Stenchion and Repatriation Commission (Veterans' entitlements)
[2025] ARTA 91
•11 February 2025
Stenchion and Repatriation Commission (Veterans' entitlements) [2025] ARTA 91 (11 February 2025)
Applicant:Gayle Stenchion
Respondent: Repatriation Commission
Tribunal Number: 2023/6975
Tribunal:Senior Member Thomae
Place:Brisbane
Date:11 February 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 4 May 2022.
................................[SGD]...........................
Statement made on 11 February 2025 at 12:59pm
CATCHWORDS
VETERANS’ AFFAIRS – claim for special rate of pension –incapacity from war or war-caused disease – prevented from being able to continue to undertake remunerative work that she was undertaking – alone test – loss of salary or wages – dates of effect where application for review was made in time – decision under review set aside and substituted
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
Cases
Banovich v Repatriation Commission [1986] FCA 397
Flentjar v Repatriation Commission (1997) 48 ALD 1
Richmond v Repatriation Commission [2014] FCA 272
Repatriation Commission v Hendy [2002] FCAFC 424
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327
Wright v Repatriation Commission (2005) 144 FCR 302
Statement of Reasons
INTRODUCTION
On 20 September 2023, the applicant, Mrs Stenchion, made an application for review to the General Division of the Administrative Appeals Tribunal (‘the AAT’)[1] of the decision by the Veteran’s Review Board (‘the VRB’) dated 30 August 2023 to affirm the determination that Mrs Stenchion was not entitled to the disability pension at the Special Rate pursuant to s 24 of the Veterans’ Entitlement Act 1986 (Cth) (‘VEA’).
[1] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
By the VRB decision, it affirmed an earlier decision by the Repatriation Commission (‘the Commission’) made on 28 July 2022, by which the Commission had determined to continue Mrs Stenchion’s pension at the Intermediate Rate, with effect from 4 May 2019. In doing so, the VRB had determined that Mrs Stenchion did not qualify for the Special Rate of pension, pursuant to s 24 of the VEA.
Mrs Stenchion gave evidence at the hearing. Dr Naidoo, general practitioner, gave evidence.
The Tribunal admitted into evidence the exhibits which are listed in the annexure to these reasons.
BACKGROUND
Mrs Stenchion was born on 4 November 1957, and is now aged 66-years.
Mrs Stenchion served in the Australian Army for forty-six years from September 1976 to April 2022 as a soldier in the Royal Australian Army Ordnance Corps, achieving the rank of Warrant Officer Class 1. Mrs Stenchion was a permanent member of the Australian Army until April 2014 and then served in the Australian Army Reserves (‘Army Reserves’) until 2022, including periods of continuous fulltime service.
Mrs Stenchion had a long and successful career in the Australian Army in her trade as an operator administrator with postings across Australia, including at the 1st Recruit Training Battalion, the Royal Military College, Army Headquarters and 16th Aviation Brigade, receiving a Deputy Chief of Army Commendation for her service as well as other operational and long service awards[2].
[2] Exhibit R1 at T4.
In consequence of her military service Mrs Stenchion has several VEA-accepted medical conditions (‘the VEA-accepted conditions’):[3]
[3] Ibid. at T31.
(a)osteoarthritis affecting both hips;
(b)bilateral osteoarthritis of the knees;
(c)sensorineural hearing loss;
(d)bilateral pterygium
(e)tinnitus; and
(f)solar keratosis.
Mrs Stenchion has several medical conditions not accepted under the VEA (‘the Non VEA-accepted conditions’):
(a)lumbar spondylosis;
(b)thin membrane syndrome;
(c)right achilles tendinopathy;
(d)Grave’s disease; and
(e)bursitis/rotator cuff injury.
From July 2018, Mrs Stenchion had restricted hours and employment due to her accepted conditions impacting on her mobility, such that her capacity to conduct mandatory weapons training and physical training required waivers[4].
[4] Op. Cit. at T13.
By a determination dated 10 October 2019, a delegate of the Commission granted
Mrs Stenchion disability pension at the Intermediate Rate with effect from 24 May 2019.[5] The determination provided a lifestyle rating of 4 and an impairment rating of 55 points, combining to give a degree of incapacity of 90%.[5] Ibid. at T17.
In November 2021, the Military Employment Classification Review Board (‘MECRB’) determined that Mrs Stenchion was medical category ‘J51’ and that continued exposure to the rigours of military service posed an unacceptable risk to her long-term health and proposed a medical separation from the Australian Defence Force with effect 28 April 2022.[6]
[6] Exhibit R2 at T19.
On 4 May 2022,[7] Mrs Stenchion lodged an application for an increase in the rate of her pension. At that time, Mrs Stenchion was 64 years of age. Her application stated that her tinnitus was present every day, distracting her and reducing her concentration, her osteoarthritis of her hips caused her constant pain and restricted her movement, her osteoarthritis of her left and right knees caused her constant pain and restricted her movement and due to pain could only walk 100 metres before needing to rest. She stated that she ceased work on 28 April 2022 because she was medically discharged due to accepted conditions.
[7]Ibid.
By a determination dated 28 July 2022, a delegate of the Commission refused to increase Mrs Stenchion’s disability compensation payments because the incapacity assessment report dated 18 July 2022 identified anxiety, a non VEA-accepted condition, as a condition contributing to her inability to undertake remunerative employment and decided her compensation continued at the Intermediate Rate with effect from 4 May 2022[8]. The determination provided a lifestyle rating of 4 and an impairment rating of 55 points, combining to give a degree of incapacity of 90%.
[8] Ibid, at T22.
On 19 August 2022,[9] Mrs Stenchion applied to the VRB for a review of the 28 July 2022 determination, on the basis that ‘I believe there was a misinterpretation of the doctor’s comments. I have never been diagnosed with or suffered from any psychological or anxiety related issues.”
[9]Ibid. at T23.
Mrs Stenchion attached to the application for review a letter from Dr Naidoo, a general practitioner, that stated:
I wish to clarify the comments I made re her incapacity. Gayle has not been diagnosed with anxiety or any other psychological issues. She is not receiving treatment for anxiety by my or any other specialist. She is also not on any medication for anxiety. She is sometimes gets worried about her pterygium and solar keratosis which are her accepted conditions. Anxiety is not a condition that has resulted in her being unable to perform her work duties. I can categorically state that Gayle’s inability to perform her work duties are related to her accepted conditions only.
On 20 February 2023, Dr John Gavilan, psychiatrist, provided a report to the VRB that states:[10]
This is just to emphasise and confirm that Ms Stenchion does not have any form of mental health issues at the time of writing. She did not have any mental health issues during her time in the army, for which she served 46 years. She was discharged last year due to physical mobility issues (musculoskeletal disorders derived from the ADF). The reason for this letter of confirmation in regards to the absence of psychiatric disorders, is that as you are well aware, on completing your correspondence to DVA, the word ‘anxious’ was mentioned, I believe. This was taken out of context. The anxiety feelings relate to uncertainty in civilian life but does not represent any form of mental health disorder. This should not in any way count against her in terms of potential future career prospects. I will also be completing a DVA form to confirm this, ie. that she does not have any form of psychiatric disorders.
[10] Op. Cit. at T25
On 26 April 2023,[11] the VRB affirmed the decision which is now under review before the Tribunal.
[11]Ibid. at T29.
On 20 September 2023[12] Mrs Stenchion applied to the AAT for review of the VRB decision.
[12]Ibid. at T2.
On 9 October 2023, Dr Liu, orthopaedic surgeon, wrote to the AAT stating:[13]
This is to certify that I am Mrs Gayle Stenchion’s orthopaedic surgeon, having previously treated her for osteoarthritis of her hips and knees. I have previously performed right and left total hip replacements in Mrs Stenchion. I therefore unequivocally state that I have never treated Mrs Gayle Stenchion for anxiety. I have only ever treated her in my capacity as an orthopaedic surgeon.
[13] Ibid. at T30
The letter from Dr Liu was a response to a finding by the VRB that Mrs Stenchion was under management by Dr Liu for anxiety.[14]
[14] Ibid. at T29 at [24].
LEGISLATIVE SCHEME
Part 2 of the VEA deals with pensions, other than service pensions, for veterans and their dependents. Section 15 of the VEA allows a veteran to make a claim for an increase in pension.
Section 19 of the VEA provides the way in which a claim for a pension is to be determined. Relevantly, for the present application for review s 19(5B) of the VEA mandates that s 24 (‘Special Rate’) applies in assessing Mrs Stenchion’s eligibility for a pension.
It is uncontentious that Mrs Stenchion is currently entitled to a pension at the Intermediate Rate (s 23), so the Tribunal has not been required to consider s 23 of the VEA.
When determining an application for an increase in the rate of pension (in this case from Intermediate Rate to Special Rate), a veteran’s entitlement is determined in respect of any circumstances within the ‘assessment period”.
The assessment period starts on the day of the application for an increase in the pension was received until the date of the decision of the Tribunal.[15]
[15] See section 19(9) of the VEA; Richmond v Repatriation Commission (‘Richmond’) [2014] FCA 272 at [107]
Pursuant to s 19(6) of the VEA, if the Special Rate Pension is payable at some point during the assessment period, then, subject to s 24A of the VEA, Mrs Stenchion will become eligible for the Special Rate for the whole of the assessment period.[16]
[16]Repatriation Commission v Smith (1987) 15 FCR 327 (‘Smith’) supra, note [12].
Section 24 of the VEA provides for entitlement to the Special Rate Pension and relevantly states:
Section 24 Special rate of pension
(1) The section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on her or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on her or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than her or her incapacity from that war - caused injury or war - caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of her 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.
(2A) The section applies to a veteran if:
(a)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking her or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on her or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking her or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking her or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)section 25 does not apply to the veteran.
(2B)For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on her or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than her or her incapacity from that war-caused injury or war-caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3)The section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4)Subject to subsections (5), (5A) and (6), the rate at which pension is payable to a veteran to whom the section applies is $1,595.66 per fortnight.
(5)Subject to subsections (5A) and (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
General rate + (14 x Reduced daily pension amount worked out under section 115D)
(5A) If:
(a)section 115D applies to a veteran because of subsection 115D(1A); and
(b)the veteran is engaged in remunerative work of more than 8 hours, but less than 20 hours, per week as a result of undertaking a vocational rehabilitation program under the Veterans' Vocational Rehabilitation Scheme;
then, subject to subsection (6) of the section, the rate at which pension is payable to the veteran is the higher of the following amounts:
(c)the amount worked out under subsection (5) of the section;
(d)the amount under subsection 23(4).
(6)If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4), (5) or (5A) of the section, reduced in accordance with section 25A.
Section 28 of the VEA provides that in determining for the purposes of s 24(1)(b) of the VEA, whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, then regard must be had 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).
The reference in s 24 of the VEA to “remunerative work which the member was undertaking” is not to any particular job but should be read as a reference to the type of work the member previously undertook.[17]
[17] Banovich v Repatriation Commission [1986] FCA 397 at [23].
Section 120 of the VEA provides the standard of proof required; s 120(4) of the VEA requires that a veteran’s entitlement to an increased pension be decided on the decision-makers reasonable satisfaction.[18]
[18] Smith at [161].
ISSUES
The issue before the Tribunal is whether Mrs Stenchion is entitled for payment of the pension at the Special Rate. The Tribunal must determine:
(a)The assessment period;
(b)Whether Mrs Stenchion:
(i)made a valid application under s 15 of the VEA for an increase in the rate of pension that she was receiving (s 24(1)(aa));
(ii)had not yet turned 65 at the time her application was made (s 24(1)(aab);
(iii)was being paid the disability pension at a rate equal to or greater than 70% of the General Rate of pension (s 24(1)(a)(i));
(c)If the answer to (b) is yes, whether Mrs Stenchion is totally and permanently incapacitated, that is unable to work more than eight hours a week, due to service-caused incapacity alone (s 24(1)(b)); and
(d)If the answer to (c) is yes, whether Mrs Stenchion by reason of incapacity from her service-caused conditions, alone, is prevented from continuing to undertake remunerative work that she was undertaking; and
(e)If the answer to (d) is yes, whether Mrs Stenchion, by reason of being prevented from continuing to undertake remunerative work, suffered a loss of salary of wages, or of earnings, that she would not be suffering if she was free of that incapacity;
(f)If the answer to (e) is yes, from what date should Mrs Stenchion be paid the pension at the Special Rate.
EVIDENCE
The non-contentious evidence is that:
(a)The assessment period commenced on 4 May 2022[19] and runs until the date of the Tribunal’s decision.
(b)Mrs Stenchion validly applied for an increase in the rate of her pension pursuant to s 15 of the VEA.
(c)Mrs Stenchion had not yet turned 65 at the time of her application (she was 64).
(d)Mrs Stenchion was being paid the Intermediate Rate of pension by way of the 28 July 2022 determination that provided a lifestyle rating of 4 and an impairment rating of 55 points, combining to give a degree of incapacity of 90%.
[19] Exhibit R1 at T19.
Mrs Stenchion’s Evidence
Mrs Stenchion provided three statements outlining her work history and how her conditions affected her.[20] These statements included her submissions in support of her application for review and response to the Commission’s statement of facts issues and contentions.
[20] Ibid. at A2, A3 & A4
Relevantly, Mrs Stenchion states:
(a)She served proudly as a soldier for almost 46 years, and it was the only employment she has ever had.
(b)Her service involved a variety of instructional, regimental, and administrative positions.
(c)After 21 years full-time service she transferred to the Army Reserves on 8 November 1997.
(d)She served in the Reserves until her medical discharge on 21 April 2022.
(e)She has never been diagnosed with any mental health conditions and never has had any mental health conditions.
(f)References to anxiety and depression by Dr Naidoo arose to her normal reaction to abnormal events and not an indication of any mental condition.
(g)Radiology results in 2020 mentioned mild degenerative changes in her lumbar spine. She has had no incapacity associated with that condition during her service or during the assessment period. She has never been diagnosed with lumbar spondylosis.
(h)In 2021 she was diagnosed and treated for minor bursitis in her shoulder. It had no effect on her capacity for work. It recurred in a very minor way in June 2023 but had no effect on her capacity to work.
(i)The role she was undertaking prior to her medical discharge was not in the nature of being age restrictive nor did it require ongoing upgrading of qualifications.
(j)Her workplace was an environment needing extensive and appropriate experience.
(k)Age extensions (beyond 65) were given to people in her workplace.
(l)She had no thoughts of finishing work at the time of her MECRB determination and loved her work and being a soldier. She had ambitions to become the longest-ever serving female soldier and wanted at least 50 years’ service with the appropriate medallic recognition.
(m)She commenced making job applications in September 2022. The gap between her discharge in April and September was due to her taking some time with her family and investigating the job market to see how civilian job applications are done. She had never made an application for a job since joining the Army. She was seeking employment in a largely unfamiliar environment.
(n)She disputes that she is able to go up and down stairs and in discussion with Dr Christian she told him to consider the level of embarrassment she endured as a senior warrant officer in the Army when a lift malfunction caused her to have to negotiate the stairs at her workplace on her rear end.
(o)She avoids steps and stairs and in multi-story buildings she is terrified of the possibility of an emergency evacuation with inoperable lifts.
(p)Her normal work at the time of her medical discharge was effectively the regimental sergeant major for her last unit. She provided advice to inquiry officers regarding service for soldiers, staff checking inquiry reports and supporting senior officers.
(q)Her physical incapacities are such that she would have physical problems working in any ‘normal’ office type environment. Her physical limitations are such that office work would require substantial compromise by a prospective employer in work hours, responsibilities and location.
(r)She believes that she suffered economic loss immediately on discharge as she no longer earned any money from Army.
Mrs Stenchion quotes a Department of Veterans’ Affairs submission to the Productivity Commission that describes the skills attributed to a Warrant Officer Class One (her rank at discharge); [21]
[21] Op. Cit at A2 pp 280-281.
·Apply effective and ethical leadership across the organisation and in support of organisational direction
·Use advanced communication skills with an executive team and the organisation
·Oversee and supervise the use of organisational, social and recreational resources to enhance deep-rooted professionalism & positive spirit in the workplace
·Apply effective & ethical leadership across the organisation & in support of organisational direction
·Provide expert advice to the CEO & executive management to ensure staff are best pre-pared for organisational roles, including career management & tasks
·Use advanced communication skills within an executive team & the organisation
·Develop & lead specialist education in the organisation
·Analyse workplace development needs & provide advice to the executive for the ongoing development of all staff & teams
·Support & mentor senior supervisory & management staff
·Promote & ensure organisational tasks are executed lawfully, morally& ethically
·Ensure safety & equity standards are maintained across the organisation
·Prioritise & administer the strategic management of logistics & resources
·Monitor & oversee the organisation’s security & activities in complex & demanding environments
·Oversee & supervise the use of organisational, social & recreational resources to enhance deep-rooted professionalism & positive spirit in the workplace
1. A less-experienced me might have described this as civilian “waffle”. But it isn’t. It expresses my skill-set well, and in a way I could not have done myself. Because I never had a need to do so and never contemplated having the need. This is not a skill-set easily gained. Not all of these skills need to be applied in all postings all of the time. But they need to be there in the WO1. WO1 appointments vary in title and location, but they all include the basic need for that skill-set. Additionally, and very, very importantly, there are aspects to being a WO1 in any posting that are not at all obvious to most civilians, and not even truly reflected above.
In her application for an increase in disability pension,[22] Mrs Stenchion answers the question “which of your accepted disabilities have become worse since they were last assessed by the Department and in what way?” as follows:
[22] Op. Cit at T19.
Sensorineural Hearing Loss:
TV and radio volume turned up higher. Observed by my family and friends.
Tinnitus:
It is present every day, it is distracting, reduced concentration and causes discomfort, it interferes with my sleep.
Osteoarthritis L&R Hips:
Constant pain, I am restricted in movement, I have difficulty with fitness & weapons testing: getting down to ground level & up again.
Osteoarthritis L&R Knees:
Constant pain, More loss of range of movement. Uses a hand rail with stairs, Cannot kneel or squat, performing mandatory fitness & Weapons Test is becoming a huge issue due to difficulty getting to ground level.
Sensory Loss Walking:
Due to pain I can only walk 100 metres before I have to stop and rest.
On 30 November 2023, Mrs Stenchion made a statutory declaration that relevantly states:[23]
[23] Op. Cit. at A7.
I have never had a mental condition. I have never claimed to have a mental condition. I have never been diagnosed with any mental condition.
Referral to Dr Gavilan
The VRB concluded that my referral to Dr Gavilan was for a " legitimate medical reason" and stated so in para 27 of "Reasons for Decision ". (T Doc 29 page 230) Noting that at Primary level of the assessment for TPI assumed I had a psychological condition. My referral to Dr Gavilan was made by Dr Naidoo. She did not make the referral for any medical reason. She made it at my request. I had been advised by my Advocate to seek such a referral from Dr Naidoo to establish whether I had any diagnosable psychological condition/s or not. This was stated at the VRB hearing.
Dr Gavilan provided a written report 20 Feb 23 to Dr Naidoo confirming his non-diagnosis of a mental condition.
Other Conditions:
In our telephone conversation Mr Sime (acting for the Respondent) indicated I should clarify the VRB mention of "thin basement syndrome, spondylosis (not specified), right Achilles tendinopathy and Graves' disease."
I refer to the Medical Statement by Dr Naidoo regarding the Functional Rating Scale, made in Feb 2023. (T Doc 26 page 210)
Please note: Dr Naidoo has been my GP for the last 8 years.
Prior to completing that Statement Dr Naidoo had no prior knowledge of the Graves' Disease, or the Thin Basement Membrane Syndrome. As my GP she was aware of the right Achilles Tendinopathy and the Spondylosis.
Graves' Disease occurred in 2002, I don't recall what sign or symptoms I had other than it was very mild. It was resolved at that time with one course of Radioactive Iodine. Noting: I was told it usually affects people between the ages of 30 and 50 and is more common in women. Once the disorder has been correctly diagnosed, it is quite easy to treat. In some cases, Graves' disease goes into rem ission or disappears completely. Treatment time can vary greatly from almost overnight to many months or some years.
The Thin Membrane Basement Syndrome was mentioned in my final medical by the examining physician resulting from a urine test. He told me it was a possible name for minute traces of blood in urine, a common condition, likely hereditary, and of little consequence with no obviously outward signs or symptoms.
The Tendinopathy and the Spondylosis were minor and temporary conditions.
Dr Naidoo mentioned these conditions in the Statement because I informed her, they were mentioned in my final service medical and therefore the MECRB comments. (T Doc 19 page 105) In the Functional Rating Scale (T26 page 210) Dr Naidoo indicated clearly that these conditions had no impact on my ability to undertake any kind of paid employment based on a 38-hour working week.
The VRB at para 31 of "Reasons for Decision" stated "We are reasonably satisfied that these conditions have no impact on your ability to work. (T Doc 29 page 231)
Employment Applications
The VRB stated at para 38 of "Reasons for Decision" (T Doc 29 page 232). "We are not reasonably satisfied that these applications represent a genuine attempt to seek employment".
The VRB had only a small sample of the applications for employment I have made. The VRB was informed of this at the VRB hearing.
By way of service, I have attached several more applications for work with this Statutory Declaration.
After 46 years continuous service I took some time for myself and my family before seeking employment. I started applications in August 2022. Since then, and continuing, I have applied for almost 400 positions at an average of 25-26 per month. I have a record of all these applications.
These applications were made through Seek, Career One, Page Personnel, Evolve Scientific Recruitment, Indeed, Qld Government, Qld Police, and Healthscope. The roles applied for included administrative assistance roles, office manager, project manager, coordinator, personal assistant, executive assistance etc.
Letters of rejection (the lack of was mentioned by the VRB) is the norm these days. Mostly the result has been "Your application has been sighted", or "Your application is unlikely to proceed" on the employment agencies' on line portals. I will not speculate as to why none of my applications has proceeded to interview given my qualifications and experience.
At the hearing, Mrs Stenchion gave evidence under oath and in the Tribunal’s view gave honest answers to the questions asked of her.
On cross-examination, Mrs Stenchion was asked:
·Where she worked in 2019, she said “I was working at Enoggera Barracks” (Brisbane).
·At the time you were still living down the coast, she said, “oh yes, living up on the coast, yes”.
·You were working three days a week in 2029, she said, “yes”.
·What your role in 2019 encompassed day to day, she said “ok, my role in 2019 was the same as it was in 2022. I was in the same unit. First and foremost, I was a soldier. So everything that goes with being a soldier, maintaining level of fitness, being healthy, participating in activities. Second of that, I was the senior NCO in that organisation … administrative tasks and coordination tasks … my formal title was the coordinator for the Army Administrative Inquiries Directorate (DAAI)”.
·To explain how the DAAI worked, she said “our core business was undertaking Army inquiries, administrative inquiries, nothing criminal. We had a senior base of inquiry officers and inquiry assistants when we were given what they called a referral, that would be a referral to investigate or inquire into a certain matter … I was involved in retrieval of statements of service for people involved in those inquiries as well as any witnesses that was a coordination task. We ran a conference every year of which I was having responsibility of getting senior officers from all over Australia to congregate in the one place. ... Making sure that inquiry officers submitted their reports in a timely fashion, chase them up if they didn’t, a lot of photocopying, a lot of scanning a lot to do with documents.”
·You have put in your statement the examples of the jobs that you applied for since discharge are just examples and there are many others, she said “that’s right, there’s been multiple job applications. The VRB referred to a flurry that was probably because my advocate only saw fit to send in a few but also said there are a lot more should you require them. We subsequently then followed that up with a lot more examples of the jobs that I applied for.”
·This the jobs that you are applying for, firstly, they were jobs that you felt within your skills and experience you are capable of doing, she said “yes … There was some part-time there was some full-time. If I saw job, I thought yes I could do that, I would apply for it”.
·What I would then ask you is on the one hand you’re saying to the Tribunal and to the Commission that you’re not capable of doing any work at all, yet at the same time the evidence you have is that you are applying for roles which, as you just said are part-time or full-time, that seems a little bit inconsistent would you agree with me, she said “no, because I look at the other side. What if I hadn’t applied for any jobs? I would have been between a rock and a hard place. They would have said why aren’t you? … And plus the fact that I wanted to work, I did not want to leave the Army it was forced upon me”.
·You’re saying to the Tribunal I can’t work at all that’s what your case is to the Tribunal you’re saying Dr Vecchio says I can’t do any hours per week, that’s your case, and you would agree with that, she said “I hardly, you know, I would if I could do two hours, I would be happy. But I would find it. I could not foresee any prospective employer setting up the particular office space that I would require an accommodating that somebody that was perhaps only coming in to 3 hours a week. And then, you know, I would foresee myself in some sort of managerial role. How, how can you manage and supervise people given that little time … It’s like, well I’ve kept applying for jobs because if I don’t this can be held against me … But then I’ve also kept a private job because I generally want to work. I mean, I, I’ve only been fortunate that my time in recent years a lot of it’s been taken up with this. I miss working. I miss interacting with people. But that any even two or three hours a week, see but my doctors have recommended I don’t. But that’s not to say that I wouldn’t want to do it. I certainly don’t want to make my conditions degenerate quicker than what they are now, but that’s not what I want. Want to enjoy time you know, doing things with my grandchildren. So I’m also mindful of that. You know, everything would have to be within limitations for me.”
·When you’ve been applying for these jobs have you been disclosing in the application is your availability for your lack of ability for instance for full-time or are you just saying my very lengthy service and experience I think I’m qualified for the roles how have you gone about it, she said “well firstly as you know up till now I’ve never had to apply for a job, but never had a resume, I had to try and put a resume together, I went on probably also where most job applications now are all online, so I signed up with organisations like Career One, Seek and the like, and online applications they do not ask if you have any disabilities, and I imagine the reason for that is because it would be seen as discriminatory, so you could almost guarantee that if, if they did give leeway to put disabilities, your application is not going to get looked at.”
·You’ve given an answer or you made a comment to me a few minutes ago in terms of that your life has been tied up with dealing with this first some time, can you in terms of the way in which you’ve put together some of the responses you had, so for instance the response to the Commission statement of facts and contentions, that is a very detailed and very thorough document, can you tell the tribunal is that something that you put together yourself, she said “the majority of it I certainly had assistance from Phil, but see I have, I have previously had to do a lot of research, I have a mind to research, I like getting right down into the weeds so to speak.”
·The actual production of that document, the typing and that is something you did yourself, she said “not all of it, no I couldn’t, or wearing an apartment, so we don’t have the luxury of having an officer a study, so they had to be done sitting on a stool at the kitchen bench which I found quite uncomfortable, so had to rely heavily on Phil’s assistance for a lot of that typing.”
·Over the course of how many hours a day would you been spending on something like the document that was provided, she said “it would vary, I mean I couldn’t say specifically you know I sat there for three hours and did this, it was you know I talk a bit, I get up I’d move around I would then go and sit down on lay down and Phil would continue on, I didn’t have a clock, I wasn’t clock watching.”
·I would suggest to you that it must’ve taken just give the length of it in the detail involved it must have taken days to put together is that right, she said “it took some time yes but you know was spread over, there was some late nights there.”
·In terms of your experience as you said to be involved in army investigations have explored the ability of any roles that would involve working from home, she said “yes I did, there was a couple of jobs that I applied for where I think you have the ability to work from home, but as I said to that was one of the reasons that I did do a lot of work from home when I was in the army because you needed that face-to-face, it was just impractical.”
·But in terms of your ability to conduct research, put together a document working on a new areas of things that you’re not particularly familiar with, you’re still very able and capable of doing that, she said “oh there’s nothing wrong with my mind, fewer mobility issues that are the problem, I can still think clearly.”
·I just need to put to you in the terms of your ability to commute to a workplace there is some mention that you’re not able to drive as far as you used to be able to, she said “no I’m not”, and I think the example you gave earlier was used to be able to get from Robina to Enoggera but you needed breaks even in 2019, she said “that trip leaving at 330 in the morning would take me an hour and half because of breaks, I wasn’t comfortable just pulling off the side of the M1.”
·You’ll see under the answer, the last sentence says I’ve tended to become a recluse, which adds an element of depression, and what you’ve said to the tribunal today and what you said in a number of your document is in essence, look I’ve never been clinically diagnosed with any mental condition but I was understandably distressed to have lost my career, she said “yes okay, and the use of the word depression there is exactly I’m not saying I’m depressed, it’s saying you know the things that I enjoy doing I can no longer do, it would be like you could have a momentary bout of depression or felt depressed when your dog died, it’s not something I experience on a daily basis.”
Medical evidence before the Tribunal
Dr Ronald Christian
Dr Christian, in a written report, dated 2 August 2024, relevantly states:[24]
[24] Op. Cit. at R2.
Osteoarthritis of Both Hips:
Ms Stenchion had right total hip replacement in 2012 for what was deemed severe right hip osteoarthritis. She had left total hip replacement surgery in 2017, again for severe left hip osteoarthritis. Subsequent orthopaedic surgeon reviews, and investigations, have identified no hardware complications following the surgery.
Unfortunately after the right hip surgery and then subsequently the left hip surgery, Ms Stenchion developed right and left psoas tendinopathy. This is a relatively common condition to develop following total hip replacement surgery. Ultrasound scans have identified the psoas tendinopathy. Ms Stenchion had two steroid injections to the right psoas tendinopathy. The first of these led to quite long lasting improvement in pain. The second of these, in 2021, did not lead to any substantial improvement.
Ms Stenchion has ongoing right and left hip and groin pain. Right side is always more severe than the left. The left hip and groin pain is intermittent whereas the right hip and groin pain is nearly constant. There is significant right hip and groin pain with sudden or forceful right hip movements, or activities such as crossing her legs. There is decreased range of hip movement due to this pain.
Ms Stenchion describes her standing tolerance as around 20 minutes, and walking tolerance around 10 to 15 minutes. She is limited by right hip and groin pain and (much less so) left hip and groin pain, but also knee pain relating to knee osteoarthritis outlined below. She is not able to crouch or kneel, and this relates to both hips and knees. She is able to go up and down steps and stairs, though is very careful with that, and feels unsteady with this, relating to the hips and knees. She always uses a handrail, and avoid stairs wherever possible. She has difficulty moving from sitting to standing, and needs to push herself up with both hands, because of a feeling of relative weakness and pain at hips and knees. She has great difficulty getting up from the ground because of hip and knee pain and weakness. She does not run or jump. She does not go on a ladder. She avoids uneven ground. There is pain at the right hip with lying on the right side. This can make it hard to find a comfortable position to get off to sleep. Once Ms Stenchion is asleep she tends to sleep through.
Left and Right Knee Osteoarthritis:
Around five to ten years ago Ms Stenchion had the onset of pain at both knees. She has pain felt within the knee but more particularly at the anterior aspect of both knees, at and around the patella.
X-ray was undertaken in 2018. The radiologist reports mild to moderate osteoarthritis at the right knee and mild osteoarthritis at the left knee. MRI scan of the right knee was undertaken in 2021 because of pain and swelling at the knee. The radiologist reports early degenerative change at the medial tibiofemoral compartment. There were areas of grade 4 chondromalacia patellae. Orthopaedic surgeon opinion is that Ms Stenchion is likely to require bilateral knee replacements at some point in the future.
Ms Stenchion describes constant pain at both patellae, and she can have pain felt behind the patellae as well as above and below the patellae. There is always swelling around both knees. There is tenderness at both knees. The knees are very sore if knocked. There is decreased range of movement of both knees. There is a feeling of weakness at the knees, contributing to unsteadiness such that Ms Stenchion avoid stairs as outlined above.
Knee pain and dysfunction have an impact on Ms Stenchion's activity tolerances as outlined above in the hip section. Knee ache leads to limited sitting and driving capacity. After sitting for 30 minutes knee ache increases, to the point where it becomes uncomfortable and Ms Stenchion then needs to stand and stretch and walk briefly. She describes her driving tolerance as around 30 to 45 minutes before she needs to stop and stretch and walk for a brief period due to the knee ache and swelling.
Bilateral Pterygium:
Ms Stenchion has had issues with red eyes for many years. Her vision is unaffected. The redness of the eyes is always present, though does vary in severity. When Ms Stenchion was working, she found that her eyes would get irritated and sore after one to two hours of looking at a computer screen. Now that she is not working, and thus is not undertaking prolonged computer work, this eye irritation has resolved. Ms Stenchion has eye drops, which relieve that irritation, but these are now not required on a usual day-to-day basis.
Optometrist vision assessment in 2017 noted visual acuity of 6/6 in the right and left eye.
Solar Keratosis:
Ms Stenchion has had numerous skin lesions removed surgically and frozen off by nitrogen. She is very careful now with her sun exposure. None of her skin lesions have had an impact on work capacity, other than there now being a need to minimise sun exposure.
…
Lumbar Spondylosis:
Ms Stenchion has had occasional episodes of low back pain. She cannot recall any major accidents leading to severe low back pain.
In 2021 she had MRI scan of the lumbar spine. This was not because of low back pain, but rather was for investigation of her right leg pain. The radiologist reports no evidence for significant spinal canal stenosis. There are mild degenerative changes with broad-based disc bulging at the lumbar levels. There is no compression of any nerve root.
Ms Stenchion says that she does not have low back pain most days or even most weeks. If she overdoes things physically she may have low backache. This does not occur now on any regular basis. She does not describe radiating nerve like leg pain or altered leg sensation. Low back pain is not a barrier for sitting or standing or walking, with limits for these activities being due to hip and knee pain as outlined above.
…
Examination:
Ms Stenchion attended the interview with her husband Phil. Ms Stenchion was a very pleasant and cooperative woman. There was good eye contact and easy rapport. She did not present as anxious nor depressed. No inconsistencies were seen. Height was measured at 165 cm and weight 83 kg.
There was obvious discomfort and difficulty with moving from sitting to standing, with Ms Stenchion needing to push off with both hands. She walked with a somewhat slow stiff gait, which appear to relate to hips more than knees.
Speech and thought form and thought content was appropriate. Ms Stenchion did not appear fatigued. There was no cognitive dysfunction noted.
Ms Stenchion sat for 35 minutes during the interview, and then stood for a few minutes before sitting again. By the end of that 35 minutes, she did appear in some discomfort, shifting in her seat.
Cervical spine had an excellent range of movement, with near full flexion and extension, and left and right rotation to around three quarters of the expected range. There was no cervical spine tenderness nor paraspinal muscle spasm or guarding. Upper limb reflexes were brisk and equal. Upper limb sensation was intact. Upper limb power was 5/5.
Right and left shoulders had pain-free full range of movement, other than mild reduction in right shoulder external rotation. Right shoulder power was 5/5. There was no painful arc of shoulder movement. There was no right shoulder bony nor soft tissue tenderness. Rotator cuff stress tests were negative. Biceps tests were negative.
Lumbar spine had good range of movement, with hands to mid shins on forward flexion. There was no lumbar spine tenderness. There was no lumbar paraspinal muscle spasm.
Lower limb reflexes were present and equal. Lower limb sensation was intact.
There was tenderness at the right hip, corresponding to the psoas tendon. There was tenderness at the right groin. There was no evidence of hernia. Resisted right hip movements led to right hip pain. Right hip movements were reduced due to right hip pain, to around half the expected range. Right hip power was difficult to assess due to testing quickly leading to right hip pain. There was no indication of right hip instability. There were similar changes at the left hip, though to a much less significant degree.
Right knee and left knee were both swollen. There was no redness nor warmth. There was tenderness at the medial and lateral joint lines. There was tenderness with patellar compression. There was tenderness at the soft tissues above and below the patella. Knee ligaments were stable. Meniscus test was negative. There was palpable and audible crepitus with knee movement. Knee power was 5/5.
There was no tenderness nor swelling at the right or left Achilles tendon. Right and left ankles had pain-free full range of movement.
There was redness at both eyes. There was slight watering of both eyes. Visual acuity was not formally assessed, but Ms Stenchion said that she had no difficulty with vision (she does wear spectacles for reading).
…
5.2 Please outline the Applicant’s work history as reported to you by the Applicant, including her vocational, trade and professional skills and qualifications. In your opinion, which kinds of remunerative work might the Applicant reasonably
be able to undertake?
Occupational history is outlined in brief in the “Occupational History” section of the
report.
Purely in terms of vocational ability, and recognising that I am not a vocational expert, it appears to me that Ms Stenchion would be well suited to an office administration or management level role.
Dr Christian did not give evidence at the hearing.
Dr Phillip Vecchio
In a letter dated 15 November 2022, Dr Vecchio, a rheumatologist, states:[25]
Thank you for the opportunity of meeting this 65-year-old now retired ex-military member with treated hypertension, dyslipidaemia and replaced hypothyroidism.
Her major issues are lower limb osteoarthritis caused by the cumulative micro trauma military service, culminating in bilateral total hip replacements and now, likely in the future, bilateral knee replacements. All her symptoms are mechanical in nature and attest to the service-associated degeneration.
I have filled in the form as she is obviously unable to work and never will be able to as a consequence of her chronicity and permanence of these conditions.
[25] Op. Cit. at A5.
In the attached medical statement, also dated 15 November 2022, Dr Vecchio states that in his opinion Mrs Stenchion’s VEA-accepted conditions:
(a)are of such a nature as, alone, to render her incapable of undertaking remunerative work for periods aggregating no more than 8 hours per week;
(b)are of such a nature that, she could not be expected to actively seek work because, in reality that if work was obtained, incapacity from her disability would make it impractical for her to perform the work; and
(c)made her permanently totally and permanently incapacitated.
In a report dated 18 September 2024, Dr Vecchio states:[26]
[26] Ibid. at A8.
Thank you for sending Gayle to me, almost 67, retired after decades in the military. I am reviewing Gayle primarily with respect to her capacity to be employed, solely on the basis of the considered bilateral hip and knee conditions.
1. Right then left hip replacement some years ago, complicated by inadequate range of motion restoration and psoas tendinopathy.
2. Bilateral knee osteoarthritis, with ongoing mechanical symptoms.
3. There is extensive quadriceps wasting bilaterally, testimony to her reduced lower limb use, which negatively influences her capacity to static stand and sit, as well as increased falls risk. It also compromised her ability to use a sit/stand desk, indispensable to any office environment.
4. Her gait (observed) illustrates fixed flexion posturing of the hips and knees, so this is another reason the workplace is an appropriate.
5. The combined functional deficits of these includes ambulation restricted to level surfaces and well as for short distances, limited standing and sitting tolerance to no more than 15-20 minutes and contraindications to load bearing, stair negotiation, squatting and kneeling. A sit-stand desk will not solve this issue as the positional change required also amplifies the patellofemoral discomfort.
6. Obvious significant difficulties within the domestic, social and task environment, and inability to be productive within any standard workforce due to the restrictions that would need to be applied. I regard her as unemployable.
It is my opinion that Gayle would be:
1. Incapable of working at all, and I do not envisage that she would pass a fitness-to-work assessment, particularly in the environments of risk to self and others;
2. Subject to many constraints, restrictions and caveats, so as to (unfortunately) restrict her usefulness and functional outcomes and predictions;
3. Restricted with respect to commuting to and from work;
4. Unlikely to obtain any employment on the basis of these difficulties, employers recognising the restrictions being owners and reductive productivity and therefore practical business sense. This also needs to be considered when theorising the breadth of employability of a subject with incurable arthritis and its dominoing consequences in lower limb function. There is nil practical chance of employment for 8, let alone, more than 8 hours per week.
5. Gayle also has age- consistent lumbar spondylosis and this, on its own, would not hold any contra-indication to employment.
6. Dr Christian’s 15 August 2024 report also emphasises the difficulties Ms Stenchion exhibits with her knees and hips, and paints a picture of significant disability and work contraindication. I am uncertain how a calculation of 12 hours per week is justified, given the above consideration.
I emphasise, as I did in 2022, that Ms Stenchion could not work eight hours or more, and in fact, it is my opinion that she should not be in the workforce at all, and is and will be unemployable from both a physical and practical perspective.
Dr Naidoo
Doctor Vinodha Naidoo, a general practitioner, in a DVA medical impairment assessment, dated 1 December 2017, provides that Mrs Stenchion has osteoarthritis affecting both hips and knees, with pain in all of her joints all of the time, requires both hand to rise from the sitting position, has a restricted gait compared with her peers, her walking distance on level ground without pain is restricted to 300 meters and it is painful to walk up and down stairs.[27]
[27] Exhibit R2 at T7.
On 15 August 2019, Dr Naidoo completed an incapacity assessment that provided Mrs Stenchion was capable of working in her current role for a total of 16 hours per week across two days[28]: Dr Naidoo listed the main conditions for Mrs Stenchion’s reduced capacity as osteoarthritis hips and knee 50%, overweight due to pain 10%, depression and anxiety 10%, pterygium 10% and solar keratosis 10%.
[28] Ibid. at T15.
On 18 July 2022, Dr Naidoo, completed an incapacity assessment that provided Mrs Stenchion was permanently incapable of working[29]: Dr Naidoo listed the main conditions for Mrs Stenchion’s incapacity as deterioration of previous accepted conditions of osteoarthritis hips and knee, anxiety, pterygium and solar keratosis.
[29] Ibid. at T22.
Dr Naidoo, in a letter dated 18 August 2022, states:[30]
I wish to clarify the comments I made re her incapacity. Gayle has not been diagnosed with anxiety or any other psychological issues. She is not receiving treatment for anxiety by my or any other specialist. She is also not on any medication for anxiety. She is sometimes gets worried about her pterygium and solar keratosis which are her accepted conditions. Anxiety is not a condition that has resulted in her being unable to perform her work duties. I can categorically state that Gayle’s inability to perform her work duties are related to her accepted conditions only.
[30] Ibid. at T23.
Dr Naidoo gave evidence in the hearing and was in the Tribunal’s opinion a credible witness who gave honest answers to the questions she was asked.
Dr Naidoo’s evidence was that:
·Mrs Stenchion did not have any medical conditions other than her DVA accepted conditions that incapacitated her for work.
·She had known Mrs Stenchion for ten years and had not treated her for anxiety, depression or any other mental illness.
·The reference to anxiety in her report was that Mrs Stenchion gets a bit anxious when her face gets red and inflamed from her condition of solar keratosis and her eyes get red from her condition of tergum.
·In her 2019 assessment of Mrs Stenchion’s capacity to work she determined it was 16 hours per week over three days, but Dr Naidoo thought after working 3 full days and spending about four hours each day driving it proved too much for Mrs Stenchion’s knees from the pain from driving.
·To her knowledge Mrs Stenchion did not have lumbar spondylosis. She had an episode of lumbar back pain following her hip replacement surgery but Dr Naidoo did not see her for back pain before or after that.
The Commission did not cross-examine Dr Naidoo.
CONTENTIONS
Mrs Stenchion’s Contentions
53.Mrs Stenchion contends that she should be entitled to Special Rate as her accepted conditions alone prevent her from remunerative work.
54.She relies on the evidence of Dr Vecchio and Dr Naidoo to her incapacity to work because of her VEA-accepted conditions.
55.Weight should be given to the report of Dr Vecchio as during his assessment of Mrs Stenchion, he went into her office environment and asked her questions.
56.Dr Christian suggest that she could work in a hypothetical office with a benevolent employer who would be happy to have her come in for a few hours per week. Dr Christian’s opinion that she could work up to 12 hours per week needs to take travel time into consideration. The suggestion that a sit/stand desk might assist did not take into account the workplace capacity report by her last director and that had been tried without success.
Commission’s Contentions
The Commission accepts that:
(a)Mrs Stenchion had not yet turned 65 when the claim was made, and her degree of incapacity has been determined as at least 70%;[31]
(b)Mrs Stenchion satisfies s 23(1)(b) of the VEA and is entitled to the Intermediate Rate of pension;[32] and
(c)Mr Dube, told the Tribunal the Commission did not press on the question of Mrs Stenchion having the conditions of anxiety or depression and accepts that Mrs Stenchion is not suffering any mental health conditions that prevent her from undertaking remunerative work.
[31] Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) at [4.7].
[32] Ibid. at [4.12].
The Commission contends that Mrs Stenchion does not satisfy s 24(1)(b) of the VEA “because the Applicant’s incapacity from her VEA accepted conditions alone is not of such a nature as, of itself, to render her incapable of undertaking remunerative work for periods aggregating more than 8 hours per week in the kinds of employment for which she has the necessary vocational, trade and professional skills, qualifications and experience”[33].
[33] Ibid. at [4.8].
The Commission relies on the evidence of Dr Christian, occupational physician, who opines in a report dated 2 August 2024 that Mrs Stenchion has the capacity for suitable part-time light work, up to 12 hours per week and her Non VEA-accepted condition of lumbar spondylosis is likely to present difficulty for return to full work.
The Commission contends, insofar the opinion of Dr Vecchio differs to Dr Christian, the evidence of Dr Christian should be preferred because Dr Vecchio has not had regard to the entirety of the medical evidence before the Tribunal. Specifically, that Dr Vecchio reviewed Mrs Stenchion solely on the basis of the bilateral hip and knee conditions and this limits the weight that should be afforded to his opinion as it related to consideration of the ‘alone test’.
The Commission asks the Tribunal to give weight to Dr Christian’s specialty as an occupational physician as more appropriately qualified to assess fitness for work than a rheumatologist.
The Commission contends that Mrs Stenchion’s age and lack of civilian work experience contributes to her incapacity to obtain remunerative work.
At the hearing, Mr Dube contended that:
·The evidence as a whole is not something you say that there is no capacity at all for Mrs Stenchion to work which is what Dr Vecchio says.
·Mrs Stenchion had demonstrated by her activities in preparing the various materials that she put together and her presence during the course of the hearing for over two hours her ability.
·Mrs Stenchion’s evidence was that she would like to work if she could, but she is of the view that she’s physically unable to work. That is at odds with saying that someone is genuinely seeking to obtain employment and in consideration of s 24 of the VEA.
·Greater weight should be given to the evidence of Dr Christian.
·The fact that Mrs Stenchion’s lumbar spondylosis is non-symptomatic of itself does not exclude it from consideration.
CONSIDERATION
Assessment Period
The assessment period is not in contention. The Tribunal determines pursuant to s 19(9) of the VEA the assessment period commenced on 4 May 2022 being the date Mrs Stenchion’s claim for an increase in pension was received by the Commission and ends upon final determination of the matter.
Section 24(1)(aa), (aab) and (a) of the VEA
The Tribunal notes that the Commission does not dispute that Mrs Stenchion satisfies ss 24(1)(aa), (aab) and (a) of the VEA.
The Tribunal is satisfied on the basis of the evidence before it that Mrs Stenchion:
(a)Made a valid claim for an increase in pension under s 15 of the VEA, therefore she met the requirements of s 24(1)(aa) of the VEA from 4 May 2022.
(b)Had not yet turned 65 when the claim was made, therefore she met the requirements of s 24(1)(ab) of the VEA from 4 May 2022.
(c)Had received a determination that her degree of incapacity from her war-caused injuries or disease or both, is greater than 70% by the decision of the Commission made on keeping her rate of disability pension at the Intermediate Rate, with effect from 4 May 2022. Therefore, she met the requirements of s 24(1)(a) of the VEA from 4 May 2022.
The Tribunal is satisfied that during the assessment period Mrs Stenchion satisfied the requirements of s 24(1)(aa), (aab) and (a) of the VEA.
Section 24(1)(b) of the VEA
In Wright v Repatriation Commission[34] Hill J explained the interpretation of s 24(1)(b) of the VEA “goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then s 24(1)(b) is satisfied.”
[34] (2005) 144 FCR 302 at [15]
The evidence before the Tribunal shows that Mrs Stenchion’s skills, qualifications and work experience is such that she might reasonably undertake employment of the kind that includes roles in light, sedentary administrative and management roles. The Tribunal finds that those kinds of remunerative work are relevant to determining the extent to which Mrs Stenchion’s accepted conditions have impaired her capacity to work in accordance with s 28(c) of the VEA.
Mrs Stenchion contended that due to the incapacity caused by her tinnitus, sensorineural hearing loss, bilateral osteoarthritis of her hips and knees, she is unable to undertake remunerative work for which she was engaged in or that she might reasonably undertake for periods aggregating more than 8 hours per week. Mrs Stenchion relies on the evidence of Dr Naidoo, general practitioner and Dr Vecchio, rheumatologist.
The Commission in contrast contends that the incapacity caused by Mrs Stenchion’s VEA-accepted conditions is of such a nature as, of itself alone, to render her incapable of undertaking remunerative work periods aggregating more than 8 but less than 20 hours per week. The Commission relies on the evidence of Dr Christian, occupational physician. The Commission contends that Mrs Stenchion does not satisfy the requirements of s 24(1)(b).
Analysis of Medical Evidence
Lumbar Spondylosis. The Commission relies on a Non VEA-accepted condition of lumbar spondylosis as a medical condition that precludes Mrs Stenchion being eligible for Special Rate. In Dr Christian’s report he states:
Lumbar Spondylosis:
Ms Stenchion has had occasional episodes of low back pain. She cannot recall any major accidents leading to severe low back pain.
In 2021 she had MRI scan of the lumbar spine. This was not because of low back pain, but rather was for investigation of her right leg pain. The radiologist reports no evidence for significant spinal canal stenosis. There are mild degenerative changes with broad-based disc bulging at the lumbar levels. There is no compression of any nerve root.
Ms Stenchion says that she does not have low back pain most days or even most weeks. If she overdoes things physically she may have low backache. This does not occur now on any regular basis. She does not describe radiating nerve like leg pain or altered leg sensation. Low back pain is not a barrier for sitting or standing or walking, with limits for these activities being due to hip and knee pain as outlined above.
…
Lumbar spine had good range of movement, with hands to mid shins on forward flexion. There was no cervical spine tenderness nor paraspinal muscle spasm or guarding. Upper limb reflexes were brisk and equal. Upper limb sensation was intact. Upper limb power was 5/5.
…
The only non-accepted condition that is likely to present difficulty for return to full work as a soldier is the lumbar spondylosis. There is widespread mild degenerative change at the lumbar spine. Ms Stenchion does have low backache if she overdoes things physically. It is likely that Ms Stenchion would have a recurrence of frequent and potentially severe low back pain with the physical activity required for full soldiering duty, including physical training and weapons training. This is not something that can be assessed as a certainty. There is really little if any low back pain currently.
However Ms Stenchion’s level of physical activity now is very much less than that which would be required for normal duties in the Australian Army. Given the degree of degenerative change noted in the lumbar spine, and given Ms Stenchion’s history of low backache if she does physically overdo things, I do see it as likely that lumbar spondylosis would be a contributing factor towards incapacity to undertake normal duties as a soldier.
Dr Naidoo, her longstanding general practitioner does consider that she has been diagnosed with lumbar spondylosis[35].
[35] Exhibit R2, see Dr Naidoo medical statement at T26.
Dr Vecchio says that she has lumbar spondylosis consistent with her age.
Dr Christian’s evidence, at its highest, is that it does not affect her now and may impact on her in the future, with the physical demands of being a soldier in the Australian Army. He does not opine as to any impact on her undertaking a sedentary administrative or managerial role.
The Tribunal is reasonably satisfied that Mrs Stenchion has been diagnosed as having lumbar spondylosis as a medical condition and that condition must be considered under s 24 of the VEA. It notes that this diagnosis of lumbar spondylosis is not in accordance with the diagnostic standard in the Commission’s statement of principles, rather on the opinion of Dr Vecchio and Dr Christian.
The Tribunal is satisfied that Mrs Stenchion is not prevented from remunerative work because of lumbar spondylosis or lower back pain because her unequivocal evidence, supported by the evidence of Dr Naidoo and Dr Vecchio, is that it does not.
Dr Christian’s evidence insofar as it differs from Dr Vecchio in respect to lumbar spondylosis is not relevant as it does not go beyond an opinion in respect to how lumbar spondylosis impacts on Mrs Stenchion capacity as a soldier in the Australian Army.
Mental Health Conditions. The Tribunal is reasonably satisfied that Mrs Stenchion has no mental health conditions that prevent her from remunerative work because the overwhelming and compelling medical evidence is that she does not.
Appropriately, the Commission did not continue to press any mental health conditions in respect of Special Rate eligibility.
Other Non VEA-accepted VEA conditions. The Tribunal is reasonably satisfied that Mrs Stenchion’s other Non VEA-accepted conditions of thin membrane syndrome, right Achilles tendinopathy, Grave’s disease, bursitis/rotator cuff injury and hypertension do not prevent her from remunerative work because the medical evidence unequivocally supports that conclusion.
VEA-accepted conditions. Not having the benefit of Dr Christian and Dr Vecchio giving evidence at the hearing and being subject to cross examination, the Tribunal must weigh their respective reports and other evidence in determining whether Mrs Stenchion’s VEA-accepted conditions, alone, prevent her from remunerative work:
(a)Sensorineural hearing loss. Dr Christian says that Mr Stenchion’s is not suited to a work role where she would be working in a busy noisy social environment, and it is important she does not work in any role where there is excessive exposure to noise or where there is a safety critical requirement for full normal hearing. The Tribunal accepts Dr Christian’s evidence in this respect.
(b)Osteoarthritis affecting both hips. Mrs Stenchion’s bilateral hip replacements have resulted in psoas tendinopathy meaning that she has limited capacity for standing, walking. She can not run, jump, crouch or kneel. She has difficulty getting up from the ground and discomfort from moving from sitting to standing. Dr Christian says that she would have difficulty with any role with an absolute requirement for prolonged or frequent standing or walking and moving from sitting to standing. This is consistent with the evidence of Dr Vecchio and Dr Naidoo and the Tribunal accepts the evidence in this respect.
(c)Osteoarthritis affecting both knees. She has pain with prolonged sitting, standing, walking and driving. Dr Christian says that she is not suited to a role where there is an absolute requirement for prolonged sitting, standing, walking or driving. This is consistent with the evidence of Dr Vecchio and Dr Naidoo and the Tribunal accepts the evidence in this respect.
Based on the evidence before the Tribunal, it is satisfied that the nature of Mrs Stenchion’s incapacity from her war-caused injury and/or disease, being her tinnitus, sensorineural hearing loss, bilateral osteoarthritis of her hips and knees, is of itself alone sufficient to render her incapable of undertaking full-time remunerative work. The issue in dispute is the extent to which that incapacity renders Mrs Stenchion unable to undertake remunerative work.
Capable of remunerative work for more than 8 hours per week. The evidence of Mrs Stenchion’s capacity to undertake remunerative work for 8 hours or more per week is conflicting.
Dr Christian opines that Mrs Stenchion has capacity for:[36]
It is my assessment that, with regard to the accepted conditions alone (in other words I am assessing the situation as though there were no medical conditions other than the accepted conditions), it is my view that Ms Stenchion does have capacity for suitable part-time light work, up to 12 hours per week. She would need to be in a sedentary to light role. The role would need to be one undertaken mainly seated, but with ability to have reasonably frequent though short breaks to stand and stretch and walk. Provision of a sit/stand workstation would assist with this. There is hip and knee pain with prolonged sitting and standing and walking. The role should not be a call centre role. The role should involve Ms Stenchion working in a relatively quiet office environment. Work on three on consecutive days, for example Monday and Wednesday and Friday, at four hours each day, within these parameters, is well within Ms Stenchion's physical capacity. Sedentary to light work, with part-time hours, of this nature would not involve Ms Stenchion undertaking more than she can manage with now on a usual day-to-day basis. It is not expected to lead to an increased risk of a major flare of pain nor further injury.
[36] Exhibit R1 at R2.
In its briefing letter, solicitors for the Commission provided Dr Christian the MECRB documents including the workplace capacity report by her supervisor[37]. There is a reference in Dr Christian’s report of ‘Department of Defence – 2017 – 2022’ file material available but no direct acknowledgement of any consideration in the report of the workplace capacity report.
[37] Op. Cit. at R1.
This is relevant because the work capacity report raises the use of a sit/stand desk and its limited utility:[38]
Provide an assessment of the member’s ability to carry out their expected workplace duties in their current work environment
While the member has done an outstanding job, her ability to stay on task has diminished in the last twelve months. Continuing pain and instability has precluded her from seeking alternate work positions. This has meant any mitigation strategies (eg: standing desk etc) have not been fruitful. WO1 Stenchion has had to reduce her days from around 200 in 2018 to below 150 in 2021.
[38] Ibid. at T19.
Dr Naidoo says that Mrs Stenchion is incapable of working at all.
Dr Vecchio says that Mrs Stenchion is incapable of work at all because Mrs Stenchion has extensive wasting of her bilateral quadriceps from her reduced lower limb use which negatively influences her capacity to static sit and stand as well as increasing her fall risk. He states that it also compromises her ability to use a sit/stand desk which he considers indispensable to any office environment. Additionally, Dr Vecchio identifies that Mrs Stenchion’s gait illustrates fixed flexion posturing of the hips and knees making an office workplace inappropriate. He opines that the combined functional deficits includes “ambulation restricted to level surfaces and well as for short distances, limited standing and sitting tolerance to no more than 15-20 minutes and contraindications to loadbearing, stair negotiation, squatting and kneeling. A sit-stand desk will not solve the issue as the positional change required also amplifies the patellofemoral discomfort … I regard her as unemployable.”[39]
[39] Ibid. at A8.
Dr Christian did not take into account the work capacity report that considered Mrs Stenchion capacity to work in an office environment and the Tribunal gives greater weight to the opinion of Dr Vecchio who conducted an onsite inspection of Mrs Stenchion’s work environment consistent with the types of remunerative work she is capable of and gave consideration to her functional deficits from her accepted conditions. The Tribunal was not persuaded that Dr Vecchio’s opinion should be given less weight due to his speciality not being an occupational physician and was reasonably satisfied that he had the appropriate qualifications and experience to give an opinion on Mrs Stenchion’s capacity to work.
The Tribunal does not accept the Commission’s contention that Dr Vecchio’s medical opinion should not be given no weight by reason of it being limited to the VEA-accepted conditions because the Tribunal has found that it is only the accepted conditions preventing Mrs Stenchion preventing her from remunerative work and Dr Christian, in determining whether Mrs Stenchion is capable of remunerative work for more than 8 hours, similarly limits his opinion to the VEA-accepted conditions.
The Tribunal also gave weight to the opinion of Dr Naidoo who had the appropriate qualifications and experience to give an opinion on Mrs Stenchion’s capacity to work.
Having consideration to the medical evidence and other evidence as a whole, the Tribunal does not accept Dr Christian’s opinion that Mrs Stenchion is able to work 12 hours per week in light, sedentary office administrative and managerial roles.
Based on the medical evidence and evidence and contentions of Mrs Stenchion, the Tribunal finds that for the purpose of s 24(1) of the VEA, Mrs Stenchion’s tinnitus, sensorineural hearing loss, bilateral osteoarthritis of her hips and knees, of itself alone render her incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
Section 24(1)(c) of the VEA
In Repatriation Commission v Richmond[40] (‘Richmond’), the Full Federal Court provided that s 24 (1)(c) of the VEA has two limbs:
52.…The first limb, which is capable of being informed by s 24(2)(b) requires a causal connection between the veteran’s war-caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in.
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 a result of his or her war-caused incapacity.
[40] [2014] FCAFC 124
In Flentjar v Repatriation Commission[41], Branson J provided four questions to interpretation of s 24(1)(c) of the VEA. This methodology provides assistance but does not override the obligation of the Tribunal to apply the correct statutory interpretation in the circumstances before it.[42]
[41] (1997) 48 ALD 1 at [4]-[5]
[42] Repatriation Commission v Hendy [2002] FCAFC 424 (‘Hendy’) at [37]
Firstly, the nature of the remunerative work. In Hendy, the Full Federal Court in considering s 24 of the VEA stated:
The tribunal’s task was to assess what the veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
Mrs Stenchion has never had any remunerative work in her working life other than service in the Australian Army. Her experience, qualifications and skills gained from 46 years of service were broad ranging and her trade of operator administrator make her suitable for a wide range of civilian roles in administration and management. This is consistent with the DVA submission to the Productivity Commission.
Secondly, the evidence before the Tribunal, as set out above, makes it clear that Mrs Stenchion ceased work after her medical discharge from the Australian Army on 28 April 2022 as she was prevented[43] from continuing to undertake work due to her VEA-accepted conditions.
[43] As to ‘prevented’ see Richmond at [70], [77]-[78]
The Tribunal is satisfied that the medical evidence, evidence and contentions supports the proposition that Mrs Stenchion’s VEA accepted conditions met the prevention requirement of s 24(1)(c) of the VEA during the assessment period.
Thirdly, the ‘alone test’ as explained in Richmond:
The first limb provides that to qualify for the special rate, the preventative effect must arise form the veteran’s war-caused incapacity alone and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.
The Commission contends that Mrs Stenchion’s Non VEA-accepted condition of lumbar spondylosis precludes her from meeting the ‘alone test’.
Based on the medical evidence above, the Tribunal does not accept that lumbar spondylosis was a preventative factor in Mrs Stenchion’s incapacity to undertake remunerative work.
Additionally, the Commission contends that Mrs Stenchion’s age and lack of civilian work experience contributes to her incapacity to obtain remunerative work. That contention is made without any evidence or authority and made as a generalised preventative factor that should be taken into account.
The Commission’s contention that Mrs Stenchion’s 46 years of service in the Australian Army, rising to the rank of Warrant Officer Class One means that her lack of civilian experience is a preventative factor is at odds with the Department of Veteran’s Affairs own submission to the Productivity Commission. That explains the broad range of skills and experience someone obtains by their service at that rank. To say, without evidence or authority, that service in the Australian Army is a preventative factor from obtaining civilian employment is not given any weight by the Tribunal.
The Tribunal has considered age and lack of civilian work experience and finds that for the type of remunerative work, namely roles in administration and management, age and lack of civilian work experience are not preventative factors in the circumstances.
Fourthly, has Mrs Stenchion, having been prevented from continuing to undertake her previous work, has she suffered a loss of salary, wages or earning that she would not be suffering if she were free of the incapacity.
The MECRB determination, the subsequent medical discharge and Mrs Stenchion’s clear evidence of her intention to continue to serve in the Australian Army, make it clear she would have continued to be gainfully employed in her usual remunerative employment but for VEA Accepted Conditions preventing her from doing so.
The Tribunal is reasonably satisfied based on Mrs Stenchion’s evidence that she has suffered a loss of salary, wages or earning that she would not be suffering if she were free of her VEA-accepted conditions.
Finally, the Tribunal is satisfied that Mrs Stenchion met the requirement of s 24(1)(c) of the VEA for the entire assessment period.
The date Mrs Stenchion to be paid Special Rate
The parties did not provide any submissions in relation to the date Special Rate should commence if Mrs Stenchion was eligible.
The effective date of a decision by the Tribunal for an increase in pension is subject to s 177 of the VEA.
The VRB made its decision on 30 August 2023 and was received by Mrs Stenchion on 18 September 2023[44].
[44] Exhibit R1 at T2.
Mrs Stenchion’s application for review was filed in the AAT on 20 September 2023, which was inside the three-month timeframe prescribed for making such an application.
Section 177(2)(a) of the VEA states that the Tribunal may approve payment from a date not earlier than the earliest date as from which the VRB could if it had granted an increase to pension to Special Rate.
The Commission made its determination on 28 July 2022 to refuse the application for an increase in pension to the Special Rate.
On 19 August 2022, Mrs Stenchion lodged an application for review to the VRB, which was inside the three-month timetable prescribed for making such an application.
Section 157(2)(a)(i) of the VEA states that if the person made an application for review within three months of service of the Commission’s decision than the earliest date as from which the VRB could if it had granted the pension is a date not earlier than the date form which the Commission could have approved payment of a pension.
Section 21 of the VEA states that in respect of a grant under s 15 of the VEA takes effect on the date on which the application was received by the Commission.
As Mrs Stenchion lodged her application with the Commission on 4 May 2022 that is the earliest date the Tribunal can grant her Special Rate in accordance with ss 177(2)(a), 157(2)(a)(i) and 21 of the VEA.
The Tribunal finds no reason not to apply the earliest date for the grant of Special Rate.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 4 May 2022.
Date(s) of hearing: 11 December 2024 Date final submissions received: 11 December 2024 Representation for the Applicant: Mrs Stenchion, Self-represented litigant Solicitors for the Respondent: Mr Dube, Sparke Helmore ANNEXURE
Schedule of Exhibits
Exhibit R1 Joint Hearing bundle
Exhibit R2 T-Documents
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