Shortland and Repatriation Commission
[2001] AATA 756
•3 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 756
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/119
VETERANS' APPEALS DIVISION )
Re GORDON CAMPBELL SHORTLAND
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date3 September 2000
PlaceSydney
Decision The decision under review is set aside. The Tribunal substitutes its own decision that:
The Applicant qualifies for payment of Disability Pension at the special rate.
The decision is to take effect from 27 January 1998 and will apply in relation to any pension payday falling on or after that day.
The matter is remitted to the Respondent for calculation of the rate of pension payable in accordance with this decision.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – disability pension – special rate - application for increase in pension - bilateral sensorineural deafness - cervical spondylosis - spondylolisthesis – inability to undertake remunerative work due to war caused disability – deterioration of accepted conditions – standard of proof
Veterans' Entitlements Act 1986, ss 15(1), (3), (4), 21(1), 23(3A), (3B), 24(2A), (2B), 120(4)
Repatriation Commission v Smith (1987) 74 ALR 537
REASONS FOR DECISION
3 September 2001 M J Sassella, Senior Member
History of the application
On 27 January 1998 Gordon Campbell Shortland ("the Applicant") lodged a claim form with the Department of Veterans' Affairs ("the DVA") for an increase in his Disability Pension (T7). In addition to his accepted conditions of bilateral sensorineural deafness, cervical spondylosis and spondylolisthesis he was claiming for "stiffness L and R fingers and hands" and a "short period of irrational behaviour." In his reasons for his application he stated that his conditions of cervical spondylosis and spondylolisthesis had deteriorated.
On 12 March 1998 the Repatriation Commission ("the Respondent") refused the above claim for an increase in Disability Pension and continued the Applicant's payments at 90% of the general rate (T11). As for intermediate and special rates pensions, it was decided that the Applicant's ability to work had been reduced by "other factors and the effects of non-accepted disabilities" and so he did not qualify for an earnings-related pension.
On 8 May 1998 the Applicant lodged an application for review of the Respondent's decision with the Veterans' Review Board ("the VRB") (T16).
On 20 May 1998 the DVA decided not to conduct a review of the application pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T19).
The decision under reviewOn 12 March 1998 the VRB set aside the Respondent's decision and substituted its own decision that that pension be assessed at 100% of the general rate, effective from and including 27 January 1998 (T2). The VRB relied on the report of Dr Henke of 13 August 1999 (T2, folio 19) which found an impairment rating of 20 points (reduced to 14 for age) for spondylolisthesis, 30 points for loss of musculo-skeletal function affecting the lower limbs, and 20 points for cervical spondylosis (reduced to 14 for age). The VRB found that an impairment rating of 9 points was warranted for hearing loss and 5 points for pain at rest. This produced a combined assessment of 55 points. The VRB further assessed the Applicant's lifestyle rating and found a rating of 5 points. Combining these two ratings, the VRB assessed the Applicant as eligible for a disability pension at 100% of the general rate. In relation to the Applicant's employment, the VRB found that he ceased work in 1987 and that he has had no measurable income from his profession since that time. Accordingly, the Applicant does not meet the loss of earnings requirements, pursuant to s 24 of the Act, that are necessary for the payment of disability pension at special or intermediate rate.
On 25 January 2000 the Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal") (T1).
Relevant legislationThe following provisions from the Act are relevant: sections 15(1), (3), (4), 21(1), 23(3A), (3B), 24(2A), (2B), 120(4).
"15 Application for increase in pension
(1) A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
…(3) An application under subsection (1) or (2):
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.
…""23 Intermediate rate of pension
…
(3A) 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) (as affected by subsection (2)) 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 24 or 25 does not apply to the veteran.
(3B) For the purposes of paragraph (3A) (e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1) (b) 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; or
(c) the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.
…""24 Special rate of pension
…
(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.
…"
"120 Standard of proof
…(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"
The hearing
The Tribunal convened a hearing in this matter on 15 November 2000. The Applicant was represented by Mr Colborne of Counsel, the Respondent by Ms Doggett from the DVA. The following material was taken into evidence at the hearing:
Exhibit TD1 – Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, 21 February 2000.
Exhibit TD2 – Folio 76A of Exhibit TD1.
Exhibit A1 – Statement of the Applicant dated 23 May 2000.
Exhibit A2 – Report of Dr M Baz, occupational physician, 29 June 2000.
Exhibit A3 – Printout from the Health Insurance Commission showing benefits paid to the Applicant from January 1988 to December 1998.
Exhibit R1 – Report of Dr T Anderson, occupational physician, 31 March 2000
Exhibit R2 – Clinical notes of Dr G M Halliday.
Exhibit R3 – Mercy Health Service records.
Exhibit R4 – Clinical notes of Dr I Bailey.
Exhibit R5 – Report of Dr Anderson, 22 September 2000.
Exhibit R6 – Letter from the DVA to Dr Anderson, 13 September 2000
Background
The Applicant was born on 3 December 1922 (T2, folio 17). He is married with two children. His current marriage is his second and he has two children who have both left home (T11, folio 61).
The Applicant volunteered for service in the Royal Australian Air Force during World War II. Most of his service was spent in England where he was involved in the crash of a Wellington bomber. Upon his return to Australia he enrolled in medicine at Sydney University and graduated in the early 1950s.
Documentary medical and other evidenceOn 30 May 1979 the Applicant lodged a statement in support of a claim for medical treatment and pension (T3). His symptoms were severe pain in the left upper limb and over the left scapula. He first noticed these symptoms around 11 April 1979.
An entitlement medical report of 1 August 1985 (T4) noted recurrent otitis media. It diagnosed bilateral hearing loss which "seems attributable to war service."
In an undated statement by the Applicant that was taken into evidence at the VRB hearing (T2, folios 15-16), a number of points were made, in particular:
The Applicant has never suffered from diabetes mellitus.
His spondylolisthesis was traumatic "due to a crash landing in a Wellington twin engined bomber whilst training". The aircraft landed without using wheels.
The Applicant does not have hiatus hernia.
The Applicant does not suffer from ischaemic heart disease ("IHD").
The Applicant's lungs show no abnormalities apart from a node.
The Applicant's hearing was affected by his position in the flight crew as bomb aimer and co-pilot.
On 23 January 1998 the Sydney Imaging Group provided a report on the Applicant (Exhibit TD2, T11, folio 76A). It found disc narrowing at all levels below C3. "The most severe changes are present at C3/4 on the right side and from C4 to C6 on the left side." In regard to the lumbosacral spine, grade I-II spondylolisthesis at the lumbosacral junction was diagnosed as well as pars interarticularis defects in L5. "Other lumbar disc spaces are fairly well preserved." The report's diagnosis was "changes of hyperostosis in the cervical spine, lumbar spine and pelvis. There is grade I-II spondylolisthesis at the lumbosacral junction and there appears to be sacroiliitis. There are osteoarthritic changes in the small joints of the fingers…"
On 4 February 1998 Dr John Watson, neurologist, reported on the Applicant (T11, folios 61-62). He concluded that there was evidence of mild right-sided sciatica and significant spondylolisthesis in the L5 level with further evidence of disc degeneration.
On 4 March 1998 Dr Paul Stalley, orthopaedic surgeon, reported on the Applicant (T11, folio 59). He noted "degenerative cervical spine spondylitis" that he considered to be "an acquired spondylolisthesis of adolescence."
On 2 April 1998 Dr Ian Bailey, consultant cardiologist, stated in regard to the Applicant that "this gentleman had documented coronary artery disease but has had subsequent intervention and is now free of any symptoms related to coronary disease and is under close surveillance (T16, folio 98).
On 13 August 1999 Dr Peter Henke, consultant in rehabilitation medicine, reported on the Applicant (T2, folio 19). He noted the Applicant's aircraft accident of 1944 and that the Applicant sustained injuries to the neck, loss of teeth and a diagnosis of lumbar spondylosis. The Applicant wore a back brace for 24 years until 1968. The Applicant told Dr Henke that he experiences pain after walking for only 20-30 meters, the pain being in the mid-lumbar region. Further the Applicant has pain in the left calf and a burning sensation in his third and fourth toes. He has difficulty bending and when sitting he must lean to the right. The Applicant's cervical spondylosis also started at the time of the 1944 accident. It caused difficulties with activities such as driving a car. The Applicant has seen specialists about the condition but has not undergone surgery. Dr Henke further noted that the Applicant developed angina in 1992 and a diagnosis of myocardial infarction was made. It was also noted that the Applicant, a doctor, now only practices to a limited degree due to physical restrictions.
In relation to the Applicant's disabilities, Dr Henke noted that the range of movement in the cervical spine was severely restricted. In regard to the back and lower limbs, range of movement was found to be restricted by approximately 50%. Significant degenerative disease was found in the cervical spine while mild degenerative changes were found in the lumbar spine. These findings were based on x-rays dated 8 June 1999. In regard to the Guide to the Assessment of Rates of Veterans' Pensions 5th Edition ("GARP") Dr Henke accorded the following medical impairment assessment ratings:
Spondylosis: 30 points
Cervical spondylosis: 20 points
Bilateral sensorineural deafness 5 points
Total 51 points
Dr Henke further found a lifestyle rating of 4 points which, when combined with the impairment rating, converts to a disability pension at 90% of the general rate. Dr Henke concluded:
"All the conditions of which Dr Shortland suffers are of a chronic type. There is no probability of any improvement in these conditions and gradual worsening of these conditions is probably anticipated over an extended period. There is no potential for any intervention which would improve the ratings set out above."
In an undated statutory declaration in support of the Applicant (T2, folio 24), Colin Richard McLeod considered that the reason the Applicant ceased working was "because of his back problems." Other statutory declarations (T2) from Lester Russell Winger, Suzanne Shortland and the Applicant himself further stated that the back injury suffered in World War II was the cause of his eventual retirement.
On 10 October 1999 an audiology report found "a high frequency hearing loss bilaterally due to sensori-neural pathology" (T2, folio 28).
On 11 October 1999 an x-ray report stated: "the heart is not enlarged. The thoracic aorta is unfolded…the lungs are clear" (T2, folio 30).
On 23 May 2000 the Applicant signed a statement in support of his application (Exhibit A1). He gave a detailed history of his medical career. The Applicant further stated that "prior to ceasing my practice in Holbrook in 1987 I was aware that my back was causing me greater difficulty, slowly increasing pain since the mid 1940's…most my difficulties were cased by back and neck pain…" From 1992 the Applicant reduced his work hours to about two days per week. In 1993 and 1994 the Applicant saw very few patients and paid no tax. In 1997 he ceased working completely.
On 29 June 2000 Dr Baz, occupational physician, provided a detailed report on the Applicant (Exhibit A2). She took a detailed history of the Applicant's back and neck pain and noted the aircraft accident during World War II. According to GARP she provided the following assessment ratings:
Bilateral sensorineural hearing loss 8 points
Tinnitus 5 points
Cervical spondylosis (range of movement) 11 points
Upper limb function 16 points
Lumbar spondylosis (range of movement) 14 points
Lower limb function 33 points
Joint pain 5 points
Total 78 points
Dr Baz further found that an overall lifestyle rating of 5 was appropriate for the Applicant. When combined with the medical impairment rating this allows for a disability pension at 100% of the general rate. Dr Baz came to the following conclusions:
"In my opinion Dr Shortland is unfit for work of 8 or more hours duration weekly.
"I consider this is due to his accepted disabilities on their own.
"While he has a number of other medical conditions I do not consider these would preclude him from continuing with work as a general practitioner.
…"
On 31 March 2000 Dr T Anderson, occupational physician, completed a report on the Applicant at the request of the Respondent (Exhibit R1). Dr Anderson also took a detailed history of the Applicant's conditions as well as his employment history. He did note that the back and neck injuries were a result of the aircraft crash and predicted a poor prognosis with further deterioration of the conditions. In relation to GARP he found the following ratings appropriate:
Spondylolisthesis of the cervical spine 14 points
Thoracolumbar spine 21 points
Lack of walking capacity 30 points
Hearing impairment 5 points
Total 55 points
Dr Anderson recommended a lifestyle rating a 4 points which combines with the impairment rating to entitle the Applicant to a disability pension at 90% of the general rate. In addition, Dr Anderson stated that the Applicant was unable to return to his previous occupation of general practitioner and, considering the Applicant's age (77), "he would appear to meet the criteria for award of the Special Rate Pension."
On 13 September 2000 the Respondent wrote to Dr Anderson asking him to clarify whether his ultimate findings were based on the Applicant's accepted conditions alone (R6).
On 22 September 2000 Dr Anderson provided a supplementary report (Exhibit R5). He stated that, in regard to the Applicant's mobility, the difficulties that the Applicant experiences are "basically due to a combination of advancing age resulting in further degenerative change and also at least one of the accepted disabilities." Dr Anderson then addressed the question of Dr Shortland returning to work. Again he stated that there was a combination of factors as to why he could not go back to work. Firstly, due to the hearing problem, he would be unable to use a stethoscope. The Applicant would also need a reasonable amount of mobility in order to examine patients properly and this would not be possible. Dr Anderson stated that the reason the Applicant could not return to work was because of age-related factors as well as the accepted disabilities.
Findings on material questions of fact with reference to the evidence and other material in support of the findingsThe Tribunal notes or makes findings as to the following uncontentious matters:
The Applicant was born on 3 December 1922. He was aged 75 years when he claimed an increase in pension (T7).
The applicant lodged a valid claim for an increase in pension on 27 January 1998 (T7).
The date of effect of any decision in the Applicant's favour would be 27 January 1998 (s 21(1) of the Act)).
The standard of proof in respect of matters of assessment requires that the Tribunal be reasonably satisfied as to the required matters (s 120(4) of the Act). In Repatriation Commission v Smith (1987) 74 ALR 537, 547 the Federal Court held that this standard equates to satisfaction on the balance of probabilities.
Questions relevant to resolving issues surrounding special rate are:
Question 1 – Has the Applicant lodged a claim (s 24(2A)(a) of the Act).
Question 2 – Had the Applicant turned 65 when the claim was made (s 24(2A)(b) of the Act)?
Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(2A)(c) of the Act)?
Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(2A)(c) and 28(a) of the Act)?
Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(2A)(c) and 28(b) of the Act)?
Question 6 – What is the degree to which the physical or mental impairment of the Applicant as result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(2A)(c) and 28(c) of the Act)?
Question 7 – What was the last paid work that the Applicant was undertaking before he made the claim within the meaning of s 24(2A)(d) of the Act?
Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(2A)(d) of the Act)?
Question 9 – If the answer to question 8 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 (s 24(2A)(d) of the Act)?
Question 10 – If the answers to questions 8 and 9 are 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 (s 24(2A)(e) of the Act)?
Question 11 – Was the Applicant undertaking his last paid work after he turned age 65 (s 24(2A)(f) of the Act)?
Question 12 – When the Applicant stopped undertaking his last paid work had he been working in that profession for a continuous period of at least 10 years that began before he turned 65 (s 24(2A)(g)(ii) of the Act)?
Question 13 – Has a temporary payment under s 25 of the Act been made (s 24(2A)(h))?
The Tribunal will now consider these questions in sequence.
Question 1 – Has the Applicant lodged a claim (s 24(2A)(a) of the Act).Yes. He claim is in T7.
Question 2 – Had the Applicant turned 65 when the claim was made (s 24(2A)(b) of the Act)?Yes. The Applicant was aged 75 when he made the claim (T7).
Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(2A)(c) of the Act)?Yes. The Applicant's impairment rating is 100% under s 21A of the Act (T2, folios 5-11).
Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(2A)(c) and 28(a) of the Act)?The Applicant's skills, qualifications and experience are limited to general medical practice. He commenced study in medicine in 1945, graduated in 1954, practised at Grafton Hospital, Royal Sydney Hospital, the Children's Hospital, and as a general practitioner in Holbrook until 1987 (Exhibit A1). He then practised in Sydenham in Sydney, gradually winding down his practice until he stopped in 1997 (Exhibit A1) or 1998 (the Applicant's oral evidence).
Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(2A)(c) and 28(b) of the Act)?The answer to this question would very likely be confined to work as a general practitioner. Given that the Applicant's experience has been as a general practitioner it would seem unlikely that he could do work less demanding of postural requirements such as the consultancy work that a specialist, for example, might do.
Question 6 – What is the degree to which the physical or mental impairment of the Applicant as result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(2A)(c) and 28(c) of the Act)?The answer to this question requires consideration of the accepted disabilities and their effects on a general practitioner's capacity to do his job. The Applicant's BSHL has resulted, according to Dr Baz, in Dr Shortland hearing garbled speech and having difficulty hearing conversation. Dr Anderson (Exhibit R5) said that the hearing deficit would make it difficult for Dr Shortland to use a stethoscope. A stethoscope "is probably one of the major instruments used by general practitioners for example in regular blood pressure estimations as well as listening to lungs and hearts".
The Applicant has accepted orthopaedic disabilities of cervical spondylosis with prolapsed C6/7 intervertebral disc and spondylolisthesis at L5/S1. Dr Baz says of these that the Applicant feels that he actually stopped work because of his neck and back pain. Dr Baz wrote in summary:
"In my opinion the neck and back pain and stiffness are of sufficient severity to prevent him from undertaking the essential duties of a medical practitioner. His ability to concentrate, and hence to evaluate individual patients and maintain continuing study, as well as his ability to undertake physical examination would be significantly impaired by his neck and back pain and stiffness.
"He gives a clear history of increasing difficulty coping with work due to neck and back pain, and problems related these conditions over many years requiring that the use assistance.
"While his decision to stop work in 1997 was ultimately precipitated by the rupture of the right quadriceps this condition has been well managed with surgery and does not cause any significant problem which would preclude him from work.
"There is the past history of his ischaemic heart disease which has been managed with angioplasty. He has had cardiac follow-up which has not shown any ongoing cardiac disability which would preclude him from work as a General Practitioner.
"Dr Shortland describes difficulty with balance which was evident at this review and has been recorded by other physicians. This is considered due to the complications of his spinal conditions, and in particular the lumbar condition, although no confirmatory re investigations have been undertaken."
Dr Anderson (Exhibit R5) is said:
"In expanding a little further on some of the duties that he would be unable to perform effectively, several issues immediately come to mind. General practitioners invariably have to look in a lot of eyes and into a lot of ears. This requires a certain amount of bending and the use of sometimes a rather contorted position, particularly with the head and neck and to a lesser extent the back and also be able to hold a precision instrument steady while to observe accurately. I think Dr Shortland would have great difficulty in carrying out this type of clinical examination."
Both doctors agree that Dr Shortland's accepted disabilities would effectively prevent him from continuing to perform functions of a general medical practitioner. The Tribunal is inclined to accept the views of these doctors. The Tribunal finds that Dr Shortland cannot work even eight hours a week in view of his accepted disabilities alone.
Question 7 – What was the last paid work that the Applicant was undertaking before he made the claim within the meaning of s 24(2A)(d) of the Act?The last paid work that the Applicant was doing before he made the claim under the Act was work as a general practitioner (Exhibit A1).
Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(2A)(d) of the Act)?The answer to this question is the same as for question 6. The answer is yes.
Question 9 – If the answer to question 8 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 (s 24(2A)(d) of the Act)?In answering this question the Tribunal notes that Dr Shortland may be disabled from continuing to perform the relevant remunerative work for reasons additional to the impact arising from his war-caused disabilities. These could include other non-war-caused disabilities or the relevance of his advanced age.
Dr Baz in her report refers to considerable clumsiness in the hands which is considered to be the result of the combination of cervical spondylosis, radiculopathy and hand osteoarthritis. Dr Baz concludes her report by stating, "While he has a number of other medical conditions I do not consider these would preclude him from continuing with work as a General Practitioner."
Dr Anderson (Exhibit R1) examined the Applicant and detected problems in his cervical spine (accepted disability), finger osteoarthritis in the small joints which restricted movement (non-war-caused disability), dermatitis over his fingers and hands (a non-war-caused disability), psoriasis on elbows and knees (a non-war-caused disability), pain in the spinal column throughout its length but most severe in the lumbar spine (the war-caused nature of which is considered in the next paragraph) and lower limb problems impairing his ability to walk (attributable to war-caused conditions).
Dr Shortland has lumbar spondylolisthesis. According to the textbooks this involves "the anterior slippage of the vertebral body, pedicles, and superior articular facets, leaving the posterior elements behind. Spondylolisthesis is associated with spondylosis and degenerative spine disease … . The slippage may be asymptomatic but may also cause low back pain, nerve root injury (the L5 root most frequently), or symptomatic spinal stenosis. Tenderness may be elicited near the segment that has 'slipped' forward (most often L4 on L5 or occasionally L5 on S1). A 'step' may be present on deep palpation of the posterior elements of the segment above the spondylolisthetic joint …" (Harrison's Online ( This is a war-caused condition. It is considered that Dr Shortland's back disability is essentially war-caused. This appears Dr Anderson's view, to judge from his assessment using GARP.
Dr Anderson concluded that Dr Shortland "would appear to meet the criteria for award of the Special Rate Pension". However, in Exhibit R5 Dr Anderson reviewed his opinion at the Respondent's request. He identified conditions (mentioned above in paragraph 44) in addition to war-caused conditions that contribute to Dr Shortland's incapacity. These include degenerative change throughout the spinal column and elsewhere such as in his fingers. He referred also to the effects of the Applicant's age. He wrote as follows:
"Although some general practitioners do continue practising medicine at that age [77] they are relatively few and far between. I was very aware of Dr Shortland's lack of mobility and also of the arthritis in his hands. His hearing condition was also significant. There is therefore a combination of factors as to why he could not reasonably continue to practise medicine. Firstly if we consider the hearing deficit it would be difficult for him to effectively use a stethoscope. This is probably one of the major instruments used by general practitioners' for example in regular blood pressure estimations as well as listening to lungs and hearts. In order to examine a patient accurately he would need a certain amount of mobility, although obviously this would not need to be any kind [of] 'athletic' ability.
"The mere fact that he continues to have quite a lot of pain throughout his spinal column would naturally detract from his normal capacity to mentally concentrate on any given issue. I would therefore be in agreement with him that his decision to cease practising medicine was appropriate....
"In looking at this issue in a bit more detail, there is again a combination of age related factors and the effects of the accepted disabilities. I would regard each of these two issues as being approximately equivalent in his current lack of capacity to continue practising medicine."
The Applicant's evidence to the Tribunal was that he gave up seeing patients because he could not bend to examine them. This would appear to result from the accepted lumbar spondylolisthesis and cervical spondylosis. He has clumsy legs, referred from the lumbar disability. This puts him in danger of falling. It was his back and neck conditions that prompted him to send patients away if he felt he could not deal properly with them.
The Applicant spoke on an issue concerning a torn right knee quadriceps tendon on 9 October 1997. The Applicant had fallen downstairs at home and passed out. He awoke 20 minutes later. He had no control over his leg and he waited for one hour for assistance. He hobbled inside to find his wife. On 24 October 1997 he was operated on. He was discharged from hospital on 27 October 1997 and he returned to work on 31 October 1997. The Applicant said that he made an excellent recovery. The import of this evidence was that the quadriceps problem had no part to play in the Applicant ceasing work.
On 1 April 1998 the Applicant wrote to the Minister for Veterans' Affairs concerning the rupture of his quadriceps tendon of his right knee. He wrote, amongst other things, "on the 9th of October 1997, I ruptured my quadriceps tendon of my right knee, & since was in agony until 24th February 1998, & had to cease my medical practice as result." This was put to the Applicant in evidence with the suggestion that it was the knee problem that had caused him to give up work. The Applicant in evidence denied this and explained that the pain he was experiencing from his knee caused him to write the letter at the time he did.
Ms Doggett referred to T7 dated 15 January 1998. In that document at folio 49 he wrote, "…work in a doctors surgery is possible but since 9/10/97 impossible", in a clear reference to the accident on that date. The Applicant responded that the quadriceps incident merely added a new small pain to that from the neck and back. The knee at the time seemed a final blow but he "got over it". At the time Dr Shortland's knee pain was uppermost in his mind, the Applicant conceded.
As regards the osteoarthritis of his fingers, the Applicant commented that this affected only one finger and it had no effect at all on his ability to work as a general practitioner. He provided a demonstration to the Tribunal to prove his point.
The Applicant was adamant that he would have gone on working for another 10 years. He told the Tribunal that he loved the job and that he had lived for it all his life. He referred to a family history of members of the family who were doctors who had worked to an advanced age. His father had worked until the age of 78. His brother had worked until the age of aged 74. Ms Doggett, for the Respondent, put to the Applicant that hospitals enforce age restrictions on doctors doing procedures. The Applicant said that he had been able to make arrangements to use hospital facilities and that no one had told him he was "past it".
At the end of his evidence in chief the Applicant insisted that there was no factor other than his back and neck that had led him to give up his work.
Ms Doggett established with the Applicant that he was aware of the criteria for earnings related veterans' pensions. However the Applicant appeared ignorant of the "alone" test. Ms Doggett referred Dr Shortland to Dr Stalley's orthopaedic report dated 4 March 1998 (T11). Dr Stalley wrote that the Applicant had, to 28 February 1998, been working only two days a week. He saw this as the Applicant's maximum work potential because of his "generalised degenerative disorder". In other words, Dr Stalley saw the Applicant's work limitations as due to the combination of accepted and non-accepted disabilities. Dr Shortland disavowed Dr Stalley's opinion. He annotated Dr Stalley's report with words to the effect that he had told Dr Stalley he worked only two days a week. In fact he meant to convey that he reserved two days a week for patients but he had only one patient a fortnight.
The Applicant addressed the situation as regards various disabilities for Ms Doggett. He said his sciatica is mild to moderate. It comes and goes. It causes some balance problems. He has nothing wrong with his hips. His left hip aches if he drives too far, but he drives only when he has to, say once a week or fortnight.
In final submissions Mr Colborne, for the Applicant stressed the following:
The Applicant has a strong commitment to medical practice. Mr McLeod, a former patient, declared in T2 (folio 24) that he was "sure if Dr Shortland could he would like to continue as a doctor until he died as this is his whole life and he is so dedicated to it".
The Applicant's major degenerative changes are in his cervical spine and lumbosacral spine. These are accepted as war-caused disabilities. Mr Colborne cited Dr Anderson's first report in support (Exhibit R1). He noted that Dr Anderson referred to degenerative changes through the Applicant's whole spine. However, Mr Colborne, explained, Dr Anderson did not see x-rays and was unaware that the Applicant's degenerative effects do not affect the entire spine. The major problem is at the site of the spondylolisthesis. This is clear from T2, folio 17, x-rays taken on 8 June 1999. In x-rays taken on 4 August 1999 (T2, folio 18) the thoracic spine shows minor degenerative loss of height at T5/6 and T7/8 levels. This is very minor compared to the effects associated with the compensable conditions.
As regards the Applicant's balance problems, Dr Anderson (Exhibit R5) admits hat these are a by-product of the Applicant's compensable L5/S1 spondylolisthesis but he says that they would have occurred in any event because of degeneration. Mr Colborne described this last step in the doctor's thesis as wrong in law. An accepted disability, worsened by age effects, is still compensable.
Mr Colborne argued that the Applicant's hips are not a problem as regards work as a doctor. Dr Henke (T2, folio 19) on 13 August 1999 found that the Applicant's range of hip movements was only minimally restricted and there was no pain associated with movement.
Mr Colborne addressed the quadriceps injury of October 1997. He noted that Dr Bailey had written to the Applicant on 2 December 1997 stating that the Applicant was already making a rapid recovery from that injury (Exhibit R4, folio 3). Dr Watson, a neurologist, wrote on 4 February 1998 (T11, folio 61) that the "surgical repair of the knee ha[d] gone well although it remain[ed] somewhat painful and a little weak". Mr Colborne said that neither Dr Baz nor Dr Anderson saw the knee as preventing the practice of medicine. The Applicant would have returned to work once the knee was fixed were it not for the range of accepted disabilities.
At the end of the submissions by both counsel Mr Colborne said, "So, we have a fairly sedentary sort occupation, profession. Without someone who is very keen to go on and who, with major physical incapacities, has done so for numerous years. It is in that context one has to look at it. Here we have a temporary condition, startling though it may have been at the time but it was a temporary condition. [The condition referred to was the right knee quadriceps problem.] Was that really-to pick up the wording of the provision in dispute-part of the reason that prevented him from continuing to undertake his remunerative work as a medical practitioner? With respect, the answer has to be no.... It may have been a factor that led Dr Shortland to consider his other incapacities and the effect upon him on how he was practising medicine with those but, of itself, it wasn't a factor in preventing him from continuing to undertake remunerative work as a medical practitioner. It is true that Dr Anderson was asked about the effects of age but he didn't talk about any compulsory retiring age or you just get too old and no-one comes to see you any more. He actually tried to talk it into degenerative changes of the pensionable conditions and I have already dealt with that.... Age is simply not a factor here. We have the evidence of doctors Anderson and Baz about this man's motivation and attitude. We have his evidence about his father and his brother. Take away his pensionable conditions-and in my submission the tribunal would have little doubt about what Dr Shortland would be doing today-he would be practising medicine as it has always done."
Ms Doggett finalised her argument with the following propositions:
Ms Doggett reinforced the central role of the Applicant's right knee in giving up work and seeking the pension. In his claim form (T7) at folio 49 he wrote, "… work in a doctor surgery is possible but since 9/10/97 impossible". Ms Doggett queried the Applicant's evidence that he had exaggerated at the time. These were his words. Ms Doggett referred to Dr Stalley's report (T11 at folio 60) where he says that the Applicant had a very stiff knee and could flex it only 30% of the normal range of movement. Ms Doggett summarised the evidence as showing that the operation initially went well. However, there were residual effects. The ramifications emerged later and were contemporaneous with the Applicant's decision to give up work.
Ms Doggett observed that if the Applicant were still to be working as a doctor at the age of 76 this would be well past general community standards, although he might, as a self-employed professional, have continued to work.
Ms Doggett explained the need to obtain a second report from Dr Anderson as justified by the doctor's lack of reference to the Applicant's age and its effect on his employment in Exhibit R1. Exhibit R5 merely clarified Exhibit R1 by including considerations of age.
Ms Doggett referred to Dr Baz's assessment that about ¼ of the Applicant's clumsiness in his hands is caused by non-accepted disability. This is quire a significant percentage in Ms Doggett's view.
Ms Doggett summarised by stating:
"Whilst there is no suggestion that he is currently suffering from coronary artery or ischaemic heart disease, it seems quite clear from the reports that has resulted. It is still a factor in the history, as with the degenerative changes that are in the hips; the degenerative changes which are shown in the hands; the information we have about gall stones; … a number of factors which on their own don't account for much but when considered together-in particular the age, the ruptured quadriceps, the clumsiness in the legs and the hands-are other reasons why Dr Shortland has been prevented from continuing to undertake remunerative work. They are not de minimus and they need to be considered when considering paragraph (d). Therefore, paragraph (d) has not been satisfied."
The Tribunal notes that the Applicant's application day under s 19(9) of the Act was 27 January 1998. The Tribunal must decide whether the requirements in s 24(2A)(d) of the Act were met between that date and the date of the Tribunal's decision. The Applicant's last patient was dealt with by him on 8 April 1998 (Exhibit A3). The Applicant's right knee injury occurred on 9 October 1997 and was still problematic when he completed the claim form for his Disability Pension (T7). It is therefore understandable that Ms Doggett made so much of it. In a case where a non-accepted disability has helped bring about the cessation of work by a veteran, but this occurred well before the application day, that non-accepted disability might appear to recede as a factor preventing the veteran from continuing to undertake relevant remunerative work. That is not this case. In the Tribunal's view, the quadriceps problem is the chief difficulty for the Applicant.
As regards the other matters raised as contributing to the Applicant's cessation of work, the Tribunal finds as follows:
Age is unlikely to have been a contributor in itself. The Tribunal is impressed by the Applicant's own evidence as to what he would want to be doing were it not for the cervical spondylosis and spondylolisthesis. He was self-employed and so would not face the same barriers to employment at an advanced age as an employee of advanced years. The Tribunal notes the evidence as to the Applicant's father and brother working on as doctors until each died in his 70s.
Each of the Applicant's non-accepted cardiac, hip, balance and other spinal conditions do not either alone, or in combination prevent the Applicant from continuing to undertake remunerative work as a doctor. The evidence is that his hip, cardiac and other spinal conditions are not greatly serious. As regards balance, it is conceivable that the Applicant could compensate for this condition by sitting during procedures or by resting on a stick if his accepted disabilities were not present.
The Tribunal is inclined to accept the Applicant's arguments as to the injured quadriceps. By the time of the Tribunal hearing this disability had receded. The medical practitioners tended to see the surgical procedure as a success, even if some resuturing had been required during the usual recuperation period. At a certain stage during the application period this non-accepted disability probably did prevent the Applicant from continuing to undertake his work as a doctor. However, later in that period, the Tribunal finds, this ceased to be the case.
The answer to the question is, therefore, yes.
Question 10 – If the answers to questions 8 and 9 are 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 (s 24(2A)(e) of the Act)?
The answer is yes. The Tribunal finds that the Applicant would be in receipt of remuneration if he were working in the absence of his accepted disabilities. There is o evidence that he is proof against the loss of that income because he has an insurance policy, or for any other similar reason.
Question 11 – Was the Applicant undertaking his last paid work after he turned age 65 (s 24(2A)(f) of the Act)?Yes. The Applicant ceased his last paid work at the age of 75.
Question 12 – When the Applicant stopped undertaking his last paid work had he been working in that profession for a continuous period of at least 10 years that began before he turned 65 (s 24(2A)(g)(ii) of the Act)?Yes. The Applicant had been doing that work for some 43 years (Exhibit A1).
Question 13 – Has a temporary payment under s 25 of the Act been made (s 24(2A)(h))?No. There is no evidence that a payment under s 25 has been made.
ConclusionThe answers to these questions lead to the conclusion that the Applicant qualifies for payment of Disability Pension at the special rate.
DecisionThe decision under review is set aside. The Tribunal substitutes its own decision that:
The Applicant qualifies for payment of Disability Pension at the special rate.
The decision is to take effect from 27 January 1998 and will apply in relation to any pension payday falling on or after that day.
The matter is remitted to the Respondent for calculation of the rate of pension payable in accordance with this decision.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 15 November 2000
Date of Decision 3 September 2001
Counsel for the Applicant Mr ColborneSolicitor for the Respondent Ms Doggett
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