lethargy and these appear to have developed around the time of his subsequent diagnosis of B-cell lymphoma. He is not reporting the symptoms of PTSD but most of the lethargy would appear to be related to a depression. … As noted above it is more likely that the lethargy he reports is related to depression and lack of motivation.
Dr White opined that the lymphoma caused Mr Cunningham to feel depressed especially the recurrent abdominal pain. He may not have been aware that the abdominal pain was later diagnosed in connection with regard to gall bladder problems which were attended to.
Mr Cunningham described how his lifestyle has been impacted by his illness, including his social isolation, anger and moodiness. He also mentioned his non-accepted disabilities, being low back pain, a left shoulder condition (from 1990), and osteoarthritis in his knees.
Mr Cunningham told me that he managed the non-accepted disabilities with medication, and with cortisone injections in the shoulder. He told me that he had a pinched nerve in his back, and that he managed his knee problems. He was convinced that the non-accepted disabilities did not impact on his decision to retire from work and wind up his company in May 2012.
Unfortunately I cannot accept Mr Cunningham on his evidence that his non-accepted disabilities did not impact on his decision to retire from work and wind up his company in May 2012. His general practitioner, Dr Scott Brown, to whom I have referred above, replied to a questionnaire dated 22 June 2012 in regard to Mr Cunningham’s ability to work. In reply to a question regarding what medical conditions prevented or restricted the veteran’s capacity to work he recorded:
Lymphoma – lethargy
PTSD - emotional difficulties
osteoarthritis knees
shoulder tendonitis
…
In that reply in June 2012 with regard to Mr Cunningham’s ability to work, Dr Scott Brown referred to Mr Cunningham’s PTSD, and lymphoma, but also to the conditions of his knees, shoulder and back as preventing or restricting the veteran’s capacity to work.
I rely on the opinion of Dr Vun that the lymphoma was low grade and dormant, and that the lethargy Mr Cunningham reported was not congruent with the CLL. I also accept Dr Vun’s opinion that the non-accepted disabilities played a role in Mr Cunningham ceasing work in 2012. I am mindful that Mr Cunningham was not receiving treatment either for the lymphoma or the PTSD.
I rely also on the opinion of Dr Chase that the lethargy appears to have developed around the time of the diagnosis of B-cell lymphoma. Dr Chase opined that Mr Cunningham was not reporting the symptoms of PTSD, but that most of the lethargy would appear to be related to a depression and lack of motivation.
Dr Rosenthal opined that Mr Cunningham is precluded from working more than eight hours a week due to the effects of his lymphoma and PTSD, being lethargy and loss of concentration. I note that Dr Rosenthal was also of the opinion that Mr Cunningham’s non-accepted conditions would have a minor impact on him seeking remunerative employment, and that much would depend on the type of work, so that if it was purely supervisory, then the non-accepted conditions would have no impact. If he was doing the physical activities of air-conditioning installer, then there would be a minor impact. That would mean Mr Cunningham’s incapacity from war-caused injury or war-caused disease, alone, do not render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
I was also mindful of the content of the ‘Lifestyle Questionnaire’ dated 20 October 2011, some seven months before Mr Cunningham’s retirement in May 2012 in which he described himself as working part-time, 20 - 24 hours a week. He also described knee joint pain, and back pain as occurring some of the time, back and hip pain if driving long distances, and trouble walking after stopping. Mr Cunningham nominated knee joint pain, shoulder pain and back pain as causing him difficulties. I note Ms Mudge’s submission that Mr Cunningham had known that he needed knee replacements for some time.
From the evidence of Mr Cunningham and the doctors discussed above, I am not satisfied that Mr Cunningham meets the tests in section 24(1)(b) of the Act, and that Mr Cunningham is totally and permanently incapacitated, that is to say, his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The role of the non-accepted disabilities for which he sought treatment from Dr Scott Brown at least between 2004 and 2014 as Exhibit R3 demonstrates, was considerable.
As I am not satisfied and have found that Mr Cunningham does not meet the tests in section 24(1)(b) of the Act, I am not obliged to consider section 24(1)(c), that is evidence related to whether he was suffering a loss of salary or wages due to his war caused injuries or disease alone. However I have done so in the paragraphs which follow.
Section 24(1)(c) of the Act
I now move to decide whether Mr Cunningham 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 he was undertaking, and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that Mr Cunningham would not be suffering if he were free of that incapacity. I note that Mr Cunningham was paid director’s fees from the company he operated, which was not like earning a pay packet every week or fortnight. He told me that his wife arranged the finances, about which he knew little.
In considering section 24(1)(c) of the Act, I note that the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 identified the following questions to be asked:
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?
I have also noted that the Full Federal Court in Repatriation Commission v Connell (2011) 197 FCR 228 held at [28] that:
… in the context of the beneficial nature of the Act … “remunerative work” should not receive a restrictive interpretation. There is no valid reason to confine the expression to work of a particular type. “Remunerative work that the veteran was undertaking” should not be confined to the actual type of work involved but should also be referrable to its nature and quality. A person who works as a painter on a full-time basis but who, due to incapacity, can now only do that work on an intermittent or part-time basis is not continuing to perform the same remunerative work. The restricted nature of the work gives it an entirely different character…
The representatives of the parties also referred me to Smith v Repatriation Commission [2014] FCAFC 53 and Repatriation Commission v Richmond [2014] FCAFC 124 which I have noted.
As to Mr Cunningham’s relevant remunerative work, I am mindful that pursuant to the Act, that means any remunerative activity. In Mr Cunningham’s case, work in the air conditioning installation business was his relevant remunerative work, which changed from 2008 until his retirement in May 2012. His evidence was that from 2008 he worked only approximately three days a week, and that he assumed a more supervisory role due to his disabilities. Mr Cunningham’s evidence was that it was due to his PTSD, and in particular due to the lethargy from the lymphoma.
I am however satisfied from the medical records of Dr Scott Brown, his report at page 193 of the T-documents, and Dr Chase’s evidence that Mr Cunningham was not prevented from undertaking his remunerative work by reason of war-caused injury or war-caused disease, alone. I am satisfied that his non-accepted orthopaedic disabilities played a part in preventing him from continuing to undertake that work.
As I am satisfied that it was not Mr Cunningham’s accepted disabilities alone which prevented him from undertaking his remunerative work, but that his non-accepted disabilities played a role, I am not required to consider any loss of earnings as contemplated in question 4 of Flentjar.
I refer also to sections 24(2)(a) and (b) of the Act. As Mr Cunningham ceased work before the age of 65, he could have been entitled to the ameliorating provision provided in section 24(2)(b) of the Act. That would apply if he had genuinely sought remunerative work after ceasing work in his air conditioning business, and was substantially prevented from obtaining employment due to his accepted conditions alone. Mr Cunningham’s evidence was that he did not look for work after closing his business, so there is no application for those sections of the Act.
Mr Cunningham’s claim for Special rate pension accordingly cannot succeed, and I must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 79 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member .....................[sgd]...............................................
Associate
4 June 2015
Date of hearing 10 April 2015 Counsel for the Applicant Ms C Mudge Solicitors for the Applicant KCI Lawyers Advocate for the Respondent Mr G Purcell
Key Legal Topics
Areas of Law
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Administrative Law
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Appeal
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