Tems and Repatriation Commission (Veterans' entitlements) - [2017] AATA 781

Tems and Repatriation Commission (Veterans' entitlements) [2017] AATA 781 (31 May 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/0967
Re:Leonard Tems
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:31 May 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd].............................................................
Miss E A Shanahan, Member
REPATRIATION – disability pension – claim for special rate – conditions of lumbar spondylosis, a secondary depressive disorder and alcohol dependence – defence service – no operational service – alone test not satisfied – decision affirmed
Legislation
Veterans’ Entitlement Act 1986
Cases
Richmond and the Repatriation Commission [2014] FCAFC 124
Repatriation Commission v Hendy [2002] FCAFC 424
Forbes the Repatriation Commission [2000] FCA 328
Summers v Repatriation Commission (2015) FCAFC 36
REASONS FOR DECISION
Miss E A Shanahan, Member
31 May 2017

Mr Tems was receiving a disability pension at 60 per cent of the general rate. He submitted an application to the Veterans’ Review Board (VRB) on 5 April 2013 for an increase in pension to the special rate; and for the acceptance of a depressive disorder and alcohol dependence as being service related. On 16 October 2013, the VRB accepted these conditions as being service related and increased his pension to 100 per cent of the general rate. His claim for special rate was denied on the basis that he did not satisfy the alone test as defined in s 24(1)(c) of the Veterans’ Entitlement Act 1986 (the Act). The condition of lumbar spondylosis had been accepted as a defence-caused condition on 1 January 1992.
On 24 February 2016, Mr Tems applied to the Administrative Appeals Tribunal for review of the VRB decision refusing the special rate. At the hearing Mr Tems was represented by Mr Michael Quinn, an advocate. The Repatriation Commission (the respondent) was represented by Mr Ken Rudge, a solicitor with the Advocacy Section of the Department of Veterans’ Affairs (DVA). The respondent provided the Tribunal with the s 37 documents in accordance with the Administrative Appeals Tribunal Act 1975 (the T-documents, Exhibit R1). The parties tendered additional medical reports. A list of the documents tendered is appended to this decision.
BACKGROUND TO THE APPLICATION
Mr Tems enlisted in the Australian Regular Army (the army) on 26 June 1973 at the age of 18. He was employed in the catering division during the 20 years he spent in the army. In 1981 he was said to have injured his back during a physical training session involving circuit training. This involved running from one side of the room to the other, picking up a five kilogram weight at each turn and putting it back on the floor. During this exercise he heard a click in his back and noted the immediate onset of back pain. He was taken to the Townsville Hospital and observed overnight. He then spent two weeks at home before returning to work. Throughout this period he had physiotherapy and took analgesics. After his return to work he had physiotherapy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 781
Decision Date: 31 May 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Tems to the Administrative Appeals Tribunal for review of a decision by the Repatriation Commission refusing him the special rate of pension. Mr Tems had served in the Australian Regular Army from 1973 to 1993, during which time he sustained a back injury in 1981. Following his discharge, he was employed in catering roles until 2007, when he ceased work. The dispute centred on whether Mr Tems' accepted conditions, including lumbar spondylosis and secondary depression or adjustment disorder, rendered him unable to undertake remunerative work.

The Tribunal was required to determine the extent to which Mr Tems' accepted conditions contributed to his inability to work, and whether he qualified for the special rate of pension. This involved assessing the severity and impact of his physical and psychological conditions, considering medical evidence regarding his capacity for work, and evaluating the reasons for his cessation of employment. The Tribunal also had to consider whether Mr Tems had made reasonable efforts to obtain employment since ceasing work.

The Tribunal's deliberations focused on the evidence presented, including reports from occupational physician Dr Robyn Horsley, orthopaedic surgeon Mr Ronald Haig, and psychiatrist Dr Grant. While Dr Horsley noted Mr Tems' ongoing back pain and diagnosed moderate depression with mild suicidal ideation, she also observed that his cessation of work appeared to be linked to interpersonal conflict with a site manager and general deconditioning, rather than solely his physical condition. Mr Haig had previously assessed Mr Tems as fit for full-time sedentary employment. The Tribunal noted inconsistencies in Mr Tems' account of his back pain and the limited medical documentation supporting chronic, severe pain or depression in his general practitioner's records. Ultimately, the Tribunal found that Mr Tems had not established that his accepted conditions were the sole or predominant cause of his inability to undertake remunerative work.

Orders

Orders of the court

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Background

Background to the litigation

On 24 February 2016, Mr Tems applied to the Administrative Appeals Tribunal for review of the VRB decision refusing the special rate. At the hearing Mr Tems was represented by Mr Michael Quinn, an advocate. The Repatriation Commission (the respondent) was represented by Mr Ken Rudge, a solicitor with the Advocacy Section of the Department of Veterans’ Affairs (DVA). The respondent provided the Tribunal with the s 37 documents in accordance with the Administrative Appeals Tribunal Act 1975 (the T-documents, Exhibit R1). The parties tendered additional medical reports. A list of the documents tendered is appended to this decision. BACKGROUND TO THE APPLICATION Mr Tems enlisted in the Australian Regular Army (the army) on 26 June 1973 at the age of 18. He was employed in the catering division during the 20 years he spent in the army. In 1981 he was said to have injured his back during a physical training session involving circuit training. This involved running from one side of the room to the other, picking up a five kilogram weight at each turn and putting it back on the floor. During this exercise he heard a click in his back and noted the immediate onset of back pain. He was taken to the Townsville Hospital and observed overnight. He then spent two weeks at home before returning to work. Throughout this period he had physiotherapy and took analgesics. After his return to work he had physiotherapy sessions on a monthly basis. He was medically downgraded three months after this injury. He was promoted to the rank of Sergeant in 1979 and Warrant Officer Class II in 1991. Following his discharge from the army in 1993, Mr Tems obtained employment with Sodexo, a company which had been contracted to provide army catering. He was employed by Sodexo from 1993 to 1999. He gave evidence that his work experience during this period was good, his back pain was relieved by regular movement and it was his normal practice to have up to four or more breaks per day for a cigarette which he claims improved his mobility. In 1999 Sodexo was replaced by Spotless as the army’s catering contractor. Mr Tems worked for Spotless for a period of two years during which time the company sought to reduce his hours of employment. He returned to work with Sodexo in approximately 2001. Sodexo was then providing catering to the Ford motor company. Mr Tems was an administrative payroll manager. He coped well with this position until a new site manager commenced working for Sodexo in 2006. He still experienced back pain which was relieved by frequent movement. Until the appointment of the new manager, Mr Tems worked 30 hours per week (he had only worked full time on his return to Sodexo for the initial six months). Despite the reduction in his working hours to 30 hours, he coped with exactly the same workload as he had as a full time employee. In June 2006 his hours of work were further reduced to four days per week, six hours per day. This continued until June 2007. Despite the further reduction to 24 hours per week he said he was doing the same amount of work and extra paper work. He continued to have the same break periods during the day. He estimated that over the last five years with Sodexo he had five days off on sick leave. When challenged with data from Sodexo that he had had 238 hours (39.66 days) of sick leave, he had difficulty accepting that figure.

Evidence

Evidence Before The Court

As a result of Dr Gelb’s assessment and opinion, Mr Tems qualified for disability pension at 100 per cent of the general rate as from 16 October 2013. EVIDENCE BEFORE THE TRIBUNAL Mr Tems’ evidence has been summarised under BACKGROUND TO THE APPLICATION. Dr Robyn Horsley, occupational physician Dr Horsley provided two reports - the first dated 30 June 2016 (Exhibit R2) and the second dated 5 October 2016 (Exhibit R3). In the earlier report, Dr Horsley considered all of Mr Tems accepted conditions. She recorded that he was no longer having any psychiatric treatment from a psychiatrist or psychologist; that his back pain had progressed; and that on examination he had a positive straight leg raising test on the left and a tingling sensation in the lateral three toes and the sole of his left foot. She considered this to possibly be indicative of progression of his discal lesion. In terms of Mr Tems’ claimed depression, Dr Horsley performed various tests for this condition and concluded that he had moderate depression with mild suicidal ideation. She recommended that he be referred to a psychologist for counselling. She also opined that antidepressant medication would be to his advantage. In terms of his ongoing treatment, Dr Horsley advised that the passive osteopathy he had received monthly since 2002 had reached a plateau of effectiveness and a supervised gym program or hydrotherapy would be much more beneficial. Dr Horsley recorded a sitting tolerance of 30 minutes, a standing tolerance of 5 minutes, a walking tolerance of 20 to 30 minutes and a driving tolerance of up to one hour in an automatic vehicle with power steering. Dr Horsley considered Mr Tems unfit for his previous role in hospitality, although he had good computer skills and experience in the pay-roll area which might enable him to undertake computer-based, part-time work but probably not up to eight hours per week. However, as she was seeing Mr Tems some nine years after his cessation of work, Dr Horsley relied on a report from Mr Ronald Haig, orthopaedic surgeon, dated 30 September 2013 (T7) regarding Mr Tems’ low back pain. She also noted that Mr Tems had ceased work because of an interpersonal issue with his site manager relating to his smoking and excessive time breaks. Based on the history given to her and the accompanying medical records, Dr Horsley concluded that Mr Tems did not cease work because of his back condition. She also concluded that his age (of 61 years), his absence from the workforce for nine years and his general deconditioning were contributing factors to his inability to undertake remunerative work for more than 8 or 20 hours per week. Dr Horsley’s second report was generated by a request from the Department to consider additional medical reports. These medical reports were from Dr Grant, psychiatrist, who had diagnosed a mild adjustment disorder with some features of alcohol dependence; and the general practitioner’s notes indicating that Mr Tems’ employment had ceased because of interpersonal conflict with his manager and the necessity for major surgery in July 2008. Dr Horsley did not consider that these reports impacted on her original opinion.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Rudge did not address the ameliorating provision of s 24(2)(b) except to the extent that Mr Tems had engaged in seeking work but was unsuccessful because of the economic climate at the time. This argument was based on Mr Haig’s findings that Mr Tems was in fact fit for full time employment in an appropriate sedentary occupation when assessed in 2013, some six years after he had ceased work for other reasons. TRIBUNAL’S DELIBERATIONS Mr Tems has the accepted conditions of lumbar spondylosis, secondary depression or (probably more accurately) an adjustment disorder relating to his physical condition, and some evidence of alcohol dependence sufficient to apparently satisfy the relevant Statements of Principle. His description of events in 1981 certainly sound more severe than those entries that have been made by persons to whom he has given a medical history. There is no dispute that after he sustained an injury he was observed at the Townsville Hospital for one night and discharged the following day and resumed work on a full time basis two weeks later, after treatment with bed rest, analgesics and some physiotherapy. Mr Tems claims to have suffered from chronic, almost continual back pain since 1981. This resulted in him being medically downgraded while in the army; and he claims this was the reason that he resigned from his job with Sodexo in June 2007. The clinical notes of his treating general practitioner record the presence of low back pain from 1999 onwards but do not address the severity of this pain. The Tribunal notes that the GP has not altered Mr Tems’ treatment, which when he first attended the clinic was the non-steroidal anti-inflammatory drug Mobilis which he continues to take. In the clinical records of the Andrew Place Clinic in Bundoora there is no mention of back pain; only an entry stating that a diagnosis of L5/S1 disc degeneration was the reason for prescribing Mobilis and Panadeine-Forte tablets. It was not until April 2010 that Mr Tems complained of back pain with some radiation to the right thigh posteriorly, and had signs of reduced straight leg raising on the right. On this occasion, CT scanning of the lumbar spine was ordered and the findings of this scan have been referred to under BACKGROUND TO THE APPLICATION. Since approximately September 2014, Mr Tems’ visits to his general practitioner have been for treatment to help him stop smoking and for the treatment and control of his diabetes. There has been no mention of back pain since November 2012, except for the entry that an MRI of his spine was to be performed. Similarly, there are no entries in the GP’s clinical notes of symptoms indicative of depression and no comment regarding alcohol intake, let alone alcohol dependence. Dr Gelb has diagnosed major depression, secondary to Mr Tems’ physical pain and as part of a chronic pain syndrome. He attributed 40 per cent of Mr Tems’ work capacity reduction to the psychiatric disorder including the alcohol dependence. Dr Grant, has accessed Mr Tems’ psychiatric status as being an adjustment disorder of mild degree. In 2013 Mr Haig assessed Mr Tems’ lumbar spinal condition as widespread degenerative disease consistent with the diagnosis of spondylosis but considered Mr Tems fit for full time duties in a sedentary job, such as he had been performing up until 2007.