Strugnell and Repatriation Commission
[2007] AATA 2094
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2094
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600664
VETERANS' APPEALS DIVISION )
Re EDWARD STRUGNELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date21 December 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]............................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – veteran’s incapacity from war-caused disabilities not preventing him from undertaking remunerative work on a part-time basis or intermittently – intermediate rate of pension not payable – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 15, 19, 21A, 23, 24, 28, 119, 120
REASONS FOR DECISION
21 December 2007 Mr RG Kenny, Member Background
1. On 7 July 2005, a delegate of the Repatriation Commission (the respondent) rejected a claim lodged, in accordance with section 15 of the Veterans’ Entitlements Act 1986 (the Act), by Edward Strugnell on 1 September 2004 for an increase in his rate of pension. Pension was continued at 80% of the general rate, in accordance with section 21A of the Act, in relation to the disabilities which had previously been accepted as being related to his eligible war service. These were bilateral sensorineural deafness and tinnitus; fractures of left radius and ulna, left fibula, left medial malleolus and left 2nd metatarsal; and degenerative changes in left hip joint, left knee joint, left ankle joint, and left tarso-metatarsal joints. The delegate determined that neither the intermediate nor the special rates of pension, as provided for in sections 23 and 24, respectively, of the Act, were payable to him.
2. On 30 August 2006, that decision of the respondent was affirmed by the Veterans’ Review Board and the applicant seeks review of the decision by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
3. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case: see s 120(4) and s 119(1)(g) of the Act, respectively. In that process, neither party bears an onus of proof: see s 120(6) of the Act. The procedure to be followed is provided for in s 19 of the Act. Subsection 19(5C) requires the rate of pension to be assessed from time to time during the assessment period. The term assessment period is defined in s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined. It is not disputed that the application day in this case was 1 September 2004 and that the assessment period runs from that day until the matter is determined by the Tribunal.
4. It was agreed, and I am satisfied, that Mr Strugnell’s circumstances do not meet the requirements for payment of the special rate of pension under s 24 of the Act. The issue raised by him in this case is whether the criteria for payment of the intermediate rate of pension under s 23 of the Act have been met.
5. It is not in dispute that Mr Strugnell was under 65 years of age at the time of his claim or that he is in receipt of pension at greater than 70% of the general rate. Accordingly, he meets the preliminary requirements of s 23(1)(aa), (aab) and (a)(i) of the Act. In issue is whether he meets the incapacity component in s 23(1)(b) of the Act. This is that the incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently. In accordance with s 23(2) of the Act, this will not be met if Mr Strugnell is capable of working 50% or more of the time or for 20 or more hours per week.
6. In the event that s 23(1)(b) of the Act is met, it will also be in issue whether Mr Strugnell meets the requirements of s 23(1)(c) thereof. This comprises two limbs which require that he:
·is by reason of incapacity from his accepted disabilities, alone, prevented from continuing to undertake remunerative work that he was undertaking; and
·is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity.
Summary of Evidence
Mr Strugnell
7. Mr Strugnell gave the following evidence. He was born on 7 January 1946 and served in the Royal Australian Air Force (RAAF) from 1963 until his voluntary discharge in 1984 with the rank of flight sergeant. During his RAAF service, he was involved in technical work associated with aircraft inspections as well as administrative and clerical duties. After his discharge, he continued in civilian employment with the Department of Defence. In the main, this was as a technical officer associated with aviation and, in particular, with quality assurance work associated with the integrity of stores supplied to the Department. For several years, he was based in Toowoomba and was involved in desk-work and computer usage for the preparation and writing of reports. His final position, from 2000, was in software acquisition and installation as part of a world-wide communications network involving sites in various remote parts of Australia. He was the government representative with a Brisbane-based defence contractor, Boeing Australia Ltd (Boeing).
8. Mr Strugnell’s work with Boeing required him to undertake field trips for approximately one week in each month when he would visit the remote installations. On these trips, he was required to inspect electrical equipment which operated automatically and without personnel. Until he finally retired in 2004, these resembled construction sites and this meant that his work at these sites required significant physical exertion. Mr Strugnell began to experience difficulties with meeting the physical demands of his site-inspection work because of his orthopaedic problems, particularly his left ankle and foot. Towards the end of his civilian employment, there were times when he was assisted by another employee who carried out site-inspections for him.
9. For the remaining three weeks of each month, Mr Strugnell worked in an office in the Boeing building engaged in weekly management reviews and audits of the project, in meetings with design and function personnel and in the preparation of follow-up reports and presentations. His orthopaedic problems caused difficulty because of the pain experienced when sitting for prolonged periods at his desk. He also experienced difficulty because of his hearing loss which was especially acute in a noisy environment and where many people were present. In particular, these difficulties were felt in the many meetings in which he was engaged with Boeing staff.
10. Whilst Mr Strugnell was working with Boeing, he resided in a hotel in Brisbane and commuted on weekends and on other necessary occasions during the week to Toowoomba where his wife continued to reside. He enjoyed his work and had planned to remain until his normal retirement age. He made his employer aware of his health problems but did so in an informal manner. Eventually, he reached the stage where he was unable to tolerate the symptoms from his conditions and he decided to resign. He did this, with proposed effect from 30 August 2004, by letter dated 27 July 2004.
11. Mr Strugnell did not utilize all of his sick leave entitlements before he resigned. His practice was to use his annual leave when he was ill and he was aware that his leave entitlements would become exhausted. He sought alternative jobs by way of promotion but was unsuccessful. On some occasions, he was successful in gaining an interview for the positions which were located in the southern states. He was not made aware of the reason for his being unsuccessful in obtaining any of these jobs. He did not apply for a transfer within his own organization.
Julie Strugnell
12. Mr Strugnell’s wife worked in retail sales in Toowoomba whilst Mr Strugnell carried out his duties in Brisbane with Boeing. She believed that he was forced to resign from his job because of the difficulty his physical injuries caused when attending remote sites. She described his hearing loss as significant in that it had impacted upon their social life through loss of friends and difficulty in making new friends who were not able to cope with his lack of hearing. She believed that his hearing loss caused him increasing difficulty in carrying out his office duties at Boeing. When asked what Mr Strugnell does currently to fill in his days, she said that he spends most of the time on the computer.
Tac Furnell
13. Mr Furnell was a member of the same project team as Mr Strugnell with Boeing in Brisbane. He confirmed that Mr Strugnell’s job involved him in undertaking field trips to remote locations for approximately one week in every month for the purpose of conducting site inspections. He confirmed that this involved climbing ladders and negotiating confined spaces in order to inspect electrical equipment. He described Mr Strugnell as being, initially, a keen and diligent member of the team although he noted that he began to experience difficulties in the last 12 months or so. He recalled occasions when a substitute would undertake site visits for him. Mr Furnell said that attempts were made to find alternative public service employment for Mr Strugnell in the area around Toowoomba and, in particular, at Oakey but he said that there were few opportunities for jobs requiring Mr Strugnell’s expertise in those areas.
Ronald James Hewitt
14. Until February 2004, Mr Hewitt was employed by the Department of Defence in Canberra. He was Mr Strugnell’s immediate superior and described him as having converted very well to the Boeing project which required him to work remotely and on an individual basis without support staff. In that sense, he was required to be self-supervising and he carried out his functions accordingly. Mr Hewitt became aware of concerns about Mr Strugnell’s health in 2002 with performance difficulties and absences from work. He learned of the medical conditions from which Mr Strugnell suffered. In his statement, he wrote that Mr Strugnell had unsuccessfully applied for promotion on at least two occasions. In his oral evidence, he said that unsuccessful attempts had been made to find other work for him in an army unit in the Ipswich area to remove the obligation to undertake travel as part of his job. He confirmed that he had not been required to provide any reference material for Mr Strugnell but would have done so, in glowing terms, if he’d been asked. Mr Hewitt said that Mr Strugnell eventually tendered his resignation, citing medical reasons, to take effect from 30 August 2004.
Other evidence
15. In evidence was a statement, dated 23 February 2007, completed by Laurie O'Brien, Assistant Personnel Officer with the Department of Defence in Sydney. Therein, reference is made to the leave entitlements of Mr Strugnell during the last 12 months of his employment. His total leave taken was 64 working days which comprised 61 days of annual leave and 3 days of personal leave.
16. Also in evidence was an employment report, dated 15 October 2004, from the Department of Defence. It records Mr Strugnell’s voluntary retirement from his position as an administrative officer at executive 1 level.
Medical evidence
17. Specialist medical evidence in this matter comprised reports from specialist in rehabilitation and sports medicine, Dr Saul Geffen; specialist in occupational medicine, Dr Steven Goode; and orthopaedic surgeons Dr Edward Barui and Dr Gregory Bookless. Dr Geffen and Dr Goode also gave evidence.
Dr Geffen
18. Dr Geffen saw Mr Strugnell on one occasion and completed a report on 21 June 2007. He noted the orthopaedic problems from which Mr Strugnell suffered. He reported a significantly reduced range of motion in the left ankle and left knee and a wasting of the left quadriceps. He also noted a reduced range of motion in the left hip and was of the opinion that there had been no attempt by Mr Strugnell to exaggerate his symptoms of pain. He noted, in his observation of Mr Strugnell while he was completing documentation prior to their consultation, that Mr Strugnell was unable to stay seated and that he completed the form in a standing position. Nevertheless, he noted also that Mr Strugnell moved freely when he was walking into the examination room albeit with a stiff and somewhat shortened gait. Dr Geffen believed that it was unlikely that Mr Strugnell would be able to perform more than 8-12 hours of office-based/sedentary work per week. In particular, he said that sitting for long periods would be difficult for him. Dr Geffen also noted that Mr Strugnell had not been in remunerative work for three years because of his injuries but, in his oral evidence, he said that it was Mr Strugnell’s capacity to undertake work to which he was referring rather than the likelihood of his getting back to work.
Dr Goode
19. Dr Goode’s report was dated 18 May 2006. In its commissioning letter, the respondent gave Dr Goode three options of work capacity from which to choose: less than 8 hours per week; 8 to 20 hours per week; and more than 20 hours per week. He was of the opinion that, taking into account his orthopaedic problems and his hearing loss in an objective sense, Mr Strugnell was capable of undertaking at least 8 to 20 hours per week of sedentary clerical/administrative/office work, in a quiet office environment.
20. Dr Goode noted that, though Mr Strugnell did not have hearing aids, he demonstrated no significant difficulty in hearing or communicating during his 90 minute consultation. On examination, Dr Goode noted good active range of movement in the left hip and arm, very minimal restriction of full flexion in the left knee and some stiffness in the left ankle and foot. He also referred to Mr Strugnell’s subjective reporting of symptoms of constant pain and stiffness in his neck and his left hip, knee, ankle, foot and forearm; difficulty in walking more than 1 km; pain which worsened with activities such as heavy lifting, bending or mobilizing; and left lower limb pain after driving for about 60 minutes. He described these subjective symptoms as comprising what he was told by Mr Strugnell, as being incapable of measurement and as being more than might be expected from the objective findings that he observed. He noted that Mr Strugnell had been able to remain seated for the 90 minute consultation and had demonstrated no difficulty in walking into the consultation room. Dr Goode also said that he could not deny that these subjectively experienced limitations existed for Mr Strugnell and was of the opinion that they would probably render any future return to work untenable. He noted that Mr Strugnell considered himself as being retired from a workforce.
Dr Barui
21. In his report, dated 25 October 2005, Dr Barui recorded the following descriptions given by Mr Strugnell. There was an absence of pain in his left arm except when he lifted heavy weights. There were ongoing troubles with his left knee and an ability to walk more than 1 km before aching requires him to rest. The left hip causes discomfort when sitting for long periods and pain on rising from such a position. His left foot and ankle experience stiffness and pain when carrying heavy items or walking.
22. Dr Barui’s observations on examination revealed an ability to move around the room well, full range of movement in the left forearm, reduced grip strength in the left hand compared with his right hand, good flexion but limited internal rotation in the hip and solid knee ligaments with some laxity on the medial collateral ligament. Apart from pain to the medial side of the knee, he described the knee joint as reasonable. The ankle showed poor dorsiflexion but was otherwise very solid. Dr Barui was of the opinion that Mr Strugnell’s main concerns were his left knee and ankle. He expressed no opinion on the capacity of Mr Strugnell to undertake employment.
Dr Bookless
23. Dr Bookless completed a report on 4 April 2005. His examination of Mr Strugnell revealed full motion of his left forearm with some weakness and occasional aching when it is under strain; full movement of the hip with intermittent aching and discomfort with prolonged sitting; normal movement, absence of swelling and intermittent aching in the left knee precipitated by prolonged walking; reduced range of movement and intermittent aching in the ankle precipitated by walking; and, in the left foot, some aching and discomfort precipitated by walking. In his summary, Dr Bookless described Mr Strugnell as being troubled with mild aching discomfort in the relevant regions and significant arthritic changes affecting his left ankle and left foot. However, he described Mr Strugnell’s other aches and pains as being of minimal significance. Dr Bookless believed that the symptomatology was not severe enough to prevent him from working either full-time or part-time.
Submissions
The applicant
24. Mr O’Brien referred to s 28 of the Act and authorities decided thereunder and submitted that the remunerative work relevant for the purposes of s 23(1)(b) of the Act was that encompassing administrative, technical, managerial and computer competencies at a senior level in the public service in the field of aeronautical engineering or communications. He submitted that it was not reasonable to give consideration to employment options which reflected a lower skill level. Further, Mr O’Brien submitted that Mr Strugnell was not capable of undertaking that type of work for 20 or more hours per week. He submitted that consideration should be limited to the medical evidence of Dr Goode and Dr Geffen. Further, he submitted that reliance should be placed upon the report of Dr Geffen, rather than that of Dr Goode, because of the ambiguity in Dr Goode’s opinion that Mr Strugnell could work for “at least 8 to 20 hours per week”.
25. Mr O’Brien also referred to Dr Goode’s objective/subjective analysis of Mr Strugnell’s symptoms and to his evidence that he could not exclude the reality that Mr Strugnell experienced those symptoms or that they would have a substantial impact upon his capacity for employment. Mr O’Brien submitted that the opinion of Dr Geffen about work capacity was supported by the lay evidence given by Mrs Strugnell, Mr Hewitt and Mr Furnell.
26. Mr O’Brien submitted that the terms of s 23(1)(c) of the Act were also met. This was on the basis that there were no factors other than Mr Strugnell’s accepted disabilities which were responsible for his no longer being engaged in remunerative work and for suffering a corresponding loss of earnings.
The respondent
27. Mr Kelly submitted that the appropriate remunerative work in the purposes of s 23(1)(b) of the Act involved clerical/administrative type duties at the middle to upper management level. Further, Mr Kelly submitted that, on the medical evidence, Mr Strugnell was capable of undertaking more than 20 hours per week in that form of work. In that regard, he referred to the evidence of Dr Bookless and Dr Goode. He submitted that the opinion of Dr Geffen was based on an assessment of an overall picture of Mr Strugnell including his psychological state and length of time out of the workforce. He also noted that, while giving his evidence to the Tribunal, Mr Strugnell had remained in a sitting position for more than an hour without apparent discomfort. Mr Kelly submitted that capacity to work for more than 20 hours per week was demonstrated by the high regard in which he was held by his superiors and by his willingness to seek alternative employment options which did not include the component of site inspection or travel. Mr Kelly also submitted that, for the purposes of s 23(1)(c) of the Act, the effects of Mr Strugnell’s accepted disabilities was not the only reason for his ceasing his employment.
Consideration
Incapacity: s 23(1)(b) of the Act
28. Paragraph 23(1)(b) of the Act requires that the incapacity from Mr Strugnell’s accepted disabilities be sufficient, alone, to render him incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently. As noted above, this will be met if he is incapable of undertaking the kind of work he was doing for 20 or more hours per week. On the basis of the description of his position with the Department of Defence and of the evidence of Mr Strugnell, Mr Furnell and Mr Hewitt, as well as the submissions outlined above, I am satisfied that the relevant remunerative work for the purposes of s 23(1)(b) of the Act in Mr Strugnell’s case involved clerical and administrative type duties at the middle to upper management level.
29. I do not accept the contention that consideration of the medical evidence in this matter be confined to that provided by Dr Goode and Dr Geffen. Dr Bookless and Dr Barui examined Mr Strugnell in March 2005 and October 2005, respectively. Both of those examinations occurred within the assessment period. Dr Barui expressed no opinion on the capacity of Mr Strugnell to undertake employment. However, his description of Mr Strugnell’s conditions is not inconsistent with that provided by Dr Goode. Dr Bookless, whose specialty is orthopaedic surgery, provided a detailed report in which he described Mr Strugnell’s orthopaedic problems and concluded that they would not prevent him from working on either a full or part-time basis.
30. Dr Goode was provided with three options from which to choose in describing work capacity. In his report and in his evidence, his opinion was that Mr Strugnell could work for “at least 8 to 20 hours per week”. Taken in isolation, that is an unusual description of work capacity. However, I take that response in the context in which Dr Goode was asked to express his opinion. He was provided with three options from which to choose. These were: less than 8 hours per week, 8 to 20 hours per week and more than 20 hours per week. Given those three options, I understand Dr Goode’s evidence to be that Mr Strugnell can be described as at least satisfying the second category and I take this to mean that he has the capacity to work to a greater level than the second category describes. That description is not inconsistent with the opinion of Dr Bookless.
31. Dr Geffen was of the opinion that Mr Strugnell’s work capacity was in the order of 8 to 12 hours per week. In particular, he considered that he would experience difficulty sitting for long periods and noted that Mr Strugnell had adopted a standing position while completing documentation. However, Dr Goode observed Mr Strugnell in a sitting position for the 90 minute duration of his consultation with him and, as submitted by Mr Kelly, Mr Strugnell gave evidence before the Tribunal in a sitting position for more than an hour. Dr Geffen noted that Mr Strugnell moved freely when he was walking into the examination room and that was also an observation made by Dr Goode. Dr Geffen considered that Mr Strugnell did not appear to exaggerate his symptoms when demonstrating movement limitations. However, Dr Goode’s opinion was that the subjective responses described to him by Mr Strugnell exceeded those which might be expected from the objective analysis of his orthopaedic problems.
32. On the medical evidence, I am satisfied that Mr Strugnell’s accepted disabilities do not prevent him from undertaking the kind of work for which he was qualified, in accordance with the terms of s 28 of the Act, for more than 20 hours per week. That medical evidence is supported by that given by Mrs Strugnell, Mr Furnell and Mr Hewitt. Mrs Strugnell said that his work problems arose from the tasks associated with remote site inspections. She did not implicate problems with office-based activities and, indeed, she described Mr Strugnell as currently spending most of his time working at a computer. The basis of the evidence of Mr Furnell and Mr Hewitt relates to the period prior to the start of the assessment period and while Mr Strugnell was still working. However, the assessment period commenced only days after employment finished. Mr Furnell’s concern with Mr Strugnell was not in relation to administrative work but with remote site inspections and he investigated alternatives which did not involve that kind of activity. Mr Hewitt was also concerned with the travel aspects of Mr Strugnell’s work and was willing to provide him with a glowing reference in relation to his work generally.
33. On all of the evidence, and on the balance of probabilities, I am satisfied that, during the assessment period, Mr Strugnell was not prevented by his accepted disabilities, alone, from undertaking remunerative work of the relevant kind for more than 20 hours a week. It is not in dispute that Mr Strugnell has not been seeking employment since he left the Department of Defence and no contentions were raised in relation to the application of s 23(3)(b) of the Act.
34. The terms of s 23(1)(b) of the Act are not met in Mr Strugnell’s situation. This means that he does not meet an essential requirement for payment of the intermediate rate of pension and it is not necessary for consideration to be given to the remainder of s 23 of the Act.
Decision
35. The Tribunal affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .....................................................................................
Legal Research OfficerDate of Hearing 11 October 2007
Date of Decision 21 December 2007
Counsel for the Applicant Mr T.P. O’Brien
Solicitor for the Applicant Cockburn Legal & Consulting
For the Respondent Mr J Kelly, Departmental Advocate
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