Small and Repatriation Commission
[2011] AATA 268
•21 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 268
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5659
VETERANS' APPEALS DIVISION ) Re ADRIAN CYRIL SMALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E A Shanahan, Member
Brigadier C. Ermert (Retd), Member
Date21 April 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
.................[signed].................
Member
VETERANS' AFFAIRS – Application for special rate – involuntary redundancy – failure to satisfy s 24(1)(c) – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 24, 120
Repatriation Commission v O'Brien (1985) 155 CLR 422
Langley v Repatriation Commission (1993) 115 ALR 51
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Cadd v Repatriation Commission [2008] FCA 1024
REASONS FOR DECISION
21 April 2011 Miss E A Shanahan, Member
Brigadier C. Ermert (Retd), Member1. Mr Small has been receiving a Department of Veterans' Affairs (DVA) pension at 80 percent of the general rate. On 3 September 2007, he lodged a claim for an increase in pension rate. On 12 June 2009, the DVA increased Mr Small's rate of pension from 80 percent to 100 percent, backdated to 3 September 2007 but refused to increase it to the special rate.
2. On 29 October 2009 the Veterans' Review Board (VRB) affirmed the decision. Mr Small applied to the Administrative Appeals Tribunal for review of the VRB decision on 26 November 2009.
3. The issue before the Tribunal is whether Mr Small satisfies s 24 of the Veterans’ Entitlements Act 1986 (the Act). In accordance with s 120(4) of the Act, the standard of proof the Tribunal must apply is one of reasonable satisfaction, which may also be expressed as on the balance of probabilities.
4. Ms Ann McMahon of Counsel, instructed by Williams Winter Solicitors, represented Mr Small. Mr Ken Rudge, an advocate with DVA, represented the Respondent.
5. The parties lodged the following documents:
Document Exhibit No. Statement of Adrian Small dated 23 November 2009 A1 Statement of Adrian Small dated 10 May 2010 A2 Dr Waldron's clinical notes regarding Mr Small A3 Report of Mr G Grossbard dated 17 March 2010 A4 Report of Mr G Grossbard dated 20 May 2010 A5 Report of Dr Clayton Thomas dated 28 April 2010 A6 Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T Documents) R1 Report of Professor Stark dated 31 January 2005 R2 Report of Professor Stark dated 17 July 2006 R3 Report of Professor Stark dated 9 March 2010 R4 Report of Professor Stark dated 6 August 2010 R5 Report of Professor Stark dated 12 October 2010 R6 Report of Dr Robyn Horsley dated 19 April 2010 R7 Employer's file with cover letter dated 17 February 2010 R8 Documents relating to the acceptance of the condition "Muscle Cramps (R) Leg" with cover letter dated 3 August 2010. R9 The applicant's service record with cover letter dated 3 August 2010 R10 Veterans' Review Board transcript of proceedings 14 May 2009 R11 Veterans' Review Board transcript of proceedings 29 October 2009 R12 Report of Dr Markov dated 2 March 2010 R13 Report of Dr Markov dated 12 April 2010 R14 Report of Dr Markov dated 19 October 2010 R15 BACKGROUND TO THE APPLICATION
6. Mr Small served in the Royal Australian Navy (the Navy) from 1966 to 1976 with operational service in Vietnam waters in 1970. Following training, he became a weapons technician. After his discharge from the Navy, he was employed as a motor mechanic with the Ford Motor Company. Prior to enlistment, he had been an apprentice motor mechanic. From 1976 until his involuntary redundancy on 4 May 2007, Mr Small worked in the motor vehicle industry, as a technician, and from 1984 onwards, as a service manager and a shift controller. Mr Small told the Tribunal that this change from manual work as an automotive technician to a supervisory and managerial role was due to the increasing frequency and severity of painful cramps in his right lower limb.
7. Mr Small's service medical records (exhibit R10) reveal that he suffered an injury to his right foot in September 1970. He sustained the injury in a boxing match in Singapore. Mr Small continued to complain of pain in the right foot and this was eventually diagnosed as metatarsalgia in 1971. His right lower limb cramps which were then confined to the calf and foot, continued despite treatment with Valium and Quinine Sulphate. At his final medical examination prior to discharge from the Navy, the examining medical officer described Mr Small's cramps as having decreased considerably after he used quinine bisulphate. The medical officer noted the cramps were occasional and were attributed to an old injury.
8. Mr Small reported that he hurt his right leg again in 1974 during a football match. Following this injury, he said the cramps spread to the knee and thigh. The service medical records also reveal that in 1969 and 1970 Mr Small suffered several severe bouts of acute tonsillitis, necessitating a tonsillectomy on 26 May 1971. Despite the tonsillectomy, in 1971 he continued to suffer recurrent throat and chest infections.
9. Mr Small first received a disability pension of 20 percent of the general rate on 21 October 1984. The condition claimed was cramps in the right calf and thigh. The Department designated this as muscle cramps right leg. This designation appears to be incorrect, as the cramps have involved the right lower limb, that is, the leg and thigh, since 1974.
10. On 12 May 1999, the Department accepted non-melanotic neoplasm of the skin as defence-caused. On 16 November 2006, the Department accepted malignant neoplasm of the prostate as defence-caused. This resulted in payment of the disability pension at 80 percent of the general rate. The rate of payment rose to 100 percent after the Department accepted Mr Small’s claim for adjustment disorder with anxiety and depressed mood and erectile dysfunction on 3 September 2007. Mr Small's erectile dysfunction results from the radical prostatectomy. The Tribunal notes that Mr Small has suffered from episodic anxiety and depression over many years, requiring treatment. However, this condition became chronic following the diagnosis of his carcinoma of the prostate. Mr Small's most disabling medical condition has been the continued pain and muscle cramps in the right lower limb.
11. Mr Small's right total hip replacement for osteoarthrosis and the radical prostatectomy for carcinoma were technically difficult procedures and he suffered major post-operative complications with prolonged recovery times. Mr Small, Dr Robyn Horsley and Dr Clayton Thomas do not believe the osteoarthritis and prostatectomy affect Mr Small's work capacity.
12. Professor Richard Stark and Dr Geoff Markov questioned the validity of the surgical indication for total hip replacement, given the radiological findings of, at the most, moderate osteoarthrosis of the right hip joint (despite the severity of Mr Small's right groin pain) and, in part, because of the persistence of groin pain after the hip replacement. They have opined that the pain is more likely to have been due to muscle cramp and this opinion is supported by the fact that the groin pain was eventually relieved by psoas major muscle tenotomy (a trans-section of the tendon of this muscle in the upper thigh).
13. The aetiology of Mr Small's severe painful muscle cramps in the right lower limb had not been elucidated. The onset of the condition in 1971, following trauma sustained while in the Navy, appears to be have been the basis for the acceptance of the condition as being war-caused. It was not until 31 January 2005 that Professor Stark initiated further investigations. This was in the setting of a medico-legal report requested by the Department. Professor Stark ordered an MRI (Magnetic Resonance Imaging) of the spine and excluded spinal nerve compression as a cause. An EMG (electromyogram) yielded a diagnosis of a variant form of multifocal motor neuropathy.
14. During his naval service, Mr Small's cramps were treated with quinine bisulphate and Valium, with some benefit. Mr Small first reported these cramps to his general practitioner, Dr Mark Waldron, in 1985. Dr Waldron's clinical notes indicate that he has been Mr Small's treating general practitioner since 1980. In that year, Mr Small had been diagnosed with sarcoidosis. That condition was treated with prednisilone until March 1981. There are no further entries in the medical records regarding right lower limb cramps until September 1989. In June 1990, Dr Waldron began treating Mr Small's cramps with acupuncture.
15. Since April 2008 Dr Michael Vagg, a pain specialist, has treated Mr Small with three-monthly, multi-site injections of Botox into the right lower limb. This treatment has provided temporary relief. To date all treatment has been symptomatic, as the underlying pathological process remained uncertain.
16. Mr Small's anxiety with depressed mood is, on his evidence, reasonably well controlled. Dr Carol Newlands, a psychiatrist, made this diagnosis; and until her recent retirement, saw Mr Small on a regular basis.
17. Dr Horsley and Dr Thomas, occupation health physicians, assessed Mr Small in April 2010. Their assessments agreed that Mr Small was unable to undertake remunerative work for periods aggregating more than eight hours per week. Both physicians attributed the dominant cause of his disability to the right lower limb condition. In the absence of the cramps, Mr Small’s work capacity would be normal.
18. As part of his involuntary redundancy, Mr Small’s employer offered him employment at the Custom Fleet office near Northland Shopping Centre or in Sydney. Mr Small’s employer also offered assistance in finding alternative employment. Mr Small had been aware that GE Commercial had purchased Custom Fleet from the National Australia Bank and was to be restructured. He was officially informed of this restructuring by letter dated 31 January 2007. Mr Small had already arranged to undergo right total hip replacement in July 2007.
19. Mr Small considered Northland too far from his home in Grovedale. Travel to and from work would require long driving periods. This was despite his having driven to work at Port Melbourne and Burnley for the previous eight years. Driving such distances impacted on his right lower limb cramps. Therefore, Mr Small accepted the redundancy payment and ceased work on 4 May 2007. He has not looked for work since that date. At the time of his redundancy, he was 60 years old and at the time of his application to the DVA for an increase in pension, he was 61.
EVIDENCE BEFORE THE TRIBUNAL
20. On the first day of the hearing of this matter (5 October 2010) the applicant's counsel, Ms McMahon, submitted that in the absence of a s 31 review and a decision by a delegate of the DVA, the Tribunal did not have jurisdiction to reconsider the Department's acceptance of muscle cramps (R) leg on 21 October 1984. This submission arose from the respondent's written contention that the diagnosis of multifocal motor neuropathy was a new condition and had not been accepted as war-caused. And, the respondent submitted, it was this new condition that prevented Mr Small from working more than eight hours per week. Both parties made submissions on the issue. The applicant relied on the decision of the High Court of Australia in Repatriation Commission v O'Brien (1985) 155 CLR 422 (O'Brien) and that of the Federal Court in Langley v Repatriation Commission (1993) 115 ALR 51 (Langley).
21. The Tribunal accepted Ms McMahon's submission that it did not have jurisdiction to review the acceptance of muscle cramps (R) leg but pointed out that the leg was anatomically defined as that part of the lower limb from the tibial plateau of the articular surface to the toes. It is not known if the DVA delegate recognised these limitations when making the decision in 1984.
22. In addition, the respondent's expert witnesses, Dr Markov and Professor Stark, had not been asked if the two conditions were the same, despite the acceleration of the frequency and severity of the cramps from approximately 1990 onwards. Nor had they commented on any possible causal relationship between a motor neuropathy and Mr Small's documented sarcoidosis diagnosed in 1980, or the poliomyelitis he suffered in 1949 at age three. Both of these latter conditions are documented in the medical texts (for example, Harrison's Principles of Internal Medicine (17th ed.) editors Anthony S Fauci et al, New York: McGraw-Hill, 2008) as being uncommon causes of a motor neuropathy. The Tribunal requested that the parties put these issues to the two experts.
23. The hearing resumed on 22 February 2011. Mr Small, Dr Markov and Professor Stark gave evidence in person; and the treating general practitioner, Dr Waldron, gave evidence by telephone.
mr small
24. Mr Small's evidence has been summarised under Background. He confirmed the cramps to be his major problem and that the Botox injections reduced his pain and cramps by 50 percent, with this benefit lasting 10 to 11 weeks. Despite this improvement, he said he was unable to work as either an auto technician or a maintenance controller. He was still able to drive but limited his driving to two hours as taking his right foot off the accelerator resulted in severe pain and cramping in the right calf and thigh. Mr Small said he had also experienced a pins and needles sensation from just below the right knee to the foot and his right lower limb collapsed approximately once per week. He described his sleep as disturbed; even a sheet, touching his right foot, precipitated painful cramps. As a result, he slept with his right foot hanging out of the bed.
25. Mr Small described the pain he experienced in the right groin after his total hip replacement as terrible and unrelieved, until he underwent psoas tenotomy. When still working, Mr Small felt that his lack of sleep and the side effects of anti-depressive medication (Lexapro) affected his concentration. This led to him making mistakes at work.
dr markov
26. Dr Markov, a rheumatologist, provided two reports (exhibits R14 and R15). In his report dated 2 March 2010, he agreed with Professor Stark's diagnosis of multifocal motor neuropathy but considered this idiopathic (of unknown cause) and unrelated to Mr Small's naval service.
27. In his later report, dated 19 October 2010, Dr Markov addressed the questions of whether Mr Small’s sarcoidosis or poliomyelitis could provide an aetiological basis for his current neuropathy. Dr Markov dismissed sarcoidosis as a possible cause but considered that post polio syndrome could account for Mr Small's right lower limb pain and cramps.
28. In his oral evidence to the Tribunal, Dr Markov confirmed his diagnosis of multifocal motor neuropathy. He also confirmed his opinion that it was unrelated to Mr Small's service and, in particular, the lower limb injuries Mr Small suffered during service.
professor stark
29. Professor Stark is the only neurologist to have seen Mr Small. He provided five reports (exhibits R2 to R6 inclusive). In his report of 6 August 2010, he diagnosed a form of multifocal motor neuropathy based on his physical examination of Mr Small, the findings on EMG and the exclusion of a spinal cord lesion by MRI.
30. Professor Stark advised that this form of neuropathy was an auto-immune disorder resulting in motor nerve degeneration due to the demyelination (the loss of the myelin sheath of a nerve) and some incomplete re-generation. The condition was responsive to intravenous gamma globulin infusion (intragam). He considered the most likely precipitating factor to be an infective process but could neither confirm nor refute the possibility that Mr Small's service had been a contributing factor.
31. In his report of 12 October 2010, Professor Stark considered it unlikely that there was a causal connection between Mr Small's sarcoidosis or polio and the demyelination of the motor nerves of his right leg but he could not exclude such a connection unequivocally. He considered multifocal motor neuropathy to be a reasonable diagnosis.
32. In his oral evidence to the Tribunal, Professor Stark clarified the condition of multifocal motor neuropathy as an auto-immune disease, which in 90 percent of patients improved and then plateaued following intragam treatment. He was unable to predict what response might be expected in Mr Small, given that the disease process had been present for 40 years. Although the disease is usually not progressive, it had been in Mr Small's case and now extended to his back.
33. Professor Stark agreed with Dr Markov that Mr Small’s symptoms in the right groin, attributed to osteoarthritis of the hip had been due to muscle cramp and not joint disease. He informed the Tribunal that multifocal motor neuropathy was commonly confined to one limb, did not lead to muscle wasting or the loss of motor power. Professor Stark was of the opinion that the muscle cramping condition suffered by Mr Small had always been multifocal motor neuropathy. Knowledge of and the naming of the disease was a recent advance in neurology.
dr waldron
34. Dr Waldron has been Mr Small's treating general practitioner since 1980. The questions posed to Dr Waldron were essentially confined to Mr Small's capacity for work. Dr Waldron said he had noted a deterioration in Mr Small's health from late 2004. He considered Mr Small's development of carcinoma of the prostate and its treatment as tipping the scale, as post-operatively Mr Small was weaker and more anxious. From that time on, Dr Waldron said he had discussed Mr Small’s retirement on several occasions. However, he did not record these discussions in his clinical records.
35. After the radical prostatectomy, Mr Small had ceased shift work and confined himself to working from 7.00am to 3.00pm. Despite this deterioration in relation to the carcinoma of the prostate, Dr Waldron identified the condition that incapacitated Mr Small for work as the right lower limb cramps. Dr Waldron disagreed with Professor Stark and Dr Markov that Mr Small's right groin pain had been due to muscle cramps and not due to osteoarthrosis of the hip joint.
36. The Tribunal has considered all of the reports of the treating doctors in reaching its decision but has not included all of the details of their reports, as they do not relate to the condition that incapacitated Mr Small namely, the multifocal motor neuropathy.
37. Mr Small’s employer provided detailed records of Mr Small’s work history and reported that Mr Small was absent from work for 50 days in the 12 months preceding the redundancy.
RELEVANT LEGISLATION
38. Section 24 of the Act concerns the special rate of pension and 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
. . .
(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.
SUBMISSIONS
39. Ms McMahon outlined the medical evidence, in particular Mr Small's deterioration from late 2004 onwards, and his conversations with Dr Waldron regarding his retirement. She relied on Professor Stark and Dr Markov's opinions that multifocal motor neuropathy was the same condition the Respondent called muscle cramp (R) leg and accepted as being war-caused in 1984. This was the condition that prevented Mr Small from working more than eight hours per week. Based on the evidence before the Tribunal, Ms McMahon submitted that Mr Small satisfied all of the requirements of s 24 of the Act and was eligible for the special rate of pension from the day he stopped working.
40. Mr Rudge accepted that Mr Small satisfied the requirements of s 24(1)(aa), s 24(1)(a) and s 24(1)(b) of the Act. However, he argued that Mr Small did not satisfy s 24(1)(c) of the Act, because Mr Small had ceased work as a result of an involuntary redundancy rather than as a result of his war-caused disease alone. Mr Rudge contended that multifocal motor neuropathy, as manifest in Mr Small, involved an anatomical area more extensive than that of muscle cramp of the right calf or even the right thigh.
41. Mr Rudge contended that Mr Small should lodge a new claim with the Department for this motor neuropathy, in order to include the wider anatomical involvement. Mr Small could not meet the requirement of s 24(2)(a)(i) as he ceased to engage in remunerative work because of involuntary redundancy following the restructuring of GE Custom Fleet Services. Mr Small did not satisfy s 24(2)(b) as he had not sought any form of work after 4 May 2007.
42. The respondent relied on the decision of the Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47 (Hendy) where Whitlam, Emmett and Stone JJ said at [37]:
The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work.
TRIBUNAL’S DELIBERATIONS
43. The question of whether Mr Small’s accepted and disabling muscle cramps (R) leg is and always has been a form of multifocal motor neuropathy has been resolved to the Tribunal’s reasonable satisfaction by Associate Professor Stark’s opinion and the EMG findings.
44. Associate Professor Stark, as a neurologist, is the only appropriately qualified expert to make such a diagnosis and provide an opinion. Dr Markov, a rheumatologist, has adopted Professor Stark’s opinion. Those doctors have considered but not excluded other less likely aetiologies unrelated to Mr Small’s defence service. Associate Professor Stark noted some features of Mr Small’s disease process that are uncommon in multifocal motor neuropathy. According to Associate Professor Stark, the disease is regarded as auto-immune in aetiology, with the auto-immune response being triggered by, among other antigens, infective agents. The Tribunal notes that in 1970-1971, during his service, Mr Small’s medical records documented recurrent severe bouts of tonsillitis and bronchitis.
45. There is no evidence that any non-accepted medical condition contributed to Mr Small’s incapacity to work for an aggregate of eight hours or more per week. The 50 days of sick leave taken by Mr Small in the 12 months before he ceased work were mainly due to infection-precipitated asthma, which took several months to resolve. His asthma is now well controlled.
46. In April 2010 Dr Horsley and Dr Thomas said that Mr Small was unable to work beyond eight hours per week and this has not been challenged. Thus, Mr Small became incapable of working during the assessment period, which runs from the date of application for an increase in pension to the date of this decision.
47. Mr Small sought an increase in his rate of pension on two occasions. His first application of 16 February 2007 resulted in an increase to 80 per cent of the general rate. By this time, he was aware that as a result of the restructuring of GE Fleet Services his position was to be abolished. By then he had also arranged to undergo a right total hip replacement in July 2007. The second application of 13 December 2007 lead to an increase in his pension rate to 100 per cent of the general rate. In the lifestyle questionnaire completed on 30 November 2007, Mr Small, in answer to the question: Why did you stop working? answered: Right hip pain and depression and elected to take voluntary redundancy as to get more benefits (T documents, page 108). The later lifestyle questionnaire of 17 April 2009 acknowledges that the redundancy was involuntary.
48. The parties and the Tribunal agreed that Mr Small satisfies the requirements of s 24(1)(a) and (b) of the Act. At issue is whether he satisfies s 24(1)(c), which is considered with reference to s 24(2)(a) and (b).
49. In Flentjar v Repatriation Commission (1997) 48 ALD 1 the Full Court of the Federal Court articulated the requirements of s 24(1)(c) as follows (at 4 to 5 per Branson J):
1.What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
50. Further consideration of the meaning of s 24(1)(c) was provided by the Full Court of the Federal Court in Repatriation Commission v Hendy (2002) 76 ALD 47 at [37] (per Whitlam, Emmett and Stone JJ):
The consideration of what a veteran would probably have done, absent the service disabilities, is a hypothetical exercise. The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. …
51. The respondent relied upon the more recent decisions of Finn J, Repatriation Commission v Van Heteren (2003) 75 ALD 703 and Cadd v Repatriation Commission [2008] FCA 1024. His Honour considered s 24(1)(c) and whether a war-caused injury or disease alone rendered the veteran incapable of undertaking remunerative work, and the meaning of ceasing to engage in remunerative work in s 24(2)(a), respectively.
52. In Van Heteren, Finn J said at [18]:
First, the "remunerative work" to which the paragraph refers is the remunerative work undertaken by the veteran before he or she was prevented from continuing to undertake that work. The term, though, does not refer simply to a particular job with a particular employer: Banovich v Repatriation Commission (1986) 69 ALR 395 at 402; nor merely to the last remunerative work undertaken before the veteran's inability to work became complete: Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225. It signifies the type of work which the veteran previously undertook but which because of war-caused incapacity alone he or she can no longer undertake: Banovich at 402. The Act requires identification of that type of work as part of the veteran's demonstration that he or she has suffered a real and substantial loss consequent alone upon war-caused incapacity: see Starcevich's case, at 225. It is that remunerative work and not remunerative work at large with which s24(1)(c) is concerned.
And at [20]:
Second, as the Commission conceded, Mr Van Heteren was totally and permanently incapacitated for the purposes of s24(1)(b). His incapacities from war-caused disabilities alone were such as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. s 24(1)(c) presupposes he is so incapacitated such that the veteran cannot simply point to it without more to satisfy the two limbs of s24(1)(c). The reason why this is so is that factors other than war-caused incapacity may be part of the reason preventing the veteran from continuing to engage in the particular type of work in which he or she had previously been engaged: Forbe's case at [39]-[40]…
53. In Cadd, Finn J dismissed the application, finding no fault in law in the Tribunal’s decision that Mr Cadd did not qualify for the special rate of pension as he had been dismissed from his job in 2003 and he did not engage in remunerative work thereafter. Mr Cadd had unsuccessfully sought further employment, and in April 2005, he was found to be incapacitated for work beyond eight hours per week by his war-caused posttraumatic stress disorder. His Honour found the exclusionary provisions of s 24(2)(a)(i) applied to Mr Cadd.
54. While the matters cited above are not in conformity with Mr Small’s situation, the facts in Cadd are similar.
55. The Tribunal applies the steps outlined in Flentjar. In relation to question 1, the Tribunal finds that Mr Small had 35 years experience in the automotive industry, initially as an automotive technician and from 1982 or 1984 onwards in administrative positions, culminating in his last position as a shift controller. His work history was excellent, with only a three to four month period in 1997 when he was unemployed. He worked full time, with overtime, despite his ongoing and accepted muscle cramp (R) leg.
56. However, the muscle cramp (R) leg caused him to change from a technical role to a more sedentary role in 1982. In 2004, following the radical prostatectomy for carcinoma of the prostate, Mr Small stopped doing shift work and reverted to daytime hours. For approximately the last eight years that he worked for GE Commercial Fleet Service, he worked at Port Melbourne and Burnley, driving to and from Grovedale daily. His annual work assessments attested to his competence and his salary increased annually. Mr Small has wide-ranging experience in the automotive industry and this is the remunerative work referred to in the first question posed by Flentjar.
57. In relation to question 2 from Flentjar, there is no dispute that as from April 2010, Mr Small’s war-caused diseases and, in particular, what is now termed multifocal motor neuropathy, have prevented him from continuing to undertake work in the automotive industry.
58. In relation to question 3 from Flentjar, Mr Small ceased work on 4 May 2007 because of an involuntary redundancy consequent upon restructuring of the employer’s company. He was aware of this restructuring for approximately six months before the event. In November 2007, in his lifestyle questionnaire, he declared his reason for ceasing work as being, in part, due to his election to take voluntary [sic] redundancy as to get more benefits. The answer to question 3 is therefore No.
59. Mr Small has not sought employment or remunerative work of any type since 4 May 2007. He had delayed total hip replacement until after his redundancy took effect. He has accepted retirement from the workforce, a redundancy package and received a disability support pension at 100 per cent of the general rate backdated to 3 September 2007. His war-caused diseases were not alone in preventing him from continuing to undertake remunerative work of any type. Nor has he sought to engage in any form of remunerative work as required by s 24(2)(a)(i) and s 24(2)(b).
60. The Tribunal notes that Ms McMahon has undertaken to contact Mr Small’s general practitioner, to arrange a referral to Professor Stark for treatment of his neuropathy. The Tribunal hopes that a therapeutic response will reduce Mr Small’s level of disability.
TRIBUNAL’S DECISION
61. Mr Small does not meet the requirements of s 24(1)(c) of the Act and is not eligible for pension at the special rate. Therefore, the Tribunal affirms the decision under review.
I certify that the sixty-one [61] preceding paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member and
Brigadier C. Ermert (Retd), MemberSigned: ............................[signed].............................................
Associate Grace HorzitskiDates of Hearing 5 October 2010, 22 and 23 February 2011
Date of Decision 21 April 2011
Counsel for the Applicant Ms A. McMahon
Solicitor for the Applicant Ms L. Gillett, Williams Winter
Advocate for the Respondent Mr K. Rudge, Department of Veterans' Affairs
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