Stevenson and Repatriation Commission (Veterans' entitlements)
[2021] AATA 2297
•15 July 2021
Stevenson and Repatriation Commission (Veterans' entitlements) [2021] AATA 2297 (15 July 2021)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/3030
Re:David Stevenson
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:R Cameron, Senior Member
Date:15 July 2021
Place:Melbourne
The Tribunal sets aside the reviewable decisions of 2 March 2017 and 21 March 2019, and in substitution decides that the Applicant is entitled to payment of a pension at the special rate with a date of effect as and from 23 November 2017.
........................[sgd]................................................
R Cameron, Senior Member
Catchwords
VETERANS’ AFFAIRS – benefits and entitlements – rate of service pension – Veterans’ Review Board – Applicant is redundant – capacity to work – various health conditions – war-caused – whether Applicant satisfies “all alone” test – decision under review set aside and substituted
Legislation
Veterans’ Entitlement Act 1986 (Cth)
Cases
Cavell v Repatriation Commission (1998) 9 AAR 534
Leane v Repatriation Commission (2004) 81 ALD 625
Repatriation Commission v Hedy (2002) 76 ALD 47
Repatriation Commission v Richmond (2014) 226 FCR 21
Repatriation Commission v Strickland (1990) 22 ALD 10
Smith v Repatriation Commission (2014) 220 FCR 452
Summers v Repatriation Commission (2015) 230 FCR 179
REASONS FOR DECISION
R Cameron, Senior Member
15 July 2021
INTRODUCTION
The Applicant seeks review of a decision made by the Veterans’ Review Board on 2 March 2017 which decided that the Applicant should be paid a disability pension at 100% of the General Rate under the provisions of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) (“the reviewable decision”).
The matter was heard by this Tribunal differently constituted, its decision of 21 March 2019 was set aside, and the matter remitted for further hearing.
At the further hearing of this application before the Tribunal, as now constituted, no viva voce evidence was adduced. The transcript of the previous hearing, together with the documents tendered were in evidence before the Tribunal, as contained in a joint tribunal book. The matter proceeded by way of submissions only.
BACKGROUND
The Applicant served in the Royal Australian Navy from 5 January 1965 to 4 January 1985.
Following his discharge from the Navy, he worked in a variety of jobs in the transport and storage sectors. Most of that time he worked as a driver in one form or another. Between 2005 and November 2009 he reached the position of Fleet Operations Manager for Safeway Stores.
From approximately November 2009 until 30 June 2013, his position at Safeway changed to that of a part-time driver. His hours as a part-time driver were 27 per week, across three working days. One of the reasons he changed to a part-time driver was his wife’s illness and his role as her primary carer. He did receive a carer’s allowance throughout this time.
At the end of June 2013, the Fleet Operations of Safeway were subcontracted to a well-known national transport carrier, Linfox. Approximately 200 drivers including the Applicant were retrenched.
On 17 July 2013 the Applicant made a claim for an increase in his disability pension to the special rate.
At the time of his retrenchment from Safeway, the Applicant was 64 years old.
The Respondent acknowledges, and it is common ground, that the Applicant has the following accepted disabilities:
(a)diabetes mellitus;
(b)peripheral neuropathy;
(c)morbid obesity;
(d)secondary chronic lymphoedema;
(e)chronic simple bronchitis;
(f)osteoarthritis of the left ankle;
(g)bilateral sensorineural hearing loss;
(h)bilateral tinnitus;
(i)solar keratosis of the face;
(j)non-melanotic malignant neoplasm of the skin; and
(k)tinea.
THE LEGISLATIVE SCHEME
When an application is made for an increase in a pension under the provisions of the Act, it must be dealt with in accordance with subsections 19(5C), (6) and (9). These subsections require a decision-maker to determine, in this case, whether a special or intermediate rate is payable to the Applicant. This determination must be made for any time during the assessment period, which in this matter commences on 17 July 2013, when the Applicant’s section 15 application was received, and ending at the time when the application is determined.[1]
[1] Hereinafter referred to as "the assessment period".
Section 23 of the Act addresses the requirements that must be satisfied for the grant of a pension at an intermediate rate. Section 24 of the Act prescribes the criteria that must be satisfied to qualify for a special rate of pension.
Under subsection 23(1)(d) of the Act, consideration of whether a veteran is eligible for a pension at the intermediate rate only occurs if it is determined that sections 24 or 25 do not apply to such veteran.
Section 24 provides as follows:
24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
It is not in dispute in this application that the Applicant satisfies the requirements of subsections 24 (1) (aa), (aab) and (a) (i) of the Act. As for subsection 24 (1) (b) of the Act, the Respondent has conceded that subsection is met at some stage in the assessment period.[2] The concession that the Applicant, by reason of his accepted disabilities, satisfies subsection 24 (1) (b) of the Act means that those accepted disabilities have rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week during the assessment period.
[2] Paragraph 19 of the Respondent's Statement of Facts, Issues and Contentions dated 14 February 2020.
As was properly put by the Applicant in submissions, the issue for determination by the Tribunal was whether the Applicant satisfies the requirements of subsection 24 (1) (c) of the Act; or alternatively, satisfies the requirements of section 23 of the Act.
Rares J in Smith v Repatriation Commission[3] helpfully observed that subsection 24 (1) (c) has the following elements:
(a)the veteran is prevented by reason only of the effect of his or her injury found under section 24 (1) (b) from continuing to undertake remunerative work;
(b)that preventative effect alone causes him or her to suffer a loss of income; and
(c)the veteran would not be suffering from that loss if he or she was not affected by the war caused injury.
[3] (2014) 220 FCR 452 at [8].
As Buchanan J also found in the same case, the overall effect of subsection 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 for that reason only.[4]
[4] Ibid [47].
Sub-section 24 (2) (b) should be referred to in the determination of the applicable rate of pension. Counsel referred to this subsection in their submissions as the ameliorative provision.
Section 23 governs the eligibility for a pension at the intermediate rate. The eligibility criteria is the same as section 24, except that the capacity for work is more than eight hours, but no more than 20 hours per week.
A veteran will also not qualify for a pension at the intermediate rate if they are capable of undertaking work for 50% of the time ordinarily worked by persons engaged in work of that kind on a full-time basis.
The effect of these provisions is that the Tribunal, as decision-maker, is required to determine whether a special rate of pension is payable at any time during the assessment period. If a special rate of pension is payable at any time during the assessment period, the Tribunal is required to determine that the special rate was payable from that time, notwithstanding that at some subsequent time, the veteran might not be able to establish that he is entitled to a special rate of pension.[5]
[5] Leane v Repatriation Commission (2004) 81 ALD 625 at [31].
THE APPLICANT’S CONTENTIONS
The Applicant contends that the critical enquiry for the Tribunal is what he probably would have done if he had none of his service disabilities during the assessment period. The question therefore being why the Applicant did not return to the workforce after being made redundant by Safeway.
He contends that on the evidence, considered in its totality, the Tribunal should conclude that the only reason why he left the workforce was because he was incapacitated by his war-caused conditions and no longer able to work.
THE RESPONDENT’S CONTENTIONS
The Respondent contends that the Applicant does not satisfy the “alone test” in subsection 24 (1) (c) of the Act.[6]
[6] It relies in particular on passages of the Full Court of the Federal Court in Repatriation Commission v Richmond (2014) 226 FCR 21 at [58] and [65]. Those passages need not be reproduced for the purposes of these reasons.
It points to factors other than the Applicant’s accepted conditions as contributing to his inability to work; or as is sometimes referred to, “the preventative effect” (as observed by Rares J in Smith v Repatriation Commissionas noted above). Those factors, as argued by the Respondent, may be summarised as follows:
(a)Age; he was 64 at the time of his retrenchment. In his “Employment Questionnaire” signed after his retrenchment,[7] he identified age as a factor which prevented him from being employed (see also “current health problems”);
(b)He is aerobically unfit and suffers from sleep apnoea, hypertension and a left shoulder disability; and
(c)There have been the effects of alcohol.
[7] Dated 5 September 2013.
All these factors contribute to the preventative effect and collectively prevent the Applicant from competitively applying for, and engaging in, the remunerative work that he was undertaking.
ISSUE BEFORE THE TRIBUNAL
There is no dispute that the Applicant satisfies the requirements of subsections 24 (1) (aa), (aab), (a) (i) and (b) of the Act.[8]
[8] Paragraph [19] of the Respondent's Statement of Facts, Issues and contentions is referred to. Appropriate concessions were made by counsel in the course of submissions.
The issue for determination by the Tribunal was whether the Applicant satisfies the requirements of subsection 24 (1) (c) of the Act, or in the event that he does not, whether he meets the requirements of section 23.
LAY WITNESSES
The Applicant
The Applicant gave evidence by both a witness statement and from the witness box.
The Applicant resigned as Fleet Operations Manager at Safeway in November 2009. He did this for two reasons. The first reason was partly due to the difficulty he faced in coping with his duties as a result of the accepted conditions of osteoarthritis in the left ankle, lymphoedema, chronic simple bronchitis, diabetes mellitus, peripheral neuropathy and sleep apnoea. The other reason for resigning was to care for his wife who, at that time, was suffering illness and had high care needs.
As noted above, following his resignation as Fleet Operations Manager at Safeway, he secured work as a driver with that company, working a 27-hour week over three days. He was made redundant by Safeway on 2 June 2013 because it subcontracted out its transport operations to Linfox.
The Applicant stated that he enjoyed his work at Safeway. He further stated that but for his war-caused disabilities, after having been made redundant by Safeway, he would have sought another job; and he anticipated continuing to be in the workforce for several years to come. Probably, until he was 67 or 68 years old.
His evidence in the witness box was that by the time of his retrenchment on 2 June 2013, he had been successfully treated for diabetes and sleep apnoea. Those conditions were stable and not causing him any difficulties at work.
There was an inconsistency between that evidence in the witness box and the contents of his witness statement concerning sleep apnoea. In the last paragraph of his witness statement, he stated that the reason why he ceased seeking employment was solely due to the symptoms from his accepted war-caused conditions along with the sleep apnoea.[9] This is also consistent with the contents of a “Lifestyle Questionnaire” completed by the Applicant on 20 August 2013, where he identified himself as suffering from sleep disturbance due to sleep apnoea; and that sleep apnoea (disturbed sleep) was a disability affecting the way he then lived.[10] It should also be observed that this is consistent with a Work Ability Report signed by Dr Teo on 22 September 2013.[11] In Part B of the document, “Medical history and examination”, the medical practitioner was asked to list the medical conditions that the veteran suffers from in the following way: “Major Diagnosis and Duration”. The third medical condition identified was sleep apnoea, from which the Applicant had been suffering for approximately 10 years. It should be noted that the other medical conditions identified in that section were diabetes, morbid obesity and hypertension.
[9] Joint Tribunal Book at page 721.
[10] Joint Tribunal Book at pages 84 and 92.
[11] Joint Tribunal Book at pages 841-8.
The Applicant’s evidence in the witness box concerning sleep apnoea was also inconsistent with the contents of two GP Management Plans, which were included in the clinical notes of his treating general practitioner Dr Teo. Those GP Management Plans were dated 12 September 2012 and 3 February 2015. The GP Management Plans revealed that the Applicant was continuing to suffer from interrupted sleep patterns and other problems arising from the condition of sleep apnoea at those times. Given the contents of those documents, which reveal that the Applicant had continuing sleep problems caused by sleep apnoea, it is surprising that his evidence in the witness box concerning sleep apnoea was that it had been successfully treated. They will be referred to in more detail later in these reasons.
He gave evidence about the specific difficulties that each of the accepted conditions caused him at the time of his retrenchment.
With respect to lymphoedema, he wears heavy compression stockings. He had trouble walking. He had trouble getting in and out of vehicles and problems with his breathing. The condition of lymphoedema was present in both legs. Further manifestations of the problem were that his legs got tired very easily and became quite sore. He also explained the difficulties that the lymphoedema caused him when he had to climb into and out of a truck cabin. Climbing up using his left foot and right foot was extremely challenging for him.
The Applicant also explained the difficulties that his left ankle arthritis caused him. The principal difficulty was the heaviness of the trucks’ clutch that, of course, is operated by the left foot.
His bronchitis, he explained, led to impaired breathing caused by exhaust fumes. Additionally, he would frequently have coughing attacks or similar experiences when driving into or through the city.
In the period from 2009 until 2013, the conditions were slowly progressing and getting worse. Examples of this were that his lungs would cause him difficulty during the colder months. His legs were very tired and sore. His arthritis in the ankle was particularly pronounced in heavy traffic conditions, leading to what he described as a “dead dull ache in the ankle all the time.”
In cross-examination, the Applicant said at the time that he stopped working for Safeway, he would have loved to continue working because he enjoyed it, but he could no longer do so. His retrenchment, he said, came as a relief because he was not really coping with his duties as a consequence of his conditions. He described how because of his conditions, he had to pick the work with regulated stops, meal hours and medication times. At Safeway, he could do that.
Following his retrenchment, the Applicant applied for a position as a driver with Linfox. He underwent a telephone interview with that organisation. It was during that telephone interview that he discovered the position involved driving to and from the premises of Dulux Paint in Clayton. He was informed that he would be exposed to paint fumes. He formed the belief that he would not be able to cope with the duties because the fumes were likely to aggravate his bronchial condition. Consequently, he did not proceed with his application.
He did not look for any further employment after he withdrew his application from Linfox. He explained the reason why this was so. He knew from his prior experience, having been Fleet Operations Manager at Safeway, what sort of pre-employment medical he would be required to submit to as part of the application process. As he described it, in any pre-employment medical there is a questionnaire, and one is required to state all the conditions and disabilities from which the job-applicant suffers. Once those conditions and disabilities are disclosed, the doctors conducting the medical would not have produced a favourable report and he would have missed out on the job. As he put it, “I knew myself, because, as the operations manager, sending people for medical interviews I didn’t have a hope in hell.” The other concern he expressed was if by some chance he were employed, which he considered highly unlikely, there was a risk that his problems could cause difficulties for any potential employer and he didn’t wish to put such a prospective employer in that situation.
It should be recorded also that in his evidence, he stated that his carer responsibilities were not a consideration in his decision to cease searching for part-time employment. He found that working 27 hours per week, he was able to adequately care for his wife until her death in September 2013.
In cross-examination the Applicant was probed about the effects of age on his ability to obtain further employment. At paragraph [17] of the Employment Questionnaire, when he was asked what he believed was preventing him from being employed, he asserted, “current health problems and age”. To his credit, he readily conceded that age was a concern.
However, he also responded that with his qualifications, ability and willingness to work, he was employable. On that question, in re-examination, he amplified this response regarding his attributes, which he said made him very employable after the age of 64. He emphasised that he had his licenses, both semitrailer and forklift. He believed he could sell himself with a good attitude and punctuality. He presented well, his clothes were always clean, neat and tidy. He undertook paperwork easily. He also emphasised that having been previously a Fleet Operations Manager, he had a good knowledge of the transport industry. On top of that, he had a good safe driving record and worked well with people. The Applicant also said that he would have been able to get good references from previous employers.
The Applicant gave other evidence in support of his contention that he was readily employable. He stated he was capable of obtaining a multi-combination licence and therefore able to do interstate driving work if it was required for a job following the death of his wife. Additionally, he had a forklift licence, which many other truck drivers did not. In the transport industry, an applicant for a potential position who also has a forklift licence in addition to a semitrailer licence will be more likely to succeed in obtaining an advertised position than someone who did not have a forklift license. He reiterated that he has capacity to present well, diligently prepare his paperwork, and perform well in a one-on-one interview.
The Applicant was probed in some detail during cross-examination about his drinking habits. The line of questioning emerged from the clinical notes of Dr Teo, which referred to the Applicant engaging in an unsafe level of drinking alcohol. Dr Teo concluded that this affected his diabetes and ability to drive.
The Applicant denied he had a problem with drinking in a strict sense. He emphasised that it had not affected his capacity to undertake his task as a driver. In support of this contention, he said that he had never had a drink-driving conviction. He had been pulled over multiple times for random breath tests. He was subject to a zero-alcohol limit. He had never lost his license for any reason. He emphasised that he had a rule that he would not drink within 12 hours of driving. Additionally, because he was working 27 hours a week, which involved three nights, he would not have a drink the day before. He did not shy away from admitting that he enjoyed a drink. As he said he liked “a couple of rums”. However, he reiterated that if he had something to do the next day, he would not have a drink.
This evidence, given by the Applicant, was not really challenged in cross-examination. The Tribunal sees no reason not to accept it.
Boucher, Graham, Lee and Oliver
These four witnesses gave evidence by witness statement. The statements were received in evidence without the witnesses being required to attend for cross-examination.
Each of them had worked at Safeway and were retrenched at the same time as the Applicant on 2 June 2013. They were each approximately five or six years younger than the Applicant.
The thrust of their evidence need not be reproduced in any detail. The point was that they were all able to readily obtain further employment driving trucks or other heavy vehicles following their retrenchment from Safeway. Like the Applicant, most of them had worked for some years at Safeway and the Tribunal has no reason to doubt that they were diligent, reliable and competent employees. They worked well into their 60s. Mr Boucher, aged 64; Mr Oliver, aged 63; and Mr Lee, aged 62. Mr Graham finished his employment in approximately November 2017.
MEDICAL EVIDENCE
Dr Teo
Dr Teo has been the Applicant’s general practitioner since 2000. She gave evidence about the Applicant’s accepted conditions.
In evidence from her was a “Work Ability Report” dated 22 September 2013.[12] The contents of that document are referred to in their entirety. However, some aspects of it should be referred to specifically for the purposes of these reasons. In Part D, “Opinion of findings”, in response to a request for her opinion on how the Applicant’s disability reduced his ability to work, Dr Teo stated, amongst other things: “sitting in a truck for many hours is very uncomfortable due to his peripheral neuropathy, left ankle osteoarthritis and lymphoedema”. In the same report, when requested to advise what type of work, if any, the Applicant was able to perform full-time or part-time, she responded: “[t]his patient has so many co-morbidities I believe that he is not suitable for any employer”.
[12] Joint Tribunal Book at page 841.
Dr Teo explained that the neuropathy from which the Applicant suffers is a condition in which basically, the nerves in the feet and lower limbs suffer reduced sensation as a consequence of his diabetes condition. An additional manifestation of this condition is that it leads to difficulties in walking over uneven surfaces and with his balance. These symptoms affect the Applicant’s ability to drive because of the sensation of his feet. She described this as a mixed sensory and motor issue, which causes the power in his feet not to be as good as it should be. This affects his ability to drive. The condition has progressed somewhat over time.
A Lower Limb Condition Medical Impairment Assessment undertaken by Dr Teo was in evidence and dated 22 August 2013.[13] In response to the first question, which asked whether the Applicant experienced any symptoms of lower limb conditions during ordinary activities, she recorded: “[s]itting and laying down he has tingling, burning [and] cold sensation in his feet and legs. Left ankle gives him pain all of the time”. In response to the second question, which asked whether he experienced pain when he bears weight on the affected joint, she has recorded: “[s]ometimes the ankle gives way but pain worse if he has to move suddenly or twists”. The third question asked whether he experienced pain in the affected joint when resting. She recorded: “[a]ll of the time 3/10. Pain from peripheral neuropathy more annoying”.
[13] T=documents at page 30.
Concerning lymphoedema, she stated that the Applicant had been treated for the condition since approximately the year 2002. She explained that it is a chronic condition which does not improve. The lymphatics are damaged, so the drainage of fluid returning from the lower limbs is impaired. This causes fluid to pool in the legs. The condition does not improve over time and can indeed get worse.
Dr Teo explained that the impact of the condition on the Applicant’s ability to work arises because the leg swelling gets worse when one is sitting. She explained that prolonged sitting in a truck tends to cause the legs to ache, which the Applicant had previously complained about. This would lead to pain in the legs.
With respect to the condition of osteoarthritis in the left ankle, Dr Teo explained that it had become degenerative over time, leading to pain and stiffness in the ankle joint. The Applicant had experienced this pain and stiffness for many years. She also observed that getting in and out of the truck would cause some difficulty for the Applicant, due to the left ankle osteoarthritis condition.
Dr Teo explained chronic simple bronchitis as a condition where there is chronic inflammation of the airways. The Applicant was diagnosed with the condition by a respiratory physician in 2004. She further explained that the condition generally deteriorates over time. There can be periods of exacerbation due to infection. In the case of the Applicant, the condition has tended to get worse. Usually in winter, he has a tendency to experience chest infections and an exacerbation of the bronchitis. He has been recently admitted to hospital for the condition.
Another feature of the Applicant’s bronchitis condition, which Dr Teo gave evidence about, concerned his propensity to cough as a result of such condition. She explained that he can have coughing fits on numerous occasions and has nearly passed out or has passed out; or nearly fainted as a result of coughing fits. She emphasised the coughing fits could potentially be a problem for a driver.
As for his condition of sleep apnoea, she stated that was treated by the use of a CPAP machine. She said it is very well controlled.
As noted earlier, when recounting the evidence given by the Applicant on the topic of sleep apnoea, this evidence is also inconsistent with the contents of several documents that were in the evidence before the Tribunal that Dr Teo had signed. These documents were the Work Ability Report of 22 September 2013; and the two GP Management Plans signed by her on 12 September 2012 and 3 February 2015. Those documents reveal that the Applicant continued to suffer from sleep apnoea, which caused him interrupted sleep and associated symptoms, including but not limited to daytime sleepiness.
Dr Teo, in her evidence, also referred to the Applicant suffering from gout from time to time, which was treated.[14] The condition was not, in her opinion, something that would cause any long-term effects on his ability to work.
[14] Joint Tribunal Book at page 1015.
Another condition from which the Applicant suffered, and identified in Dr Teo’s evidence, was the condition of diverticulitis. It is usually treated with antibiotics. The evidence was that this did not cause the Applicant difficulties with working on an ongoing basis.
The Applicant’s drinking habits were explored. Dr Teo stated that at all times, the Applicant denied that alcohol affected his driving. She expressed concern from a health perspective about his level of alcohol consumption. She gave evidence that the Applicant would leave 12 hours between drinking and driving. However, when he wasn’t driving, he would binge drink and had been doing that for many years. She stated that the Applicant definitely has a problem with alcohol, and he appears to be a highly functioning alcoholic. She was unable to say whether at that time or at the time he was made redundant, his problem with alcohol affected his capacity to drive, but she said that it certainly had an effect on his health.[15]
[15] Joint Tribunal Book at page 1025.
Attention was directed to the several entries in Dr Teo’s clinical notes concerning the Applicant’s level of alcohol consumption over an extensive passage of time between 2007 and 2016. The contents of those notes need not be reproduced, but it should be repeated that the tenor of these entries concerned the Applicant’s problematic drinking habits over many years.[16] Indeed, one clinical note for 6 March 2007 recorded that the Applicant had a problem with alcohol more than diabetes.[17] Also included with those notes was a report from his treating endocrinologist of 8 February 2016, which observed that the Applicant consumes too much alcohol, often two bottles of spirits at a time.[18]
[16] Joint Tribunal Book at pages 270, 272, 297, 300, 311, 313, 708, 715, 799, 843, 846 and 863, which contain entries in Dr Teo’s clinical notes that are referred to.
[17] Joint Tribunal Book at page 313.
[18] The report of the Applicant's treating endocrinologist Dr Cohen addressed to Dr Teo is at page 707 of the Joint Tribunal Book.
Dr Teo’s observations in the Work Ability Report, referred to earlier in these reasons, concerning the Applicant’s level of drinking should also be referred to. In Part D, “Opinion of findings”, when she was asked to express an opinion on how the veteran’s disabilities reduced his ability to work, she stated: “I am concerned about his unsafe level of drinking alcohol which affects his diabetes and his ability to drive”.
When asked generally as to her opinion of the Applicant’s capacity to work in the period since he ceased work, she stated that with all his comorbidities, the Applicant’s position had deteriorated over time and he did not have a capacity for work in her opinion. When she was asked to specify which conditions she was referring to, Dr Teo responded that the Applicant’s chronic simple bronchitis, his lymphoedema and the osteoarthritis in his left ankle were the main conditions of concern.
Dr Teo expressed the opinion that the Applicant had worsened over time and he did not have the capacity for work. She felt that he was not employable, and she did not think he would have passed a pre-employment medical as at August 2013.
In cross-examination, Dr Teo’s evidence shifted.
She was probed about entries in her clinical notes. Entries for 23 April 2013[19] and 3 June 2013[20] were explored. The clinical note of 23 April 2013 contained an entry with respect to the Applicant, that there was “still uncertainty at work”. The entry for 3 June 2013 recorded “jobless today”. Tellingly, it recorded that he then obtained a disabled parking form for his wife and that he had a problem with solar keratosis. There was no mention at all of any of the accepted conditions.
[19] Joint Tribunal Book at page 284.
[20] Joint Tribunal Book at page 283.
A clinical note from 28 March 2013, made by Dr Teo, was in evidence.[21] The note recorded that the Applicant “might be losing job”. There is also reference to the Applicant’s injured left shoulder, which was causing him to lose sleep.
[21] Joint Tribunal Book at page 285.
It was specifically put to Dr Teo that her notes read like the Applicant had been made redundant, and that the medical conditions referred to in the standard forms submitted to the Department of Veterans’ Affairs (DVA) were not the reasons recorded in her notes. She responded: “[n]o, he became redundant. That was the reason he stopped work”.[22] She did not say in response that the only reason why the Applicant left the workforce was because he was incapacitated by his war-caused conditions and thus no longer able to work.
[22] Joint Tribunal Book at page 1020.
It was then specifically put to Dr Teo that if the Applicant had not been made redundant, he presumably would have continued working. Her response was: “[i]n that job in some capacity, yes”.
Dr Horsley
Dr Horsley prepared a report dated 23 November 2017 and also gave viva voce evidence.
In her report, Dr Horsley noted particularly that the osteoarthritis of the Applicant’s left ankle, lymphoedema and peripheral neuropathy had progressively increased as time had passed. She further observed that his chronic simple bronchitis had progressed substantially. She noted that he had been made redundant on 2 June 2013. Noting that he has been unable to work since that time; she expressed the opinion that it was commendable, with his level of physical disability and the nature of semitrailer trucks, particularly Kenworth trucks, that the Applicant was in fact, able to work 27 hours per week until he was 64 years of age.
Dr Horsley also expressed the opinion that even if the Applicant applied for a truck driving role, he would experience difficulty passing a pre-employment medical, even though his license continues to be valid. She expressed the opinion that compared with other candidates, his application would not be competitive. Therefore, she said realistically, the Applicant has come to the end of his working life. She did not believe he had any realistic capacity to work eight or 20 hours per week. This opinion was expressed and based upon her examination of the Applicant on 23 November 2017.
She described the combination of the Applicant’s peripheral neuropathy, secondary chronic lymphoedema, his chronic simple bronchitis and osteoarthritis of his left ankle as the primary disabilities keeping him away from the workforce.
In her evidence from the witness box, Dr Horsley said that when she examined the Applicant, it was a month after he had been discharged from an acute inpatient stay for his bronchitis. The hospital stay was approximately five or six days long. She described his respiratory condition as substantial when she saw him. She stated that on the basis of the functional tolerances and of the history that was given to her with, as she described it “plentiful materials attached”, the Applicant presented with no capacity for driving. She further opined that if she was seeing him as an occupational physician for a heavy rigid truck licence, he wouldn’t get his licence on the basis of that level of disability. Dr Horsley’s opinion is at variance with the fact that as at 19 February 2019, the Applicant had a heavy vehicle licence which expires on 11 July 2024. There was a copy letter from VicRoads which stated amongst other things, that having examined medical reports furnished to it by the Applicant, there was no reason for him not to be permitted to drive heavy vehicles.
Dr Horsley was asked about her observations that the Applicant did not present as an aerobically fit candidate. She pointed to the fact that when she saw the Applicant, he was short of breath by the time he reached her so therefore, his aerobic capacity was poor. When probed as to whether this was his respiratory disease or lack of fitness, she expressed the opinion that it was probably both.
Dr Horsley was probed about the issue of age and whether it would be an impediment to the Applicant obtaining employment. She said there are lots of older truck drivers. In response to a question that many work into their late 60s, her response was: “absolutely yes”.
She also expressed an opinion, which of course is not medical, that one of the major reasons the Applicant was unable to secure further employment was because he couldn’t work full-time. She doubted that he would have been able to get a 27 hour a week truck driving job.
Dr Hart
Dr Hart a consultant respiratory physician, did not give viva voce evidence.
However, his report dated 26 July 2018 was in evidence. This report was prepared following examination on that date. Dr Hart concluded that the Applicant has chronic simple bronchitis. Additionally, he concluded that he was unable to identify any additional respiratory condition contributing to the Applicant’s limitation. Dr Hart also observed that once or twice a year, the Applicant had significant flareups of this condition; presumably caused by intercurrent infection, during which time his coughing is ferocious. He noted that it had led to the Applicant being hospitalised several times recently.
As Dr Hart is a consultant respiratory physician who was specifically asked to address the question, the Tribunal prefers his evidence on this issue concerning the Applicant’s aerobic fitness over that of Dr Horsley, who readily conceded that she is not a specialist in this field.
Finally, it should be observed that Dr Hart said it was impossible to tease out the degree of restriction that his chronic simple bronchitis causes when considered with his obesity, and damaged left ankle and lymphoedema. However, his chronic simple bronchitis is wholly responsible for his flareups and resulting hospitalisations. It will be recalled that the Applicant had been recently hospitalised prior to his consultation with Dr Horsley.
CONSIDERATION
The Tribunal is satisfied that the remunerative work that the Applicant, as a veteran, was undertaking included, as contended by counsel, that of a truck driver, warehouse worker, warehouse supervisor and fleet operations manager. This does not seem to be controversial.
The Tribunal accepts the contention of the Applicant that the relevant question to be determined by it is why the Applicant did not return to the workforce after being made redundant by Safeway.
It was also contended for by the Applicant, and the Tribunal accepts this contention, that the Tribunal’s task is to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities and not to something else as well. A decision should not be made upon nice philosophical distinctions, but with an eye to reality and as a matter in respect of which common sense is the proper guide.[23]
[23] Cavell v Repatriation Commission (1998) 9 AAR 534 at 539; Repatriation Commission v Hedy (2002) 76 ALD 47, 54-55 [37]; Repatriation Commission v Richmond (2014) 226 FCR 21, [60].
The Applicant relies upon the evidence, in particular, of his treating general practitioner Dr Teo which has been outlined above. It is contended that this evidence demonstrates that the Applicant, by reason of incapacity from his war-caused conditions alone, was prevented from continuing to undertake remunerative work that he had previously been undertaking whilst employed by Safeway. By reason thereof, he suffered a loss of salary or wages that he would not have been suffering if he were free of the war-caused conditions.
The Respondent identifies several grounds that it relies upon to resist the Applicant’s contention that it was his accepted conditions, and those conditions alone, that prevented him from continuing to work after he was made redundant by Safeway.
In his application to the Respondent for a special rate pension, at question 28, the Applicant was asked what the reason was for him ceasing work including “age, illness, redundancy”. The response from the Applicant was “redundancy”.[24]
[24] Joint Tribunal Book at page 25.
Question 4 of the “Employment Questionnaire” asked why the Applicant ceased work. He responded, “[w]ork was outsourced, our work was terminated.” Question 18 of that document asked the Applicant what he believed was preventing him from being employed, to which he responded, “current health problems and age”.
In response to a Personal Details questionnaire at question 37, the Applicant, when asked why he stopped working responded with “[r]edundancy”.[25]
[25] Joint Tribunal Book at page 91.
The Respondent relies on these responses to assert that the Applicant, at that time, did not consider that his accepted conditions alone were the reason for him not working.
The Respondent also relied on a portion of Dr Teo’s oral evidence which was inconsistent with her earlier evidence. Dr Teo’s clinical notes were in evidence before the Tribunal. It was put to her that the various medical conditions which were included in the DVA forms, being the accepted conditions, did not appear in her clinical notes as active concerns in the three months period leading up to 3 June 2013 when the Applicant lost his job. Dr Teo, in response, said to the question “[n]o he became redundant. That was the reason that he lost his job.” It was further put to her that if he had not been made redundant, he would have continued working, to which Dr Teo replied: “[i]n that job in some capacity, yes”.[26] This comment by Dr Teo is indicative of her belief that the Applicant was capable of continuing to work at that time and that his war caused conditions alone did not prevent him from so continuing to work.
[26] The passages of the transcript are found at pages 1019 and 1020 of the Joint Tribunal Book.
An examination of the clinical notes for 3 June 2013 only shows reference to “jobless today”. The Respondent contends and the Tribunal agrees that this is significant because nothing that touches on war-caused conditions contributing to the loss of such job are referred to. It seems surprising that if they were a factor, and the sole factor alone, there would not have been some reference to those conditions in the clinical notes on that day.[27] Dr Teo was cross-examined on this entry in the clinical notes. It was put to her that in those notes in the period leading up to 3 June when the Applicant lost his job, the reasons that she included in the form submitted to the Respondent were not recorded in the clinical notes. Her response was as recorded in the previous paragraph.
[27] Dr Teo’s clinical notes for 3 June 2013 are at page 283 of the Joint Tribunal Book.
Reference is also made to the clinical note for 23 April 2013. The entry recorded by Dr Teo on that day was: “still uncertainty at work”. There was no reference to any of the war-caused conditions or the effect, if any, they had on the Applicant’s capacity to work.
Relying on this material collectively, the Respondent contends that the Applicant’s treating doctor herself identifies redundancy as the reason for him stopping work. It also relies upon this material collectively to contend that this is an admission by the treating doctor that there was an ongoing capacity for work. Therefore, if there is a clear identification of redundancy as a reason, if not the only reason, there is a factor extraneous to war-caused conditions which is sufficient to disentitle the Applicant to a special rate of pension.
There is another factor that counts against the Applicant’s contention; that it was his war-caused conditions alone that led to his cessation of work when retrenched by Safeway. The Applicant has been required since approximately 2009 to provide regular medical reports from his general practitioner and several specialists confirming that he met the national medical standards to hold a licence to drive a bus or heavy truck. Indeed, Dr Teo on 24 October 2013, made such a certification to VicRoads.[28] This, to the Tribunal, seems inconsistent with the contents of the Work Ability Report that she signed on 22 September 2013, which was referred to earlier in these reasons. If he was no longer able to work, there seems to be little point in undertaking the extensive steps necessary to retain his heavy vehicle licence which was not needed.
[28] Page 443 of the summonsed documents.
The Applicant’s sleep apnoea condition was of such a concern that Dr Teo had to refer the Applicant to a sleep specialist who was required to provide a written report to VicRoads regarding his problems with sleep apnoea.
Reports were also required from the Applicant’s treating endocrinologist to VicRoads concerning his suitability to drive a bus or heavy truck.
The Tribunal is not satisfied that at the time of his retrenchment by Safeway that the Applicant was, by reason of incapacity from his war-caused conditions alone, prevented from continuing to undertake the remunerative work that he was undertaking. It adopts this position for several reasons for several reasons.
The Tribunal’s starting point comes from the evidence of Dr Teo in cross examination. The absence of reference to the war-caused conditions in her clinical notes made on or about the time of the Applicant’s retrenchment are a factor. Details of those entries have been referred to earlier in these reasons. The entries of 23 April 2013 and 3 June 2013 are specifically referred to.
The Tribunal prefers Dr Teo’s response during cross examination, where she expressed the view that the Applicant stopped work because he became redundant. This explanation is also consistent with her subsequent certification to VicRoads that the Applicant met the national medical standards to hold a licence to drive a bus or a heavy truck. It seems to the Tribunal that if the Applicant was prevented from continuing to undertake remunerative work that he was undertaking by reason of the war-caused incapacity (total and permanent), Dr Teo surely would not have certified him as meeting the national standards to hold a licence to drive a bus or heavy truck.
Dr Teo’s response that redundancy was the reason why the Applicant stopped work is consistent with the responses of the Applicant in several documents that have been referred to previously in these reasons. Those documents and the corresponding responses provided by the Applicant included the application to the Respondent for the special rate pension at question 28, the response to question 4 of the Employment Questionnaire, and the response to question 37 of the Personal Details questionnaire. It seems to the Tribunal that if indeed the war-caused conditions alone prevented him from continuing to undertake remunerative work, he would have said so in completing those official documents.
As noted earlier, Dr Teo’s evidence shifted between what she gave in cross examination, where she said redundancy was the reason why the Applicant stopped work, and re-examination. In a re-examination, it will be recalled she said that the Applicant’s conditions of simple bronchitis, lymphoedema and osteoarthritis in his left ankle had worsened over time and he did not have the capacity for work. Additionally, she stated that he was not employable, and she did not think it would have passed a pre-employment medical as at August 2013.
The Applicant’s admission, in several of the documents referred to above, that the reason that he stopped work was due to redundancy is also consistent with the fact that he applied for the job at Linfox driving for Dulux. If he was totally and permanently incapacitated by reason of his war-caused injuries alone such that he was rendered incapable of undertaking work for periods aggregating more than eight hours per week, it seems unlikely he would even have contemplated applying to Linfox. There was no evidence before the Tribunal as to the number of hours per week that the Applicant would have been required to work had he accepted the Linfox position, but it is inferred that it would have at least been the equivalent number of hours, namely 27, that he was working at Safeway. The fact that he believed he could work these hours is not indicative of someone who was totally and permanently incapacitated at that time.
If the Applicant at the time of his retrenchment by Safeway left the workforce only by reason of the fact that he was incapacitated by his war-caused conditions and thus no longer able to work, it seems unlikely to the Tribunal that he would have continued to renew his heavy vehicle licence. It also seems unlikely that he would have taken the steps he did to get medically certified as fit to hold a heavy vehicle licence. There was, in the clinical notes of Dr Teo, a report from the Applicant’s treating endocrinologist Dr Cohen of 1 August 2014, prepared following a review of the Applicant for the purposes of, amongst other things, maintaining his heavy vehicle licence. The report is addressed to “Vic Roads Medical Review”. Dr Cohen opined in that report that: “[b]ased on the Aust Roads Fitness for Driving Criteria, I believe David fulfils the criteria for maintaining a heavy vehicle licence….”. It should be noted that there are medical standards for licensing for commercial drivers including heavy vehicles. Those medical standards cover, amongst other things, diabetes and sleep disorders including sleep apnoea. Depending on the condition, a licence holder may be required to produce regular medical reviews (including reports from suitably qualified medical specialists) to VicRoads, often as frequently as yearly. It is apparent from Dr Teo’s clinical notes as has been observed, that not only did the Applicant require a report from her as his treating general practitioner but several specialists including his treating endocrinologist and a sleep specialist also furnished reports. It seems unlikely he would have gone to all this trouble if he genuinely believed that he was incapable of carrying out any further work as a driver.
The Tribunal also observes that if the Applicant was totally and permanently incapacitated at the time of his retrenchment from Safeway and prevented from continuing to undertake remunerative work, the alone test in section 24(1)(c) is not satisfied. The Applicant admitted in his witness statement that one of the reasons why he could no longer work was due to his sleep apnoea, which was not a war-caused condition. This admission is also consistent with other evidence before the Tribunal. The Tribunal finds that it was a preventative factor at the time he was retrenched by Safeway in June 2013. That other evidence will now be considered.
A similar admission was also referred to earlier, where the Applicant completed the Lifestyle Questionnaire on 21 August 2013. In this questionnaire, he identified himself as suffering from sleep disturbance due to sleep apnoea and stated that the disturbed sleep was affecting the way he then lived. This is indicative of the fact that in reality his sleep apnoea had not been well controlled or as well controlled, as he stated in his evidence, or as Dr Teo’s evidence indicated that the condition was controlled. It is a significant admission or acknowledgement of the preventative effect that this condition had upon him on or about the time of his retrenchment by Safeway.
Dr Teo also referred to sleep apnoea as a major diagnosis of the several medical conditions suffered by the Applicant, which are referred to in the Work Ability Report.
Amongst Dr Teo’s clinical notes that were in evidence was a “GP Management Plan & Team Care Arrangement” signed by Dr Teo on 12 September 2012. An examination of the plan reveals a reference to the conditions suffered by the Applicant, including sleep apnoea. It is worthwhile reproducing some of the entries in that plan concerning this condition. Under the heading “Need”, it is described: “Sleep Apnoea – [Patient] needs ongoing monitoring and management for Obstructive Sleep Apnoea.” Under the heading “Goal”, it records: “[f]or [patient] not to experience sleep apnoea and to have an uninterrupted sleep pattern.” Under the heading “GP and Patient Actions”, it records “GP will continue to monitor [patient]’s obstructive sleep apnoea and will continue to manage [patient]’s condition and assess the efficacy of treatment. GP will liaise with the Respiratory Physician at the Sleep Disorder Clinic, The Alfred Hospital for further management. GP will educate [patient] on lifestyle modifications needed to reduce episodes, such as weight loss. [Patient] has not found CPAP therapy or splinting helpful. [Patient] will endeavour to comply with GP’s advice and attend appointments as scheduled”.[29]
[29] The GP Management Plan & Team Care Arrangement is a page 585 of Dr Teo’s clinical notes (exhibit R 4) and the entry concerning sleep apnoea is at page 588.
A similar “GP Management Plan & Team Care Arrangement” was signed by Dr Teo on 3 February 2015.[30] It also contained a reference to sleep apnoea. Under the heading “Goals Based on Needs”, it recorded: “[r]estore regular breathing during sleep. Relieve symptoms such as loud snoring and daytime sleepiness. Prevent complications such as high blood pressure, heart disease, stroke and diabetes”. The Tribunal infers, by reason of these goals being identified based on needs, that the Applicant suffered from the symptoms described in that entry. Under the heading “Actions”, it recorded: “GP - Monitor signs and symptoms. Request relevant tests and investigations. Liaise with Respiratory Physician for further management as required. Educate patient on lifestyle modifications needed to reduce episodes, such as weight loss. Patient - Lifestyle changes: avoid alcohol before sleep, maintain healthy weight, smoking cessation, side sleeping if appropriate. Compliance with breathing devices if needed.” It is apparent from this entry in 2015 and the entry in 2012 that sleep apnoea had continued to be a problem for the Applicant between those years. It was also a problem as recorded by Dr Teo in the Work Ability Report that constituted a major diagnosis.
[30] Page 689 of Dr Teo’s clinical notes exhibit R 4.
These entries indicate that the Applicant continued to suffer from a condition of sleep apnoea and, of course, that the treatment of the condition with the CPAP machine and the use of splinting had not been helpful. This entry in the clinical notes is inconsistent with the evidence that was given by Dr Teo (and for that matter the Applicant) that the condition of sleep apnoea was well controlled using the treatment of a CPAP machine. She made no reference in her evidence to the use of splinting. This inconsistency between the GP Management Plan and the evidence she gave in the witness box is concerning. It was not explored in the course of her evidence.
There was also the need to for Dr Teo to refer the Applicant to a sleep specialist, who was required to provide the written report to VicRoads regarding the Applicant’s problems and sleep apnoea. His endocrinologist, in a report for VicRoads dated 5 June 2012, and with respect to the Applicant, observed amongst other things: “[h]e has a background of sleep apnoea…”[31] Given that the Applicant’s sleep apnoea was such a significant problem for licensing purposes, it seems difficult to comprehend that it did not play a role as a preventative factor.
[31] Page 185 of Dr Teo’s clinical notes exhibit R 4.
The question of the Applicant’s alcohol consumption and its effect on his health was also relied upon by the Respondent. Dr Teo was probed about this in her evidence. She stated she was concerned from a health point of view about the Applicant’s level of alcohol consumption.[32] There were also concerns about his level of drinking being safe.[33] On another occasion, when probed about the Applicant’s alcohol dependence that was referred to in a GP management plan, Dr Teo gave a stark response. She stated that she definitely believed the Applicant has a problem with alcohol and he appears to be a highly functioning alcoholic. She could not say at that point, or at that time, whether this was affecting the Applicant’s capacity to drive. However, certainly, she thought his level of alcohol consumption had an effect on his health and that was her concern.[34] This evidence was somewhat at variance with the contents of the Work Ability Report of 22 September 2013 where she recorded: “I am concerned about his unsafe level of drinking alcohol which affects his diabetes and ability to drive”.
[32] The transcript in the Joint Tribunal Book at page 1014 lines 1 to 3 is referred to.
[33] Transcript in the Joint Tribunal Book at page 1017 lines 12 and 13.
[34] Joint Tribunal Book at page 1025.
Given this evidence from Dr Teo, the Tribunal concludes that the Applicant’s alcohol consumption was a preventative factor in the relevant sense. This is particularly insofar as it affects his ability to drive, as was identified by her in the Work Ability Report.
The Applicant relies upon the ameliorative provision in subsection 24 (2) (b) of the Act. He refers to the evidence he gave about his attempts to obtain alternative employment with Linfox that involve driving to Dulux paints. The Tribunal must consider whether, on the evidence before it, it is satisfied that the Applicant was genuinely seeking to engage in remunerative work or not.[35]
[35] Leane v Repatriation Commission (2004) is 81 ALD 625 at [29].
In Summers v Repatriation Commission[36] the Full Court of the Federal Court of Australia, observed concerning the application of this subsection the following:
We also agree with her Honour’s view (at [84]) that, by the use of the present continuous tense in s 24(2)(b) through the use of the words “genuinely seeking to engage in remunerative work”, Parliament intended to convey an activity that may be ongoing or incomplete rather than a reference to an activity which is satisfied by a single attempt such as a phone call. Her Honour considered that the phrase contemplates at least a course of conduct by the veteran. Like the primary judge, we do not accept that a decision-maker is obliged to find that a veteran satisfied s 24(2)(b) if there is a single piece of evidence about a single attempt to seek work during the assessment period (no matter how long), and no evidence that the attempt was dishonest or disingenuous.
[36] (2015) 230 FCR 179 at [202].
As noted above, the fact that the Applicant did make such an application to Dulux, presumably to work for a similar number of hours per week as at Safeway, indicates that he believed he was capable of performing such work for such time. It would have been relatively easy for the Applicant to have tested the available job market by applying for several others. The Tribunal acknowledges that the Applicant believed, as he put it, he didn’t have a hope in hell of getting a job, and that he was, as he put it, so downhearted. He did acknowledge in his evidence that he should have looked for other jobs and gone for a medical. This concession by him, to his credit, amongst other reasons, works against the application of the ameliorative provision in his favour.
One does have to question why he might not have, at the very least, applied for other positions where he had no exposure, or potential exposure to fumes that may have aggravated his bronchial condition. Had he done so, it would have put beyond all doubt the question of whether or not he was genuinely seeking to engage in remunerative work. It should also be noted, when one considers the evidence of Messrs, Boucher, Oliver, Lee and Graham, that there were jobs available. They all were able to procure alternative employment following their redundancy from Safeway. They obtained these positions relatively quickly after their redundancy.
By reason of the foregoing matters, the Tribunal finds that the single attempt by the Applicant to find work with Linfox as described was not a case of him genuinely seeking to engage in remunerative work within the meaning of subsection 24 (2) (b) of the Act.
The Tribunal is also required to consider whether the Applicant qualifies for the pension at the intermediate rate under section 23. For the reasons articulated with respect to section 24, the Tribunal finds that the Applicant does not qualify at the commencement of the assessment period for the pension at the intermediate rate. The Tribunal is satisfied that at the commencement of the assessment period the Applicant was capable of working 27 hours per week. Also, for the reasons articulated above, the Tribunal is satisfied that the Applicant did not meet the “alone test” in subsection 23 (1) (c) of the Act.
However, during the assessment period, Dr Horsley’s evidence must be considered as at 23 November 2017. It should be observed that she noted the osteoarthritis of the Applicant’s left ankle, lymphoedema and peripheral neuropathy have progressively increased as time has passed. She also observed that his simple bronchitis has progressed substantially.
She observed also that it was commendable with his level of physical disability and the nature of semitrailer trucks, particularly Kenworth trucks, that the Applicant was able to work 27 hours per week until he was 64 years of age.
It has already been observed, but Tribunal should repeat, that Dr Horsley concluded when she saw the Applicant on 23 November 2017 that it was his peripheral neuropathy, secondary chronic lymphoedema, his chronic simple bronchitis and osteoarthritis of his left ankle, which were the primary disabilities keeping him away from the workforce. She did not suggest any other conditions or factors were a cause of his incapacity as at that date.
The symptoms of peripheral neuropathy, its effect on the Applicant’s feet and legs (tingling, burning and cold sensations), and its effect on his balance, together with the osteoarthritis in the left ankle giving him pain all the time, and his lymphoedema, must surely totally prevent him from undertaking any work as a truck driver; let alone a warehouse worker, warehouse supervisor and fleet operations manager. Applying a degree of realism, driving a truck requires the constant use of one’s legs; at the very least, in the application and use of the brake and accelerator pedals (as well as a clutch in the case of a manual vehicle). This is also the case for the roles of warehouse worker, warehouse supervisor and fleet operations manager as they require constant use of one’s legs. The Applicant suffers significant handicap to his legs by reason of the accepted conditions referred to above.
The Tribunal now considers some of the other matters raised by the Respondent which are said to be other preventative factors so that the Applicant cannot satisfy the “alone test”.
Much emphasis was placed by the Respondent on the Applicant’s age. The Tribunal rejects this contention. The Applicant, in submissions, relied upon Repatriation Commission v Strickland[37] which emphasised that arbitrary age limits do not apply, or as it more accurately stated, there is not some automatic “cut-off” point that constitutes a preventative factor for the operation of the first limb of subsection 24 (1) (c) of the Act. It is commonplace these days for people to work well into their late 60s and 70s.
[37] (1990) 22 ALD 10.
There was the evidence of the fellow employees of the Applicant at Safeway, Messrs Boucher, Oliver and Lee, who worked well into their 60s. Albeit they were approximately four to five years younger than the Applicant. Their evidence was not challenged. They had no difficulty finding alternative employment driving trucks following their retrenchment from Safeway. It seems more likely than not that but for the accepted conditions, the Applicant could have done the same.
Dr Horsley’s evidence on this topic was indeed compelling. As noted earlier, she said there were lots of older truck drivers and that in response to a question about whether any truck drivers work into their late 60s she said “absolutely yes”. It should not be forgotten that Dr Horsley is a vastly experienced Occupational Physician who presumably has had the opportunity in the course of her lengthy career to assess older truck drivers from time to time. Her evidence on this topic was also not challenged and there is absolutely no reason not to accept it.
As for the issue of alcohol, Dr Horsley took some history of the Applicant’s pattern of consumption of alcohol and described him as drinking “at a moderate level”. She was probed about this in cross examination.
On the question of sleep apnoea, Dr Horsley was not really probed in her evidence from the witness box on the topic. She stated that it seemed to be well controlled.[38] In her report, she briefly considered it under the heading “Other Conditions”. She observed that the Applicant then had good control of his sleep apnoea with a CPAP machine. She concluded in the latter part of her report that the Applicant’s condition of sleep apnoea had been “successfully managed”. Dr Horsley, it should be noted, had all of Dr Teo's clinical notes, where reference was made to sleep apnoea, and which have been referred to from time to time in these reasons. They amounted to 696 pages. Presumably, she read those clinical notes that included the references to the Applicant's sleep apnoea conditions. It appears that she did probe the Applicant on this condition as at the date of her examination of him.
[38] Joint Tribunal Book at page 1035.
Sleep apnoea does not therefore, by the time Dr Horsley examined the Applicant on 23 November 2017, appear to have been as significant a problem as it had been previously when recorded in Dr Teo's clinical notes; particularly between 2012 and 2015. It was not suggested by Dr Horsley that it amounted to a preventative factor in the relevant sense.
There was limited evidence concerning the Applicant’s alleged lack of aerobic fitness. That evidence was given by Dr Horsley. She identified it as a matter arising from her clinical examination of the Applicant on 23 November 2017. The Applicant had shortly prior to seeing her been hospitalised by reason of his bronchial condition.
The Applicant contends that neither Dr Horsley, nor for that matter Dr Teo, were cross-examined on this topic, other than when Dr Horsley said that it was probably both the respiratory disease and a lack of fitness. That involved, to some extent, a level of speculation. As noted earlier, the evidence of Dr Hart, who it will be recalled is a consultant respiratory physician, was that the Applicant has chronic simple bronchitis, which is an accepted condition. He also concluded that there was no additional respiratory condition contributing to his limitation. Lest it needs to be repeated, the Tribunal prefers Dr Hart’s evidence on this topic. He is a specialist in the field who conducted an examination of the Applicant after being specifically asked to address the question of whether he suffered from a respiratory condition separate and distinct from chronic simple bronchitis.
Also, on this topic, there is no evidence that it was in fact was an impediment to him carrying out work for which he was suitably qualified. It was also contended that there was no evidence before the Tribunal that any lack of aerobic capacity or fitness was anything other than a consequence of his accepted condition of chronic simple bronchitis. It does not have the characteristics or hallmarks, as it is contended by the Applicant, of an independent preventative factor. The Tribunal accepts this contention.
Very little was advanced concerning the Applicant’s shoulder condition. Dr Horsley in cross examination confirmed the contents of her report. She stated that he had a good range of left shoulder movement. With respect to the right side he had a good range of shoulder movement in forward flexion, extension, abduction, adduction and internal rotation with a mild reduction in the last 20 degrees.
Given this evidence, Tribunal concludes that his shoulder condition was not an impediment to the Applicant engaging in meaningful employment.
Similarly, with hypertension, there was no evidence advanced or cross examination devoted to asserting that it was in any way a preventative factor in the relevant sense.
The Tribunal concludes that by the time of Dr Horsley’s report on 23 November 2017, her diagnosis was that the war-caused conditions alone were preventing him from continuing to undertake remunerative work. It was work that the Applicant had been undertaking, and by reason thereof, was suffering the loss of salary wages and earnings that he would not have suffered with a history of the war-caused incapacities.
CONCLUSION AND DECISION
By reason of the foregoing matters, the Tribunal concludes that the Applicant was prevented by war-caused incapacities alone from continuing to undertake remunerative work that he had previously been undertaking as and from 23 November 2017. Further therefore, by reason of same, he is suffering a loss of income that he would not have been suffering if free of those war caused incapacities.
Therefore, the correct and preferable decision is to set aside the reviewable decision and in substitution therefore, the Tribunal finds that the Applicant is entitled to payment of a pension at the special rate with a date of effect as and from 23 November 2017.
I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
...................[sgd].....................................................
Associate
Dated: 15 July 2021
Date of hearing: 5 November 2020 Counsel for the Applicant: Ms Fiona Spencer Solicitors for the Applicant: Williams Winter Solicitors Counsel for the Respondent: Ms Catherine Symons Solicitors for the Respondent: Australian Government Solicitor
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