Suckow and Repatriation Commission (Veterans' entitlements)

[2021] AATA 393

Suckow and Repatriation Commission (Veterans' entitlements) [2021] AATA 393 (4 March 2021)

Division:VETERANS’ APPEALS DIVISION

File Number(s):      2019/1740

Re:Detlef Suckow  

APPLICANT

Repatriation CommissionAnd  

RESPONDENT

DECISION

Tribunal:R CAMERON SENIOR MEMBER

Date:4 March 2021

Place:Hobart

The Tribunal sets aside the decision under review and in substitution decides that the Applicant’s disability pension be assessed at the Special Rate with effect from 19 December 2017.

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R Cameron, Senior Member

VETERANS’ AFFAIRS – disability pension – rate of assessment – neck and spinal conditions - whether accepted conditions render Applicant incapable of undertaking work for more than 8 hours per week – incapable of undertaking remunerative work over 8 hours – decision set aside and substituted – assessed at Special Rate

Legislation

Veterans Entitlements Act 1986

Cases

Chambers v Repatriation Commission (1995) 55 FCR 9

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

INTRODUCTION.

1. The Applicant seeks review of this Tribunal of a decision made by the Veterans’ Review Board on 4 March 2019 (‘the reviewable decision’). The Veterans’ Review Board set aside a previous decision of 8 February 2018 which assessed the Applicant’s rate of disability pension at 100% of the General Rate. It substituted a decision that the Applicant’s disability pension be assessed at the Intermediate Rate with effect from 19 December 2017.

2. The Applicant contends that he is entitled to a disability pension to be assessed at what is known as the Special Rate under the applicable provisions of the Veterans Entitlements Act 1986 (‘the VE Act’).

   THE EVIDENCE BEFORE THE TRIBUNAL

3. There was both documentary and oral evidence before the Tribunal.

4. The following witnesses gave oral evidence:

   (a)The Applicant;

   (b)Dr Davison, a Consultant Occupational Physician, reports from him dated 20 September 2019 and 6 June 2020 were tendered;

   (c)Mr Arnold, a Vocational Rehabilitation Consultant, a report from him dated 18 January 2021 was tendered; and

   (d)Dr Tschirn, a Consultant Occupational Physician, a report from him dated 10 September 2019 was tendered.

5. Additional documentary evidence was received as follows:

   (a)A report from Kim Tidswell, a practising Vocational Rehabilitation Provider;

   (b)The “T” documents;

   (c)A letter from the Applicant to the Respondent dated 2 December 1999; and

   (d)A bundle of Navy personnel documents concerning the Applicant’s service.

   THE LEGISLATIVE REGIME APPLICABLE TO SPECIAL RATE DISABILITY PENSIONS

6. For the purposes of this application the applicable section of the VE Act is s 24(1)(b). Relevantly, that section provides:

   (1)  This section applies to a veteran if:

   (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; …

7. In determining for the purposes of s 24(1)(b) of the VE Act whether a person is incapable of undertaking remunerative work, the decision-maker in so applying that section must only have regard to the matters enumerated in s 28 of that Act. As observed by the Full Court of the Federal Court of Australia in Chambers v Repatriation Commission[1] insofar as it directs only three specified matters are to be taken into account in making the determination. That section is exhaustive.

   [1] (1995) 55 FCR 9 at 19 (‘Chambers’).

8. Because the definition of “remunerative work” is expressed in the widest language to give a meaning of “any remunerative activity” the ultimate enquiry to which s 28 of the VE Act is directed is whether the Applicant’s incapacity of itself, has rendered him incapable of undertaking any remunerative activity.

9. It is useful to reproduce in full s 28 which provides as follows:

   28Capacity to undertake remunerative work

   In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

   (a)the vocational, trade and professional skills, qualifications and experience of the veteran;

   (b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

   (c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

10. Each of the subsections in s 28 must be considered. They should be considered separately. A narrow approach to the construction of these subsections should not be taken.

    SOME RELEVANT BACKGROUND FACTS

11. The Applicant joined the Royal Australian Navy on 9 October 1972 at 16 years of age. He served permanently until 8 October 1992. He served in the Naval Reserve until approximately October 2002. He reached the rank of Chief Petty Officer. During the period that he was in the Navy he trained as a writer and performed a variety of tasks both in the permanent Navy and in the Reserve. Those tasks consisted of a variety of different functions in administration instruction and supervision.

12. In the Applicant’s Navy personnel documents, it was apparent that he was an outstanding senior sailor who at all times achieved a standard of excellence in all aspects of his service career. It is completely fair to say that he was an exemplary serviceman. He demonstrated qualities of responsibility, leadership and a capacity to tackle difficult tasks. It is apparent that he had excellent organisation and planning skills with a capacity to impart his skills and knowledge that he acquired over the course of his service to others serving with him. There were glowing reports written about him by several commanding commissioned officers. Little more need be said on this topic.

13. It is also fair to say that his evidence before the Tribunal reflected these attributes. He presented as a thoroughly decent individual who would be quite prepared to work on any occasion in any task if he were physically capable of doing so.

14. Following his discharge from the permanent Navy he, together with his wife, worked from approximately 1993 until 2011 as fruit pickers. They also worked in the off-season carrying out various sundry tasks in orchards such as pruning, thinning, weeding and general farm maintenance. Regrettably, he ceased that work in 2011 so that he could care for his wife who was terminally ill suffering from cancer.

    ISSUE FOR DETERMINATION BY THE TRIBUNAL

15. Helpfully, as a result of sensible discussions between the practitioners, the issue for resolution by the Tribunal has been confined to one question. That issue is within the meaning of s 24(1)(b) of the VE Act: do the accepted conditions from which the Applicant suffers render him incapable of undertaking work for more than 8 hours per week?

    SECTION 28(1)(A): THE VOCATIONAL, TRADE AND PROFESSIONAL SKILLS, QUALIFICATIONS AND EXPERIENCE OF THE APPLICANT

16. As noted above, the Applicant joined the permanent Navy at the age of 16 years under its junior recruit program. Initially, he undertook 12 months of recruit training at which he excelled. In his intake he was the leading junior recruit winning a trophy for the most outstanding. Following his initial recruit training he undertook the writers’ course and from 1973 worked as a writer. Apparently, in the Navy the term “writer” is given to enlisted people who undertake a variety of administrative duties including, but not limited to, clerical functions.

17. Commensurate with these duties the Applicant undertook several courses specifically designed to teach administrative skills to naval personnel as part of their overall training, providing a pathway to promotion. The Applicant pointed out in his evidence, which is accepted by the Tribunal, that these courses were Navy generated as requirements for promotion but did not give the participant what he described as civil accreditation.

18. The Applicant’s tasks as a writer encompassed several different functions. They included being a typist; involving posting promotions in section logs manually. He also spent time in the registry as a pay and accounts clerk keeping records, which being before the widespread use of computers, required the making of entries in physical books and records. Amongst these tasks included calculating pay, creating and maintaining pay cards. The calculations of pay were undertaken manually.

19. The Applicant also acquired high-level skills in what was known as the naval Filing System Registry. This was an organised filing system of hardcopy Manila files. It seems to the Tribunal that the Applicant developed extremely high-level skills in recordkeeping and file management.

20. For some time in Tasmania the Applicant also worked as the secretary to a naval commanding officer. His tasks whilst performing this role included drafting correspondence to be sent to Canberra and reading and identifying applicable regulations and legislative instruments relevant to the day-to-day administration and conduct of naval duties. There were also manuals and books that needed to be consulted and considered.

21. The Applicant readily conceded that later in his career computers in some shape or form emerged. In his evidence he conceded that he did an IT course which it appears to the Tribunal was at the most basic level. It was apparent to the Tribunal that he had developed some rudimentary keyboard skills which enabled him to simplistically complete various templates that had been installed. However, and one must say, understandably more often than not, it was the Applicant’s practice to rely upon younger personnel who were, when it came to computers, as the Applicant described it, more “tech savvy”. Often there would be a pre-existing document in Word Format which only required the name, rank and number of persons concerned to be changed.

22. The evidence reveals that later in his career, particularly when serving in the Navy Reserve, the Applicant acquired some familiarity at a basic level with database technology. He was probed particularly in cross examination about his knowledge of the “Cenrespay” pay system which appears to be some form of practical application of relational database technology. A similar pay system was in place for the permanent Navy. The Applicant said that whilst he was familiar with these systems his function largely was to supervise junior personnel in actually operating the system.

23. Along this line in cross examination, reference was made to a highly complimentary report about the Applicant probably in the year 1995. In that report it recorded that since assuming the role of Persistent Personal Services Officer and Personnel Officer on 28 December 1994 he had completely restructured the personnel filing system and was responsible for the computerisation of all registry files. The Applicant explained in response to careful questions on this topic that he did not do any of the “inputting” when this task was undertaken. What he did was have staff writers who undertook the “legwork”. His role was to supervise and manage the staff who were undertaking this task. The Applicant informed the Tribunal that he was not familiar with the actual computer process. The Tribunal readily accepts this evidence from the Applicant. It should also be noted that it is apparent from reading not only that report, but several others in evidence, that the Applicant had well-developed skills in managing and supervising junior staff. No doubt a significant undertaking such as digitising hardcopy files would have required many personnel to complete such a task and competent supervision would have been essential.

24. There was also in evidence a letter of 2 December 1999 written by the Applicant to the Department of Veterans Affairs. The contents of the letter, which the Applicant readily admitted, revealed that the Applicant had, during Australia’s involvement in East Timor in that year, worked as part of a team at the National Welfare Coordination Centre. This organisation was developed as he put it “from the ground up” to provide support and advice to next of kin of service personnel in East Timor. The Applicant’s tasks included acting as a call operator and operating a computer database which involved the use of the keyboard to populate the database with relevant information that was taken during the phone calls. This evidence further confirms that the Applicant had rudimentary keyboard and database skills. He did not deny this.

25. As briefly noted earlier the Applicant developed excellent skills in tuition. He was posted as an instructor to the naval management school. He instructed in such topics as Service Writing and Service Knowledge in addition to leadership and management topics. He also, as he gave evidence, developed field exercises conducted by that school. There were glowing reports written by his commanders of his skills in this area which were described as both impressive and excellent. His support in this role as a Divisional Senior Sailor was described by one commanding officer as invaluable. Another commanding officer at that establishment described the Applicant’s performance at a high level of excellence in all tasks.

26. Following his discharge from the Navy, the Applicant had a variety of fruit picking or farm labouring jobs he undertook with his wife. During his evidence he did refer to the concept of “Grey Nomads”. Most of this work was undertaken in Queensland where he and his wife purchased a home and lived for some time. Little more needs to be said in terms of the Applicant’s skills and skill set.

    SECTION 28(1)(b): THE KINDS OF REMUNERATIVE WORK WHICH A PERSON WITH THE SKILLS, QUALIFICATIONS AND EXPERIENCE OF THE APPLICANT MIGHT REASONABLY UNDERTAKE

27. There were several sources of evidence before the Tribunal which assist in assessing the kinds of remunerative work a person with the skills, qualifications and experience of the Applicant might reasonably undertake.

28. The evidence that has already been referred to in these reasons concerning s 28(1)(a) of the VE Act is referred to and repeated. The Respondent contends that relying on this evidence the Applicant could undertake part-time work of approximately 10 to 15 hours per week in clerical, administrative, telephone advisory, defence-related jobs such as recruiting, light physical work and console operating. For the purposes of applying this section such contention has much force and effect.

29. Several of the medical practitioners who have examined the Applicant also expressed opinions as to suitable forms of employment.

30. Dr Ernst, who did not give evidence, in his report of 4 October 2018 opined that the Applicant has the capacity for sedentary types of work based on his previous naval work history. He acknowledged that there was a limit to this capacity given the dramatic changes to information technology and work tasks since the Applicant left the Navy. Dr Ernst considered that this would require significant retraining. However, he expressed an opinion that there were still sedentary types of roles that he could perform such as a console operator at a service station which requires primarily dealing with customers, allowing work in sitting or standing positions, and requiring only a small amount of manual work.

31. Dr Davison, whilst considering that the Applicant had a very limited capacity for remunerated employment, expressed the opinion that he estimated the Applicant could undertake self-paced work up to two hours per day five days a week if suitable employment was available and subject to a range of physical restrictions. Given the Applicant’s extensive background in a high-level clerical role in the Navy he expressed the opinion that a suitable form of employment would be that of an administration assistant. He qualified this opinion by saying that the Applicant would require digital literacy training to develop sufficient skills to undertake a range of occupations within the category of administration assistant. This digital literacy training would be required for occupations including office cashier, telemarketer and general sales assistant.

32. Dr Tschirn in his report expressed the opinion that remunerative work to be undertaken by the Applicant would be of a sedentary to light physical demand, preferably in an administrative type capacity. He suggested financial administration but readily acknowledged that some retraining would be required as he is now in the digital age and would not have much experience in transitioning to the current tools of administrative practice in that role.

33. Mr Arnold, a practising Vocational Rehabilitation Consultant, in his report identified several recommended forms of employment for which the Applicant could undertake. They were a bookkeeper, general clerk and sales assistant. He considered it highly unlikely that the Applicant would obtain any form of employment in those occupational groups based on what he described as his vocational assets. One of the significant barriers to securing any of these positions was what he described as his lack of the required level of digital literacy. In the case of the sales assistant he also identified the lack of capacity to undertake the work identified by the several medical reports that he examined.

34. Mr Arnold also considered the issue of a service station console operator. After a detailed consideration of the tasks required of such an operator, he concluded that the Applicant may be able to adapt to the digital literacy requirements of the role via on-the-job training. However, he expressed the opinion that it is highly unlikely that the Applicant could gain any form of employment in such a role based on his limited functional capacity which has been detailed earlier in these reasons. In other words, the restrictions would prevent him from securing a position.

35. Ms Tidswell, another Vocational Rehabilitation Provider, prepared an extensive report although she did not give evidence.

36. She identified a range of potential jobs that the Applicant could undertake. They included bookkeeping, administration, retail, a general clerk, an enquiry clerk or receptionist, a call or contact centre information clerk, a receptionist, a clerical and office support worker and other clerical and administration workers.

37. The Full Court of the Federal Court of Australia observed in Chambers that the primary question posed by s 28(1)(b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with the relevant skills, qualifications and experience “might reasonably undertake”.

38. The Full Court further observed in Chambers that the statutory test is not whether the person already has everything that is requisite, but whether a person with his skills qualifications and experience might reasonably undertake the kind of employment in question. The extent to which in some way he might have to prepare himself bears on whether he might reasonably undertake the employment, which is the ultimate question under the paragraph, but the fact that he must do so does not debar him. It is a question of degree.[2]

    [2] See Chambers at 21.

39. Notwithstanding that the Applicant has not worked in an administrative environment for many years, the Tribunal considers that he does have an excellent work ethic and has acquired some fundamental administrative skills that would enable a hypothetical person with the vocational, trade and professional skills qualifications and experience he possesses to undertake a variety of administrative jobs as have been suggested by both the medical experts and also identified by Ms Tidswell and Mr Arnold. It accepts the contention of the Respondent as to the range of positions that could be undertaken. It was apparent from an analysis of several of the reports contained in his Navy personnel records that the Applicant always rises to meet a challenge and is quite adaptable.

1. As for his level of digital literacy the Tribunal acknowledges that it is limited. On his own account he says that he can operate a computer so as to send and receive emails and search the Internet. In his latter days in the Navy, he clearly acquired some keyboard skills which it seems hard to believe could not be revived with appropriate on-the-job training. It will be recalled that when he worked as part of the National Welfare Coordination Centre his skills were sufficient to enable him to act as a call operator and populate data into an operating computer database by use of the keyboard. No doubt his skills will be somewhat rusty but given his undoubted aptitude and diligence one cannot see that the Applicant and a hypothetical person in his position would not be able to achieve sufficient skills to undertake those tasks similar to those that he did in the past. Such a revival of keyboard skills would enable him to undertake basic administrative, clerical, retail and bookkeeping occupations.

   SECTION 28(1)(C): THE DEGREE TO WHICH THE PHYSICAL IMPAIRMENT OF THE APPLICANT HAS REDUCED HIS CAPACITY TO UNDERTAKE THE KINDS OF REMUNERATIVE WORK REFERRED TO IN PARAGRAPH (B)

2. It was also observed in Chambers that s 28(1)(c) directs attention to the extent to which the veteran’s war caused injury has reduced his capacity to undertake the kinds of remunerative work that a person with the skills qualifications and experience referred to in s 28(1)(a) might reasonably undertake. As Full Court of the Federal Court found it is through this section that the effect of the war caused injury on the veteran’s capacity for remunerative activity is to be taken into account.

3. The starting point in a consideration of this section is to identify the impairments from which the Applicant suffers.

4. The Respondent readily concedes that the Applicant suffers from the following defence caused disabilities:

   (a)osteoarthritis right and left shoulders;

   (b)rotator cuff syndrome, right and left shoulders;

   (c)dorsal and lumbar spondylosis;

   (d)cervical spondylosis;

   (e)left patella tendinitis;

   (f)duodenal ulcers;

   (g)oesophagitis; and

   (h)bilateral sensorineural hearing loss.

5. An MRI scan in December 2017 revealed degenerative changes in the neck which accounted for ridiculous compression. Following this revelation contained in the MRI, he underwent a multilevel cervical fusion procedure at C 3-C 6 performed by a neurosurgeon Mr Erasmus in November 2018.

6. The Applicant was described by Dr Davison as currently experiencing widespread spinal pain. Dr Davison also described chronic lower back pain and intermittent left lower limb pain with sensory disturbance. Additionally, he has reduced spinal function and is restricted in respect of sitting, standing and walking as a consequence. All the doctors who have examined him agree on this point.

7. Dr Ernst observed that the Applicant currently has severe neck pain with movement restrictions. He observed symptom severity ranges between 7/10 and 10/10. He also described it as the Applicant’s most significant pain in comparison to pain from other conditions. With respect to the Applicant’s lumbar spine he observed that the Applicant currently experiences ongoing pain with movement restrictions. The pain severity ranges between 5/10 and 10/10.

8. Dr Ernst in his report also identified that in any employment undertaken by the Applicant it would be necessary to limit spinal loadings. He therefore identified the following “guidelines” that should be followed to achieve this objective. Those guidelines are as follows:

   (a)Prolonged and repetitive bending should be avoided;

   (b)Lifting and carrying weights should be limited to, depending on the nature of the task, to a maximum of 5 kg;

   (c)Pushing and pulling forces should be limited, depending on the nature of the task, to a maximum of 5 kg;

   (d)Postural change, e.g. sitting, standing, walking et cetera, should be possible every 10 minutes;

   (e)The object in relation to lifting, pushing, pulling or manual handling should be no more than 20 cm away from the body;

   (f)Vibration, e.g. prolonged driving on uneven surfaces, or jolts, e.g. driving forklift on uneven surfaces should be avoided; and

   (g)Work Pace and task control, i.e. the ability to slow down or to stop should be high.

9. Dr Tschirn made similar observations about the neck and lower back conditions. He described ongoing lower back pain which is constant and aggravated by sitting or prolonged standing. He has constant stiffness in his neck and finds that prolonged sitting such as at a computer also increases his neck pain.

10. Dr Tschirn observed that there was significant stiffness in the cervical spine commensurate with the history of cervical fusion surgery. Forward flexion was 25% of expected normal range. Extension was almost non-existent. Right rotation was to 25% of expected normal range, left rotation was to 50% of expected normal range. There was limited range of thoracolumbar spinal movement. Attempts at movement were reportedly painful in certain positions.

11. With regard to the neck condition (cervical spondylosis), Dr Tschirn observed that any work that requires him to repetitively turn or bend his neck, e.g. looking down postures, or awkward net postures is contraindicated. With regard to the back condition (dorsal and lumbar spondylosis), any role that requires him to bend, stoop, or crouch is unsuitable. Heavy lifting is inappropriate.

12. The Tribunal observes that these restrictions are significant and are most unlikely to be attractive to any potential employer. It is difficult to contemplate many employers or workplaces that would realistically offer such a level of flexibility even in an administrative setting.

13. The Tribunal observes that Dr Davison’s opinion concerning the Applicant’s work options is highly qualified particularly given the range of physical restrictions that he specified in his reports. These restrictions were essential if he was to undertake self-paced work and included the following:

    (a)Avoid prolonged sitting;

    (b)Avoid prolonged standing;

    (c)Avoid frequent bending;

    (d)Avoid the use of the arms above chest height;

    (e)Avoid forceful and/or repetitive pushing or pulling, lifting or carrying away from the body;

    (f)Avoid squatting or kneeling;

    (g)Avoid the use of ladders or stairs; and manual handling not to exceed 7.5 kg in force or weight using both hands at bench height.

14. Dr Davison also made the point which is not strictly a medical opinion or one that he is not qualified to give, but nonetheless worth mentioning, that the Applicant at 63 years of age has not undertaken paid employment for eight years. Therefore, he is likely to be very uncompetitive when vying for suitable employment with young and presumably fit candidates. Such opinion also realistically has to presuppose that there must be employment opportunities available that would have sufficient flexibility to enable the Applicant to work for only two hours a day self-paced, subject to the restrictions he identifies.

15. Finally, Dr Davison expressed the opinion that the Applicant has a very limited capacity to undertake remunerated work. The reasons he gave for reaching this conclusion were the Applicant’s geographical location, his age, length of time out of the paid workforce and his lack of digital literacy skills together with the physical restrictions identified above. Therefore, he considered that realistically the Applicant is very unlikely to secure employment in a real-world situation. The Tribunal agrees with this assessment.

16. Dr Davison in his evidence expressed the opinion that he would not recommend the Applicant be employed as a console operator in a service station. He said that it would be difficult for him to self-pace in that setting. Also, stock often has to be put away between serving customers and it would be very difficult for the Applicant to do this given the restrictions that have been identified. In response to a specific question he stated that if he was doing a pre-employment medical examination, he would not recommend the Applicant be recruited for any function in a service station.

17. In his evidence from the witness box Dr Tschirn disagreed with Dr Ernst about the Applicant’s suitability for seeking employment as a console operator in a service station. He considered that it is not as sedentary as might be first thought because it is more physically demanding than it appears. The duties include lifting and shifting of stock. He reiterated from the witness box that it was administrative jobs that he supported. If he were doing a pre-employment medical examination for a service station position, he would be advising a prospective employer not to engage the Applicant.

18. Dr Tschirn also identified restrictions like those of Dr Ernst and Dr Davidson. He also observed that because of the Applicant’s conditions he would need to in any employment setting take regular rest breaks. Additionally, he may need to use potentially sedating medication and require higher levels of assistance during periods of symptom increase. Dr Tschirn opined that the Applicant had the capacity to work somewhere in the range of two to three hours per day five days a week provided that he was employed in a sedentary role, and further steps described as “reasonable adjustments” were taken. These included suitable ergonomic furniture and a high degree of control over postural autonomy to manage particularly his spinal pain.

19. Dr Tschirn reiterated these matters in the witness box and if anything, such evidence amplified the gravity of the Applicant’s disabilities. He stated the main conditions he identified were with respect to the Applicant’s neck, lower back and shoulders. He noted again that the Applicant’s neck surgery was significant. In the context of any telephone-based role it would be necessary to set up the Applicant’s workstation ergonomically. Additionally, he recommended for the use of the phone that Bluetooth technology be adopted or a cable rather than holding a telephone handset close to his ear. In the context of possible council work, emphasis in his evidence was given to the ability to take regular posturing breaks. He emphasised that with his neck condition, the Applicant will be affected if he has to sit in a fixed reading position. He also cautioned about the effect of the Applicant having to regularly read from a screen. He did mention the potential risk of what he called a “flareup” with the lower back or neck conditions.

20. Similarly to Dr Davison, Dr Tschirn also considered that the Applicant’s age of 63 years is a factor that has an impact on work capacity. Qualitatively, in terms of age-related stiffness and quantitatively also, in terms of tolerance due to fatigue. Critically, he stated that in terms of age, it reduces the Applicant’s overall capacity further and below eight hours per week in an open and unsupported employment environment.

21. This concession by Dr Tschirn concerning the need for a restricted and supported employment environment being essential for him to work more than eight hours per week is an important one. It seems to the Tribunal that this approach is also implicit in both the opinions of Dr Davison and Dr Ernst by reason of the restrictions that they identify and the necessity for a potential employer and workplace to accommodate those restrictions. If an employer is not prepared to accommodate those restrictions and provide a workplace that offers, to use Dr Tschirn’s terminology, “reasonable adjustments” such as ergonomic furniture and permitting self-paced working, it seems to the Tribunal that there would be virtually no work that a person with the skills, qualifications and experience of the Applicant might reasonably undertake. Certainly, not more than 8 hours per week.

22. It should also be noted that although she did not give evidence there were two reports before the Tribunal from the Applicant’s treating general practitioner Dr Stillger.[3] She expressed the opinion that the Applicant cannot work for more than eight hours per week due to his accepted disabilities alone. She referred in particular to his chronic pain, significantly limited endurance and the likelihood of further deterioration of his condition. Referring to what she described as his spinal condition, she also expressed the opinion that not only would his condition worsen over time, but any form of employment would only serve to exacerbate the deterioration of his current disabilities. It is regrettable that she was not called to give evidence. It does limit to some extent the weight that the Tribunal can place upon such reports. However, the Tribunal accepts that it was a genuine professional opinion expressed by treating practitioner who has had the benefit of consulting the Applicant over several years. It should not be underestimated. The Tribunal does take it into account in reaching the conclusion that it does.

    [3] The two reports from Dr Stillger were dated 7 December 2017 (T-DOC T7, number 32) and 30 August 2018 (T-DOC T3, number C16).

23. Mr Arnold gave evidence. The Tribunal considered him to be an impressive and fair witness. He has considerable experience in this field. In the course of his evidence both in chief and in cross examination he made several observations which amplified those contained in his report. Several things should be referred to. He stated what is probably obvious: that it is an unfortunate fact that most employers will prefer an applicant for a job without an injury. He described it as a bias. In his experience, injury disclosure constituted a real bias.

24. He was probed about the possibility of self-paced work. He observed that many employers view employees undertaking what is known as self-paced work as engaging in a lower level of productivity. The question he posed is would an employer choose to engage an employee who was less than 100% productive? He stated that there is a stigma often in the workplace towards someone who has an injury or is recovering from an injury. Such recruitment can also lead to animosity from other employees. It therefore makes potential employers wary of taking on such a candidate for a position.

25. Another reason he relied upon in contending that the Applicant would struggle to find any work of two hours per day in a self-paced work setting was that usually lower paid positions are more routine and less flexible. The lack of flexibility in these positions conflicts with the Applicant’s need for autonomy as identified by the medical witnesses. Such work is likely to be open and unsupported which therefore would prevent him working more than eight hours per week as noted by Dr Tschirn.

26. Mr Arnold, when probed both in evidence in chief and cross examination about adjustments that could be made for sedentary work, also raised the practical consideration of whether an employer would need to bring in another employee to ensure a continuous pattern of service to its customers or users in the case of employment at a council, which was suggested by the Respondent.

27. In the witness box during cross examination his evidence went even further on the question of barriers to finding remunerative work. He repeated that in his opinion, based on the Applicant’s reported functional capacity and vocational assets (digital literacy), it is unlikely he would find any remunerative work. In his opinion, the Applicant trying to find such work would be detrimental to his health. He did not articulate the basis upon which he reached this opinion. It was nonetheless powerful evidence.

28. The Tribunal finds that the concession made by Dr Tschirn that the Applicant’s overall capacity for work would be below eight hours per week in an open and unsupported employment environment important to the resolution of this matter and addressing this subsection of the VE Act. The evidence of Mr Arnold on this topic was compelling. It is referred to and repeated. It is unlikely that the Applicant would have any prospect of finding any of the work for which he otherwise has the vocational trade and professional skills and qualifications to undertake.

29. Dr Tschirn did not really cavil with the proposition that the Applicant’s range of restrictions and supports that would be required to be provided by an employer, make his prospects of obtaining the type of work identified in the consideration of s 28(1)(b) exceptionally limited. That is, the degree to which the Applicant’s physical impairments have reduced his capacity to undertake the kinds of work that have been identified in the consideration of this provision. Relying upon Dr Tschirn’s concession, the Tribunal finds that these impairments are such that he simply could not work more than eight hours per week. This concession is reinforced and to some extent corroborated by the treating general practitioner Dr Stillger in her two reports which express the opinion that the Applicant cannot work for more than eight hours per week due to his accepted disabilities.

30. It should be repeated that the Tribunal finds that the Applicant’s neck and spinal conditions place him in extensive pain. That pain is a significant impairment to undertaking any work, let alone in excess of eight hours per week. He cannot sit or stand for very long at all. By reason of this he will be required in any workplace to self-pace which is highly unattractive to any potential employer. There would be a necessity for ergonomic measures to be introduced into the work environment including full seating and use of telephone. There are his age considerations which have been referred to several times in these reasons.

31. As the Full Court said in Chambers the extent to which a person may prepare himself for the kind of employment in question is a question of degree.[4] It needs to be approached with a degree of realism. Collectively the accepted conditions from which the Applicant suffers render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week within the meaning of s 24(1)(b) of the VE Act.

    [4] Chambers at 21.

    CONCLUSION AND DECISION

By reason of the foregoing matters the Tribunal finds that the correct and preferable decision is to set aside the decision of the Veterans Review Board and in substitution therefore it finds that the disability pension be assessed at the Special Rate with effect from 19 December 2017.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member.

...........................[sgd]................................
Associate
Dated 4 March 2021

Dates of hearing:

2–3 February 2021

Solicitor for the Applicant:

Solicitor for the Respondent:

C McKenzie, McLean, McKenzie and Topfer

K Rudge, Department of Veterans’ Affairs