SPYM and Repatriation Commission (Veterans' entitlements)
[2018] AATA 476
•13 March 2018
SPYM and Repatriation Commission (Veterans' entitlements) [2018] AATA 476 (13 March 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/2995
Re:SPYM
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:13 March 2018
Place:Brisbane
The decision under review is varied and remitted to the Respondent for appropriate action with the additional determination that SPYM is entitled to payment of an intermediate rate of pension effective from 27 June 2013.
...................[sgd].....................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS – where the veteran is in receipt of the pension at 90% of the general rate – where the veteran has suffered from a number of defence-caused and non-defence caused conditions in the past – intermediate rate pension – where the veteran does not seek the pension at the special rate – “alone” test – whether the veteran was prevented from undertaking part-time work due to accepted conditions alone – whether other factors apply – Flentjar principles – decision under review varied and remitted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 14, 15, 19, 21A, 22, 23, 24, 25, 27, 28, 30, 70, 71, 120; Div 2A, 3, 6, 7
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Cavell v Repatriation Commission (1988) 9 AAR 534
Chopping and Repatriation Commission [2013] AATA 362
Flentjar v Repatriation Commission (1997) 48 ALD 1; 26 AAR 93
Forbes v Repatriation Commission (2000) 101 FCR 50
Furnell and Repatriation Commission [2011] AATA 149
Hales and Repatriation Commission (1986) 11 ALN 281
Hendy v Repatriation Commission [2002] FCA 602
Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625
Morgan and Repatriation Commission [1989] AATA 133
Murray v Repatriation Commission [2016] FCA 1150; (2017) 153 ALD 321
Peacock v Repatriation Commission [2004] FCA 1449; 40 AAR 143
Re Easton and Repatriation Commission (1987) 6 AAR 558
Re MacRae and Repatriation Commission (1990) 21 ALD 612
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124; 226 FCR 21
Repatriation Commission v Smith (1987) 15 FCR 327
Richmond v Repatriation Commission [2014] FCA 272
Smith v Repatriation Commission [2014] FCAFC 53; 220 FCR 452
Starcevich v Repatriation Commission (1987) 18 FCR 221
Vulich and Repatriation Commission [2012] AATA 547
Watkins v Repatriation Commission [2014] FCA 787SECONDARY MATERIALS
Guide to the Assessment of Rates of Veteran’s Pensions
REASONS FOR DECISION
Deputy President J Sosso
13 March 2018
INTRODUCTION
SPYM (the veteran) seeks a review of a decision of the Veterans’ Review Board (the Board) dated 19 February 2015 that:
(a)affirmed the decision of the Repatriation Commission (the Respondent) that the veteran’s condition of rotator cuff tendinopathy of the right shoulder was not service-related; and
(b)set aside the Respondent’s decision that the veteran was entitled to a pension assessed at 80% of the General Rate under the Veterans’ Entitlements Act 1986 (Cth) (the Act), and instead assessed the pension at 90% of the General Rate – Exhibit 1 T2 B –B1.
The veteran initially lodged a formal claim for a disability pension under the Act on 27 September 2013, and a Delegate of the Respondent made a decision on 3 February 2014, which – Exhibit 1 T12 pp. 117 – 126:
(a)accepted the veteran’s claim for osteoarthritis of the left knee and ankle, cervical and lumbar spondylosis and irritable bowel syndrome (IBS), effective from 19 March 2013;
(b)did not accept that diverticular disease of the colon and rotator cuff tendinopathy (RCT) of the right shoulder were related to service;
(c)found no medical condition was present to answer the claim for “(r) ankle instability”, and thus that no claim for this condition could be successful;
(d)increased to 80% of the General Rate the veteran’s disability pension, effective from 19 March 2013; and
(e)determined that the veteran was not eligible for the pension at the special or intermediate rate.
The veteran was born in 1953 and, at the time of the hearing, was 64 years of age. He served in the Royal Australian Army from 12 July 1973 until 30 June 1998. During the period 20 July 1992 until 3 August 1992, the veteran was engaged in peacekeeping service in Cambodia. The remainder of his service time constituted eligible defence service.
The veteran had a long and illustrious career in the Army. After graduating from the Officer Cadet School, he held a series of junior management positions in the period 1973 – 1978. By 1979 he was appointed as a Transport Operations Manager and managed all aspects of transport operations in a road transport unit consisting of approximately 100 vehicles and 200 staff. He was subsequently selected to attend the Advanced Transport Course in the United Kingdom (1981 – 1982) and returned to Australia holding increasingly senior roles in transport and logistics. In 1989 – 1990 he was selected to attend the Command and Staff College in the United States and completed his Army service as a very senior officer in the Defence Integrated Distribution System – Exhibit 2.
The veteran claimed that during his long period of service he suffered a number of injuries. In his statement of 10 August 2015, he gave the following account of his health during his Army service – Exhibit 2:
“Because of the nature of Service life, training and sporting injuries were inevitable. There was also the pressure to ‘toughen up’, ‘grin and bear it’ or risk the special derision reserved for perceived ‘malingerers’. I suffered numerous injuries during my Service career and mostly these were ‘suffered in silence’ and formal medical opinion was avoided wherever possible. Throughout my service, I tolerated the pain and tried to live with injuries while concealing them wherever possible for fear that it would affect my official fitness status and hence career prospects. However, the physical nature and demands of military service, and consequent fitness training regimes continually aggravated those injuries…”
After leaving the Army, the veteran worked as a full-time employee with the Queensland Department of Transport and Main Roads (DTMR) for approximately 13 years in the period 1 July 1998 until 2 December 2011. The veteran’s duties whilst employed by the Queensland Government mostly involved desk-based clerical duties. However, he was required at various times to perform managerial, planning and specialist tasks that involved both intellectual rigour and emotional pressure.
Between 1998 – 2000 the veteran was engaged as a Senior Advisor (Logistics) and provided expert, high level policy advice on freight logistics issues, including briefings and presentations for the relevant Minister of the Crown, Director-General and Executive Directors. Subsequently he was appointed to a number of senior policy positions.
The veteran gave evidence at the Board hearing of 19 October 2015. He explained that he wasn’t happy with his work at the DTMR – Exhibit 3 p. 24:
“I wasn’t happy but the reason I wasn’t happy is I wasn’t achieving anything and I had a reputation that had been marred by, I guess, a perception that I was a bludger who took every opportunity to, you know, go and see a doctor, if you like a malingerer. So you’ve got a copy of that. But at the same time, I mean, there was a - you know, a professional factor involved. Yes, I like to produce quality work and I find it increasingly difficult to do that. I mean, I was in a job where I briefed the Minister, you know, at least twice a week. I would write a brief for the Director-General two or three times a week. I mean, I was dealing with multi-billion dollar projects. But, to do that effectively, you’ve got to have your wits about you, and I find a lack of sleep, the aggravation, the pain, the tinnitus, it just made it damn near impossible to concentrate on very complex issues that really warranted a clear train of thought.”
The conclusion of the veteran’s employment with the State Government came about by the acceptance of a voluntary redundancy as part of a wide scale program of redundancies in the State Government at that time.
The veteran was offered a “Voluntary Separation Package” under the then State Government’s “Voluntary Separation Program”. One of the requirements imposed on persons accepting this offer was the execution of a Deed which included a condition that such persons could not undertake any work with the State Government for three years – Exhibit 20.
The veteran executed the Deed provided by his employer and his separation date was 2 December 2011. Consequently, he was barred from obtaining Queensland Government employment until 2 December 2014.
Mr Ross Mensforth, a senior executive with the DTMR, who worked with the veteran testified that the veteran was doing a good job and when asked whether it was “the case that he jumped before he was pushed” he answered “No” – Tr. 30.10.2017 p. 88.
The veteran testified at the Board hearing that the redundancy offer came at a time “where I had no option” and that “I’ve hated every day since”. He stated that by the end of his State Government career he had got to the point “where it was almost impossible” to work effectively because “with neck and back, to sit at a computer for hours and hours a day, you just couldn’t do it… I would go home at night with headaches associated with keeping my neck in a fixed position. I was irritable… I would go back to work the next day, and someone would come up and say, ‘[SPYM], where is that so-and-so brief’, and I wouldn’t have even heard them” – Exhibit 3 p. 25.
There was some dispute if the veteran actually “retired”. Various medical and other records note that the veteran had “retired”. For example in Dr Tran’s notes of 30 April 2012 it is stated of the veteran: “retired… keen to wean zoloft when able” – Exhibit 6 p. 260.
On the other hand, the veteran testified that he was ashamed of telling his family and friends that he had accepted a redundancy and preferred to say he had retired. He gave the following evidence – Tr. 31.10.2017 pp. 94-95:
“The thing is that I was using the retirement concept for discussions with the people I talked to on a daily basis, okay? Friends, family, that sort of stuff. The fact is that a lot of them knew it but within the people I’ve talked to, for example, about the redundancy, in the military, redundancy was a highly despised and divisive issue. Most of my friends are ex-military and – in fact all of my friends are ex-military.”
The evidence before the Tribunal discloses that the veteran has not engaged in remunerative employment since leaving the State Government in December 2011.
The veteran testified that he wanted to engage in remunerative work after leaving the State Government, not least because he discovered that within 18 months he was beginning “to chew into superannuation to survive” – Tr. 30.10.2017 p. 24. The veteran stated that accepting the voluntary redundancy package was not intended to start a life-time retirement – Tr. 30.10.2017 p. 25:
“There is no doubt that the redundancy was simply going to buy me a period of time so that I could sit back and find out how I’m going to work.”
Further, the veteran testified that he was genuine in seeking to find remunerative work – Tr. 30.10.2017 p. 25:
“Now, I looked at a whole range of different jobs – and I’m probably meandering a bit too much because this is sort of the crux of the evidence that I was going to give but I looked at a whole range of different job opportunities right down to I’d done some volunteer TAFE instruction on international freight and logistics. I’d looked at doing consulting work but it was a clear case- because I knew the industry pretty well because I spoke with a lot of people in the industry on a day to day basis. I knew there was no way that you can do consultancy in the first two jobs where you’ve to meet a deadline don’t get met. So that’s dying. I looked at what all the different options were…”.
The veteran testified that in August each year he and some male friends go on a fishing trip which lasts approximately one week. The veteran drives from his home near the Sunshine Coast to Gladstone. One of the persons who attends this event each year is Mr Douglas Webb. The veteran testified that during the August 2016 fishing trip, Mr Webb said – Tr. 30.10.2017 pp. 25 - 26:
““I’m working for Jeff Wilkinson doing security vetting” and this is how it works – and there is a massive shortfall at the moment into quasi-government capacity to conduct – to complete the security clearances that are required in the current security environment… So Doug mentioned it to me and I said, “Right that sounds like something that is ideally suited for my circumstances”.”
The veteran also testified that he contacted Mr Wilkinson and said (Tr. 30.10.2017 p. 26):“Jeff I’m looking for something to do. It’s not the money per se, I just need to keep my brain active, what’s the chances?” The veteran went on to say that Mr Wilkinson’s response was “Love to have you on board”.
Subsequently, the veteran completed an accreditation course but then had to undergo a period of mentoring in Canberra. The mentoring was predicated on the veteran having a security clearance. Unfortunately, his security clearance had lapsed, so he was required to undergo a security clearance process. That process was, at the date of the hearing, still proceeding.
Although the veteran was described in his Discharge Records as a very light drinker (Exhibit 1 T3 p. 38), he testified that by the end of 1998 or the beginning of 1999 he began drinking alcohol to excess – Tr. 30.10.2017 p. 14. The veteran testified (p. 14) that the drinking “had nothing to do with the work, per se. It was just that I could see that I was heading for a long, difficult path of tolerating coping with injury”.
The veteran testified that in 2000 he saw an ex-Army GP, Dr Andrew McNeil about problems with both alcohol issues and depression, for which he was prescribed Zoloft – Tr. 30.10.2017 pp. 15, 17.
The veteran was referred in 2001 to a medical facility named “Damascus” which provided rehabilitative services for persons addicted to alcohol or drugs. The veteran was treated at Damascus for three weeks, and was again referred there for a three-week rehabilitation program in late 2002.
On both occasions when the veteran was admitted to Damascus, he was interviewed by a physiatrist, whom he recalls was a “Dr Fredericks”. However, the veteran testified that he talked to him about “nothing” as he didn’t “confide in psychologists” because he was too proud to acknowledge his conditions and seek support. The veteran testified that some of his conditions, including IBS, challenged his dignity and caused him embarrassment – Tr. 30.10.2017 pp.51, 52. In fact, the veteran testified the he never discussed with Dr Fredricks, his “depression” – Tr. 30.10.2017 p. 57.
The veteran continued to be prescribed Zoloft during his employment with the State Government and beyond. When he was first examined by his current GP, Dr Tran, on 6 December 2006, the contemporaneous notes state that the reason for the visit was “Bronchitis Depression” and Dr Tran prescribed Zoloft 100mg one daily and Valium – Exhibit 6 p. 275.
When the veteran was examined by Dr Rebecca Hargrave on 2 July 2008 for bronchitis, she noted that the veteran had “been off zoloft 2 days driving family mad” – Exhibit 6 p. 272. It is, perhaps, important to mention that when the veteran was examined by Dr George Georgas on 3 October 2008, it was noted that “Smoking assessment changed”, and that the veteran was again a “Smoker” - Exhibit 6 p. 271.
It appears from the medical records that the veteran eventually stopped smoking in 2009. Dr Tran noted on 19 February 2010 that the veteran was “off smokes” and was “positive” (p. 267) and by 29 November 2010 was categorised by Dr Tran as an “Ex-Smoker” (p. 264).
In 2010, the veteran applied for a life insurance policy. Dr Tran prepared a pro forma medical report seemingly required by the insurance company. In that report, Dr Tran noted that the veteran had ceased smoking since 4 June 2009 and did not drink alcohol. In the section dealing with anxiety, depression or emotional orders, Dr Tran stated – Exhibit 6 p. 194:
“left army 6/1998 – gradually worsening depression/alcohol intake
Seen by Damascus + psychiatrist.
On Zoloft since.
Stable, total alcohol abstinence.”
The veteran tendered four statements, from ex-work colleagues and his wife, testifying to his alcohol abstinence. For present purposes, reference can be made to the statement of the veteran’s wife dated 22 January 2017 – Exhibit 18:
“I have been married to [the veteran] for 35 years…
[The veteran] had issues with alcoholism before he left the army and then for a couple of years after. [The veteran] sought medical assistance to recover and has not touched alcohol since. My position is that I would not still be married to [the veteran] if he decided to drink again.
The other condition that is being discussed is depression. [The veteran] does not suffer with symptoms of depression. He was prescribed an anti depressive medication after leaving the army, but, in my opinion, it has been resolved since giving up alcohol.”
It is not contested that by the time of the hearing, the Respondent had accepted liability for the following conditions suffered by the veteran:
(a)sensorineural deafness and tinnitus;
(b)osteoarthritis right knee;
(c)osteoarthritis left knee;
(d)osteoarthritis left ankle;
(e)left rotator cuff syndrome;
(f)cervical spondylosis;
(g)lumbar spondylosis; and
(h)IBS.
It is also not contested that the veteran has either been diagnosed with or claimed for the following conditions for which liability has not been accepted by the Respondent:
(a)diverticular disease of the colon;
(b)right ankle instability;
(c)rotator cuff tendinopathy of the right shoulder;
(d)depression; and
(e)alcohol abuse.
Finally, it is not contested that while the veteran’s claim was before the Board, he withdrew his application for review of the decision to reject liability for diverticular disease of the colon and right ankle instability.
In his Final Submission (FS) which was emailed to the Tribunal on 29 November 2017, the veteran clarified the relief sought:
(a)payment of the pension at the intermediate rate; and
(b)if the Tribunal did not make this determination, then an increase in the pension to 100% of the General Rate.
The veteran specifically resiled from contesting that he be awarded the pension at the Special Rate pursuant to s 24 of the Act. The veteran made the following concession (FS at pp. 1, 4):
“I presently have insufficient evidence to substantiate a claim that my capacity for remunerative work is not more than eight hours per week in aggregate. For that reason, and for that reason alone, I would not be able to satisfy the requirements for pension at Special Rate. Therefore I will not pursue this matter further in this claim…
The first three years of the assessment related to the Special Rate on the basis that I had evidence from Dr Tran that I was unable to [sic] more than 8 hours giving rise for a claim for Special rate.
However, the qualifying conditions for Intermediate Rate (under s 23) and Special Rate (under s 24) are fundamentally the same, save for capacity for remunerative work. Subsequent opinion from Dr Burke was that I was capable of undertaking remunerative work for up to 12 hours per week. Accordingly, I had conceded that I would not be able to meet the requirements for pension at the special rate for this reason, and this reason alone.
Accordingly, I am only seeking approval of payment of the Intermediate Rate of Pension in accordance with s 23…”
(emphasis in the original)
Having carefully considered all of the material, I am satisfied that this concession has been soundly and appropriately made, and consequently the Tribunal proceeds on the basis that the veteran is not seeking the pension at the Special Rate pursuant s 24 of the Act.
Apart from no longer seeking pension at the special rate, the veteran also withdrew his claim for liability on the basis of rotor cuff tendinopathy of the right shoulder. The veteran made the following concession (FS p. 1):
“The current evidence raises sufficient doubts, particularly the causal linkage between the injury in 1995 and the right shoulder condition(s), such that the Tribunal is unlikely to conclude to its reasonable satisfaction that my condition should be accepted. I will not pursue this matter further in this claim.”
Subsequently (at pp. 3 – 4), the veteran elaborated on why he was no longer seeking to claim liability for rotor cuff tendinopathy of the right shoulder. Having carefully considered the reasons for the veteran making the concession he has, the Tribunal will proceed on the basis that it is not necessary to address this condition as its non-acceptance for liability by the Board is no longer being challenged.
The Respondent, correctly, noted in its final submissions (SR) (para 51) that the veteran had raised during the hearing the question whether any osteoarthritis he suffers in the acromioclavicular joint of his right shoulder was defence-caused. The Respondent also, very helpfully, drew the Tribunal’s attention to the various cases dealing with the so-called ‘Benjamin principles’ (extracted from Benjamin v Repatriation Commission (2001) 70 ALD 622). However, the veteran specifically resiled from any reliance on this condition in his FS, stating (FS p.4): “I will not pursue this option for now under this particular claim.” Accordingly, the Tribunal will not deal with this condition in reaching its determination.
This matter was heard in Brisbane on 30 and 31 October 2017. The veteran appeared in person and gave evidence. The Respondent was represented by Mr Schatz of Counsel. The following persons gave evidence and were cross-examined: Dr John Tran, Mr Ross Mensforth, Mr Julian Bennett, Mr Brad Hirn, Mr Les Ransome, Mr Douglas Webb, Dr Marcus Navin, Dr Peter Sharwood and Dr Nicholas Burke.
ISSUES
The sole issue to be determined is what is the correct and preferable rate of disability pension payable to the veteran and, in particular, whether the veteran is entitled to be paid a pension at the intermediate rate pursuant to s 23 of the Act.
THE VETERAN’S CONTENTIONS
The veteran outlined the essential basis for his claim as follows (FS pp. 2 – 3):
“These conditions [i.e. the accepted conditions] have had a significant accumulative effect on my work capacity. The associated pain, discomfort, sleeplessness etc affected concentration, judgement, analytical skills, attendance, reliability, work capacity etc. The progressive decline in my conditions made it difficult to perform my full duties in Queensland Transport. It led to increasingly frequent absences, time away from my desk, early departures, avoidance of commitments, working from home etc. I was working extreme hours at home, sometimes working through the night/weekends etc to compensate for work not completed during normal working hours.
I tried to remain professional but acknowledged that the impact of my conditions was becoming unmanageable in the context of my capacity for work. I considered asking for reduced work hours (perhaps five day fortnights), job sharing arrangement etc. However, I knew that such an arrangement would require greater certainty about my availability at planned times – but I was unlikely to be able to achieve this.
Throughout this time, I tried to ‘internalise’ the effects of my conditions and developed masking strategies to keep the effects as private as possible. Frankly, I am not proud of some of my concoctions (e.g. ‘got a headache - must go’) but I always compensated at home to complete tasks.
Frankly, this was taking a toll on my health. I was considering resigning for medical reasons when an unexpected opportunity [in a senior position] arose… This ‘promotion’ in April/May2011 represented a highly attractive professional opportunity (and enhancement of my financial position in planned retirement in 2018 at age 65).
My enthusiasm for this opportunity generated a ‘false’ optimism that I could somehow manage the increasingly detrimental effects of my conditions. Unfortunately, although I maintained a high level of professional commitment, motivation and drive I found that key projects were falling behind schedule because the impact of my conditions limited the time (and its quality) that I could devote to work tasks. I recognised that I was not performing to the high standards of professionalism that had characterised my employment history to date. Despite my best efforts, I had to acknowledge that it was not feasible to continue working under those circumstances.
I knew that my managers would eventually have to address my work capacity and performance associated with the impact of my conditions. This was inevitable as I had reached a point where I could no longer mask the effects of my conditions on my capacity for work and this situation would continue to deteriorate. I viewed any need for intervention by managers to be counter to my values and work ethic. I also did not want to divulge the extent, nature and impact of my conditions. I was aware that they had no scope to reduce my normal working hours. I resolved that I was going to have to resign from Queensland Transport. I considered my dilemma in the vernacular – ‘jumped before pushed’.
Fortuitously, an unforeseen opportunity for a ‘voluntary’ redundancy arose. This represented an opportunity to gain some respite from the effects of my conditions while reassessing their likely impact on future work options. My intention was to find remunerative work more commensurate with the limitations imposed by my service-related conditions. I did not submit a claim for my conditions at the time because of my belief that ‘compensation’ was a ‘last resort’.
To avoid the sometimes negative perceptions associated with ‘redundancy’, I represented leaving that work as ‘retirement’. Given the success of my working life, I saw this as reflecting “[the veteran] left on his own terms” and with “no handouts” portraying an image of someone who had “persevered to the end” and been successful and “never gave in”.
As a direct consequence of the effect of my accepted conditions I have suffered a significant loss of salary, wages or earnings; and irreversible detriment to my future financial security and retirement ambitions. I could not identify any remunerative work that was consistent with my conditions, or for which I had even the remotest chance of lodging a successful application. In the meantime I was spending a considerable amount of managing my conditions. I decided to submit this claim.”
(emphasis in the original)
The signs and symptoms of the veteran’s accepted conditions were summarised in the veteran’s formal claim form of 27 September 2013.
With respect to the accepted condition of left knee osteoarthritis, the veteran stated (Exhibit 1 T5 p. 49):
“significant pain.
Gives way (unstable)
Limits movement
Difficulty sleeping
Complicates/contributes to aggravation of other injuries”.
The veteran claimed the following signs and symptoms for osteoarthritis of the left ankle (Exhibit 1 T 5 p. 50):
“Chronic pain, instability and immobility, sometimes for weeks at a time. Sometimes, there is no apparent catalyst – other times it can be caused by relatively minors slips or when limb injury requires me to ‘prop’”.
The veteran also claimed “lower back” problems which have been categorised as lumbar spondylosis. The relevant extract is as follows (Exhibit 1 T 5 p. 52):
“Back ‘seizes’ at times. Any prolonged bending initiates stiffness and pain. Unable to walk on uneven surfaces. Pain often lasts from 1 hr to weeks. Bought expensive bed to cope.”
The next condition itemised was “bowel irregularity” which has been accepted as IBS. The veteran provided the following information (Exhibit 1 T5 p. 53):
“Long periods of constipation.
Short periods of looseness.
Bowel movements require 30- 40 mins at times.
Becoming increasingly restrictive on lifestyle. Compounds my concerns about colon cancer.”
The veteran’s description of his hearing problems were described as follows (Exhibit 1 T5 p. 55):
“Hearing has continued to deteriorate to a point where tinnitus is highly intrusive, I cannot hear many sounds, music is difficult to hear, and I require text to follow TV programmes.”
The symptoms of the veteran’s accepted right knee osteoarthritis were described as follows (Exhibit 1 T5 p. 55):
“Instability has deteriorated to a point where I spend long periods in pain, immobile, and depressed. In particular, it exacerbates after injuries such as neck and ankles.
I have spent a significant amount of time, effort and money since discharge trying to offset/compensate through gym membership, exercise etc.”
The form also contained a number of questions dealing with the impact the conditions had on the veteran’s social and work life as well as his mobility and recreational activities. For present purposes it is sufficient to quote his responses to two series of questions. The first was the cumulative impact of his conditions on his personal relationships (Exhibit 1 T6 p. 59):
“Combinations of pain, sleeplessness and consequent limitations on leisure/relaxation (and hence associated depression) mean that I tend to be intolerant of ‘minor’ things, become verbally aggressive, am quick to anger, and have difficulties maintaining reasonable social and work relationships. Furthermore my deafness means that I am unable to converse in normal surroundings… General sense of frustration, tension and gloom about future deterioration.”
The form also contained a series of questions about employment activities. The questions and the veteran’s responses are as follows (Exhibit 1 T6 pp. 65 – 66):
“31 Are there things you can’t do at work that you used to do?
I was always a clear, analytical thinker who had effective working relationships with peers and superiors. This ability broke down progressively.
Why are you unable to do them?
Increasing pain, deafness, tiredness limited my capacity for clear thinking and led to frustration and intolerance of others…
35 In your opinion, have your disabilities affected your future or career?
I had sound prospects for a successful career in the Queensland Government. However, frequent absences from work due to injuries/illnesses, and, inferences of rudeness associated with deafness contributed to a reputation of being difficult. These frustrations contributed to depression and the realisation that I would not achieve a successful career…
37 Why did you stop working?
It became clear to me that I would not be ‘promoted’ because of reputation (in the mind of superiors) that I was abrupt, rude, and unreliable… This was further compounding my depression and sense of frustration.”
The final question in the form asks veterans to list the main ways their disabilities affect the way they live now. The veteran wrote three pages on the ways he claimed his disabilities impacted on his life. Most of the his information repeats what is set out above, however pertinent extracts are set out below (Exhibit 1 T6 pp. 67 – 69):
“Individually, and collectively, my disabilities have fundamentally detracted from my quality of life in a personal, professional and family sense.
I have done nothing about this in an official capacity for over 20 years. This reflects an ‘uninformed and unreasonable’ tendency for ex-military members to be stoical, suffer in silence and not be seen to be whingers. In essence, I was ashamed and embarrassed to do anything about it.
Furthermore, I suffered considerably in silence, rather than risk the disabilities having an adverse effect on my military career…
My family relationship had almost broken down irretrievably and I had distanced myself from my wife and children. I entered two separate periods of rehabilitation and am now teetotal…
Notwithstanding this, I still have treatment for depression to control mood swings, anger etc. I also have ongoing medication to assist in pain and inflammation management, digestion system, sleep etc…
In addition, my disabilities had a direct impact on my ability to establish a successful follow on career. As a colonel, I thought I had the attributes to become a manager (at a reasonably senior level) in the public service in a discipline (transport and logistics) that was very closely aligned with my service experience. Unfortunately, this did not eventuate.
Pain and sleeplessness contributed to tiredness, irritability, and difficulty concentrating. This was compounded by difficulty hearing others and hence ignoring or misinterpreting them. Furthermore, I had long and frequent absences due to my injuries. Collectively, these factors generated a general perception that I was rude, unreliable, intolerant etc. My absences were interpreted as ‘absenteeism’ and subsequently a formal investigation was conducted by a consultant engaged by senior management. Even though the investigation concluded that my absences were justified by medical evidence, the stigma remained.”
MEDICAL EVIDENCE
Hearing
The veteran was examined by Ms Michelle Leadbetter, Audiologist in October 2013. The veteran underwent an audiological assessment and the diagnosis was as follows (Exhibit 1 T7 p. 71):
“Attached is [the veteran’s] audiogram which shows a mild steeply sloping to profound bilateral sensorineural hearing loss from 1KHz onwards.
[The veteran] reports experiencing very severe tinnitus, present every day, causing distraction, loss of concentration and regularly interfering with sleep.
The results also indicate that [the veteran] would benefit from the use of hearing aids.
I have recommended [the veteran] apply to the Office of Hearing Service for a voucher and will apply to RAPs for assistive devices for his Tinnitus and for TV use.”
Bowel Problems
The veteran underwent a colonoscopy and polypectomy in October 2011. Dr Andrew Bryant, Gastroenterologist and Hepatologist provided the following report (Exhibit 1 T8 p. 75):
“The colonoscopy revealed internal haemorrhoids, diverticular disease, colonic redundancy and polyps. The sigmoid polyps were hyperplastic while the transverse colon polyp was a tubular adenoma… I would recommend a high fibre diet with a repeat colonoscopy in 3 years.”
In a further report, Dr Bryant summarised his findings as follows (Exhibit 1 T8 p. 76):
“Internal haemorrhoids
Diverticular disease
Redundant colon
Colonic polyps”
Dr Tran, the veteran’s GP, also prepared a Medical Impairment Assessment of his bowel condition on 25 November 2013. Dr Tran answered in the affirmative to the question whether the veteran had symptoms of IBS and provided the following responses to the questions posed (Exhibit 1 T8 p. 74):
“Symptoms alternate diarrhoea/constipation/cramping
Severity moderate
Frequency daily
Duration constant”
Dr Peter Sharwood
Dr Peter Sharwood, Orthopaedic Surgeon, examined the veteran on 20 November 2013 and prepared a comprehensive report on his leg, shoulder and spine conditions. Dr Sharwood’s findings and conclusions are set out below (Exhibit 1 T9 pp. 85- 86):
“I have been able to review images of his lumbar spine and left shoulder taken on 20 November 2013 and confirm that he has degenerative arthropathy of the left acromioclavicular joint. In the lumbar spine he has evidence of grade 1 spondylolisthesis at L5/S1 with pars interarticular defects. There is narrowing of the L5/S1 discs space and evidence of facet joint arthropathy. The remainder of the lumbar spine appears to be well preserved. I note images of 16 October 2007 of his back also indicated spondylolisthesis at L5/S1 with bilateral pars interarticularis defects. Minor degenerative changes were noted at that time.
I have reviewed images of his right shoulder taken on 30 October 2013 and would concur that there is no evidence of abnormality in the glenohumeral joint or major pathology within the acromioclavicular joint. I note the ultrasound of the right shoulder reveals minor tendinopathy of the supraspinatus tendon. There is some calcification within the subscapularis muscle but this is not apparent on plain films.
Images of his cervical spine taken on 30 October 2013 show evidence of degenerative changes of theC5/6 level with intervertebral disc space loss and osteophytes. Similar appearances at C6/7. There is no evidence of crush fractures.
Images of both knees taken on 12 July 2013 reveal bilateral genu varum deformity with narrowing of the medial compartment joint space on both left and right sides. Patellofemoral disease is noted on the right side and magnetic resonance of the right knee confirms full thickness chondral defects in the medial femoral condyle and evidence of degenerative changes and previous medial meniscectomy. An effusion was noted to be present when this image was taken.
Images of his ankles reported in April 2004 revealed no abnormality. However, images of his ankles taken on 12 July 2013 confirm the appearance of early osteoarthritic changes in the left ankle with marginal osteophytes though no joint space narrowing was observed. Images of the right ankle showed no arthritic changes.
Conclusions
The records confirm that [the veteran] has had resection of the degenerative tear of the medial meniscus of the left knee in 1996. He has evidence of degenerative arthritis within the knee.
There is evidence of chondromalacia patella and degenerative arthritis of the right knee most likely secondary to previous arthrotomy and right knee trauma.
[The veteran] is confirmed to have cervical spondylosis.
[The veteran] is confirmed to have spondylolisthesis L5/S1 with associated lumbar spondylosis.
[The veteran] is noted to have acromioclavicular arthritis of the left shoulder.
[The veteran] is noted to have rotator cuff tendinopathy of the right shoulder.”
Dr Sharwood also made the following observations on the employment prospects of the veteran (Exhibit 1 T9 p. 83):
“[The veteran] has not been employed for many years and has no prospects of being re-employed.”
A perusal of the attached diagnostic imaging confirms the accuracy of Dr Sharwood’s conclusions:
(a)Albany Creek X-Ray, Dr Hunter, 8 April 2004, left ankle and lower leg, Exhibit 1 T9 p. 104;
(b)Albany Creek X-Ray, Dr Cockburn, 16 October 2007, lumbosacral spine, Exhibit 1 T9 p. 103;
(c)QScan, Dr Shepherd, 12 July 2013, both hips, knees and ankles, Exhibit 1 T9 p. 100;
(d)Red Radiology, Dr Amarasena, 30 October 2013, shoulders and spine, Exhibit1 T9 p. 99;
(e)Brisbane Private Imaging, Dr Lisle, 20 November 2013, lumbar spine, left shoulder, Exhibit 1 T9 p. 98.
The Tribunal was presented with two further reports prepared by Dr Sharwood: the first is dated 1 June 2017 (Exhibit 11) and second is dated 26 July 2017 (Exhibit 12). Both relate to the initial claim of the veteran in relation to right shoulder rotator cuff syndrome. As the veteran has chosen not to proceed with that claim, the latter reports of Dr Sharwood do not provide assistance to the Tribunal. Further, Dr Sharwood was called to give evidence on 31 October 2017. The entirety of his testimony was focused on the veteran’s claim in relation to right shoulder rotator cuff syndrome – Tr. 31.10.2017 pp. 54 - 69. Again, that testimony does not assist in the resolution of this matter.
Dr Nicholas Burke
The veteran was examined by Dr Nicholas Burke, consultant occupational physician on 25 November 2016. Dr Burke summed up the veteran’s current status as follows (Exhibit 13 pp. 3- 4):
“[The veteran’s] principal issue at this stage relates to his lower back. He reported ongoing pain. The pain is in the midline in the lower lumbar spine. He stated that the pain is there most of the time. The back tends to have its own agenda and bad periods can occur without any specific, initiating activities. Nevertheless, certain activities such as prolonged sitting, standing, walking, bending, twisting, all can result in the development of back pain.
His second major pain relates to his ankle. The pain in his ankle tends to come and go, mainly associated with an exacerbating injury. If he does sprain it or turn it or roll it, he will get significant pain and swelling.
His third major pain relates this right knee. He stated that this tends to be associated with standing and walking-type activities.
Fourthly, he described neck pain. This occurs less often. It tends to be associated with certain activities, such as sitting in front of the computer for long periods of time.
Fifthly, he has left shoulder pain, which tends to come and go, usually with exacerbating activity, such as hanging out the washing.
He also indicated that the significant issue for him is lack of sleep. He attributes the lack of sleep to the pain he experiences from the various musculoskeletal injuries, as well as tinnitus. He generally goes to bed between 8:00 and 10:00 at night, wakes up early in the morning. He stated that he does not tend to use any significant pain-relieving medication, mainly because of his concerns about dependence.
He stated that he gets significant issues with his irritable bowel syndrome. This is mainly bloating and cramping. He has irregular bowel habits, which tend to fluctuate between constipation and diarrhoea. He told me that he will spend about two hours a day in the toilet. He regularly sees his gastroenterologist, Dr Bright, and at the moment, he is being maintained on Metamucil.
He stated his sitting tolerance is around 10 minutes and this mainly limited by his back. His standing tolerance is approximately half an hour. Again this is mainly limited by his back although there are contributions from his knees and his ankles and his walking tolerance is approximately half an hour, again limited by his back, knees and ankles. He has significant issues with any walking on uneven ground and he generally avoids this. He goes to the gym around three or four times a week where he will walk on the treadmill for approximately 5 km. He prefers to walk on the treadmill rather than outside.
He has significant issues with going up and down steps and stairs.”
Dr Burke concluded with a comprehensive summary and assessment of the veteran focusing on how his accepted conditions would impact on future employment (Exhibit 13 pp. 6 – 7):
“He reported a large number of musculoskeletal complaints; the most significant is related to his lower back, where he has lumbar spondylosis in the context of bilateral pars defects. In addition, he has cervical spondylosis, left and right knee osteoarthritis and left ankle instability with some evidence of degenerative change.
He also reported problems in both shoulders, diagnosed as bilateral rotator cuff syndrome.
His other disabling conditions relate to sensorineural hearing loss, tinnitus and irritable bowel syndrome.
His most recent occupation was a sedentary desk-based position in the Department of Transport.
With respect to his various conditions, vocational limitations that would apply would be to avoid or minimise prolonged sitting, prolonged standing, any significant bending, twisting, lifting or carrying activities (this would mainly relate to his back and neck). In addition, there would be restrictions with respect to any prolonged standing, walking, squatting, kneeling or work that involves steps, stairs or inclines (principally related to his knees, ankles and back) and finally to reduce the degree of fixed static postures affecting the neck/shoulder region.
In addition, with respect to his left shoulder, he should avoid any prolonged, sustained, resisted or overhead or reaching activities.
Many of these activities would not be relevant for a desk-based position.
From his former occupation as a public servant, the principal restrictions would relate to prolonged sitting, prolonged standing, prolonged adoption of static postures, such as sitting in front of a computer for long periods of time.
In addition, there would be issues associated with his deafness and tinnitus and his irritable bowel syndrome. It should be noted that he was able to continue to work on a full-time basis, up until ceasing with Department of Transport in 2011; however, he does report significant issues associated with his various conditions.
I note that Dr Tran, in his report of 18 February 2016, indicated “based on the above medical issues, I am not prepared to state that [the veteran] is capable of regularly working more than eight hours or more per week in his given profession on a regular basis.”
Overall, it would be my opinion that his capacity for work in any sedentary desk-based position (his usual occupation), would be around 12 hours per week. If he did work along this basis, such as three by four-hour periods of work, he would necessarily have to work in a position, which has reasonable ergonomics, in a position, which would allow him to adjust his posture regularly throughout the working day, from sitting to standing and which does not involve significant amounts of ambulation to get to or from work or when he is at work.
Hence, I believe that he would be able to work in a sedentary clerical-type position at around 12 hours per week on a restricted basis, as outlined above.”
Dr Burke provided a further report on 20 December 2016 in which he made clear that his assessment of a 12 hour working week was based on the veteran’s accepted conditions. Dr Burke said (Exhibit 14):
“In my previous report I felt that the limit of his work in relation to service-related conditions was up to 12 hours per week. In my opinion this inability is due to the effects of his accepted conditions alone. Non-accepted conditions do not affect his ability to work at this level. The symptoms associated with his conditions are likely to impact upon his previous work with Queensland Transport and it is my opinion that the effects of these conditions will significantly constrain his search for future work.”
Dr Burke gave evidence at the hearing via telephone on 31 October 2017.
During examination-in-chief he confirmed that the principal factors in assessing the veteran’s capacity for work were “musculoskeletal complaints and principally the back and neck problems” – Tr. 31.10.2017 p. 72.
Dr Burke also explained the impact of associated pain from the accepted conditions (Tr 31.10.2017 p. 73):
“if you’re in pain, then obviously that’s going to affect concentration, attention and all of those other cognitive issues associated with work. So, you know, it’s not the mere fact of being able to present to work because you have a back condition. It’s the impact of the back condition which will affect other aspects of your work.”
During cross-examination, Dr Burke again emphasised the impact of the pain component of the lower back condition on the veteran’s work capacity as being – Tr. 31.10.2017 p. 74:
“Principally through pain, so the pain will affect the person… make them feel uncomfortable. It will affect their concentration, attention and the like and, obviously, it will be very disturbing for a person to – to have to put up with pain while attempting to work…”
Dr Burke explained that it was his understanding that the veteran had effectively retired in 2011 and at that stage he was capable of working on a full-time basis. Since, then, however his condition had deteriorated, and his estimate of only being able to work 12 hours per week was as at 2016 when he wrote his report – Tr. 31.10.2017 p.78.
Mr Schatz asked Dr Burke a series of questions of a partly hypothetical nature relating to prospective employment for the veteran. Mr Schatz said (pp. 79 - 80):
“he gets a formal offer of employment to do security vetting work, which he accepts, and he then goes and participates in a course in Canberra for five days in a row, which he successfully completes and his friend, who also works for the organisation, has given evidence to the effect that the way this job works it’s flexible and you can work from home and the amount of hours a week you work depends on how many files you take on. Then his friend has said that so, for example, you could a certain amount of files on and do 10 hours a week or you could take more files on and do 20 hours a week. Does any of that information affect your opinion on whether he’s currently capable of performing clerical work at the present time… he can work from home, he can choose the hours that he works. So he can do, you know, five blocks of fours a week, if he wants, to get to 20 hours or he can do two in the morning and two in the afternoon. Is he capable of doing more than 20 hours a week, given the type of conditions that you assessed him as having and choosing to sit and stand whenever he likes?”
Dr Burke answered (p. 80):
“I’d have to say more than probably he could, yes”.
He subsequently said:
“the most important point for me is the job itself – is the flexibility of the job… what I’m saying is that with the 12 hours, I was assuming that obviously you have to go into a workplace, sit there for four hours and then come home type thing. So, whereas if you’re at home, you know, you could obviously work for two hours and then rest and then, you know, do another two hours...”
Dr Marcus Navin
The veteran was examined by Dr Marcus Navin, a very experienced Occupational Physician on 24 February 2017. As a result of this examination, Dr Navin produced a report dated 7 March 2017 – Exhibit 9.
While much of Dr Navin’s report related to the veteran’s right shoulder condition, his examination was more broad ranging, and he made a number of observations about the veteran’s work capacity generally. Importantly, Dr Navin opined – exhibit 9 p. 7:
“[The veteran] is able to undertake remunerative work and is to do so, working for at least eight hours per day, perhaps up to 16 hours per week. There are no limitations or restrictions from any work-related or Military component to carrying out his new duties for less than 8 hours.”
Dr Navin prepared a further report dated 13 June 2017. Although this report also focused on the issue of the right shoulder rotator cuff syndrome, specific follow up questions were posed regarding the veteran’s work capacity.
Dr Navin opined that the veteran “was then, [i.e. in December 2011] and now, fully capable of being employed”. Further, Dr Navin gave the following estimate on how many hours of remunerative work the veteran was capable of – Exhibit 10 p. 6:
“I would advise that at the time that he was seen, that [the veteran] could well have been able to carry out 30 hours a week. He was not requiring any significant treatment or investigation for his circumstances. Intrinsically, [the veteran] could work full-time. He certainly would, given the demands and nature of work that he was prepared to carry out, be able to work 30 hours in face to face employment.”
In his 7 March 2017 report, Dr Navin made various observations on the veteran’s mental health. He referred to the veteran’s “long history of emotional disorder and distress”, noted that he had “significant personality traits” and, while adding the caveat that he was not a psychiatrist or psychologist, opined that the veteran “may be affected by early dementia and/or behavioural traits, giving rise to… cognitive and memory difficulties” – Exhibit 9 p. 4.
When giving evidence, Mr Schatz specifically asked Dr Navin (Tr.31.10.2017 p.21): “you’re not diagnosing him as having a depressive illness or saying that he was poorly managed or improperly diagnosed are you?”. Dr Navin’s response was: “No”.
Later, the Tribunal asked Dr Navin the following question – p. 30: “you’re saying he present as a forceful, erudite individual who was basically in full control of his faculties but there were symptoms there were worrying signs that there were other issues that were developing, is that what you’re saying?”. Dr Navin responded: “That is what I drew from the 90 minutes of the assessment.”
Dr John Tran
Dr Tran has been the veteran’s GP since 6 December 2006 – Tr. 30.10.2017 p. 72; Exhibit 6 p. 275.
The stated reasons for the veteran’s first consultation with Dr Tran on 6 December 2006 were bronchitis and depression. Dr Tran also noted “quitting smoking gets agitated prn valium”. At that time the veteran was prescribed one Zoloft 100 mg tablet daily as well as Valium (5mg) – Exhibit 6 p. 275.
On 5 January 2016, Dr Tran provided a written statement in support of the veteran. As became clear during the hearing, there were five versions of this statement, with significant changes to the section dealing with depression – Tr. 30.10.2017 pp. 80 – 82. Despite the changes, Dr Tran remained adamant that the veteran’s depressive symptoms were not a limiting factor in seeking employment. Outlined below is the final version of the statement – Exhibit 6 p. 242:
Depression
[The veteran] has been on Zoloft 100 mg since I commenced consulting with him in 2006. Throughout this period his depressive symptoms have remained stable with no evidence of symptoms becoming a limiting factor to his suitability for employment.
Capacity for work
I understand that Dr Sharwood’s assessment indicates that in his opinion, [the veteran’s] accepted orthopaedic conditions on their own would prevent him from working.
[The veteran’s] other accepted medical conditions contribute to his overall function and further limit his capacity for work (as per my previous reports which indicate my assessment of [the veteran’s] suitability for employment.)
·Hearing Loss. This impacts significantly on his level of work function.
·Tinnitus. His frequent tinnitus has a major impact on sleep and concentration levels with implications for work performance.
·Irritable Bowel Syndrome. This causes physical discomfort and inconvenience with frequent, unpredictable and protracted absences to use the toilet. It also triggers significant emotional embaressment [sic].
The accumulative impact of his multiple accepted conditions does have a significant impact on his capacity for work.
Based on the above medial issues, I am not prepared to state that [the veteran] is capable of reliably working more than eight hours per week in his given profession on a regular basis.”
Dr Tran prepared a supplementary report dated 27 May 2016 which was designed to address issues raised by the Respondent – Exhibit 6 p. 243:
“For clarity, [the veteran’s] inability to work is for periods “aggregating more than 8 hours per week”. This inability is attributable to his accepted conditions alone and, in my opinion he has no other conditions that limit or prevent his capacity for work.
I did not previously articulate the effect of his conditions in any detail because in my opinion, they would be self-evident (e.g. that pain and discomfort affect sleep and rest, and hence impact on concentration, judgement, mood).
[The veteran’s] statement of 8 April 2016 includes his explanation of how his accepted conditions impacted on capacity his work. In my opinion, his contentions appear consistent with what I would expect to be ‘reasonable’ based on the body of sound clinical evidence available in relation to the various accepted conditions.
I reiterate the facts and my assessment provided in my statement of 5 January 2016 concerning [the veteran’s] irritable bowel syndrome. I am satisfied that the symptoms suffered by [the veteran] which impact on his ability to work, are caused solely by his long standing irritable bowel syndrome. However, diarrhoea, constipation, cramping, bloating etc are not symptoms unique to IBS (e.g. they can also feature in minor short-term intermittent illnesses etc). My rating of ¾ at Q8 (p74) was intended to reflect this.
[The veteran] has never presented to me in relation to migraines/headaches. There is no medical evidence available to me to indicate that he suffers from such a condition.
I am aware he had abused alcohol in the past, because he advised me of this when I became his GP. To my knowledge, he has not abused alcohol since 2003. I have not noted any indications that would or could point to alcohol abuse with regular clinical review and blood tests.”
LEGAL PRINCIPLES
Before setting out the legal principles, it should be noted that the drafting of ss 23 and 24 of the Act has resulted in two decades of litigation producing a plethora of complex decisions which are not always consistent and which are almost always complicated. The problems that this poses for a decision-maker cannot be overstated. Legislative reform is long overdue. In this regard, reference can be made to the following recent observations of Bromberg J in Murray v Repatriation Commission [2016] FCA 1150; 153 ALD 321 at [70]-[71]/336:
“[71] Sections 23 and 24 of the VE Act have been described as “bedevilled with bewildering complexity” and as examples of a drafting style which “has created a nearly impenetrable shroud over [their intended] meaning”, Smith at [26], (Rares J). As did the Full Court in Richmond at [69], I respectfully echo those observations as well as those made in supplementation that the cost to the community of the obscurity must be enormous.
[72] The difficulty that the obscurity presents decision makers, including the Tribunal, must be acknowledged.”
Sub-section 70(1) of the Act provides, inter alia, that where a member of the Forces or a member of a Peacekeeping Force is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation.
Section 70 is found in Part IV of the Act. Section 71 provides that Divisions 2A, 3, 6 and 7 of Part II apply to pensions payable under Part IV. Accordingly, references hereunder to provisions in Part II, apply to payment of a pension pursuant to Part IV.
Section 14 of the Act permits a claim for a pension.
A veteran who is in receipt of a pension can apply for an increase in the rate of payment on the ground that the incapacity has increased since the rate of pension was last assessed – s 15(1).
Section 19 prescribes the way in which, inter alia, applications for an increase in pension are determined. Subsection 19(5B) directs that an assessment of such an application must be made in accordance with whichever of s 22 (general rate of pension), s 23 (intermediate rate of pension) or s 24 (special rate of pension) applies. While s 19(5B) also directs attention to ss 25, 27 and 30, these provisions are not relevant to this matter.
In determining eligibility, a veteran’s entitlement is assessed in respect of any circumstance within the “assessment period”. This period runs from the date of application for an increase in the pension until the decision of the Tribunal or final decision-maker – s 19(9); Richmond v Repatriation Commission [2014] FCA 272 at [107].
In Smith v Repatriation Commission (2014) 220 FCR 452 (Smith), Buchanan J made the following observations about the assessment period ([40]/462):
“The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position is assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.”
Subsection 120(4) of the Act requires that a veteran’s entitlement to an increased pension be decided on the decision-maker’s reasonable satisfaction, which, as explained in Repatriation Commission v Smith (1987) 15 FCR 327, is the civil standard of proof. Subsection 120(6) provides that no onus of proof is imposed on either party.
The central concept for determining the amount of pension payable is the degree of incapacity. Section 21A of the Act provides for the determination of the degree of incapacity by reference to the relevant provisions of the Guide to the Assessment of Rates of Veteran’s Pensions (GARP).
The degree of incapacity is determined as 10% or a multiple of 10%, not exceeding 100%. In this matter, the Board in the reviewable decision determined that the veteran’s degree of incapacity is 90%.
The veteran seeks a determination by the Tribunal that:
(a)a pension be paid at the intermediate rate; or
(b)if that is not approved, an increase in the degree of incapacity to 100% of the general rate – FS p. 1.
The intermediate rate is prescribed by s 23 and, as its nomenclature indicates, is mid-way between the general and special rates. It is payable when a veteran, due to service-related causes, is unable to engage in remunerative work except on a part-time basis or intermittently.
Consistent with s 23 of the Act being focused on veterans who are not totally and permanently incapacitated, but capable of performing part-time or intermittent work, s 23(2) excludes a veteran who is capable of, or is actually undertaking, remunerative work for more than 50% of the ordinary time for that type of work or 20 or more hours per week.
Normally, a decision-maker must consider s 24, which relates to the special rate of pension before turning to s 23. This follows because s 23(1)(d) provides that s 23(1) applies to a veteran only if s 24 does not – see Rares J in Smith at [8]/455.
The veteran has specifically resiled from seeking the pension at the special rate, and, accordingly, the Tribunal will first deal with the veteran’s eligibility to receive a pension at the intermediate rate. If the veteran is not eligible, attention will then be given to whether the evidence presented would support a reassessment of the degree of his incapacity at 100%.
Section 23 prescribes the criteria which must be met before an intermediate rate pension is paid. Apart from the requirement of lodging an application under s 15, which the veteran clearly has, s 23 mandates a series of tests.
First, s 23(1)(aab) requires that a veteran must not have turned 65 when the claim or application is made. The veteran clearly satisfies this requirement.
Secondly, the veteran’s degree of incapacity from defence-caused injury or disease must be determined to be at least 70% – s 23(1)(a). Again, the veteran meets this requirement as his pension has already been assessed at 90% of the general rate.
Thirdly, the veteran’s incapacity from defence-caused injury or disease, or both, is of itself alone of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently – s 23(1)(b).
Subsection 23(2) provides that paragraph 23(1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran is, inter alia, capable of undertaking that work for 50% or more of that work on a full-time basis; or
(b)if paragraph (a) is inapplicable to that work, that the veteran is capable of undertaking that work for 20 or more hours per week.
It is necessary, when addressing s 23(1)(b), to also have regard to s 28. When determining what remunerative work a veteran is capable of doing, the decision-maker is required to have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
Paragraph 23(1)(c) requires that it is the veteran’s defence-cause injury or disease that has led to an inability to work with consequent loss of salary, wages or earnings for the veteran.
When considering the operation of s 23(1)(c), attention to s 23(3) is required. That subsection provides as follows:
“(3) For the purpose of paragraph 1(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)
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-cause disease, or both; 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 the incapacity, be continuing so to seek to engage in remunerative work and that the 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.”
At the time the veteran made his claim, he was under 65 years of age, and, as such the more onerous criteria prescribed by s 23(3A) and (3B) do not apply.
Subsection 23(1) is, materially, similar to the structure of subsection 24(1). While the latter provision focuses on total and permanent incapacitation and is stricter in application, it also mandates an “alone” test and the criteria are broadly similar. Consequently, some of the judicial pronouncements on subsection 24(1) are of some assistance when considering subsection 23(1), subject to the above caveats.
The Tribunal has the benefit of the recent Full Federal Court decision of Smith, where Buchanan J made the following observations about this subsection in the context of s 24 as a whole ([47] – [49]/465-466):
“47 Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (ie not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
48 The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (“a veteran who is incapacitated”). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.”
(emphasis in the original)
Buchanan J subsequently made some very helpful observations about the proper construction of s 23 ([53]-[54]/467):
“53… Although the scheme of s 23 broadly corresponds with the scheme of s 24, there are some important differences which arise from the fact that s 23 deals with incapacities which are not totally disabling. The principal differences are reflected in the inclusion of s 23(1)(d) (which renders s 23 inapplicable if s 24 applies), s 23(2) (which governs the operation of s 23(1)(b)) and s 23(3)(a)(iii) (which accommodates the possibility that a veteran is working less than full-time for reasons other than the relevant incapacity.)
54 Like s 24, s 23 assumes the existence of a disabling incapacity. Section 23(1)(b) and (c), when read together, also state a composite test containing a series of conditions. In the case of s 23, s 23(2) states the degree of incapacity which must be established for the purpose of s 23(1)(b). Accordingly, in the case of s 23 the first condition is that the veteran is rendered incapable of working more than 50% of a full-time work load (or more than 20 hours per week) by the war-related incapacity alone. The second, third and fourth conditions, which are supplied by s 23(1)(c) are in identical terms to s 24(1)(c), but there are indications elsewhere that those conditions must be applied in the circumstances of lesser incapacity to which s 23(1)(b) is addressed. The explicit reference to s 23(3)(a) to an incapacity to the extent set out in s 23(1)(b) should be noted in this connection. So also should the existence and operation of s 23(3)(a)(iii), which is specifically addressed to reasons for engagement in part-time or intermittent work.”
(emphasis in the original)
CONSIDERATION
Intermediate Rate Pension
Introduction
As explained earlier, the Tribunal will deal first with the veteran’s eligibility to receive the intermediate rate of pension, and only if it is determined that he is ineligible, will the issue of whether his impairment should be considered at 90% or 100% of the general rate be addressed.
It is not disputed that the veteran meets the requirements of s 23(1)(aa), (aab) and (a).
Paragraphs 23(1)(b) and 23(1)(c) prescribe tests that are linked and cumulative. The former focuses on determining the degree of incapacity flowing from the service-related injury or disease whereas the latter requires an examination of the link between the accepted service-related injury or disease and the limitation on undertaking remunerative work.
Paragraph 23(1)(b)
The first question to be determined by the Tribunal is whether the veteran satisfies the requirements of s 23(1)(b). As explained earlier, s 23(1)(b) has to be read in conjunction with s 23(2).
The Respondent contends (SR para 95) that on the facts, “part-time basis, or intermittently” in s 23(1)(b) should be read as a reference to 20 or more hours per week in accordance with s 23(2)(b). The Tribunal agrees that the particular evidence adduced in this matter lends itself to adopting this approach.
The Respondent submits (SR para 96) that the Tribunal can be reasonably satisfied that the veteran’s incapacity arising from his accepted conditions does not, of itself alone, render him incapable of undertaking remunerative work for 20 or more hours per week, in view of:
(a)the veteran’s vocational, trade and professional skills, qualifications and experience, suggest he should be reasonably expected to perform clerical work of a desk-based or sedentary nature such as the intellectually demanding work he was performing at the Department of Transport and Main Roads or the security vetting work he is proposing to undertake;
(b)the expert opinions of Dr Navin and Dr Burke, which indicate that he can undertake remunerative work, such as the proposed security vetting work for Staff Check, for 20 or more hours per week; and
(c)the veteran’s own evidence at the hearing that he remains capable of performing clerical work, including the security vetting work he is proposing to undertake.
As to the last point, the Respondent outlined a number of matters which flowed mainly from the veteran’s testimony at the hearing. The points relied upon by the Respondent are as follows (SR para 48.5 – 48.15):
(a)the veteran’s personal attitude was that he was “not TPI” – Tr. 31.10.2017 p.102;
(b)the only disabilities or long-term conditions listed on the veteran’s enrolment form for the security course he undertook in 2017 were “Difficulty hearing and need to reposition and stretch back when sitting for more than 10 minutes” - Tr. 31.10.2017 p. 104;
(c)despite his hearing and back conditions, the veteran was able to perform the clerical duties to represent himself in the Tribunal for two days – Tr. 31.10.2017 p.105;
(d)he worked all night during the hearing – Tr. 31.10.2017 p.105;
(e)he was able to perform the Department of Transport and Main Roads work for 13 years despite suffering from the accepted conditions;
(f)the veteran was “not saying” that he would not be able to do something that was less intellectually demanding but still effectively a clerical desk-based position – Tr. 31.10.2017 p. 105;
(g)the veteran absolutely accepts that he can perform the positive vetting work offered by Mr Wilkinson – Tr. 31.10.2017 p. 98;
(h)there is still nothing wrong with the veteran’s intellect and he can still sit down and read a very long complex document – Tr. 31.10.2017 p.98;
(i)he is still significantly capable as demonstrated by the manner he represented himself during the Tribunal hearing;
(j)the veteran heard, and appeared to agree with, Mr Webb’s evidence to the effect that, if he chose to do so, he could take sufficient files from Staff Check to work more than 20 hours per week – Tr. 31.10.2017 p. 108; and
(k)the veteran testified: “I’ve got the capacity to still be in a job to the age 65 doing the work within the Queensland Government and being in a damn sight better off financial position than I am now… I have a strong constitution. I can work through pain up to a limit, okay?” – Tr. 31.10.2017 p. 108.
The veteran relied (FS p. 6) on Dr Sharwood’s conclusion that he had no prospects of being re-employed (Exhibit 1 T 9 p. 83), Dr Tran’s opinion that he could not work for more than eight hours per week (Exhibit 6 pp. 242, 243), Dr Burke’s assessment he could only work 12 hours per week (Exhibit 13 pp. 6, 7) and the initial prognosis of Dr Navin that the veteran could work up to 16 hours per week (Exhibit 9 p. 7).
While the veteran then proceeded to engage in a critical analysis of perceived flaws in the approach of the medical experts, he provided the some information on the course he attended in Canberra (FS p. 7):
“The Respondent made uninformed judgements about the nature of the course I attended for Staff Check, and then misrepresented them as facts to elicit statements from witnesses. In particular attendance and participation a five day full-time course was clearly intended to infer that I had demonstrated an ability to work full time. The fact is that it was a four day course between 9 and 4, for the first three days and then 9-12 on the final day. This is a total of about 24 hours, less lunch and morning tea etc which made it about 20 hrs of work. I have also advised that much of the course was familiar to me.”
The veteran also provided information about his participation in the two day Tribunal hearing (FS p. 7):
“I have found that it is impossible to achieve the suggested work hours on a regular basis, and certainly over the last year (while trying to manage the claim process). Subject to the prevalence and severity of my conditions at any one time, I can work through tiredness, pain barriers etc for short periods (conditioned to this by military training) but cannot sustain it for any length of time. On most days I have not been able to do anything and other days it might only be for an hour or two. The intensity of preparing for, and attending the Hearing was extremely debilitating. Despite inferences to the contrary, that rate of activity came at considerable cost to me and exacerbated some conditions for a number of weeks afterwards. To that end, I haves struggled to cope with demands of completing this submission.”
Paragraph 23(1)(b) has three essential elements:
(a)the incapacity is required to have arisen from a defence-caused injury, or disease, or both;
(b)the incapacity must of itself alone render the veteran incapable of undertaking remunerative work otherwise than on a part-time or intermittent basis; and
(c)the incapacity must mean that the veteran cannot work more than 20 hours per week.
Turning to the Respondent’s submissions outlined above, the Tribunal is reasonably satisfied with the first of contentions relating to the veteran’s vocational, trade and professional skills and qualifications.
The Tribunal is not, however, reasonably satisfied that the veteran is capable of working more than 20 hours per week.
Some preliminary observations can be made.
Paragraph 23(1)(b) can be contrasted with s 24(1)(b) which requires that the veteran be “totally and permanently incapacitated”. There is no such requirement in s 23(1)(b). The term “incapacity” is not qualified, and this flows from the very basis of s 23, which is an intermediate pension, the benefit of which is not limited to those veterans who are totally and permanently incapacitated.
Paragraph 23(2)(b) refers to “work for 20 or more hours per week” which can be contrasted with the comparable provision in s 24 which refers to “remunerative work for periods aggregating more than 8 hours per week”. Further, s 25 contemplates “temporary” permanent incapacity, which concept, of course, is alien to s 23.
The Tribunal in Morgan and Repatriation Commission [1989] AATA 133, when considering s 24, found that it was impermissible to make a work capacity assessment predicated on an averaging process over a number of weeks or a year, particularly when the work is of a casual nature.
In contradistinction, s 23 invites such a process. Section 23 is a mid-point between the general rate of pension and the special rate. It was inserted in the legislation to cater for veterans who, though not permanently and totally incapacitated, were nevertheless so incapacitated by their service, that their overall ability to engage in remunerative employment was significantly impacted. Persons who fall into that category are often only able to engage in casual or part-time employment. With the vagaries of the many conditions that may afflict them, such veterans will often have good and bad days when their ability to work will vary. In such circumstances, particularly when the exercise is a hypothetical one (as in this case) it is sensible and fair to assess work capacity not by asking: can the veteran work 20 or more hours in any week? Rather, the question should be: on average can the veteran work 20 hours or more per week?
Turning first to the expert opinions of Dr Burke and Dr Navin.
Dr Burke opined in his report of 1 December 2016 that the veteran’s capacity for work in a sedentary, desk-based position would “be around 12 hours per week”. He went on to observe that he would likely be working “three by four-hour periods” or something similar, but would need a workplace with “reasonable ergonomics” allowing him to regularly change posture from sitting to standing and which did not involve significant amounts of ambulation to get to or from work or when he is at work – Exhibit 13 p. 7.
During cross-examination on 31 October 2017, Mr Schatz posed a series of hypothetical questions to Dr Burke. The key exchange, quoted above, was when Mr Schatz asked if the veteran could work more than 20 hours per week from home and “he can choose the hours that he works. So he can do, you know, five blocks of four hours a week…or he can do two in the morning and two in the afternoon”. Dr Burke’s immediate reply was: “I’d have to say more than probably he could”. He went on to explain in re-examination that the key element was the flexibility of the job so that the veteran could “work two hours and then rest” – Tr. 31.10.2017 pp. 79 -80.
Shortly thereafter, Dr Burke said _- Tr. 31.10,2017 pp. 80 – 81:
“Well, you know, I’m being presented with all of this hypothetical stuff here at the moment and, you know – so I’m not sure whether… I’m supposed to be responding to something which is hypothetical or which is real. You know, one minute I’m being asked, in a hypothetical sense, and then the next thing I’m asked, okay, well forget the hypothetical and deal with the fact that it’s real… I find this – it’s a bit difficult these questions really.”
Dr Burke explained that the scenario painted by Mr Schatz was “atypical” and he would not normally take such an unusual scenario “into account in assessing this sort of thing” Tr. 31.10.2017 p. 81.
It was very clear to the Tribunal when observing Dr Burke give evidence that he was clearly of the view that the veteran would be unlikely to be able to work more than 20 hours per week, except in very exceptional circumstances which involved the utmost flexibility. What was not explored was whether the veteran’s home has the ergonomic furniture that he opined was necessary, and whether, the position being discussed, in fact has the flexibility posed by Mr Schatz. In short, the evidence of Dr Burke was that in any typical workplace the veteran’s work capacity was, at most, 12 hours per week.
Dr Burke was very uncomfortable in stating that the veteran could work more than 20 hours, and tried to explain that in the normal course of events his work capacity was considerably less than that.
Dr Navin’s main focus of inquiry was the veteran’s right shoulder, however he also ranged over a range of other matters, including his estimate of the number of hours the veteran could manage. Set out below is Question 6 and Dr Navin’s response in his report of 7 March 2017 – Exhibit 9 p.7:
“6. If you consider the Applicant is presently able to undertake remunerative work other than on a part-time basis or intermittently, what is your opinion as to:
·the nature of the work [the veteran] can undertake
·the number of hours per week that [the veteran] can undertake such work
·any limitations or restrictions on his ability to undertake such work and the cause of any such limitations or restrictions?
[The veteran] is able to undertake remunerative work and is to do so, working for at least eight hours per day, perhaps up to 16 hours per week. There are no limitations or restrictions from any work-related or Military component to carrying out his new duties for less than 8 hours.”
Accordingly, this factor did not preclude the veteran satisfying the “alone” test.
The Tribunal is therefore reasonably satisfied that the veteran satisfies the alone test in the first limb of s 23(1)(c).
There is, however, a further matter which must be addressed in the context of the first limb of s 23(1)(c), namely the third element as described by the Full Court in Richmond. This involves a consideration of the phrase “alone prevented from… work”.
It is only necessary to refer, in this context to Peacock and Richmond. In each instance, the Court effectively found that “the first limb of s 24(1)(c) excluded from consideration a factor acting as an incentive or influencing a decision by a veteran voluntarily to cease the relevant remunerative work.” – Richmond at [70].
Before turning to the second limb, it is important to again emphasise that the task required of the Tribunal when making findings pursuant to s 23(1)(c) is to focus on the situation facing the veteran during the assessment period, and not when he left the State Government in 2011. As was pointed out by Dowsett J in Peacock (at [35]/153):
“As I have said, the availability of superannuation benefits may have induced the applicant to retire in 2000, but such availability did not prevent him from performing work in 2004. Further, even if he was not incapacitated by 2000, he may well have been so incapacitated by 2004. This aspect of the tribunal’s reasoning seems to reflect another misunderstanding of s 24 and of the decision in Flentjar.”
(emphasis in the original)
In this matter evidence was given about the state of the veteran’s health while working for the State Government, and, in particular in the period leading up to his retirement in 2011.
The Tribunal received oral evidence from a number of his co-workers, and the thrust of that evidence was that the veteran had a good reputation as a reliable and trustworthy professional colleague.
The veteran’s alcohol problem was a cause of him taking excessive leave in his earlier years of State Government employment. In 2003 he was the subject of a workplace investigation focusing on attendance and performance issues. As highlighted above, the veteran took 45 sick days in 2002, and, accordingly, was absent from the workplace for more than two months. The author of the report made the following observations – Exhibit 1 T15 p. 139:
“He also indicated that [the veteran] has experienced frustrations within the public sector working environment and may benefit from further support in adjusting to the organisational aspects of his role. He indicated that the role to which [the veteran] returns should be clearly defined so that he knows what is required of him.”
The veteran found his post Defence Forces life challenging, and even now his only close friends are people with whom he served. The evidence suggests that after the veteran ceased drinking and smoking, his health gradually improved. Certainly, his leave records disclose a significant decrease in time taken from work on sick leave.
However, Dr Tran testified that as his treating GP he observed an inexorable decline in his health over the past seven years – Tr. 30.10.2017 pp. 68 – 69:
“You didn’t see him until 2006, correct?---Yes
I take it then that he suffering from each of those conditions by the time you first saw him?----Yes, he was.
For that entire 13 year period he worked for the Department of Transport, he had all of these very serious conditions he’d suffered in service and yet was able to continue working, correct?---I, - yes, I suppose you’re right because he was working at the time prior to me seeing him.
Doesn’t that tend to indicate he can work for 13 years fulltime that unless there was a significant deterioration evident in the records in late 2011 when he took the voluntary redundancy that he could have continued working?---It’s – that’s a difficult one to answer because in my experience with degenerative conditions such as with the shoulder and the ankle and the knees is there is general a gradual decline in symptoms. So my understanding with [the veteran] is that the symptoms have declined to a level where he was unable to continue working…
Are you just saying he’s unable to work now?---Yes. Well, I’m saying he’s unable to work based on the combination of all the symptoms he presented to me with, but I didn’t actually assess him for his ability to work at the time he took voluntary redundancy or ceased work.”
Unlike the other medical witnesses, Dr Tran has been treating the veteran for almost twelve years. He is in a unique position to assess if his overall state of health is improving, stable or in decline. In this instance Dr Tran testified that the veteran’s accepted conditions are gradually deteriorating as he ages.
The overall medical evidence suggests that when the veteran accepted the redundancy package in 2011 he was capable of working full-time, albeit with increasing difficulty. In the intervening period, that state of affairs has changed for the worse.
As the Tribunal must focus on the assessment period, it would be an error, as Dowsett J highlighted in Peacock, to unduly focus on the veteran’s health in 2011. Consequently, even if Dr Navin and Dr Burke (Tr. 31.10.2017 p. 78) are correct in opining that the veteran was capable of continuing to undertake his normal duties in 2011 when he accepted the redundancy offer, that is not fatal to his application.
The Respondent also submitted (SR 99) that the veteran could not rely on the ameliorative provision in s 23(3)(b) for five stated reasons, namely (SR para 99):
(a)if the veteran did not “retire” in 2011, he never ceased “seeking to engage in remunerative work” as referred to in Furnell and Repatriation Commission [2011] AATA 149 (Furnell) and Chopping and Repatriation Commission [2013] AATA 362 (Chopping);
(b)there is insufficient evidence to be reasonably satisfied that the veteran sought to engage in remunerative work at any time between leaving the State Government and approaching Staff Check about security vetting work in 2016;
(c)the veteran obtained a position with Staff Check in 2016 with the stated intention of performing more time-intensive vetting work after an initial apprenticeship;
(d)Mr Webb confirmed in evidence that it is possible to take on enough security vetting files to allow work for more than 20 hours per week; and
(e)Consequently, there is no proper basis to conclude that the veteran has any inability to obtain remunerative work, let alone that any incapacity from the accepted conditions is the substantial cause of any inability.
Paragraph 23(3)(b), like its counterpart s24(2)(b), is designed to provide relief from the potentially harsh consequences of a strict application of the first limb of the “alone” test. This paragraph was explained by the Full Court in Smith v Repatriation Commission [2014] FCAFC 53; 220 FCR 452. Reference can be made to the following observations of Rares J at [21]/458:
“Section 24(2)(b) is facultative. It can apply both to a veteran who has never been engaged in remunerative work and to one who had, but for any reason, subsequently ceased work, and later sought to obtain remunerative work. Section 24(2)(b) does not connect the loss of income to the veteran’s inability to continue remunerative work under s 24(1)(c). Yet, one way that a veteran could demonstrate that he or she was unable to engage in remunerative work, after a period in which the veteran had not been engaged in such work, would be to show that he or she had been seeking to do so and could not obtain such work (see s 28). A sympathetic or loyal employer who ceased, for any reason, to employ a veteran suffering a war-caused injury, may have been the only person willing to employ someone with such an injury to perform that kind of remunerative work. For example, the employer may no longer be able to afford the cost of employing the veteran or may have ceased business. Once that source of employment has ceased to be available, the veteran may be able to satisfy s 24(1)(c) merely because no other person would engage him or her in remunerative work by reason only of the incapacity from the war-caused injury. It may not be necessary to show that the veteran sought to obtain such work because the particular circumstances of the now former employer make it clear that the person had treated the veteran in an exceptional or unique way. But, the veteran could also seek to bring himself or herself within s 24(2)(b) by demonstrating attempts to seek remunerative work.”
As Buchanan J pointed out in Smith (at [51]/466), where the requirements of s 23(1)(c) are capable of being addressed directly, it will not be necessary to have regard to s 23(3)(b). The latter provision simply provides an alternative means of satisfying s 23(1)(c).
I pause here to address the first contention of the Respondent. The Tribunal in Furnell and Chopping was addressing the circumstances pertaining to s 24, not s 23. These decisions are therefore distinguishable from the present claim. It is contended that a veteran can only obtain the benefit of the ameliorative operation of s 23(3)(b) if he or she has actually ceased seeking remunerative work. This is inconsistent with a plain reading of the paragraph, difficult to reconcile with numerous Federal Court decisions, and potentially unjust. If an unemployed veteran is genuinely seeking to engage in remunerative work, but through no fault is unsuccessful, there appears no mandate from either the clear wording of the paragraph or the application of common sense to otherwise deny that person the benefit of the paragraph. Paragraph 23(3)(b) provides that a veteran must satisfy the decision maker, inter alia, that he or she “has been genuinely seeking to engage in remunerative work”. There is no implication in these words that there must be a cessation of the effort of seeking work as a condition precedent for a beneficial decision. Indeed, it is in the public interest that veterans who may otherwise be entitled to a pension be encouraged to continue to seek remunerative employment, and not be penalised for doing so.
The remaining contentions of the Respondent focus on the suggested insufficiency of evidence that the veteran genuinely sought to engage in remunerative work at any time between his cessation of work for the State Government in 2011 and when he approached Staff Check about security vetting in 2016.
It is the case that the veteran remains unemployed, and until he obtains a security clearance he cannot commence working for Staff Check.
The Tribunal is placed in a difficult situation, as there is next to no objective evidence about what efforts the veteran undertook to obtain remunerative employment prior to 2016. There is only the veteran’s own evidence.
It is important, therefore, to set out at some length the evidence given by the veteran when he was cross-examined by Mr Schatz – Tr. 31.10. 2017 pp. 100 - 104 :
“So, didn’t you impose on yourself something that prevented you from doing – or contributed to preventing you from getting a job in the area that your skills were in?--- No, it didn’t, because I was prepared to move somewhere else. I mean, I was prepared to move somewhere else if I could have identified a job.
Do you have evidence of that, that you were contemplating moving interstate?----No. How do you come up with evidence of that? You tell me what evidence I would produce or reduce to prove that I was thinking about moving interstate to find work…
Well what I am suggesting to you is that at the very least, you were happy to take a break for six years?---No, not true…
My question to you is, couldn’t you then have rung him a year or two years or three years earlier and started doing the security vetting work then?----Yes, I could have, except I never even thought of it. I didn’t even know that he was in that business. It’s not something that is in more – you’ve got your fingers in more pies than you can imagine and I think I had already said, and in its in evidence that’s been produced as well – and discussed with Doug Webb in some length yesterday – I first knew about it when we were on the fishing trip last year. The fishing trip is planned out yearly, it is not planned around an unexpected need to meet with Dr Burke…
You have the discussion in August?---Yes
So you know there’s an option?---Yes.
You don’t take it in August, September or October?—No…
Do you accept that on the 11th of January of this year when you sent your letter enclosing Dr Burke’s reports to the Administrative Appeals Tribunal and the respondent, that’s the first time you notified the respondent that you’d now gained remunerative work? So, in other words, the first time you told the respondent that Dr Burke said you could work more than 8 hours a week, you simultaneously said,
“And by the way, after a long and frustrating search, I have now found a job and I can work”
Is that another coincidence? --- Look, there are a lot of coincidences. Four mates who get along pretty well, happen to go on the same fishing trip a year. You can draw that conclusion, no doubt.”
The clear thrust of Mr Schatz’s cross-examination was that the veteran had not been seeking remunerative work after leaving the State Government in 2011. He quite correctly put to the veteran that there was little evidence before the Tribunal that he was actively seeking gainful employment, and inferred that there was a correlation between Dr Burke opining that he could work more than eight hours a week and the veteran finding a job. It was Mr Schatz’s suggestion, during questioning, that the veteran realised that he could not successfully argue his case for the special rate of pension and he only then sought out employment so he could argue a case pursuant to s 23.
The Tribunal may have been more critical of the veteran and more sympathetic to this line of cross-examination, had it not been for the evidence given by Mr Webb. Although Mr Webb, who resides in Western Australia, gave his evidence by phone and not in person, the Tribunal formed a very positive view of his evidence. He gave direct, relevant and straight forward testimony without hesitation or prevarication. Of relevance is his testimony about Staff Check and his interaction with the veteran – Tr. 30.10.2017 p. 111:
“Okay, thank you. Look, to get down to perhaps the main information that I’d like you to expand on for the tribunal and it relates to your employment with Staff Check, the nature of those duties and how you came to raise it with me and your interpretation of how it would suit my conditions that you are well aware of?--- Okay. Well just by way I suppose of background the person that owns Staff Check is a good friend of mine and he asked if I was interested in getting involved in this sort of work because they had no one to undertake interviews in Western Australia. And so at that time my personal circumstances were such that it was, you know – I felt that that would be something worth looking at. I subsequently did all the training, got my- in fact, I still had a clearance, a security clearance from my defence work, so I started doing – I did the training, got qualified, and then started doing that work. The work, it depends on the level of clearance that you’re doing, so the NB1, is the equivalent of the old secret, NB2 top secret. Top secret involves an interview with the candidate whereas the NB1, the secret level 1, does not. I started off doing some of the NB1 where you can do it all from your home, from your desk, and it’s totally flexible. Now, then that’s the thing I found good about it. I didn’t particularly want to get back into fulltime work and you’ve got six weeks to complete a file and in that time you can do it at any hour of the day or night, any day of the week you wish, it is totally flexible. And the amount of files you get is totally flexible and you request the number that you want, so you don’t work thrust upon you that you don’t either want or feel that you can do. I mean I can go into a lot of detail of what you do but is that enough for what you want?
Yes, look, I think so. So you actually raised with me as an option?---Sorry, yes. Well, yes, yes. I mean because we do see so much of each other and particularly once a year travelling on our annual fishing trip we that discussion where – and I indicated to you that it might be something that you could do given, you know, that you weren’t in the business of fulltime employment, and it might be something that you could do, that was totally flexible and you could sort of switch on and off and the volume you could switch up and down as your personal circumstances and health allowed.”
The Tribunal formed the view after listening to Mr Webb’s evidence, that the Staff Check job offer came about by chance and not as part of a cunning plan by the veteran to argue a case pursuant to s 23. The very nature of Staff Check work is unusual and rare. Further, as this company apparently operates out of Western Australia and obtained the services of Mr Webb because of direct knowledge and not through advertising, it is clear that the veteran would not have known of its existence and would not have been in a position to apply for work. Only by happenstance did the veteran know of Staff Check’s existence.
Accordingly, the evidence leads reasonably to a finding, that the veteran could not have approached Staff Check any earlier than when he did, and he has been genuinely seeking remunerative employment.
There is considerable Federal Court jurisprudence and guidance on what is meant by the requirement to genuinely seek remunerative work. For present purposes, reference can be made to the decision of the Full Federal Court in Leane v Repatriation Commission [2004] FCAFC 83; 81 ALD 625 (Leane). As Emmett, Conti and Selway JJ said – [29]/632-633:
“It may be accepted that, in the ordinary course, a person in the position of the veteran would have difficulty establishing that he or she was honestly trying to engage in remunerative work unless there were some “objective signs of active pursuit of remunerative work”. However, it would be wrong to turn the practical issue of how a person might establish his or her case into some legal pre-condition. Assume, for example, that a claimant satisfied the tribunal that:
·he or she honestly wished to engage in remunerative work;
·he or she made a reasonable assessment of his or her disabilities;
·he or she had reasonably concluded that he or she could only be employed in a particular type of work;
·he or she was checking employment advertisements on the look-out for such employment; but
·he or she had not yet identified any such employment prospects.
Counsel for the commission properly conceded that, on these facts, the tribunal might be satisfied that the claimant was “genuinely seeking to engage in remunerative work”… The proper course was for the tribunal to ask itself whether, on the evidence before it, it was satisfied that the veteran was “genuinely seeking to engage in remunerative work” or not…”
Time and again, the Federal Court has emphasised a common-sense and practical approach to determining whether a particular veteran, in his or her particular health and broader environmental circumstances, has on the particular evidence adduced, evinced an intention manifest in the circumstances of the case, to seek remunerative work.
Applying the test quoted above in Leane, I am reasonably satisfied having listened to the veteran’s testimony, and also that of Mr Webb, that:
(a)he honestly wished on leaving State Government employment to engage in remunerative work;
(b)he made a reasonable assessment of his disabilities, and, it should be emphasised, that with each year his health has declined;
(c)he reasonably concluded that with his skill base, experience and medical conditions, he could only be sensibly employed in a desk-based, sedentary job, performing policy or other work either relating to transport and logistics, or in another field of speciality he was adept in, including, inter alia, security checking (FS p. 15);
(d)he was checking employment advertisements (FS pp. 15 – 16); and
(e)not until 2016 had he identified any reasonable employment prospects.
In the veteran’s FS, he outlined under the heading “Looking for Work” at pages 15 – 16 the efforts he made in seeking remunerative employment. Clearly the manner in which he ordered his comments was with an eye to the Leane criteria, but together with his oral testimony, provides a sufficient basis for the Tribunal concluding that he was, indeed, genuine in seeking remunerative employment in the years following December 2011.
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?
The fourth Flentjar question focuses on the second limb of s 23(1)(c). The Full Court in Richmond summed up the second limb as follows – at [53]:
“The second limb, which is amplified by s 24(2)(a), requires a causal connection between that inability to work and the veteran’s suffering of financial loss. The enquiry under this limb relates to whether the veteran’s financial loss is as a result of his or her war-caused incapacity.”
The reference to s 24(2)(a) is, in the context of s 23, a reference to s 23(3)(a), which provides as follows:
“(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall 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:
(i)if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if 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…”.
Importantly, the Full Court in Richmond made the following observations – at [56]/34:
“The issue as to whether Mr Richmond’s voluntary decision to cease working at Goulbourn Ovens TAFE and Gordon Institute falls to be considered under the first or second limbs of the section is not just a theoretical question. On remittal it will be necessary for the Tribunal to decide whether Mr Richmond’s frustration with the students, staff and working environment at Goulbourn Ovens TAFE and Gordon Institute, and his decision to cease working at those institutions, was in fact a consequence of his accepted war-caused anxiety disorder. It is common ground between the parties that the enquiry under the second limb is less stringent that under the first limb, which underlines the importance of determining what are the relevant factors, and what are impermissible factors, under the first limb.”
As was highlighted by Bromberg J in Murray v Repatriation Commission (2017) 153 ALD 321 (Murray) at 328/[33], the s 23(1)(c) criteria relate to circumstances prevailing during the assessment period. Consequently, as his Honour observed – at [33]/329:
“Satisfaction of s 24(1)(c) requires that the veteran “is” by reason of incapacity “suffering a loss” that the veteran would not “be” suffering if the veteran were free from that incapacity. The condition is cast in the present tense and, in context, must be referrable to whether the loss is being suffered in the assessment period.”
His Honour, then went on to make the following observations – at [34]/329:
“The related disentitling circumstances relevant to the application of the second limb of s 24(1)(c) and spelt out by s 24(2)(a) are also to be construed as dealing with the situation prevailing during the assessment period. The word “is” in s 24(2)(a)(ii) again makes that apparent, as does the word “has” used in s 24(2)(a)(i). The use of the present tense indicates that the cessation of remunerative work is ongoing during the assessment period. That provision is addressing the reasons why, at that time, the veteran is not engaging in remunerative work. Why the veteran ceased his or her last employment may well be important to that consideration, but why the engagement in remunerative work has not resumed is also relevant…”
Bromberg J also referred in his judgment to observations of Rares J in Smith v Repatriation Commission [2014] FCAFC 452; 220 FCR 452 at [10]/456:
“Nonetheless, s 24(2) creates two further scenarios that affect how s 24(1)(c) can apply. First, the veteran cannot rely on a loss of income if the effect of the war-caused injury did not cause him or her to cease engaging in the formerly remunerative work (s 24(2)(a)(i)) or some other cause incapacitated or prevented him or her from engaging in that remunerative work (s 24(2)(a)(ii)). That is, s 24(2)(a) identifies the circumstances in which the claimed loss of income cannot be linked to the effect of the war-caused injury. For example, the veteran simply may have decided that he or she did not want to work for a reason unrelated to the effect of the war-caused injury. But as the Commission submitted, correctly, the expression “has ceased to engage in remunerative work”, entails that the veteran has left the workforce, and not that he or she is merely unemployed.”
(emphasis in the original)
The facts in Murray are instructive in the resolution of this matter. In that case Mr Murray was a Vietnam veteran. Following his service he was employed in a clerical position in the Department of Defence. He resigned from that role in 1976 because of a condition that caused him to shake or nod his head. From 1976 until 1993 he worked as a car park manager, a night shift machine operator, unqualified carpenter, cleaner, food van driver, home handyman at the local school and local farms and assisting a local business using a sheep dip apparatus. From 1994 until 2005 Mr Murray worked part-time as a bus driver and continued to pick up extra non-skilled work as a carpenter and painter. He voluntarily left employment in June 2005 just prior to his 60th birthday, and applied for, and was granted, a service pension. Between December 2006 and June 2007 he worked for no more than five hours each week for a local authority. Since June 2007 he has not worked. On 27 May 2009 Mr Murray applied for a disability pension.
The Tribunal was not satisfied that the second limb was met because of the disentitling criterion of s 24(2)(a)(i) (s 23(3)(a)(i)) was satisfied. The Tribunal concluded that Mr Murray had ceased employment not due to his war-caused injury or disease, but his choice to receive the service pension on the attainment of 60 years and also because he lived in a geographically remote, sparsely populated area where suitable employment opportunities were scarce.
Counsel for Mr Murray submitted to the Federal Court that the Tribunal failed to assess the s 24(2)(a)(i) criterion by reference to circumstances prevailing during the assessment period and was instead subsumed by considerations as to why Mr Murray chose to retire from his last remunerative positions in July 2005 and July 2007.
Bromberg J upheld this ground of appeal and said ([46]/331-332):
“The Tribunal’s reasoning at [48] shows that on the findings made, the Tribunal did, in substance, undertake a counterfactual exercise in relation to why in June 2005 Mr Murray retired from his last regular employment, and in June 2007 from his last irregular employment. In essence, the Tribunal put aside the effect of Mr Murray’s war-caused disabilities when it concluded that those disabilities did not prevent him from continuing the work he was then doing and that consequently his ceasing employment at that time was brought about by personal choice. But why Mr Murray did not seek to engage in remunerative work thereafter was not tested by consideration of the hypothetical counterfactual. If, as I have presumed it did, the Tribunal relied, for s 24(2)(a)(i) purposes, on Mr Murray not genuinely seeking to engage in remunerative work as a reason for explaining why he had ceased employment as at the assessment period, the Tribunal needed to, but did not, consider whether putting aside Mr Murray’s war-caused disabilities, Mr Murray would not have sought employment.”
In this matter, the Respondent contends (SR 100) that the veteran does not meet the requirements of the second limb of s 23(1)(c) because:
(a)the evidence suggests the veteran voluntarily retired to take a break from work and spend more time with family and friends;
(b)the veteran agreed to refrain from working for the Queensland Government for three years, which would have contributed to any inability to undertake remunerative work;
(c)the financial incentive offered by the voluntary redundancy;
(d)the veteran’s admission that he could have approached Mr Wilkinson earlier about undertaking work with Staff Check; and
(e)other preventative factors outlined in paragraph 98 of the SR.
Before dealing with the underlying reasons for the veteran’s “retirement” in 2011 and his subsequent lack of remunerative work, it is necessary to deal firstly with the Respondent’s contention in (d) that the veteran admitted he could have approached Staff Check earlier for work.
In support of this proposition the Tribunal is referred in footnote 243 of the RS to paragraph 37.17 “above”. Unfortunately, there is no such subparagraph in the submissions, and a perusal of the paragraphs in close proximity to paragraph 37 shines no light on the matter. Looking even further afield, it appears that the Respondent was referring to paragraph 44.17 of RS, which quotes extracts from the transcript where the veteran accepted that he could have applied for the Staff Check job earlier, had he thought of it.
During cross-examination, as explained above, the veteran specifically rejected the proposition that he could have contacted Staff Check any earlier than he did. The veteran testified – Tr. 31.10.2017 p. 103:
“I could have except I never even thought of it. I didn’t even know he was in that business.”
If the Tribunal believes the evidence given by Mr Webb, the first time that he mentioned work with Staff Check with the veteran was August 2016, and there would have been no way that the veteran could have ascertained the availability of such work, as it would appear Staff Check did not advertise for workers in Queensland.
The more substantial argument of the Respondent is whether the veteran’s acceptance of the voluntary termination payment activates the disentitling operation of s 23(3)(a)(i).
There is no doubt that as a general rule when a person voluntarily ceases employment for reasons other than incapacity, and thereafter do not engage in remunerative work, s 23(3)(a)(i) will come into operation – see Peacock at [37]/154.
However, as Bromberg J in Murray relevantly explained, the primary focus of the Tribunal’s inquiry should be the state of affairs during the assessment period.
The evidence before the Tribunal does not lead to the conclusion that the veteran’s acceptance of voluntary redundancy offered by the State Government was a recreational decision divorced from considerations of the impact that his accepted defence-caused conditions were having. On the contrary, the evidence suggests that he reluctantly accepted the offer of redundancy because, to quote Dowsett J in Peacock ([36]/153-154) it “offered him an opportunity to escape the difficulties which he was experiencing in his work”.
To put it another way, but for the impact of his accepted conditions, the evidence suggests that the veteran would not have accepted the voluntary redundancy.
In his evidence to the Board, the veteran said – Exhibit 3 p. 26:
“And then the dread of having to go when you’re at work. I mean, collectively, they were the sole reason. I mean, I couldn’t afford – I wasn’t in a financial position to be able to leave employment. I was on 120, 130 thousand dollars a year and about $25,000 in super. I mean, and I thought – I was – you know, if I hadn’t have had those injuries, I would’ve been good in the workforce… There’s no way in the world that I would forego that future financial security and give up eight years of 125, 130 thousand a year, another eight years of super.”
The evidence also suggests that veteran’s accepted conditions became progressively more disabling after December 2011.
The Respondent’s contentions regarding the clause in the Deed preventing the veteran obtaining State Government employment for three years has already been dealt with. As previously noted, the relevant clause was limited to State Government work only, placed no limitation on employment with other levels of government in Queensland, State government agencies outside of Queensland and private sector organisations and lapsed in December 2014.
It is therefore open and appropriate for the Tribunal to find that the evidence discloses a demonstrated loss of earnings by the veteran as a direct result of his defence-caused incapacity, and only for that reason.
CONCLUSION
The veteran satisfies the requirements of s 23 of the Act and is entitled to an intermediate rate of pension.
DECISION
The decision under review is varied and remitted to the Respondent for appropriate action with the additional determination that SPYM is entitled to payment of an intermediate rate of pension effective from 27 June 2013.
I certify that the preceding 264 (two hundred and sixty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
....................[sgd]....................................................
Associate
Dated: 13 March 2018
Dates of hearing: 30-31 October 2017 Date final submissions received: 21 December 2017 Applicant: In person Counsel for the Respondent: Mr A Schatz Solicitors for the Respondent: Australian Government Solicitor
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