Simpson and Repatriation Commission
[2000] AATA 244
•29 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 244
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/235
VETERANS' APPEALS DIVISION )
Re GARY RAYMOND SIMPSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date29 March 2000
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely: THAT Garry Raymond Simpson is entitled to pension for the defence-caused disease of central L4/5 disc protrusion and left lumbosacral disc protrusion as and from 17 September 1997; AND THAT pension is to be paid for incapacity occasioned by all defence-caused injuries and diseases suffered by the said Garry Raymond Simpson at the Temporary Totally Incapacitated Rate as provided by section 25 of the Veterans' Entitlements Act 1986 as and from 17 September 1997 up to and including 17 September 2001.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Lumbar disc protrusion. Interpretation of SOPs. SOPs to be interpreted as part of beneficial legislation.
Special Rate Pension – criteria for grant of Temporary Totally Incapacitated Rate. Application of alone test.
Veterans' Entitlements Act 1986 - ss68, 69 and 70
Military Compensation Act 1994 - s13
Safety, Rehabilitation and Compensation Act 1988 - s19
Repatriation Commission v Smith 15 FCR 327
Secretary, Department of Social Security v Lowe 56 ALD 609
Comcare v Ticsay 38 FCR 181
REASONS FOR DECISION
29 March 2000 Senior Member M D Allen
By application lodged 16 February 1999 the Applicant sought review of a determination by the Respondent, as amended by a Veterans' Review Board, that his central L4/5 disc protrusion and left lumbosacral disc protrusion were not caused or contributed to by his defence service.
The Applicant enlisted in the Australian Regular Army on 25 February 1987 and was discharged as medically unfit on 5 November 1997. At present he has been classified as Class A for pension purposes by the Commissioner for Superannuation for the purposes of the Defence Force Retirement and Death Benefits Act 1973 (DFRDB Act).
Although the Applicant enlisted on 25 February 1987, only part of his military service is defence service for the purposes of the Veterans' Entitlements Act 1986 (VEA). The entitlement to pension for defence services is dealt with by Part IV of the VEA. In that part, s70 states inter alia:
"(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…"
Whereas s69 states inter alia:
"(1) Subject to this section, where a person:
(a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b)is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person"
Section 68 is the definition section for Part IV of the VEA and in that section the term "terminating date" was amended by the Military Compensation Act 1994 and now reads:
"terminating date means the date on which the Military Compensation Act 1994 commences."
That date is 7 April 1994 – see s2 of the Military Compensation Act 1994 being Act No 54 of 1994, whereas in s68 "defence service" is defined as meaning:
"(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
(b)in the case of a person who:
(i)was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii)continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii)was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date …"
As the Applicant did not enlist prior to the commencement of the VEA (namely 22 May 1986 as per Gazette No S225 of 1986), subparagraph (b) of the definition of "defence service" does not apply to him. In other words, the Applicant's defence service, for the purposes of the VEA ceased on 7 April 1994, however, the operation of the Military Compensation Act does not divest him of rights he had already, or which otherwise accrued under the VEA.
Subsection 120(4) of the VEA provides that, in determining this Applicant's claim, the Tribunal must decide the matter to its "reasonable satisfaction". That term was equated by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 to the civil standard of proof, namely proof on the balance of probabilities. Subsection 120(6) provides that there is no onus of proof upon either party to this review.
The Applicant's original claim was filed with the Department of Veterans' Affairs on 6 August 1997. Section 120B of the VEA states that, in considering claims relating to defence service made after 1 June 1994, the Tribunal can only be reasonably satisfied that an injury or disease was caused by defence service if there is in force a Statement of Principles determined under subs196B(3) or (12) of the VEA that upholds the contention that the injury or disease is connected with that service. In other words the ability of this Tribunal to be satisfied, on the balance of probabilities on the evidence presented to it, as to whether an injury or disease is attributable to or arose out of defence service is subverted by the artificial standards imposed by the so-called Statements of Principles (SOPs).
In interpreting the SOPs, what must be kept in mind is that, although they are subordinate legislation being disallowable instruments for the purposes of s46A of the Acts Interpretation Act 1901 and to be interpreted as such, they are created pursuant to the Veterans Entitlement Act which is itself beneficial legislation. As was pointed out by the Full Court of the Federal Court in Secretary, Department of Social Security v Lowe 56 ALD 609 at 612:
"… A generous construction of the language of this legislation, preferring the substance to the form, and so as to promote the fair and consistent effectuation of its objects, is required of the court …"
See also Commonwealth v Ford 65 ALR 323 at 329 where reference was made to the observations of Lord Shaw in McDermott v Owners of SS Tintoretto [1911] AC 35, namely:
"I reckon it to be quite unsound, and to be productive of wrong and mischief, to interpret a remedial statute in the spirit of meticulous literalism."
Cf Olney J in Comcare v Ticsay 38 FCR 181 at 188 where His Honour referred to Hill J in Thiele v Commonwealth 22 FCR 342 at 346, namely:
"The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred …"
On the material before me there is no doubt that the Applicant does suffer a central L4/5 disc protrusion and a left lumbosacral disc protrusion. See the reports of Professor Sambrook (Exhibit R2), Professor Dan (T11), Dr Evans (Exhibit A4) and Dr MacLaurin (T3 at p33).
The first indication the Applicant had of back problems was in 1989. On 12 February 1989, he injured his back whilst playing touch football at 1 Field Squadron Holsworthy. There is no issue in these proceedings that this activity took place as part of the Applicant's duties. Attachment A to Exhibit A5 is a copy of a report made when the Applicant attended a Regimental Aid Post complaining of back pain following the football injury. According to that report, the Applicant was prescribed bed rest for one day and excused physical training and heavy lifting until 17 February 1989.
Between the 12 February and 20 February, the Applicant experienced back pain. On 20 February 1989 the Applicant was required to travel by truck from Holdsworthy to Naval Air Station Nowra. During the course of that trip he developed quite severe back pain and was unable to move. He was seen by a Naval Surgeon and admitted to the hospital at HMAS Albatross where he remained for three days. Although the pain settled on that occasion, he continued to be troubled by back pain on activity.
The Applicant's duties in the Army were initially those of a field engineer and later as a fire fighter. Both those duties involved lifting weights and the Applicant stated in cross-examination that he was on a daily basis, whilst on duty, doing heavy physical work. At paragraph 9 of his statement (Exhibit A5) the Applicant says:
"Between February 1989 and February 1991, my duties were as a combat engineer. This involved building bridges, roads and demolition work. Whilst building bridges, we performed four man lifts, which involved lifting bridging panels of up to 250 kg overhead. Five days a week I was also required to do combat exercises (see paragraph 10(e) below)."
And at paragraph 10, the Applicant continues:
"In February 1989 I was re-mustered to the fire fighting core, and served with this unit until July 1997. In relation to my duties in the period before 7 April 1994 I state as follows:
a.Five days per week I had training as a fire fighter. On average, I estimate that this training was for 3 hours a day, however, on some days it was up 6 hours. During training we did simulated fires, carried ladders, rescue equipment, fire hoses, ropes, breathing apparatus, and people on stretchers. In the one training session, we would do the same routine 100 times or more. We were trained to do our duties instinctively, and without having to think.
b.In relation to the equipment that I had to lift during fire fighting training, I state as follows:
i. I had to drag water-filled hoses up and down ladders. 30 metres of hose would hold approximately 20 to 30 litres of water. 2 or 3 hoses were often hooked together, and if this was the case I usually had one other person to help me.
ii. I estimate that a 4.2 metre ladder weighted 15 to 20 kg, a 6.5 metre ladder approximately 50 kg, and a 9.2 metre ladder between 70 and 80 kg. Two men would be used to carry the 6.5 and 9.2 metre ladders.
iii. I estimate that positive pressure fans weighted approximately 60 kg. These were carried by 2 people.
iv. I estimate that the cutting equipment, "Jaws of life", weighed approximately 25 kg. I was required to carry and use this equipment by myself.
v. Rescue work entailed putting people in harnesses and loading them onto stretchers, lowering them down ladders, and carrying the stretchers through tunnels, etc. I estimate that an unladen stretcher weighted 10 kg.
vi. Breathing apparatus was carried on your back, and I estimate that this weighted 25 kg.
vii. I estimate that I was required to carry approximately 25 kg of ropes.
c.Approximately once a month I was required to service fire extinguishers which had to be serviced every 5 years. A fire extinguisher weighed approximately 12 kg. I was required to pressure test them, re-fit any parts that needed replacement, and re-fill them. I then packed them onto shelves ready to go out. Fire extinguishers came to our unit from a number of army barracks, and at one time I estimate that between 50 and 500 would be checked. This job would be done by 4 or 5 people, and would take up to a couple of days.
d.As part of the normal physical training exercises, I was required to do 1 hour of gym work once per week. This normally involved lifting weights of 20 or 25 kg, and stacking them on gym equipment, which I would then use.
e.Once or twice a week I was also required to do combat exercises. This required carrying a 25 pack, approximately 25 kg of webbing, and a machine gun that weighted approximately 7.5 kg fully loaded. During a single session, I would have to lift my pack approximately 100 times. This is because every time I hit the ground, I was required to drop the pack and to fight with my webbing and rifle.
f.I was required to do CFAs twice per year. These involved a 15 km force march (ie. a march that had to be completed within a certain amount of time). I always received a grade A pass for my CFAs. The CFA was a run dodge jump exercise carrying a rifle and webbing, and a fireman's carry. The fireman's carry involved lifting someone of similar weight to myself (approximately 90 kg), and carrying them about 50 m. This was required to be completed within 40 seconds or so."
In 1991 the Applicant sought treatment for back pain and again sought treatment in 1996 and 1997. After the incident of back pain in 1997, a CT scan was performed and subsequently the Applicant was retired from the Army as being medically unfit.
Exhibit A8 is a bundle of documents from the Commonwealth Superannuation Administration concerning the Applicant and his entitlements under the DFRDB Act. On 22 June 1998 a delegate of the Commissioner for Superannuation determined under s30 of the DFRDB Act that the Applicant had a 60% incapacity for employment and thus was entitled to a Class A pension under that Act. The disabilities which led to incapacity to engage in employment were L4/5 Disc Protrusion and Hepatitis C Positive.
At page 3 of his reasons for decision the delegate, after a review of the service medical documents, noted (Exhibit A8):
"I note that the first report of a back condition is reported as being present 'on and off' since 1989. When he twisted his back playing touch football. A CT scan dated 28 July 1997 shows a central L4/5 disc protrusion and a left lumbosacral protrusion. To date he has been treated conservatively and has not proceeded to surgery. In early 1997 he was found to be a Hepatitis C carrier and has received treatment for this condition.
I therefore conclude that L4/5 Disc Protrusion and Hepatitis C Positive correctly identifies the impairment which caused the invalidity or incapacity by reason of which Mr Simpson was retired."
This is in accordance with the Applicant's evidence to the Tribunal.
On instructions by the Respondent, Professor Sambrook, Rheumatologist, examined the Applicant on 20 May 1999. His report of 27 May 1999 (Exhibit R2) discloses a history of:
"Mr Simpson told me he first injured his back in 1989 whilst playing touch football. After resting for a few days he was required to travel down to HMAS Penguin at Nowra in a heavy vehicle as a co-driver and during the course of this trip he developed quite severe pain, such that he was unable to move. He was admitted to Nowra Hospital (sic) for about three days and this episode subsequently settled, although he told me he was troubled by episodes of back pain after that time. Certainly an entry in his documents dated the 20th August 1990, notes that he presented with recurrent pain localised to the lower back, …"
Professor Sambrook, in his report, opined that the Applicant did not meet the criteria in the relevant SOP either for causation by trauma or heavy lifting.
The relevant criteria referred to by Professor Sambrook are contained in Instruments Nos 131 of 1996 as amended by Instrument No 93 of 1997. The relevant provisions read (Instrument No 131 of 1996):
"5.The factors that must exist before it can be said that, on the balance of probabilities, intervertebral disc prolapse or death from intervertebral disc prolapse is connected with the circumstances of a person's relevant service are:
(a)suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse; or
(b)…
(c)lifting at least 10kg, at least 25 times a day, on average, for a period of at least two years within the five years immediately before the clinical onset of intervertebral disc prolapse; or
…
(j)lifting at least 10kg, at least 25 times a day, on average, for a period of at least two years within the five years immediately before the clinical worsening of the intervertebral disc prolapse; or
…"
And "trauma to the relevant disc" is defined as meaning (Instrument No 93 of 1997):
"an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery). Where medical intervention for the injury has occurred, and there is evidence relating to the extent of injury and treatment, such evidence may be considered. Examples of activities or events that may result in trauma to the relevant disc include:
(i)lifting, pushing or pulling an object weighing more than 10 kg; or
(ii)jumping from a height, for example, in a parachute jump, or jumping down from a tank; or
(iii)a fall; or
(iv)diving into a body of water; or
(v)participating in sports, for example, football, surfing, gymnastics; or
(vi)spinal manipulation; or
(vii)a motor vehicle accident; or
(viii)a blast explosion; or
(ix)a physical attack."
The use of the words "example" and "includes" are of course inclusionary and events not mentioned in the definition of trauma, as set out above, are not by that reason excluded.
As to what constitutes an intervertebral disc prolapse, Instrument No 131 of 1996 defines it as meaning:
"… protrusion, herniation or rupture of an intervertebral disc of the cervical, thoracic or lumbar spine, causing local pain and stiffness, and/or pain and paraesthesia radiating into the upper limbs, in the case of cervical disc prolapse, or into the lower limbs, in the case of lumbar disc prolapse, attracting ICD code 722.0, 722.1, 722.2, 722.3 or 722.7."
Cross-examined regarding Factor 5(c), Professor Sambrook stated that his rejection of that factor was based on the level of activity required. He conceded that the Applicant could have achieved that level of activity on some days but was uncertain as to the actual number of days required, for example was every second day required. As Professor Sambrook put it, Factor 5(c) or 5(j) really required "an awful lot of work in a salt mine". Further, in his opinion, the clinical onset of the disease was either in 1996 or 1997 when the Applicant experienced pain radiating down his legs.
At the conclusion of Professor Sambrook's evidence the advocate for the Respondent conceded that the Applicant, based on his work history, met Factor 5(c).
The above concession is entirely appropriate. Factors 5(c) and 5(j) are, in my opinion, unintelligible. The use of the phrase "on average" is calculated to conceal a lack of precision and susceptible to ambiguity (cf Scott v Commissioner for Superannuation 71 ALR 408 at 412). Just what is "average"? Does average apply to the weight, or the number of days, or the number of lifts, or all those criteria? Factors 5(c) and 5(j) also illustrate the rigidity of the SOPs and how they disadvantage veterans. Factors 5(c) and 5(j) make no allowance for sex, weight or stature. Why is 10kg 25 times a day required? What if the weight was 9.9kg and lifted 24 times a day? And what if the Applicant was a slightly built female? At least in the Workers' Compensation jurisdiction exercised by this Tribunal, there is the ability for medical specialists to report with particularity having regard to the specific applicant before them.
The only way to approach the interpretation of Factors 5(c) and 5(j) above is to adopt the beneficial approach to the interpretation of what is part of a remedial statute as referred to above.
Exhibit A4 is the report of Dr Evans, Orthopaedic Surgeon. Dr Evans adhered to his report when giving his oral evidence. More importantly, he stated in re-examination that the report of tingling pain in the Applicant's hamstrings on 18 November 1996 indicated radiating pain (down the legs). Although Dr Evans was called by the Applicant, he was not wholly supportive of all of the Applicant's case. In his report he comments on the Applicant's "exaggerated response" and, in evidence, stated he thought that the Applicant's symptoms were "over stated". This ability to be able to be critical of the Applicant strengthens my view as to Dr Evans' objectivity and increases acceptance of his opinions.
Document T11, in the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975, is the report of Professor Dan, Neurosurgeon, dated 15 November 1997 being a report sought by the delegate of Comcare for the purposes of the Applicant's claim pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) as amended by the Military Compensation Act 1994. I place particular weight upon this report as it was obtained by a party not concerned with this current litigation but with regard to investigating the liability of Comcare and certainly Professor Dan cannot be said to be "in the camp of the Applicant".
In his report Professor Dan, in answer to questions asked of him, stated:
Q6."What were the employment factors, if any, that contributed to the employee's condition?"
A"I think that the initial injury occurred in 1989 but that the actual disc protrusion occurred during his combat fitness training in July 1997."
Q10."If your answer to Question 9 is 'NO', what types of work is he able to perform?"
A"Light sedentary activities which allow him to move around from time to time (at most)."
Q11."Is his present condition a separate injury or is it an aggravation of his original injury sustained in 1989."
A"On balance an aggravation of the injury in 1989."
Document T6 is a document by orthopaedic surgeon, Dr Walker. Dr Walker's report is flawed in that he apparently did not have access to the report of the CT scan on the Applicant's lumbar spine. Thus in his report he refers to "alleged CT findings" and "supposed disc lesions". As the existence of the said lesions has been demonstrated in the reports of Professor Dan, Professor Sambrook and Dr Evans, plus the report of Dr MacLaurin, Radiologist, at T3 p33, I do not place any credence on Dr Walker's report.
Given the evidence of the Applicant and the reports of Professor Dan and Dr Evans, I find that it is more probable than not that the Applicant did rupture the L4/5 disc on or about 12 February 1989 in the touch football game played by him in the course of his duties.
I am also satisfied that the Applicant's duties as a combat engineer involved him in lifting weights of at least 10kg for at least 25 times a day, on average, for a period of two years. This was before the clinical worsening of his intervertebral disc prolapse.
My finding that there was a rupture of the intervertebral disc (and hence, according to the definition, an intervertebral disc prolapse) in 1989 is enough to vest liability in the Respondent pursuant to Factor 5(a) of the relevant SOP.
If I am wrong in this regard then Factor 5(j) applies. That is to say, there was a rupture which was made worse than it otherwise would have been by the Applicant's Army duties. If June 1996 is taken as the date of clinical worsening, then five years immediately proceeding that date takes the Applicant back to June 1991 and two years from that date is June 1993, that is to say prior to the coming into effect of the Military Compensation Act 1994.
I find that the clinical worsening did occur in 1996. Professor Sambrook, in evidence, suggested it could have occurred either in 1996 or 1997 and nominated pain going down the Applicant's legs as the defining test. As Dr Evans pointed out in evidence, Document T3 p40 is a record of pain going down the Applicant's legs, bearing a date 18 November 1996, and pointed out that before 1997 there was no necessity to carry out a CT scan to confirm the herniation. The plain x-ray of 1996 would not necessarily reveal herniation.
At the conclusion of the hearing in this matter I requested written submissions as to whether the Applicant had any accrued rights to pension under the VEA post 7 April 1994. As a matter of statutory interpretation I am satisfied that if, contrary to my finding, the Applicant's lumbar disc prolapse has occurred in June 1997 rather than in 1996, then Factors 5(c) and 5(j) of the SOP would not apply to him.
The Applicant also claimed that he was entitled to pension at the Special Rate. Section 24 of the VEA states:
"(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."
Whereas s23, which sets out the criteria for the Intermediate Rate of pension is in similar terms but refers to the ability to work of between 8 and 20 hours a week.
In discussing the so-called "alone test" in s24, Burchett J in Cavell v Repatriation Commission 9 AAR 534 said that the task of the Tribunal was:
"… to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
The above test was clearly raised in this matter for the Applicant, as well as suffering a disc prolapse, has been diagnosed as suffering from Hepatitis C. It will be noted in Exhibit A8 that the Applicant has a Class A DFRDB pension which was granted on the basis of his combined disabilities.
Exhibit A7 contains the first page of a report by Dr David Parkin, consultant physician to the Applicant's general practitioner. The second page of that document is at Attachment B to Exhibit A5. Dr Parkin described the Applicant as having "mild chronic active Hepatitis C" and stated:
"Gary's liver biopsy from September 1997 was reassuring and outside of the context of antiviral drug trials I would not usually recommend Interferon drug therapy in this setting as he is particularly well and essentially asymptomatic."
Dr Parkin, in a report dated 21 December 1998 to Comcare (Exhibit A5), states:
"Gary is now asymptomatic from an 'hepatic' point of view and has been a non-responder to Interferon and no further action is required other than regular medical follow up. He is fully independent."
I accept the Applicant's evidence that any lethargy he experiences as a symptom of being Hepatitis C Positive is not sufficient of itself to prevent him from working. In her undated report, which became Exhibit A3, Occupational Physician Dr Baz stated:
"I note Mr Simpson has hepatitis C. This causes lethargy. …
In my opinion this information is consistent with a negligible impact on work fitness. In the absence of the other disabilities this condition would not, in my opinion, cause him to be unfit for work.
I consider the accepted disabilities and the L4/5 disc protrusion and left lumbosacral disc protrusion are the substantial cause of his inability to work."
Following his discharge from the Army, the Applicant attempted to set up a business installing and maintaining domestic fire extinguishers and smoke detectors. That business failed, part of the reason for its failure was the Applicant's inability to market the business because of incapacity occasioned by back pain.
After the failure of his business the Applicant contacted Comcare who, in a decision dated 20 December 1999 (Exhibit A7), accepted that the Applicant had an inability to earn and that the amount he was able to earn in suitable employment for the purposes of subs19(3) of the SRC Act was nil. Currently he is receiving compensation pursuant to s19 of the SRC Act at the rate of 75% of his former normal weekly earnings.
As the Applicant is receiving only 75% of his normal weekly earnings then he has suffered a loss of salary or wages as required by paragraphs 23(1)(c) and 24(1)(c) of the VEA.
The opinion of Dr Mark Burns, Occupational Physician, is in direct conflict with the opinion of Dr Baz regarding the Applicant's ability to work. Dr Burns considers that the Applicant is capable of full-time work whereas Dr Baz opines that the Applicant is currently unable to work for other than a few hours weekly, being less than 8 hours a week, due to his lumbar intervertebral disc lesions.
Dr Baz, however, has qualified her opinion in that she does not necessarily consider the Applicant's condition permanent. She considers that the Applicant is temporarily totally incapacitated and states in Exhibit A2:
"At the present time I would consider him unfit for any work of other than a few hours weekly. However with more efficient management of his pain, which may be achievable through a pain clinic attendance, particularly followed with some training and skill upgrading, he should be able to undertake a few hours work on most days of the week. I doubt Mr Simpson will be able to return to full-time work or be able to work for 20 or more hours weekly on a reliable basis in the future.
However, particularly in view of his relative youth and strong motivation to continue with work, he should be assisted in accessing the intense pain management which he would require if he is to achieve sufficient improvement in pain level to enable a return to regular work. If such a programme cannot be instituted then I would consider him permanently unfit for work of 20 or more hours weekly.
In my opinion Mr Simpson is currently unfit for work of 8 or more hours duration weekly, that is temporarily and totally incapacitated, due to the lumbar intervertebral disc lesions."
Notwithstanding that Dr Evans, with whom Professor Sambrook agreed, thought that the Applicant could work albeit not labouring or driving, I am more persuaded by the evidence of Dr Baz.
More particularly, however, I am persuaded by Dr Baz's opinion that the Applicant could benefit from attendance at a pain management clinic and with further rehabilitation. The Applicant's evidence suggests that, although he did have the benefit of the Commonwealth Rehabilitation Service following the acceptance of liability by Comcare, his options for employment and rehabilitation were not fully explored. Since then there seems to have been a failure of communication between the Applicant and the Commonwealth Rehabilitation Service. Although there was some criticism of the Applicant in cross-examination, I do not regard any failure on his part to contact the Commonwealth Rehabilitation Service as an indication of unwillingness to work. It is often hard for a person in the Applicant's position, and with his level of knowledge, to be pro-active in approaching Government service providers.
Section 25 of the VEA states:
"(1) Where the Commission is satisfied that:
(a)a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b)if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2)Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsections 24(4) and (5).
(3) The Commission may, under this section:
(a)determine a period that commenced before the date on which the determination is made; and
(b)determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran."
As stated above, I regard Dr Baz's opinions, as to rehabilitation, as soundly based and imperative in a case such as this with a relatively young veteran who should be assisted to get back into the workforce. Section 25 of the VEA allows the Respondent to embark upon a course which hopefully will see the Applicant achieve an enhanced capacity for remunerative work. If of course the Respondent declines to undertake this duty, then pension will become payable under s24 of the VEA as pointed out by Dr Baz.
Section 25 requires that a time be set during which pension pursuant to s25 be paid. The commencing day for the payment of pension for the defence-caused disease of central L4/5 disc protrusion and left lumbosacral disc protrusion is 17 September 1997. I believe a period of some 18 months from today's date should enable a judgment to be made regarding the success or otherwise of pain management techniques and rehabilitation. Therefore the decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision, namely:
THAT the Applicant is entitled to pension for the defence-caused disease of central L4/5 disc protrusion and left lumbosacral disc protrusion as and from 17 September 1997;
AND THAT pension is to be paid for incapacity occasioned by all defence-caused injuries and diseases suffered by the Applicant at the Temporary Totally Incapacitated Rate as provided by s25 of the VEA as and from 17 September 1997 up to and including 17 September 2001.I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic .....................................................................................
AssociateDate of Hearing 8 March 2000
Date of Decision 29 March 2000
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Dibbs Crowther & OsborneAdvocate for the Respondent Ms S Breuer,
Department of Veterans' Affairs
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