THOMAS MONTEITH and REPATRIATION COMMISSION
[2009] AATA 394
•29 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 394
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0691
VETERANS’ APPEALS DIVISION ) Re THOMAS MONTEITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, MemberDate29 May 2009
PlaceSydney
Decision The decision under review is affirmed.
...................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – pension – special rate – “alone” test – applicant’s war-caused alcohol dependence alone does not prevent him from continuing to undertake remunerative work he had been undertaking – obesity and back condition contributing factors – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 13, 24
Cavell v Repatriation Commission (1988) 9 AAR 534
Flentjar v Repatriation Commission (1997) 48 ALD 1
Sheehy v Repatriation Commission (1996) 137 ALR 223
Starcevich v Repatriation Commission (1987) 18 FCR 221
REASONS FOR DECISION
29 May 2009 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Memberintroduction
1. Mr Thomas Monteith is currently in receipt of pension at 100% of the general rate for accepted disabilities of sensorineural hearing loss and tinnitus; chronic airflow limitation; psoriasis; hypertension; diabetes mellitus; alcohol dependence and gout. He has a number of non-accepted disabilities considered by the respondent including post traumatic stress disorder; internal derangement of the knee; refractive error; L5/S1 spondylolisthesis and obesity.
2. The decision which we are reviewing is the decision of the Veterans’ Review Board dated 1 February 2007, which affirmed the Repatriation Commission’s decision of 15 March 2005, refusing Mr Monteith’s claim for obesity as a war-caused condition while continuing pension at 100% of the general rate. Counsel for the applicant indicated at the hearing that the claim for obesity will not be pursued and the only issue before the tribunal is possible entitlement to special rate.
3. Mr Monteith was born on 21 February 1950. He served in the Royal Australian Navy and rendered operational service over various periods between 20 September 1971 and 9 March 1972. His period of service from 7 December 1972 to 31 August 1973 is recognised as eligible service.
issue
4. The tribunal must determine whether Mr Monteith is entitled to payment of pension at special rate. This involves consideration of several tests for eligibility under section 24 of the Veterans’ Entitlements Act 1986 (‘the Act’).
relevant law
5.Section 24 of the Act provides, in part:
(1) This section applies to a veteran if:
(aa) the veteran has made .. an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) …; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
…
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-
caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for
reasons other than his or her incapacity from that war-
caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in
remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65
years, who has not been engaged in remunerative work satisfies the
Commission that he or she has been genuinely seeking to engage in
remunerative work, that he or she would, but for that incapacity, be
continuing so to seek to engage in remunerative work and that that
incapacity is the substantial cause of his or her inability to obtain
remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
6. The parties agree Mr Monteith meets preliminary requirements for disability pension at the special rate. He satisfies subparagraphs 24(1)(aa), (aab) and (a) as he was not yet 65 when he made his application for an increase in pension on 23 August 2004, and his degree of incapacity has been determined at more than 70%. Thus, we must decide if he satisfies the remaining requirements of section 24, namely, subparagraphs 24(1)(b) and 24(1)(c) of the Act.
7. Pursuant to subparagraph 24(1)(b), we must determine whether Mr Monteith’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Then we must decide whether Mr Monteith is prevented, by reason of a war-caused injury or disease alone, from continuing to undertake remunerative work that he was undertaking: subparagraph 24(1)(c). The ‘alone test’, in relation to subparagraph 24(1)(c) is modified in some cases by what are known as ameliorative provisions in subsection 24(2).
8. In considering these issues, the case of Flentjar v Repatriation Commission (1997) 48 ALD 1 (‘Flentjar’) provides guidance which we have noted.
medical evidence
9. We had several medical opinions before us as well as oral evidence from medical professionals. We heard oral evidence from Dr Anthony Dinnen and Dr Patrick Morris, who are consultant psychiatrists and who do not agree as to the reasons for Mr Monteith’s difficulties in continuing to work. Dr Dinnen obtained a history from Mr Monteith that his alcohol problem was the main reason that he cannot work. Dr Dinnen recorded that Mr Monteith cannot drive without drinking and he cannot give up drinking. Dr Dinnen also noted breathing is a problem for Mr Monteith and limits Mr Monteith’s capacity. Dr Dinnen also noted Mr Monteith said at consultation that he is very restless and would not be able to sit in a chair, working in an office, “I would go crazy”. He further recorded that Mr Monteith said, in any case, when he had to get up he would get breathless. In oral evidence Dr Dinnen told us he was certain alcohol was the major cause of Mr Monteith’s inability to work.
10. Dr Dinnen’s opinion in his initial report dated 16 July 2007 noted as his overriding clinical impression the presence of chronic alcohol abuse for many years and continuing in spite of recent warnings of the adverse health consequences of that alcohol use. His diagnosis was alcohol abuse/dependence. He reported Mr Monteith’s increasing need to maintain consumption of alcohol, indicating the diagnosis now would certainly satisfy the criteria for alcohol dependence.
11. In the same report, Dr Dinnen reported, “It is clear his inability to work is a combination of physical and psychiatric matters, as described in the body of this report and as is evident from the review of the various documents above”. In answer to the question:
What is the effect of each psychiatric disability on Mr Monteith’s work capacity in his last job or any job of a type such as he has previously had?
Dr Dinnen wrote:
It combined with his other health problems to limit has ability to work in his last job and will prevent him from working in any current or future job.
12. In his second report, dated 5 February 2008, Dr Dinnen said that Mr Monteith would be unable to work more than eight hours per week because of his drinking. Also, he noted various health problems had developed and progressed over the same time span as the problematic drinking. Dr Dinnen considered that for all intents and purposes Mr Monteith had been unemployable due to chronic ill health for the last 12 years or more.
13. Concerning Mr Monteith’s complaint of tiredness, Dr Dinnen said it could be due to emotional fatigue and, considering the amount of alcohol he consumes every day, he would expect an enervating effect that would lead to weakness and fatigue. In the alternative, he observed the tiredness may reflect either some physical consequence of Mr Monteith’s medical problems or it could well be due to underlying anxiety.
14. We heard further evidence from medical practitioners about Mr Monteith’s physical limitations as well. Dr Steven Ng, a consultant physician in occupational and musculoskeletal medicine, gave evidence and provided two reports for the applicant, dated 22 May 2007 and 25 July 2008. Dr Ng was of the opinion that Mr Monteith has been restricted in his ability to resume any gainful employment predominately as a result of two service-related medical conditions: the physical condition of chronic airways/airflow limitation and the psychiatric condition of alcohol dependency. Dr Ng relied on the medical report by Dr Anthony Aouad, thoracic physician, for his respiratory assessment.
15. Dr Aouad, in his report dated 17 September 2007, confirmed the diagnosis of chronic obstructive lung disease (‘COLD’) and opined Mr Monteith was having difficulty continuing to work because of exertional dyspnoea. In his opinion, Mr Monteith’s effort tolerance was such that it prevented him from continuing physical work. Dr Aouad found it difficult to estimate specifically how much of Mr Monteith’s exercise intolerance related to COLD in isolation, and reported that obviously COLD, obesity and lack of physical activity as a result of his back problem all contribute to his impaired effort intolerance, probably in equal proportions.
16. Dr Ng noted that Mr Monteith reported experiencing chronic low back pain until he had three nerve block injections performed by Dr Daryl Salmon, a pain medicine specialist, in the late 1990s and that Mr Monteith reported no significant back problem over the last five years, except occasional stiffness. However, even though mildly symptomatic at times, Dr Ng gave oral evidence that he thought the back condition did restrict Mr Monteith from performing heavy manual work, especially repetitively lifting heavy weights or prolonged standing or prolonged fixed posture.
17. Despite his airway problem, Dr Ng considered Mr Monteith could do some sedentary work over normal hours but, because of his alcohol dependency, it was Dr Ng’s opinion that he could not perform office duties or office-based duties or management duties or light duties of more than eight hours a week.
18. When asked in cross-examination whether obesity or back limitations, or a combination of both, leaving aside all other conditions, meant a wide range of employment for which Mr Monteith was not ideally suited or capable, Dr Ng responded:
On his back conditions, there is a number of occupations that may put him more at risk to his back. A combination of obesity plus his underlying back conditions, again certain heavy manual work or certain occupations may also put him at risk.
Dr Ng said it also was a question of motivation:
Whether the person wants to become fitter to be able to match up with the physical demands or the inherent physical requirement of the task of the job that he would like to venture in to.
19. Professor Philip Sambrook, rheumatologist, on 4 March 2008, reported that, although Mr Monteith has significant spinal pathology, most of his exercise intolerance related to his cardio-respiratory impairment rather than his lumbar disease. He estimated the degree of contribution from Mr Monteith’s back condition to exercise intolerance was between 10% and 20% at most. Professor Sambrook opined Mr Monteith’s back condition certainly would not stop him driving a bus or coach, although he may have difficulty getting luggage in and out of the compartment. He went on to observe that Mr Monteith told him he usually asked the passengers to do that themselves.
20. Dr Ross Mills, occupational physician, in his report dated 14 May 2007, considered Mr Monteith fit to return to paid employment on a full time basis. He did not consider Mr Monteith’s needing access to a toilet due to his alcohol intake or activity intolerance was a valid reason for total inability to work. He considered Mr Monteith had residual work capacity but with limitations. Obesity and back problems would, of themselves, preclude certain jobs.
21. Under cross-examination, Dr Mills was asked to comment about the injections performed by Dr Salmon which Mr Monteith said had cured his back pain. Dr Mills said that, in his experience, even three injections cannot cure back pain. He did not think alcohol dependence alone completely precluded work, that is, assuming there was high motivation to return to the work force. This view differs from that of Dr Dinnen who by 2008 thought having no motivation was due to Mr Monteith’s alcohol dependence.
22. Dr Morris examined Mr Monteith on 8 June 2007 and had available to him the reports of Dr Neil Schultz, consultant psychiatrist, dated 14 April 2000, diagnosing alcohol abuse, and Professor Richard Mattick, dated 31 March 2000, who diagnosed alcohol dependence. Dr Morris favoured the diagnosis of alcohol abuse. Professor Mattick reported in 2000 that he did not consider Mr Monteith’s alcohol consumption should stop him from working. Professor Mattick thought the main reason he stopped working was his back injury and possibly his knee injury. Professor Mattick formed this view in 2000, at the time when Mr Monteith was still managing his own business.
23. Dr Morris in 2007 was of the opinion that Mr Monteith’s alcohol dependence was not clinically worse since the initial diagnosis in 1996. He was currently drinking excessively and was probably not fit to drive. Dr Morris noted Mr Monteith had not had regular psychiatric treatment since 1998 or psychological counselling for his drinking problems. In his opinion, a course of intensive treatment for alcohol abuse by a psychiatrist or a psychologist and an in or out patient treatment program would be appropriate before deciding Mr Monteith’s capability to continue work. This contrasts with Dr Dinnen who, after having seen Mr Monteith six times, thought prospects of rehabilitation were very minimal.
the parties’ positions
24. We accept that Mr Monteith suffers alcohol dependence as a war-caused disability. We also accept that, as from 1996, he has experienced difficulties as a result of his alcohol dependence and that he has continued drinking to excess despite some minor intervention, including a 3-4 week admission to hospital in 1997 and a subsequent outpatient attendance.
25. Counsel for the applicant submitted that the factor preventing Mr Monteith from working was alcohol, relying on the opinions of Dr Dinnen and Dr Ng, who said that he would be able to work if not for his alcohol dependence.
26. Counsel for the Commission submitted that Mr Monteith still had a capacity to work greater than 8 hours a week. Further, it is necessary to look at other medical conditions beside the alcohol when considering Mr Monteith’s ability to work and that he fails to satisfy subparagraph 24(1)(b). These matters are relevant to subparagraph 24(1)(b). Subparagraph 24(1)(b) requires the veteran’s incapacity from war-caused injury or disease, or both, be of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours a week.
27. Mr Monteith also must satisfy subparagraph 24(1)(c). Counsel for the applicant considered Mr Monteith can rely on evidence of his substantial remunerative work undertaken in the past to satisfy subparagraph 24(1)(c) and referred us to Starcevich v Repatriation Commission (1987) 18 FCR 221 (‘Starcevich’). He argued it was Mr Monteith’s alcohol dependence alone that prevented him from continuing to manage and organise the activities of his transport business and that he suffered a loss of earnings that he would not be suffering if free from that incapacity. Counsel for the Commission argued Mr Monteith was not capable of satisfying the second limb of subparagraph 24(1)(c), namely that the war-caused injury or disease alone prevented him from continuing to undertake remunerative work, by virtue of his back condition and obesity.
What was the remunerative work that Mr Monteith had been undertaking?
28. Mr Monteith gave evidence that he did not complete high school and left before attaining his Intermediate Certificate. He worked in various jobs after leaving school, including being a telegram boy, working on a conveyor belt for a drug company, and sales assistant at a clothing store. In 1966, he joined the Royal Australian Navy. His education was upgraded to the equivalent of the Intermediate Certificate and he undertook general seamanship training. His main role was as a “mechanical watch-keeper in the boiler-room”, working with steam and diesel engines. His service included four trips to Vietnam.
29. After naval service, Mr Monteith had a short stint as a deckhand ferrying Customs officers to and from ships in Sydney Harbour. He then worked at the Water Board in Sydney, achieving promotion to Waste Water Inspector, where he continued until 1987, when the Water Board made his branch redundant. Following on from there, he worked as a courier on contract and progressed to setting up his own transport firm, acquiring four trucks and employing five or six people from around 1989 to 1996. He was having back problems and told us:
I was coming home from work and I was just getting fed up, pain in the back all the time, and went to the doctors, and he just said that’s it, you’re finished, no more driving and no more loading, mainly the loading and unloading side of things.
30. He then employed another driver because he had contracts and commitments to meet, ceasing driving and loading, and entered a management role. He worked at home in the office, taking phone calls, doing light maintenance and tendering for work. This was for two to five hours a day. Things proceeded satisfactorily for about 12 months after he ceased driving but then he started “to slip off” because:
I was drinking a little bit more during the day and I was not getting out of bed in the morning, so a lot of the time I wasn’t seeing the drivers take off, and I’d usually had a few by the time the drivers came home, so it sort of started to slip away.
31. Mr Monteith was admitted to St John of God Hospital for treatment of his alcohol problem for three or four weeks in 1997. His evidence was that he started drinking within a week of discharge and despite counselling did not reduce his drinking.
32. He was very active in the Masonic Lodge during 1996 to 2001, attending many meetings, took office and became the Worshipful Master for one year in 2000.
33. The lease on his last truck ran out in 2000 or 2001 and that was the end of his business. Mr Monteith said the problem with management was that he was just drinking and was not reliably “taking work down”. He forgot a lot. When asked if the business would have survived had he not had a problem with alcohol, he replied he thought it would have survived and thrived.
34. He then did not work until he told us he was persuaded by a mate to start driving coaches, which he did part time for a period of about three years until 2004. This sort of work involved taking a coach north from Sydney to Karuah and, after resting, returning to Sydney, driving the south bound coach.
35. The freight side of the job was described by Mr Monteith as slightly heavy:
You can imagine if there’s 50 people behind you it’s 50 bags and I was not going to move 50 bags.
36. When asked by his counsel if there were other problems, Mr Monteith reported he had “breathlessness and sweating a lot sitting there panting”. He thought this was a factor in his stopping work.
37. The reason Mr Monteith gave for stopping the coach driving job in 2004 was that he had trouble managing to go to work when drinking “at all hours and different times”. He said many times he was 90% sure he would have been over the limit if he had been breath tested. He had trouble staying awake and was fearful he was going to kill someone.
38. He maintained that if not for problems with alcohol he would have continued coach driving. In his written statement dated 23 October 2008 he reported he was unable to continue from early 2004, due to diabetes, his drinking and his breathlessness.
39. He has not worked since he ceased coach driving in 2004. Also, he testified that he has not sought work since he stopped driving the coaches.
Why did he cease his last paid job?
40. The reason for Mr Monteith ceasing his last paid job was not totally clear from his evidence. When asked by his counsel why he stopped doing the job, his evidence was to the effect that he was having trouble because of his drinking. He indicated that he may have been driving while over the legal limit for alcohol and had a lot of trouble staying awake. On further questioning, he indicated he would have continued driving if not for his alcohol problem. However, we note there is no evidence before us of dissatisfaction by his employer and that he voluntarily decided not to continue driving coaches.
41. When asked under cross-examination if he had wished to do lighter work, or reduced shifts, that might be within his capacity and ability to arrange, given his relationship with his operations manager, Mr Monteith replied:
At that time, probably would be, but now I don’t know anyone that would hire me on that basis
42. In addition, Mr Monteith complained that he had difficulty lifting bags and suffered breathlessness due to his lung condition and fatigue when working around the coach. On the other hand, he gave evidence that he overcame the lifting problem by asking passengers to load their own bags. In this manner, he suggested alcohol dependence was the only real problem with his continuing in the job.
43.Mrs Monteith gave oral evidence that she had little knowledge of her husband’s back condition but was aware that the back condition precluded him from driving in 1996. She said that, if he had been able to continue as a driver and did not have an alcohol problem, the courier business would have continued successfully. She had minimal recall of the events around his driving the coach from 2000 to 2004 and gave no evidence that she knew of his driving and drinking.
44. In 2000, at about the time he ceased work as the office manager of his courier business, Professor Mattick, an expert in alcohol and drug dependence, reported that he did not believe Mr Monteith’s alcohol consumption would prevent him from working and noted the main reason he had stopped working was not caused by service, but rather due to his reported back injury and possibly his knee injury. In fairness, we consider the reference to back injury relates to the reason for stopping driving.
45. Dr Dinnen in his first report, in 2007, reached the conclusion, “It is clear his inability to work is a combination of physical and psychiatric factors – that is the alcohol combined with his other health problems limited his ability to work in his last job and will prevent him from working in any current or future job”.
46. In his later report in 2008, Dr Dinnen expressed the view Mr Monteith would be unable to work eight hours because of his drinking. Dr Dinnen is a psychiatrist without expert medical knowledge of the physical factors but did not explain the reason for his change in opinion. We further note this opinion is some four years after cessation of employment.
47. Dr Ng, whilst not directly addressing the reason for Mr Monteith’s cessation of work, considered the most important limiting factor in terms of working was alcohol dependency. He considered the airways problem would not prevent Mr Monteith doing some sedentary work but alcohol dependency alone was the reason he was unable to work. Dr Ng disregarded the back as a factor apart from tasks involving heavy lifting.
48. Dr Morris whilst not addressing the reason for cessation of work said it was quite possible for a person to work successfully, alcohol dependency notwithstanding.
49. Our conclusion is that alcohol dependency is a substantial factor in Mr Monteith’s ceasing his last employment. We are reliant on Mr Monteith’s own self-reporting and his motivation is a factor in his ceasing to work. Whether poor motivation is due to alcohol dependence is questionable. Only Dr Dinnen found this sufficient reason alone but he expressed this opinion in 2008 after finding otherwise in 2007. We have no indication from the operations manager or bus proprietor as to the circumstances of Mr Monteith’s ceasing work. We have difficulty accepting that an employer would permit a driver to drink and drive. In particular, we find it difficult to accept that the operations manager, although a personal friend of Mr Monteith, would have been unaware of Mr Monteith’s drinking during working hours, had this been occurring, and not have taken some action. Further, Mr Monteith has no convictions for drink driving but did report he had been breath tested on five occasions, all with zero readings.
50. We also have difficulty accepting that he avoided lifting luggage because of his back problem, and relied on passengers to do this task. This account is uncorroborated. If it was the case, it indicates a significant back problem. As such, the back problem played a role in Mr Monteith’s ceasing work. This means alcohol dependence was not the only reason Mr Monteith ceased to work. We have reached the conclusion, on balance, that Mr Monteith did not cease work due solely to his war-caused alcohol dependency or a combination of accepted conditions.
Did Mr Monteith’s war-caused disabilities alone prevent him from undertaking remunerative work for more than 8 hours a week?
51. We accept Mr Monteith’s alcohol dependence and chronic airflow limitation interfere with his ability to undertake remunerative work. According to Dr Ng and the later view of Dr Dinnen formed in 2008, it is alcohol dependency alone which prevented Mr Monteith from working 8 hours.
52. As already discussed, Dr Dinnen initially adopted the position that it was a combination of the psychological or physical factors that prevented Mr Monteith from working. In 2007, Dr Dinnen rated the alcohol dependence as “moderate”. He itemised breathing difficulties as a problem limiting capacity and observed it would be restrictive in an office.
53. Dr Ng considered the accepted disabilities of alcohol dependence and chronic airflow limitation would prevent Mr Monteith’s undertaking remunerative work, but he opined that based on his airway problem he could do sedentary work. Dr Ng also considered that either his obesity or back limitations or a combination of both would interfere with employment opportunities. This was a view shared by Dr Mills.
54. Mr Monteith had received three injections for his back, with relief, but as of January 2008, Professor Sambrook placed 10-20% exercise intolerance on his back. It was in 1996 that Mr Monteith, on medical advice, ceased driving as an owner of a courier business because of his back problems, which dated back to previous employment with the Water Board.
55. Professor Mattick, in 2000, considered Mr Monteith met the criteria of alcohol dependence and rated the dependence as mild. He thought Mr Monteith’s drinking did not preclude him from working the next day and that many males in Australia drink heavily but work quite adequately day to day.
56. Dr Morris whilst saying Mr Monteith had residual work capacity suggested a rehabilitation program to assist Mr Monteith with his alcohol problem before returning to the work force. Dr Dinnen had in fact tried such a program without success.
57. Counsel for the Commission submitted that motivation played a part in Mr Monteith not continuing to work. We accept Dr Dinnen’s proposition that by preference drinking can take priority and that interference with motivation can be a part of alcohol dependence. We also note that expression of alcohol dependence in each person is a matter of individual circumstances and a matter in which the person’s own motivation and volition is not necessarily negated. This is borne out in Professor Mattick’s opinion.
58. To satisfy the alone test it is necessary that the war-caused disease, in this case alcohol dependence, rendered the veteran incapable of undertaking remunerative work for more than 8 hours per week.
59. Mr Monteith admitted he had previously suffered significant back problems in 1995 and on the advice of his general practitioner, Dr Chia, immediately ceased driving. He then had some nerve block injections in the late 1990s. Professor Mattick considered it was not alcohol stopping him from work in 2000 but that his back pain played a role. This was at variance with Mrs Monteith’s evidence that she remembered no back problem, but Mrs Monteith in our view was a very unsatisfactory witness in matters about which she was asked to recall. In 2006 we have varying opinions concerning the alcohol contribution, the chronic airway limitation and the back and obesity. We have considerable documented evidence that Mr Monteith’s back problem interfered with his work capacity dating back to 1996 and although apparently relieved at least in part by injections still interfered with work capacity as documented in 2006 by a rheumatologist and supported by his being unable to load and unload luggage. Dr Dinnen changed his opinion between 2007 and 2008 and we have difficulty accepting his opinion in 2008, some four years after cessation of work, that the alcohol dependence resulted in total permanent impairment alone when he had previously said it was a combination of the physical and psychiatric.
60. Mr Monteith’s case is very dependent on the history provided to the medical practitioners. Consultant psychiatrists who have assessed him have in particular relied on his own history rather than being able to conduct clinical examination as to physical limitations. As well, we have difficulty accepting the circumstances surrounding his employment with Greyhound coaches, in particular his account of his drinking whilst working. On balance, we are satisfied that Mr Montieth’s non-accepted disabilities, including his back condition and obesity, contributed to his no longer undertaking remunerative work. In our view, alcohol dependence alone was and is not solely responsible for his work incapacity.
61. Mr Monteith therefore does not satisfy subparagraph 24(1)(b). Even if he were to satisfy subparagraph 24(1)(b), he does not satisfy subparagraph 24(1)(c).
Is he prevented from continuing to undertake remunerative work that he was undertaking?
62. For the same reasons given above for failing the test in subparagraph 24(1)(b), Mr Monteith fails the test that the alcohol dependence alone did not prevent him from continuing to undertake the remunerative work that he was undertaking. As Burchett J pointed out in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, the task of the decision-maker is:
… to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
63. We acknowledge that the Full Federal Court in Starcevich indicated that the use of phrase "prevented from continuing to undertake" in relation to "remunerative work" does suggest a reference to the last remunerative work undertaken, but that this was not necessarily the only relevant work. We accept that Mr Monteith’s last preferred remunerative work was in management rather than coach driving or other activity and that he is best suited to management or administrative work because of physical limitations. The test nevertheless is whether this is as a result of war-caused conditions alone. Having failed the alone test, we find no relevant application of Starcevich to Mr Monteith. Further, there is no need to define the tasks for which he is suited which is called for in cases such as Flentjar as we accept Mr Monteith’s evidence that he is suited only to sedentary work at least partly due to his breathlessness, the result of an accepted condition. We do not find that he should be required to undertake any other type of work.
64. We further accept the submission of counsel for Mr Monteith that the reference to “remunerative work that the veteran was undertaking” requires that the work must have been “performed” or “successfully undertaken” or “effectively undertaken”: Sheehy v Repatriation Commission (1996) 137 ALR 223 at 228-9. This still does not change the position we have outlined above.
65. We find the reviewable decision of the Veterans’ Review Board of 1 February 2007 to continue Mr Monteith’s pension at 100% of the general rate was correct. This means we agree with the decision under review that Mr Monteith is not entitled to the special rate of pension. We have not considered possible entitlement to the intermediate rate as this depends on similar requirements and no argument was presented to us that suggest Mr Monteith had any better claim to this rate.
decision
66.The decision under review is affirmed.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member
Signed: ........................[Sgd]............................
Jennifer Wong, AssociateDates of Hearing 12-13 March 2009
Date of Decision 29 May 2009
Counsel for the Applicant Mr C ColborneRepresentative for the Applicant Legal Aid Commission of NSW - Veterans' Advocacy Service
Solicitor for the Respondent Mr M Snell, Sparke Helmore Lawyers
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