Sutherland and Repatriation Commission - [2001] AATA 508

DECISION AND REASONS FOR DECISION [2001] AATA 508

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/141

VETEANS' APPEALS DIVISION          )
           Re      FRANCIS JOSEPH SUTHERLAND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date8 June 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant be paid disability pension at the Special Rate pursuant to Section 25 of the Veterans' Entitlements Act 1986 for a period of six months from the date of this decision.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – application for temporary special rate pension – whether the veteran is temporarily incapacitated for work – whether the veteran suffered loss – reasons for reducing pension.
Veterans' Entitlements Act 1986 ss 24, 25
Re Starcevich and Repatriation Commission (1987) 18 FCR 221
Hall and Repatriation Commission (1994) 33 ALD 454

REASONS FOR DECISION

8 June 2001 Deputy President DP Breen, Presidential Member

This was an appeal against a decision of the Repatriation Commission dated 23 May 1997 which determined that the veteran's disability pension should not be increased beyond 80% of the General Rate. The Veterans' Review Board affirmed that decision on 19 December 1997.
The matter was heard by me in Brisbane on 20 December 2000, in Redcliffe on 2 March 2001 and resumed in Brisbane on 16 May 2001. The veteran, Mr Sutherland, was represented by Mr A Harding of Counsel, instructed by Messrs Gilshenan and Luton, Solicitors. Mr R Morison, Departmental Advocate, represented the respondent. Written submissions were received from the applicant on 23 May 2001 and from the respondent on 28 May 2001. Submissions in reply were received orally on 30 May 2001.
Mr Sutherland had been granted an increase in his pension to 100% of the General Rate through a separate decision of the Repatriation Commission on 4 November 1999. Before the Tribunal, he was seeking an increase to the Totally Temporarily Incapacitated rate of pension. The respondent contended that the veteran's pension should actually be decreased to 60% of the General Rate on the basis that the veteran had been over-presenting his injuries to various doctors.
At the hearing, oral evidence was taken from the applicant; Dr Peter Grant, a Senior Medical Officer from the Department of Veterans' Affairs and Dr John O'Connor, the veteran's treating General Practitioner. Dr Ian Low, Specialist in Occupational Medicine; Dr John Cameron, Consultant Neurologist; Dr Peter Boys, Orthopaedic Surgeon, and Dr Bruce Low, Orthopaedic Surgeon also gave oral evidence.
The following documents were taken into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Various reports of Dr Bruce Low
Exhibit 3 Reports of Dr Ian Low dated 3.8.98 and 15.5.98
Exhibit 4 Statement of Francis Joseph Sutherland dated 4.8.98
Exhibit 5 Report of Dr John Cameron dated 30.6.98
Exhibit 6 Report of Dr Peter Boys dated 17.4.00
Exhibit 7 Report of Dr Peter Grant dated 30.3.98
Exhibit 8 Report of Dr Peter Grant dated 24.10.00
Exhibit 9 Reports of Dr Bruce Low dated 17.1.96 and 2.7.96
Exhibit 10 GARP Assessment by Dr John O'Connor dated 23.7.99 re nose condition
Exhibit 11 Report of Dr Ian Low dated 15.3.01

Veteran's Evidence

Mr Sutherland was born on 15 January 1960. He enlisted in the Defence Force on 16 May 1977. In July 1994 he was working as a storeman at the RAAF Base at Townsville. One lunchtime he was participating in a volley ball competition held at the base. He and a team member both attempted to block a ball. The team mate fell on Mr Sutherland's extended right foot, causing it to twist and snap as he hit the ground.
Mr Sutherland sought treatment immediately. It was first thought that the ankle had merely been sprained and physiotherapy was advised. This physiotherapy continued for twelve months, as it was found that the veteran had sustained micro-fractures in his ankle.
Two months later Mr Sutherland was on crutches and fell down a set of stairs injuring his left ankle. He suffered a Grade II inversion of his left ankle and was in a wheelchair for a month. In October 1994 the RAAF Medical Review Board considered his case and put him on sedentary duties for six months with continuing physiotherapy. Mr Sutherland's case was reviewed again in either March or April 1995 and a further six months of sedentary duties was recommended. In July 1995 Mr Sutherland underwent an arthroscopy on his right ankle.
During this time, Mr Sutherland looked after the paperwork at the repairs store. His attempts to drive the forklift or use the electric lift caused him too much pain. While working at the desk, Mr Sutherland kept his feet elevated to reduce the pain. He was able to walk approximately 200 metres between the repairs store and the main warehouse on the base, but he would have to take rests along the way, particularly as the day progressed.
In January 1996, Mr Sutherland underwent a full Medical Board examination and it was recommended that he be discharged medically unfit. That discharge became effective on 20 May 1997. Mr Sutherland gave evidence that this discharge greatly upset him and reduced his motivation for improving his ankle condition. He also admitted that at times he gets "down" and loses motivation because no doctor seems to be able to help him. However, he said he had always strictly followed any physiotherapy regime he was given and would prefer to be working.
Since the accident, in addition to the arthroscopy, Mr Sutherland has undergone a sympathetic block, a double blind narcotic infusion, bone scans, an MRI scan, and radiographs.
Mr Sutherland has not worked since his discharge in May 1997. He continues to use a Canadian crutch for support. He described experiencing a constant ache in his ankles, similar to the pain one gets when a rubber band is cutting off circulation. He said he would experience sharp pains if he stood or sat for too long. His calf muscles would also go hard if he used his legs too much. Finally, he said that his lower legs were frequently discoloured, particularly when he got up in the morning, and his ankles would be stiff.
Mr Sutherland currently takes celebrex as other pain killers have adverse side effects. He said the celebrex reduced the pain a little. He indicated that if he could find a job which did not cause him pain, he would happily take it. He further indicated that he was willing to undergo further physiotherapy and to wean himself off the crutch if that were what the doctors advised.
Medical evidence
Dr Ian Low, Specialist in Occupational Medicine, examined Mr Sutherland on two occasions and provided three reports dated 15 May 1998, 3 August 1998 and 15 March 2001. In his opinion there is no organic problem with either of Mr Sutherland's ankles and found that Mr Sutherland had a full range of movement in his lower limbs. However, he thought that Mr Sutherland suffered from chronic voluntary immobilisation. This was as a result of a psychosocial disturbance which Mr Sutherland suffered consequent upon his injury to his ankles.
Dr Low, in his last report, recommended that Mr Sutherland:
"…undergoes an appropriate course of psychological counselling. At an appropriate state through the psychological counselling, a physical conditioning programme would be introduced to build up his musculature and give him confidence that he is able to use his lower limbs without restriction."
Dr Low was of the view that the rehabilitation programme would take approximately three months and that the veteran should be able to return to work after that. He ruled out any diagnosis of reflex sympathetic dystrophy.
Dr John Cameron, Consultant Neurologist, examined Mr Sutherland on 25 June 1998 and provided a report on 30 June 1998. He observed some wasting of the right lower limb and that the applicant experienced some difficulty in walking. He could find no evidence of orthopaedic or neurological disturbance with respect to the veteran's lower limbs and ruled out the diagnosis of reflex sympathetic dystrophy. Dr Cameron was of the view that the veteran's current condition was the result of chronic over-protection which had led to immobility in the limbs.
Dr Cameron suggested that, given the length of time since the accident, it was unlikely that the veteran's condition would improve much. However, he thought that three to six months of rehabilitation would be worthwhile. He was of the view that the veteran could currently engage in office work.
Dr Peter Boys, Orthopaedic Surgeon, examined Mr Sutherland on 17 April 2000 and provided a report of the same date. Dr Boys found no functional impairment of the veteran's lower limbs but observed some muscle wasting and joint restriction. Dr Boys made the following observations in his report:
"3.This man's accepted orthopaedic conditions (strain right foot, strain left foot) would not affect Mr Sutherland's capacity to undertake remunerative work in positions which do not require protracted standing. This man would be best suited to employment which would allow him to stand or sit as comfort dictates and I believe his conditions will not preclude employment in an office based capacity between twenty to forty hours per week.
4.The diagnoses currently evidenced are quite non-specific and are probably appropriate in the circumstances. As I have previously stated this man has not, in my opinion, suffered a reflex sympathetic dystrophy. It is reasonable to believe this man did suffer a capsuloligamentous injury of some significance to the region of the right ankle and foot on 13 July 1994. I believe, however, that this man's complaints subsequent to this time reflect an inability to discard inappropriate walking aids and a pattern of habitual disuse of the right upper limb. This would suggest a functional component to his presentation."
Dr Boys rejected a diagnosis of reflex sympathetic dystrophy. In oral evidence, Dr Boys accepted that Mr Sutherland may need some job-focused rehabilitation and suggested he should be referred to a psychologist to address this and the habitual pattern of disuse which the veteran had developed.
Dr Bruce Low, Orthopaedic Surgeon, examined Mr Sutherland on a number of occasions between May 1994 and June 2000. Dr Low was of the view that the veteran suffers from either reflex sympathetic dystrophy or chronic regional pain syndrome. In oral evidence, Dr Low accepted that there was no obvious organic basis for either of those diagnoses. He was of the view that the veteran was impossible to treat and that lifestyle adjustments to compensate for the condition were the only options for the veteran. It was Dr Low's opinion that, while the veteran may be able to engage in sedentary work, the pain the veteran suffers makes it difficult for him to concentrate and in reality it would be impossible for Mr Sutherland to ever enter the workplace again. Dr Low did say that he would still encourage the veteran to be as active as he could.
Dr John O'Connor has been the applicant's treating General Practitioner since 1997. He was of the view that most of Mr Sutherland's problems related to disuse, but that there was some ankle abnormality due to bone density loss. Dr O'Connor assessed that the veteran required rehabilitation, with both a physical and psychological component, before he could return to work. He did not provide an estimate as to how long that rehabilitation process would take.
Dr O'Connor said that the reason a rehabilitation programme had not been started earlier was because the veteran would not be able to concentrate on improving his condition when he was worrying about the outcome of the appeal process with respect to his pension. Dr O'Connor said he had also observed Mr Sutherland at times being angry about his current condition and upset that doctors had told him there was no way to improve his situation. This was why he had written "motivation?" in the GARP Assessment of 23 July 1999.
Dr Peter Grant, a Senior Medical Officer in the Compensation Section of the Department of Veterans' Affairs, examined Mr Sutherland on 25 March 1998. He provided two reports dated 30 March 1998 and October 2000. Dr Grant was of the view that on a combined GARP assessment, Mr Sutherland attained 35 points, but he discounted that by 50% based on the unaccepted condition of chronic voluntary immobilisation. While he accepted that the chronic voluntary immobilisation would be a logical progression from the original injury, he said it was not a definable concept in terms of impairment.
Dr Grant recommended the veteran undergo an intensive six week course of rehabilitation involving psychological counselling and physiotherapy. He accepted that the Department had a general obligation to provide rehabilitation programmes to veterans who could benefit from them, but said that it was not his responsibility to organise such programmes or ensure that they were offered. Dr Grant also observed that while sprains generally healed over time, some people have lifelong problems as a result of a sprain.
Dr Grant was of the view that a six week rehabilitation programme would be sufficient for the doctors and therapists to assess whether the rehabilitation was having any effect or whether the condition was stable and permanent.
Reduction of pension
With respect to the respondent's submission that the veteran's pension should be reduced, the Tribunal is unlikely to take such an action unless it can be shown that a veteran has committed fraud in obtaining the current rate of pension or his or her condition has improved.
The Tribunal accepts Mr Sutherland as an honest and reliable witness who has consistently reported his symptomatology to doctors. The varying reports of the veteran's range of movements are more a result of the doctor reporting on it than an actual variability in the movement by the veteran. Taking into account the fact that most injured people have good and bad days, the assessment of range of movement is a subjective one. Doctors generally do not use inclinometers to get the exact degree of flexion demonstrated. Some doctors allow a person to move the joint until it hurts, other doctors move the joints themselves until there is a resistance. Further, the term "normal range of movement" is also quite subjective. Mr Sutherland was involved in Tae Kwon Do for ten years before the accident. As such, his pre-accident range of movement may have been wider than a person of the same age who did not engage in a lot of physical activity.
The respondent also attacked the veteran for continuing to use a crutch when some of the doctors have formed the view that he does not need it. Given the variety of conflicting views from doctors as to what the veteran can and cannot, and should and should not do, it is not surprising that the veteran is confused as to what advice to follow. It is the Tribunal's finding that it is not unreasonable for the veteran to continue to follow his treating doctors' advice in the face of this conflict.
The Tribunal is of the view that the veteran has not engaged in fraud with respect to his claim and the weight of the medical evidence supports the finding that the condition has not improved. Therefore, the Tribunal does not accede to the respondent's request that the applicant's pension be reduced to 60% of the General Rate.
The Law
Section 25 of the Veterans' Entitlements Act 1986 sets out the eligibility requirements for the totally temporarily impaired rate of pension. It is as follows:
"25      Temporary payment at special rate
(1)       Where the Commission is satisfied that:
(a)a veteran is temporarily incapacitated from war-caused injury or war-caused disease, or both; and
(b)if the veteran were so incapacitated permanently, the veteran would be a veteran to whom section 24 applies;
the Commission shall determine the period during which, in its opinion, that incapacity is likely to continue and this section applies to the veteran in respect of that period.
(2)Where this section applies to a veteran in respect of a period, the rate at which pension is payable to the veteran in respect of that period is the rate applicable under subsection 24(4) and (5).
(3)The Commission may, under this section:
(a)determine a period that commenced before the date on which the determination is made; and
(b)determine a period in respect of a veteran that commenced or commences upon the expiration of a period previously determined by the Commission under subsection (1) in respect of the veteran.
24Special rate of pension
……
(4)Subject to subsection (5), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.
(5)If section 115D applies to a veteran, the rate at which pension is payable to the veteran is the amount specified in subsection (4) less the pension reduction amount worked out under that section."
The veteran is less than 65 years of age and has made an application under Section 15 of the Act for an increase in pension. The applicant is currently receiving 100% of the General Rate with respect to his incapacity. The veteran was discharged medically unfit for work and was told by his specialist that it was impossible for him to ever return to the workforce. Therefore, following the reasoning in Hall v Repatriation Commission (1994) 33 ALD 454 it would be a charade to expect him to be searching for work and the ameliorating provision of subsection 24(2)(b) applies and the veteran merely has to satisfy the "substantial cause" test.
The weight of the medical evidence is that there is something wrong with the veteran, although diagnoses vary. There is also general consensus that the veteran may benefit from a rehabilitation programme. It is the Tribunal's view that the veteran is still suffering pain from the initial injuries and this is compounded by psychosocial factors. The Tribunal accepts that the veteran is not malingering but has protected his feet and ankles in an attempt to avoid pain to such a degree that there is wastage in his lower limbs and this impedes his mobility. This psychological aspect is not a separate condition but rather an extension of the original injury.
There is no dispute that the veteran cannot engage in the manual work required of a storeman. There is some suggestion that he could continue in the clerical work he was previously undertaking. While the veteran is mentally fit to engage in such clerical work, and in terms of using his body, is physically capable of doing such work, a person does not have the capacity to work if they would be in pain as a result of it. Mr Sutherland would have to keep his legs elevated for most of the day and get up and move around regularly, not to alleviate the pain completely, but to reduce it to a level where it was bearable. His concentration would be reduced by both the pain and the constant interruptions from getting up to walk around. As such, his productivity level would be greatly reduced making it highly unlikely he would be employable on the open market at the present time.
When working as a storeman in 1997, the veteran was receiving a salary of $36,000 per annum. If he had continued with the Defence Force his pay rates would have increased over time and with promotion. He is only 41 years of age and would have had a long working life ahead of him. Mr Sutherland currently receives around $35,000 per annum from his disability pension and DFRDB pension and receives medical benefits as a result of his Gold Card.

The case of Starcevich and Repatriation Commission (1987) 18 FCR 221 suggests that the loss must be real, but it encompasses both the actual loss of earnings and the loss of opportunity to work and earn money. It is the Tribunal's view that if the veteran had not injured his ankles, his earning capacity would have been greater at this time than his current entitlements. Therefore, the Tribunal is satisfied that the veteran has suffered a loss.
Given that the veteran would presently suffer pain in his ankles from any work, and all of the doctors believe that the veteran needs some form of rehabilitation, the Tribunal is satisfied that Mr Sutherland is incapacitated for any work. His accepted injuries are at least the substantial cause of this incapacity.
Mr Sutherland satisfies Section 25 as he would satisfy Section 24 if his condition were permanent and most of the doctors are confident that rehabilitation will result in the condition resolving. The Tribunal is of the view that the Special Rate of pension should be paid to Mr Sutherland for a period of six months from the date of this decision. This is taking into account the complexity of the case and the time it may take for Mr Sutherland to be admitted to a suitable rehabilitation programme. The Tribunal is not minded to backdate the payment of the Special Rate. At the expiration of the six months, the veteran will need to be re-assessed by the Commission. It may be that the rehabilitation programme is effective and the veteran's incapacity is reduced or completely resolved. However, given that an extensive rehabilitation programme proceeding the initial injuries had no effect and Dr Grant's view that some people suffer lifelong problems from sprains, the programme may not be successful and the Commission will have to review whether the incapacity is actually permanent.
As one further point, the Tribunal is of the view that the respondent should have put the veteran on a rehabilitation programme when this claim was first processed. While the management of a rehabilitation programme is the responsibility of the treating general practitioner, most veterans and general practitioners would not be aware that they have the right to request it. The veteran should have been asked to undertake a programme for which the respondent would pay. If he did not have a treating general practitioner at the time, the respondent should have offered to organise the programme for him. It is, in fact, in the respondent's best interests to ensure that veterans who have good prospects of recovery are assisted in that recovery so that they do not have to continue on disability pensions.
For the above reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the veteran be paid disability pension at the Special Rate for a period of six months from the date of this decision.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  20.12.00, 2.3.01, 16.5.01
Written Submissions                30.5.01
Date of Decision  8.6.01
Counsel for the Applicant        Mr A Harding
Solicitor for the Applicant         Messrs Gilshenan and Luton
Solicitor for the Respondent    Mr R Morison, Departmental Advocate