Short and Repatriation Commission
[2003] AATA 1347
•30 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1347
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/471
VETERANS' APPEALS DIVISION ) Re JAMES McALPIN SHORT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Date30 December 2003
PlaceSydney
Decision The decision under review is affirmed.
...............................................
Ms S M Bullock
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS - Special Rate - Over 65 years
Veterans' Entitlements Act 1986 ss 24
Repatriation Commission v Haskard (2002) 71 ALD 29
REASONS FOR DECISION
30 December 2003 Ms S M Bullock, Senior Member 1. Mr Short, the Applicant, made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of a decision made by the Veterans’ Review Board (“the Board”) on 22 March 2002 (T32) that affirmed a decision of the Repatriation Commission dated 4 September 2001 (T2) that assessed his pension at 70 per cent of the General Rate with no Special Benefit payable with effect from and including 6 March 2001.
2. A hearing was held in Sydney before the Tribunal on 27 June 2003. Mr Short provided evidence to the Tribunal. He was represented by Mr R Sherlock, Advocate, Legal Aid Commission of New South Wales. The Respondent, the Repatriation Commission was represented by Mr N Bunn, Departmental Advocate. Concurrent evidence was provided by Dr M Burns, Occupational Physician and Dr R Chase, Occupational Physician. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“T Documents”, T1-T33). A number of exhibits were taken into evidence which are contained in Schedule 1 to this decision.
issues
3. The issue in this matter is the correct rate of assessment of Mr Short’s Disability Pension. The current assessment is 70 per cent of the General Rate and a determination is required as to whether this is correct or whether or not Mr Short qualifies for the Special Rate of pension.
legislation
4. A determination in this matter requires consideration of the Veterans’ Entitlements Act 1986 (“the Act”).
5. In determining the correct rate of pension this must be undertaken to the decision-maker’s reasonable satisfaction pursuant to subsection 120(4) of the Act.
6. In relation to qualification for Special Rate, this is dealt with under section 24 of the Act which states:
“24 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.
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i) if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.”
accepted conditions
7. Mr Short has the following conditions accepted as being service-related:
· Thoracolumbar spondylosis from 10 December 1997;
· Bilateral sensorineural hearing loss and bilateral tinnitus from 6 March 2001.
evidence of mr short
8. Mr Short was born 23 March 1928.
9. Mr Short told the Tribunal that he was appointed as a part-time marriage celebrant in 1977 to augment his income. He became established by 1979/1980 conducting an average of 115 ceremonies per year. He stated that during the 1980s, his back condition had minimal effect on his work as a marriage celebrant. There was a decline in his ceremonies during the 1990/1991 financial year and Mr Short performed approximately 72 ceremonies per year. At that time, he had changed his full-time position working with the Handicapped Childrens’ Centre to working with the Home Care Service. Mr Short found that the home care work was more financially rewarding and demanding of his time and accordingly he cut down the number of ceremonies during those years.
10. Mr Short told the Tribunal that his back condition played no part in his cutting down in the number of ceremonies. In 1993, Mr Short retired from the Home Care Service. He had decided to retire because he had reached the age of 65 years. There was no connection between his decision to retire and the number of ceremonies he was conducting at that time. From 1993, he was experiencing back pain during ceremonies and found that the pain increased if he was undertaking more than a ceremony every now and then. From the time of his retirement, Mr Short was averaging approximately one ceremony per fortnight and he was able to cope with that quite well, he stated. Mr Short agreed that his back problem occurred at approximately the same time as his retirement from full time employment.
11. Mr Short believed that following retirement, he would have been able to augment his income from the Service Pension with income from conducting marriage ceremonies. His intention was to build up the number of ceremonies to a similar level as he had achieved when working at the Handicapped Childrens’ Centre on an average of between 100 and 115 per year.
12. Mr Short noted that in conducting marriage ceremonies, invariably the bride would be late and this meant that he would be kept standing up waiting. Ceremonies were conducted in parks, gardens or in reception centres. The duration of the wedding ceremony was approximately 30 minutes. When he experienced very bad back pain, he would consult Dr M Eisenberg, General Practitioner, who performed back manipulations. Mr Short acknowledged Dr Burns’ report that he only consulted Dr Eisenberg on average once per year, explaining that Dr Eisenberg provided advice as to how to manage his back condition with therapeutic exercises. Mr Short told the Tribunal that he never had to cancel a ceremony or transfer it to a colleague.
13. On 22 December 2002, Mr Short was conducting a marriage ceremony and the bride was about 45 minutes late. He experienced great back pain at that time. After the ceremony, Mr Short consulted Dr Eisenberg for a manipulation. He was still experiencing back pain on Christmas Day and then consulted Dr Eisenberg for the second time on 26 December 2002 whereupon he had a second back manipulation. Mr Short told the Tribunal that he realised that his back condition had deteriorated. He talked to Dr Eisenberg about this and was advised to consider retiring. Mr Short stated that he loved the work, it was pleasant being with young people on the happiest day of their lives. Financially, a ceremony would provide income of $190.00. There were no other employees but his wife would sometimes assist him. Mr Short stated that there were no other factors apart from his back impacting on his decision to retire.
14. Mr Short performed his last wedding ceremony on 26 January 2003, having performed four ceremonies between 26 December 2002 and 26 January 2003. He had thus worked as a part-time marriage celebrant from 1977 while he was still employed full-time and after retirement from full-time work in 1993, working until 2003 as a marriage celebrant. There was a break of between two and three months between July and September 1995 when Mr Short believed he probably had no bookings.
15. In a 1992 Lifestyle Questionnaire (T27, p63), Mr Short indicated that he ceased work in 1993 because of age. When referred to an application for Disability Pension in 1998 (T25, p57), Mr Short had recorded that his disabilities had not affected his employment at any time. In a claim for increase in Disability Pension dated 29 April 2001 (T28, p69), Mr Short indicated his accepted conditions had worsened and he could not do anything physical or social. He stated to the Tribunal that what he had written was a fair representation of his circumstances. Mr Short acknowledged that the form did not however refer to Mr Short’s part-time employment. Yet at T27, p70, Mr Short noted that he ceased work in 1993 because he had retired and also did not record his marriage celebrant employment activities. In relation to cessation of marriage celebrant work, Mr Short stated that he had no firm retirement date in mind and was aware that many celebrants were still undertaking ceremonies when aged 80 years. Mr Short’s hearing problem did not cause any difficulties in conducting the wedding ceremonies, he stated.
16. The Tribunal was informed that Mrs Short has significant health problems and Mr Short receives a Carer’s Pension in recognition of his need to care for his wife, for example in showering. Mr Short explained that his wife’s health conditions did not impact upon his work as a marriage celebrant and he was not required to be constantly with her.
17. In relation to his recreational activities, Mr Short had recorded in various documents and in evidence to the Tribunal, that he had ceased many recreational activities for example bowls, because of health considerations. He told the Tribunal that he ceased bowls because he was too busy working full-time and as a marriage celebrant and that reduced the opportunity to play bowls. It was pointed out to Mr Short that in a Lifestyle Questionnaire completed in 2000, he had recorded that he gave up bowls because of his poor mobility. In cross-examination however, Mr Short expanded this answer to note that his initial evidence to the Tribunal about having no time to play bowls had been correct, but that when he was less busy and had the opportunity to play bowls again he was prevented from doing so because of his back condition, reflecting his written response in the Lifestyle Questionnaire. Mr Short continues to play pool because it is played on a small table and there is easy access, whereas there are difficulties with billiards and snooker in relation to the strain this sport causes his back.
18. In relation to the Special Rate of pension which Mr Short is seeking, he stated that if the Department of Veterans’ Affairs had not advised him of possible eligibility for Special Rate of pension, he would not have known. He was advised of this when advised of the decision to increase his pension to 70 per cent of the General Rate which was made on 4 September 2001. Mr Short believed that he fulfilled the criteria for Special Rate because he was working no more than eight hours per week. He was also aware of the Federal Court case in Repatriation Commission v Haskard (2002) 71 ALD 29.
19. Mr Short told the Tribunal that he tries to keep as fit as he can and in this regard, undertakes back exercises each morning and has been doing that since the 1970s. He has cut some exercises out on Dr Eisenberg’s advice. He believed that his back condition has worsened since retirement. Since ceasing work as a marriage celebrant in January 2003, Mr Short stated that he has not however required any further back “manipulations”.. If he experiences pain, he takes the medication “Naprosyn”. His back condition has not prevented Mr Short swimming four times per week for approximately 35 – 40 minutes. He is able to walk for half an hour, three times per week. Mr Short also tries to keep mentally alert by completing many crosswords.
20. Mr Short was asked to explain how it is that he filled in many forms recording that he ceased work in 1993, yet he was obviously continuing to undertake part-time employment. Mr Short explained that when he filled out such forms, he considered the question related to being currently employed as a full-time employee. It was a mistake, he stated, and he had simply not recorded his part-time work as employment. Mr Short also acknowledged that in his 2000 Lifestyle Questionnaire, he had indicated that he had had to cut down all his social activities because of his back. He acknowledged in his evidence to the Tribunal that a marriage ceremony is a very large social activity. Mr Short further explained that he considered the marriage ceremony was not such a social activity in which he was one of the people participating in social interactions. In relation to the discrepancies between his written information in forms compared with his evidence to the Tribunal, he stated that in filling out various forms for the Department of Veterans’ Affairs, he took employment in its literal meaning of full-time work and considered his part-time activities as a marriage celebrant as a professional activity.
21. Following his retirement from full-time work, Mr Short did not achieve anywhere near the 100 to 115 marriage ceremonies he had planned for, but rather thought he averaged 28 per year and on one occasion 34 or 35 ceremonies in one particular year. The busiest period for marriage celebrants was usually mid summer and the slowest period was mid winter..
concurrent evidence of dr m burns, occupational physician and dr r chase, occupational physician
evidence of dr burns
22. Dr Burns had first examined Mr Short on 19 August 2002 and provided a report of that date (Exhibit A5). Dr Burns re-examined Mr Short on 12 May 2003, producing a report on the same day (Exhibit A6). Dr Burns reported that Mr Short had told him that he had gradually decreased the amount of work as a marriage celebrant because of back pain. From Dr Eisenberg’s clinical notes, it was obvious to Dr Burns that Mr Short had suffered from back pain since the mid 1970s and had regular episodes where back pain had flared up and where treatment was required from Dr Eisenberg. The mainstay of Dr Eisenberg’s treatment was manipulation of the lower back. Mr Short would occasionally take Naprosyn but only for a short course. The episodes of back pain were self-limited after Mr Short had manipulation and medication. Dr Burns stated that Mr Short found it increasingly difficult to stand on the one spot and the more he did this, the more back pain he developed. Mr Short had no difficulty in walking. From a cardio-respiratory point of view, Mr Short is quite fit. He walks on the flat and swims but those activities are not excluded by back pain, Dr Burns opined.
23. On examination, Dr Burns found that Mr Short had a slight decrease in the range of motion which was expected in a gentleman of his age. The problem was more one of back pain and it was this that was of more concern to Dr Burns than Mr Short’s mobility. Dr Burns believed that Mr Short has a genuine back problem associated with some lumbar spondylosis. Over time, this has gradually increased to the stage where the pain level, after a period of standing was such that he no longer wanted to keep undertaking the activity as a marriage celebrant. Dr Burns could understand with the two episodes of back pain in December 2002 and January 2003, that Mr Short might decide to give up work. Dr Burns believed that Mr Short had significantly more ceremonies which he could have conducted as opposed to the number that he did undertake. Dr Burns noted that Mr Short did have a lack of flexibility in the spine, but his giving up work was more to do with his perceived level of pain.
24. Dr Burns concluded that Mr Short presented as a gentleman with a degree of degenerative change in his lumbar spine which, on certain activities such as standing on the one spot for any length of time, caused a significant increase in his back pain. He is able to undertake other activities such as walking and swimming as they do not cause the same degree of discomfort or pain. Unfortunately the job as a part-time marriage celebrant necessitated him standing in the one place for up to an hour at a time and that over the years, there was back pain always present with activity. Normally the pain would be better within a day of the ceremony, but in December 2002 and January 2003 this was not the case. There was no improvement at that time and a second consultation with his general practitioner was required. Eventually, Mr Short made a decision that he could not continue to put up with the degree of back pain or thought that he may have had further episodes of back pain, hence his decision to retire. Mr Short did not retire immediately in December 2002 but waited a number of weeks and had treatment and discussed the decision to retire with his general practitioner. This decision, Dr Burns considered, was reasonable and not precipitous or made on a whim. Back pain had been present for five or six weeks. Mr Short had loved his marriage celebrant work. Dr Burns further opined that there were no other reasons apart from back pain, causing Mr Short to cease that work.
25. While Dr Burns agreed with Dr Chase that the back pain had settled down since cessation of the marriage celebrant work, Dr Burns stated that the fact that the pain was provoked by such an extent to give the two episodes of pain from the one event, made it a significant risk of further back pain later on if he had continued to work. Dr Burns acknowledged that perception of pain is a very subjective area but he believed Mr Short does have significant problems which have increased over time.
26. There was a point of difference between Dr Burns and Dr Chase in the assessment of Mr Short’s back condition. Dr Chase did not provide an assessment for any other of Mr Short’s accepted conditions. Dr Burns had assessed Mr Short as having a 50 per cent loss of range of movement and from Table 3.3.1 of the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”), with an age adjustment from Table 3.6.1, the rating was 16. Overall, Dr Burns assessed all of Mr Short’s conditions as providing a 70 per cent General Rate pension using a lifestyle rating of four. Dr Chase, on the other hand, had made an assessment of a ten to 20 per cent loss of range of movement. Dr Burns acknowledged that Mr Short had indicated to Dr Chase that there had been an improvement in his back condition since working as a marriage celebrant, but he had good and bad days. It was a good day when he had visited Dr Chase. Dr Chase had noted that Mr Short was presented as having improved as compared to the assessment provided by Dr Burns. Dr Burns had acknowledged that the 70 per cent assessment he had provided in May 2003 was the same as the assessment made by the Repatriation Commission in September 2001. Dr Burns stated that Mr Short had the same level of stiffness in his back but greater pain.
evidence of dr chase
27. Dr Chase provided a report dated 9 April 2003 (Exhibit R1). Dr Chase told the Tribunal that he had taken almost an identical history from Mr Short as that reported by Dr Burns. On physical examination, Dr Chase noted that Mr Short was exceptionally fit for his age. He had some restricted range of movement in his back consistent with his age but described an otherwise very active life. The histories were the same in terms of the amount of marriage celebrant work undertaken over the years with a gradual decrease. It was Dr Chase’s understanding that the work had gradually been decreasing as a natural process in that less work was coming Mr Short’s way.
28. Dr Chase had no doubt that what Mr Short reported to him in terms of pain being caused by standing was true. Dr Chase noted that the natural history of back pain tends to be that it is a relapsing remitting condition. Sometimes people might have two or three attacks per year and then might go for long periods of time when they have no pain or minor pain only. It is Dr Chase's view that the decision to retire was fairly precipitous on the basis of two episodes of pain over one month.
29. Dr Chase felt that there were other factors affecting Mr Short’s decision to cease work such as advancing age and looking after his wife. He noted that if it takes on average about four hours total work for each marriage ceremony, which involves a mixture of activities such as driving around, interviews, sitting, walking and standing for only an hour. Dr Chase’s opinion was that Mr Short was quite physically capable of doing that especially in view of his otherwise excellent level of fitness for his age. Dr Chase acknowledged that Mr Short enjoyed his work. He believed that Mr Short made his decision to retire on the basis of pain as well as on the basis of a broad number of issues but he did not know specifically what they were apart from age and possibly his wife’s illness. The difference in opinion between Dr Burns and himself ultimately came down to the acknowledgment of the self-reporting of pain.
30. Dr Chase opined that there are more similarities than differences between his opinion and Dr Burns. Both doctors agreed that Mr Short experiences back pain and that he has improved. Both doctors agree that Mr Short will continue to experience back pain on and off for the rest of his life and that he has had it for many years. Dr Chase noted that everybody with back pain makes decisions about what they can and cannot do and what they will give up or will continue undertaking. It comes down to issues of motivation, enjoyment, as well as physical capabilities. Dr Chase noted that Mr Short decided after two “flare-ups” of his back pain in December 2002 and January 2003, that he should retire. He did so and his back pain has settled down again which is quite consistent with the natural history of back pain. Dr Chase believed that Mr Short could continue to work and he will also continue to experience back pain from time to time. The level of pain reported by Mr Short to Dr Chase and the level of impairment that Dr Chase measured, were not sufficient for him to retire altogether, Dr Chase opined.
evidence of dr m eisenberg, general practitioner
31. Dr Eisenberg’s clinical notes are available to the Tribunal. A report of 10 February 2003 (Exhibit A8), certified by Dr Eisenberg that Mr Short was examined by him on 23 December 2002 with acute lower back pain due to prolonged standing in performing his duties as a marriage celebrant on 22 December 2002. Dr Eisenberg noted that he had to treat Mr Short again on 26 December 2002. At that time, the advice to Mr Short was that he should think of retiring from that occupation.
discussion and findings
32. I am reasonably satisfied that the assessment made on 4 September 2001 as affirmed by the Board on 22 March 2002, of Mr Short’s accepted impairments of 70 per cent of the General Rate, is correct. I note that Dr Chase gave a rating of eight (age-adjusted) for Mr Short’s back condition, whereas Dr Burns gave an impairment rating of 16, which in fact reflects the decision made by the Commission. Dr Chase did not assess Mr Short’s other accepted conditions but at hearing could see no reason not to accept the assessment already undertaken. Dr Burns assessed a higher rating for tinnitus but in effect, with the rounding effect, this made no difference to the overall outcome given that the lifestyle rating made by the Commission and the Board also accorded with Dr Burns’ view of the lifestyle effects.
33. Turning then to the issue of whether or not Mr Short is eligible to receive a pension at the Special Rate, because of Mr Short’s age, the legislative provision which is appropriate and relevant to Mr Short’s circumstances, is subsection 24(2A) of the Act. The provisions of section 24 of the Act and specifically subsection 24(2A) are cumulative and failure to meet one sub-item means that the section as a whole is not met. Given that subsection 24(2A) of the Act deals with veterans over the age of 65, the requirements are strict.
34. Mr Short meets subsection 24(2A)(a) and (b) in that he has made a claim under section 15 of the Act for an increase in pension and he turned 65 before the claim was made. In relation to subsection 24(2A)(c) which requires that Mr Short meets subsection 24(1)(a) and 24(1)(b) of the Act, he has met subsection 24(1)(a) in that he has a degree of impairment of at least 70 per cent as I have found. In relation to subsection 24(1)(b), requiring him to be totally and permanently incapacitated from his war-caused injury or disease alone, rendering him incapable of undertaking remunerative work aggravating greater than eight hours per week, Mr Short’s evidence was that he was undertaking one ceremony per fortnight which took, for the entire process pre and post ceremony, approximately four hours. This was his preferred working mode. He was thus working less than eight hours per week.
35. There was an incident in December 2002, when Mr Short had to stand longer than usual during the course of conducting a marriage ceremony and he experienced back pain requiring treatment not on just one occasion which was the norm, but on a second occasion only a few days later.
36. Mr Sherlock argues that from 1995, the level of work as a marriage celebrant decreased because of Mr Short’s back condition and this prevented him from reaching the level of delivery of marriage celebrations that he had wanted to reach of between 100 and 115 ceremonies per year. I note however from the evidence, that Mr Short never reached this target. The level of work he undertook it seems to the Tribunal, was at a level acceptable to him from 1993. The work that Mr Short was undertaking, as Mr Bunn submitted, was at the same level for most of the period under review. The change seemed to have occurred as a result of the December 2002 incident when the bride took longer than usual to reach her wedding, in addition to there having to be some movement from one location to another just prior to the ceremony commencing. The evidence is that Mr Short completed another four ceremonies after experiencing severe back pain in December 2002, although, the Tribunal accepts Mr Short’s explanation that he completed those additional ceremonies because he had accepted the bookings and felt professionally bound to honour his commitment.
37. The Tribunal notes that Dr Burns and Dr Chase reached similar views about the type of incapacity, but differed in the extent to which they considered the lumbar spondylosis incapacitated Mr Short. Dr Chase alluded to other reasons for Mr Short giving up work but could not be specific. I do not consider that Mr Short’s wife’s health played any part in his decision to cease work. Nor do I consider that the break of approximately two months in 1995 was anything other than a quiet period for marriage celebrations, particularly as the period occurred in the winter or slow period.
38. Of significance in the Tribunal’s view are discrepancies between the documentary and oral evidence provided by Mr Short over time. In Mr Short’s documentary material supplied to the Tribunal, he has written in various claim forms for pension or increase in pension and in a Lifestyle Questionnaire that he retired from work in 1993 because of age. There was no mention in any of those documents about him continuing to work part-time as a marriage celebrant. It was put to Mr Short on a number of occasions that his answers in the documentary materials were contrary to his oral evidence to the Tribunal. In this regard, Mr Short noted that he had written that he had retired in 1993 because of age because he was 65 years old and that was the age at which a person retired in the public sector. At hearing, he further explained that he was thinking of his work as a self-employed marriage celebrant as not constituting full-time work. He was thinking literally when filling out the various Departmental forms. These references, the Tribunal notes however, were written not on a one-off basis, but occurred in a number of the documents. If it was a mistake, then it was repeated. The difficulty for the Tribunal in this regard is that in other documents relating to Mr Short’s Service Pension from the Respondent, he was required to provide information about his income and the Tribunal notes documents in the material which are written by Mr Short which refer to his income from work activities as a marriage celebrant in:
· January 1995; September 1995 and December 1995;
· June, December 1996;
· June, October 1997;
· June 1998;
· May 1999;
· September 2000 (T14 – T24).
Thus, during the period when Mr Short on the one hand was stating that he had made a mistake about not referring to his part-time work as a marriage celebrant in claims for pensions and Lifestyle Questionnaire, in other documentation during the same period, he noted his income from work as a marriage celebrant. Mr Short had also told the Tribunal that he knew he could only work certain hours because to work greater hours and produce greater income would cause him to exceed his income limit for the purpose of the Service Pension.
39. It appears to the Tribunal that Mr Short was exercising some choice in the amount of employment he undertook as a marriage celebrant so as not to jeopardise the quantum he received for his Service Pension. This evidence does not sit well with other evidence provided to the Tribunal, that Mr Short intended to attempt to reach his pre-retirement level of approximately 115 ceremonies per year after 1993. In actual fact, the evidence from Mr Short is that he performed on average 28 ceremonies per year and perhaps 34 ceremonies in one particular year. That is 112 hours per year.. This was maintained, as Mr Bunn observed, for most of the period under review.
40. Mr Short’s documentary evidence in relation to giving up recreational activity of bowls because of his back (Exhibit R6; T27, p63), was contradicted at hearing when Mr Short stated that he gave up bowls because he was too busy. When the seeming discrepancy between the oral and documentary evidence was pointed out to Mr Short, he explained this by saying that when he had given up full-time work and that time was available for him to play bowls, he was no longer able to take it up again. This was the first time that such an explanation had been provided by Mr Short. When considering Mr Short’s written record that his back made him avoid social activities and caused him to limit his social activities to close family and a few old friends, it was put to Mr Short that marriage celebrants in fact engage in a social activity. While Mr Short agreed that his work as a marriage celebrant does involve social activity, he explained that it did not mean that he was socially involved in that situation but rather a participant on the periphery, not having to engage in any personal way.
41. Mr Bunn submitted that Mr Short had given up work immediately he heard of the decision in Repatriation Commission v Haskard (supra). The evidence on this is equivocal. Mr Short indicated that he was aware of the decision of the full Federal Court in Repatriation Commission v Haskard (supra), but the Tribunal cannot discern on the available evidence, that Mr Short was precipitated into ceasing his work as a marriage celebrant as a result of becoming aware of that decision. However on all the evidence available to me, I must treat with some caution the discrepancies between Mr Short’s written records which are contemporaneous and his oral evidence provided at hearing. I consider that the explanations provided by Mr Short at hearing are not entirely satisfactory or fully explain the discrepancies or contradictions which Mr Short acknowledged. It would seem to me that there is an exaggeration operating or an under reporting of his lifestyle effects when all of the evidence is viewed as a whole. This casts some doubt on the severity of the back pain, which both Dr Burns and Dr Chase agreed relies on subjective reporting. There is no doubt in my mind nor in the professional opinions of Dr Burns or Dr Chase that Mr Short experiences back pain. Mr Short is however a very fit and active man for his age, swimming four days per week and walking three days per week. As Dr Burns stated and I agree, activity per se does not indicate that Mr Short does not suffer from back pain. He clearly does, but the Tribunal’s view is that the level of back pain he reports is not consistent with particularly documentary evidence provided and the inconsistency between that and his oral evidence.
42. In the context of the above discussion, how then should I treat Dr Eisenberg’s note of 10 February 2003 which stated that he had treated Mr Short on 23 December 2002 with acute lower back pain due to prolonged standing performing a marriage celebration with treatment again on 26 December 2002. Dr Eisenberg stated that he had advised Mr Short to think of retiring. Dr Eisenberg in that short note does not say that the lumbar spondylosis alone or in combination with other war-caused conditions are the sole reasons for Mr Short ceasing work or being unable to continue to work. There is no discussion of the relevant contribution to thinking about retiring of the lumbar spondylosis or indeed any other possible relevant factor.
43. As I have stated, I do not doubt that Mr Short suffers back pain from time to time and is disabled. However, in the context of all of the evidence relating to the reason Mr Short provided for giving up full-time work, the level of marriage celebrations carried out by Mr Short post retirement, the exercising of self limiting numbers of weddings undertaken so as not to jeopardise his Service Pension and the discrepancy between the oral and documentary evidence which was not satisfactorily explained, I am not satisfied that it is Mr Short’s condition of lumbar spondylosis alone which caused him to cease work. I consider there are a number of factors apart from his lumbar spondylosis which kept his work at a certain level including the desire not to jeopardise his Service Pension, his age, and his desire to advance his claim for Special Benefit. Accordingly, I do not consider that Mr Short satisfies the requirements contained within subsection 24(2A)(d) of the Act in that it is not his war-caused condition of lumbar spondylosis or any other accepted condition in combination which alone prevent him from continuing to undertake his last paid remunerative work that he was undertaking before making the application for an increase in pension. Accordingly, as subsection 24(2A)(d) of the Act is not met, then the legislative provision of section 24 as a whole is not met. In such circumstances I do not consider that Mr Short is eligible or qualified to receive a pension at the Special Rate..
44. Accordingly, for all the reasons set out above in consideration of all the evidence, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member
Signed: .......................................................................................
Associate
Date of Hearing 27 June 2003
Date of Decision 30 December 2003Representative for the Applicant Mr R Sherlock, Advocate, Legal Aid Commission of NSW
Representative for the Respondent Mr N Bunn, Departmental Advocate
SCHEDULE 1
EXHIBIT DESCRIPTION DATE A1 Handwritten Statement by Mr J Short 30 May 2002 A2 Handwritten letter from Mr J Short to Mr Sherlock 26 December 2002 A3 Statutory Declaration by Mr J Short 8 February 2003 A4 Handwritten document by Mr J Short 28 April 2003 A5 Report by Dr M Burns, Occupational Physician 19 August 2002 A6 Supplementary Report by Dr M Burns, Occupational Physician 12 May 2003 A7 Invoice from Insurance Brokers Sawtell & Salisbury Pty Ltd 5 February 2003 A8 Statement to The Medical Officer, Department of Veterans’ Affairs by Dr M Eisenberg 10 February 2003 R1 Report from Dr R Chase, Occupational Physician 9 April 2003 R2 Clinical notes of Dr M Eisenberg, General Practitioner Various R3 Combined Impairment Assessment and Medical Impairment Assessment for Thoraco-Lumbar Spondylosis and Audiogram Various R4 Claim for Disability Pension/ Medical Treatment (lodged 10 March 1998) 6 March 1998 R5 Claim for Disability Pension and/or Application for Increase (lodged 20 September 2000) 19 September 2000 R6 Lifestyle Questionnaire 6 November 2000
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