Thompson and Repatriation Commission (Veterans' entitlements)

[2019] AATA 83

Thompson and Repatriation Commission (Veterans' entitlements) [2019] AATA 83 (1 February 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/4029
VETERANS' APPEALS DIVISION  )

Re: Tracy Thompson
Applicant

And: Repatriation Commission
Respondent

DIRECTION

TRIBUNAL:  The Hon. Dennis Cowdroy OAM QC, Deputy President

DATE OF CORRIGENDUM:         1 May 2019

PLACE:            Sydney

IT IS DIRECTED, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application be altered such that the date from which the Applicant qualifies for the intermediate rate of pension be changed from 24 December 2012 to 24 January 2012, so that paragraph 2 of the decision will read as follows:

“2. In substitution, it is decided that the applicant qualifies for the intermediate rate of pension from 24 January 2012 and the special rate of pension from 9 June 2017.”

......................................[sgd]...................................................

The Hon. Dennis Cowdroy OAM QC, Deputy President

Note

The Tribunal notes that it has the power to correct an order where there is an obvious error. The applicant did not intend to submit that the compensation payable commence from 24 December 2012, but, due to an error on the part of the applicant, this was the date specified in the order. The respondent accepts that it was an error in the applicant's submissions. The power to correct an obvious error is unconfined, and the Tribunal considers that the present circumstances warrant the exercise of its power under subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

Division:VETERANS' APPEALS DIVISION

File Number(s):      2017/4029

Re:Tracy Thompson

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:1 February 2019

Place:Sydney

1. The reviewable decision dated 20 June 2017 is set aside.

2. In substitution, it is decided that the applicant qualifies for the intermediate rate of pension from 24 December 2012 and the special rate of pension from 9 June 2017.

   .......................[sgd].................................................

   The Hon. Dennis Cowdroy OAM QC, Deputy President

   CATCHWORDS

   VETERANS' ENTITLEMENTS – application for pension at intermediate rate – application for pension at special rate – whether injury or disease was war-caused – cervical spondylosis – rotator cuff syndrome – decision set aside

   LEGISLATION

   Veterans Entitlements Act 1986 (Cth)

   CASES

   Chambers v Repatriation Commission (1995) 129 ALR 219

   Flentjar v Repatriation Commission (1997) 48 ALD
   Repatriation Commission v Smith (1987) 74 ALR 537
   Repatriation Commission v Alan George Buckingham [1996] FCA 1218
   Repatriation Commission v Hendy (2002) FCA FC 424
   Starcevich v Repatriation Commission (1987) 76 ALR 449

   Wright v Repatriation Commission [2005] FCA 7

   REASONS FOR DECISION

   The Hon. Dennis Cowdroy OAM QC, Deputy President

   1 February 2019

   INTRODUCTION

3. On 20 June 2017, the Veterans Review Board affirmed a Decision of the Repatriation Commission made on 16 September 2016 which continued a disability pension in favour of the applicant at 100% of the general rate and determined that the applicant was not eligible for a pension pursuant to the Veterans Entitlements Act 1986 (Cth) (the Act) at either the intermediate or special rates of pension. The applicant seeks review of such decision.

   FACTS

4. The applicant enlisted into the RAAF on 22 May 1984 as a clerk. Following recruiting training, she was transferred to the RAAF base in Wagga as a trainee. Subsequently, she was transferred to a provisional position at No 2 Stores Depot RAAF Richmond. In 1987 the applicant was posted to RAAF Amberley, and in 1990 was posted to the RAAF airbase in Pearce. The applicant was posted to RAAF Williamtown in 1998.

5. Whilst at the Wagga base, the applicant’s duties were clerical. However, in 1985 the applicant was selected to undertake training in Group Exercise Classes. Such training would equip the applicant with the skills to provide physical training to staff. Whilst at the Williamtown base, the applicant was promoted to Sergeant, and thereafter was successful in appointments to other positions. She was subsequently appointed to the position of Flight Sergeant.

6. While the applicant was posted at RAAF Williamtown she expressed her desire to become a Warrant Executive with the ultimate objective of becoming a Warrant Officer in the RAAF. In mid-2004 she was posted to RAAF Edinburgh, South Australia, in the role of Administrative Officer at the Australian Institute of Aviation Medicine.

7. In 2006 the applicant was posted out of Williamtown where she was working as the acting rank of Warrant Officer. The applicant held three full-time positions at that time. On 10 June 2008 she transferred from the Permanent Air Force to the RAAF Active Reserve. In 2014 the applicant was posted to RAAF Richmond. She relocated to Newcastle in December 2016 where she continued to work in a service category. She ceased work on 9 June 2017.

   WORK CAPACITY

8. The applicant has suffered from numerous medical conditions for several years. As a result, she was found to be entitled to a 100% disability pension with effect from 18 May 2009. The applicant applied for a pension at the special rate and the intermediate rate pursuant to ss 23 and 24 of the Act. It is convenient to note that the respondent concedes that the applicant warrants a general rate of pension at a rate of at least 70% and, accordingly, that the applicant satisfies the requirements of s 24(1)(a)(i) of the Act. Further, the respondent concedes that on the basis of the applicant’s accepted medical conditions as discussed below, the applicant is currently not capable of remunerative employment for more than eight hours per week and, accordingly, the applicant satisfies the requirements of s 24(1)(b).

9. Section 23 of the Act relevantly provides:

   (1)  This section applies to a veteran if:

   …

   (c) the veteran is, by reason of incapacity from 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 from that incapacity.

10. Section 24 makes provision for a special rate of pension in similar terms to s 23 except that instead of a threshold of 20 hours per week, it is lowered to 8 hours per week.

11. Significantly, the applicant’s incapacity must be caused from war-caused injury or war-caused disease, or both, alone. In this application, the respondent contends that the accepted disabilities from which the applicant suffers, as detailed below, do not, alone, create her incapacity for work.

    ISSUE FOR DETERMINATION

12. The sole issue arising for determination is whether the applicant is prevented from working the requisite hours either to qualify for the special or intermediate rate of pension by virtue of a condition which is accepted to be a war-caused disease or injury.

13. The respondent contends that a condition from which the plaintiff suffers, namely cervical spondylosis, is a condition that contributes to her incapacity for work, as discussed by Dr Chase hereunder. Accordingly, if such contention is accepted, the applicant is not suffering from her accepted disabilities alone, in which case she does not satisfy the requirements of s 24(1)(c).

    Medical Condition History

14. The applicant has suffered from impairment to her lumbar spine, cervical spine, both shoulders and both lower limbs. She has also suffered from resting joint pain, chronic sinusitis, otitis media, and left Morton’s neuroma.

15. On 1 July 2016, the Tribunal determined that rotator cuff syndrome of both shoulders was related to defence service. On 16 September 2016, a delegate of the respondent increased the rate of disability pension to 100% of the general rate with effect from 18 May 2009. On 5 October 2016, the applicant applied to the Veterans’ Review Board (VRB) for review of the decision and on 20 June 2017 the VRB affirmed the decision of the delegate. From this decision the applicant applied to the Tribunal.

    Background Principles

16. In Repatriation Commission v Smith (1987) 74 ALR 537, it was established that to qualify for the special rate and intermediate rate of pension, several tests must be satisfied.

17. Firstly, the applicant’s degree of incapacity from a war-caused injury and/or war-caused disease must be at least 70%: see s 24(1)(a) of the Act.

18. Secondly, the applicant’s incapacity from such injury or disease must be of such a nature as, of itself alone, to render him or her incapable of undertaking remunerative work for more than eight hours per week (s 24(1)(b) of the Act; or 20 hours a week for the intermediate rate: see s 23(1)(b) of the Act). Such tests dictate whether an applicant has incapacity to undertake remunerative work.

19. In Chambers v Repatriation Commission (1995) 129 ALR 219, the Court said:

    A person’s skills are not confined to those acquired in formal training or by virtue of experience in particular employment. They include innate aptitude for tasks and abilities acquired or developed independently of employment or training. For example, a person may never have used computers at work and have no formal computer training. If that person has self-taught word processing skills, he or she nonetheless has skills that may well enhance opportunities for remunerative work. Similarly ‘qualifications’ means (Oxford Shorter Dictionary and Macquarie Dictionary) “a quality or accomplishment which qualifies or fits a person for some office or function”. The word is not confined to qualifications obtained as the result of formal training or work experience. Again, a person’s experience is not necessarily restricted to that acquired in employment or formal training.

20. In determining what kinds of remunerative work a person with the applicant’s skills, qualifications and experience might undertake, the Tribunal must disregard temporary effects on availability of work, such as the state of the labour market: see Chambers, supra. However, the kind of work must be of a kind which is reasonably available: Repatriation Commission v Alan George Buckingham [1996] FCA 1218.

21. The sole question is whether the applicant’s accepted conditions, alone, render the applicant incapable of undertaking remunerative work for not more than eight hours a week to qualify for the special rate of pension, or if this test is not satisfied, not more than twenty hours per week to qualify for the intermediate rate of pension. There is no contest that the Applicant is suffering from medical conditions arising from her war-caused injury or disease.

22. To qualify for the special or intermediate rate of pension, there must be a finding that the applicant’s incapacity from war-caused injury or disease, alone, prevents the veteran from continuing to undertake the kind of remunerative work the veteran had been undertaking. The veteran must be suffering from loss of income that he or she would not otherwise be suffering because of being prevented from continuing to undertake that kind of work: see s 24(1)(a) of the Act. The work which the veteran cannot undertake must be substantial remunerative work: see Starcevich v Repatriation Commission (1987) 76 ALR 449.

23. In making such enquiry, the Full Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD held that one must pose the following questions:

    ·what was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c)?

    ·is the veteran, by reason of the war caused injury and/or war-caused disease, prevented from continuing to undertake that work? If yes, are those causes the only factor or factors preventing the veteran from continuing to undertake that work?

24. If the answers to the above two questions are positive, then one must ask whether the veteran, by reason of being prevented from continuing to undertake that work, suffers a loss of salary wages or earnings that would be earned but for the incapacity.

25. If the answer is negative to any of the above questions, the special rate or intermediate rate of pension is not payable. It should also be noted that to have been prevented from continuing to undertake the relevant kind of work, the veteran must have ceased undertaking that kind of work entirely: see Wright v Repatriation Commission [2005] FCA 7. In Repatriation Commission v Hendy (2002) FCA FC 424, the Full Federal Court said of the task of the Tribunal, that it was:

    to assess what the Veteran probably would have done, if he had none of his service disabilities during the assessment period. The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past.… The Tribunal was not bound to limit its consideration to the last employment that the Veteran actually undertook.

26. Accordingly, it is necessary to refer to s 24(2)(a) which qualifies the “loss” test. If the veteran has ceased to engage in remunerative work for reasons other than incapacity from a war-caused injury or disease or the veteran is incapacitated or prevented from engaging in remunerative work for some other reason, then the person fails the “loss” test.

27. In summary, the applicant bears the evidentiary burden of establishing the following (Repatriation Commission v Smith (1987) 74 ALR 537). Firstly, her degree of incapacity of at least 70% (s 24(1)(a)). The extent of the applicant’s incapacity is conceded by the respondent. Secondly, that because of such incapacity alone, the applicant is incapable of undertaking work for more than eight hours a week (s 24(1)(b); or at least 20 hours a week for the intermediate rate (s 23(1)(b)). The respondent has conceded the applicant’s inability to work such hours, but not the cause of such incapacity as being related to her war-caused injury or disease alone. Such requirements are considered in Chambers v Repatriation Commission (1995) 129 ALR 219.

    Applicant’s evidence

28. The applicant gave evidence and readily acknowledged that she had experienced pain in her neck approximately eight years ago. However, she stated that, whilst such pain was disabling, she now understands that the pain in her neck was the result of her shoulder and lower back pains. The applicant stated that she was not aware of any restricted movement in her neck rotation. The applicant demonstrated that she could apparently, pain-free, provide full movements to her neck by rotation and flexion. The applicant stated that she was not suffering from any pain from her neck at present, and had not had pain in her neck for several years.

29. The applicant relied upon two reports of her treating orthopaedic surgeon, Dr Ghabrial. Dr Ghabrial provided his first report on 15 June 2017. He records that he was first consulted on 9 September 1998 by the applicant when she complained of low back pain and left sciatica. He stated relevantly:

    I continued to review her regularly, and again today. At some stage she had some problems with her neck which was more wear and tear but that had no impact on her work. That settled down. She had investigations regarding both hands and there was no evidence of any arthropathy in either hand. Clinical assessment showed no conditions regarding her hands and has no difficulties at work with her hands.

    She had problems with both shoulders, worse on the left side. That was diagnosed as sub acromial sub-deltoid bursitis in December 2001. She was referred for ultrasound guided steroid injection.

    She developed symptoms in her right shoulder, similar to the left shoulder, and at present she is having problems with both shoulders in the form of pain, stiffness and weakness.

30. Dr Ghabrial stated that he saw her regularly over the years and referred to a procedure performed in June 2016 to alleviate pain from the applicant’s back condition. He stated:

    She continued with her duties, with great difficulty, in the Air Force, as a financial necessity. However, her back, shoulders, knees and ankles symptoms have deteriorated to a point that she is in severe pain and needs to cease work. Her neck and hand problems do not have any impact on her work. When I saw her today she was in absolute agony to the extent that I offered to admit her to hospital. However because of some home circumstances, she was not able to do so.

    Taking into account her present clinical features regarding her back, which is complicated by her shoulders, knees and ankles, I believe she should accept the fact that she should lead a sedentary life and hence I believe she is not fit for any work because of her disabilities, mainly in the back, but partly because of the shoulders, knees and ankles as well. She is also taking medications which could make her drowsy hence she has to be careful about work regarding that aspect.

    I believe she will not be able to sustain any type of employment hence I would classify her as totally and permanently disabled.

31. Dr Ghabrial’s second report is dated 27 September 2018. In such report he states, relevantly:

    She continues to have severe pain in her lower back which is deteriorating hence I have arranged for her to have a caudal block at Lingard Private Hospital.

    She also continues with pain in her upper back and shoulders. Pain in her upper back can be contributed to either the shoulder or neck, however I believe her pain is directly related to her shoulders. I have referred her for ultrasound guided steroid injections for the shoulders.

    She had no major problems regarding her neck during her consultations over the years and she had not complained of any neck pain since 2011. The movement of the neck during consultation noted some minor loss of movement towards the left side, of little significance.

    The problems with her knees, ankles and shoulders would also prevent her from working.

    In summary, I would continue to support her permanent disability impairment due to her back problem.

    Respondent’s Evidence

32. The respondent’s evidence establishes that the applicant applied for a disability pension on 18 August 2009. One of the disabilities was referred to as “back pain”. In respect of the “signs and symptoms” portion of the application, the applicant stated: “lower and upper back pain; pins and needles; sharp stabbing; dowel to severe pain; tightness”.

33. In respect of her disability, the applicant stated in her pension application: “sore neck/shoulders”. The applicant described the symptoms as: “pain, pins and needles and stiffness in neck and shoulders stop muscle spasm. She states that such disability existed from 1990”.

34. Dr Evan Dryson, Specialist Occupational Physician, reported on 24 September 2012 that the applicant was suffering back and neck pain. Dr Dryson noted as follows:

    Neck

    She had the following range of movement in the neck: Rotation right 45°, left 45° (normal 80°); lateral flexion to the right 20°, left 25° (normal 45°); extension 30° (normal 60°); flexion 30° (normal 50°).

    Shoulders

    She had the following range of movement in the shoulders: Abduction right 90°, left 90° (normal 180°); adduction right 25°, left 25° (normal 45°); flexion right 90°, left 90° (normal 180°); extension right 30°, left 30° (normal 60°); internal rotation right 90°, left 90° (normal); external rotation right 60°, left 60° (normal 90°). 

35. Dr Bryson diagnosed “probable cervical spondylosis”. Dr Dryson continued:

    Cervical spondylosis however is less of an impairment in respect of office type employment than lumbar spondylosis, the main restriction of the former being sitting with a fixed head position for long periods of time…

36. The respondent relied upon the opinion of Dr Robin Chase, Occupational Physician, who provided a report dated 15 December 2017. Dr Chase reported that the applicant sustained a motor vehicle accident in the 1980s whilst her commanding officer was driving a motor vehicle which collided with the rear of the applicant’s vehicle. With respect to the applicant’s neck condition, Dr Chase reported that the applicant had intermittent neck pain after that and it had improved after she ceased work. He noted that the pain was worse in stress but the applicant was pain free at the present time. Dr Chase observed that the range of motion in the cervical spine showed that flexion and extension were full but side bending and rotation were reduced by approximately 50%.

1. Applying a Functional Loss Table, Dr Chase considered that the applicant had a loss of about half of normal range of motion which gave an impairment rating of 10.

2. In respect of the applicant’s shoulders, Dr Chase reported that the plaintiff complained of pain in her shoulders and that while she was undertaking an exercise for the RAAF which involved driving an old truck with a heavy manual gearbox, her shoulders and back were very painful. He recorded that there was restricted movement in the shoulders as follows:

   There was bilateral shoulder crepitus, both should were markedly tender, and impingement tests were positive bilaterally [sic]

   Range of motion in the lumbar spine was markedly restricted by 50% to flexion while side bending, rotation and extension were reduced by 90%. There was tenderness over the low back and especially over the sacroiliac joints.

   FINDINGS

3. The applicant suffered from neck pain in 2009 as evidenced by her application for a disability pension. It does not appear that any x-rays have ever been taken of the applicant’s cervical spine. Irrespective, the applicant has been diagnosed with cervical spondylosis, as referred to by Dr Chase.

4. The applicant states that she now realises that the neck pain which she complained of was pain resulting from her shoulders and back. The medical reports establish that the applicant has suffered from extensive issues with her back which appear to have become apparent at least since December 2001.

5. The applicant states that her neck pain had subsided several years ago. Such statement is verified by Dr Ghabrial. In the report of 15 June 2017, Dr Ghabrial refers to the fact that: “At some stage she had some problems with her neck which was more wear and tear but that had no impact on her work. That settled down.”

6. The respondent submits that Dr Ghabrial’s more recent report dated 27 September 2018 is equivocal when he states: “Pain in her upper back can be contributed to either the shoulders or neck…”

7. However, such submission ignores the following words in Dr Ghabrial’s report: “[h]owever I believe her pain is directly related to her shoulders”.

8. Dr Ghabrial was not required for cross examination. The Tribunal also observes that he has been the applicant’s treating orthopaedic surgeon for 20 years, during which time the applicant has consulted him regularly. The Tribunal also notes that Dr Dryson and Dr Chase only saw the applicant on one occasion. Neither are orthopaedic specialists.

9. Whilst Dr Chase recorded restriction in the applicant’s neck movements, he also recorded severe tenderness in her shoulders and the range of motion in the lumbar spine was markedly restricted. Dr Ghabrial has not recorded restrictions to the applicant’s neck movements after such pain settled down by 2011, according to Dr Ghabrial’s report dated 27 September 2018.

10. The Tribunal prefers the evidence of Dr Ghabrial, because he is the only Orthopaedic Surgeon who has provided evidence, and because of his long-term management of the applicant. Since there was no cross examination of his evidence, his evidence remains unchallenged. It follows from such evidence that the Tribunal accepts that applicant’s cervical spondylosis is not a cause of her incapacity: rather, her incapacity results from the accepted conditions. It follows that the Tribunal rejects the respondent’s contention that the applicant’s cervical spondylosis is a condition that plays a part in her capacity for work.

11. The applicant has provided evidence that she has now ceased work because of her incapacity. The applicant is also provided details of her gradual decrease in her weekly work. The respondent does not challenge such fact.

    CONCLUSION

12. The correct or preferable decision is that the applicant’s cervical spondylosis is not a factor which causes her incapacity for work and, accordingly, the applicant is suffering a loss of salary or wages because of her accepted medical conditions alone and thereby satisfies the requirements of s 24(1)(c) of the Act.

    DECISION

13. The reviewable decision dated 20 June 2017 is set aside.

14. In substitution, it is decided that the applicant qualifies for the intermediate rate of pension from 24 December 2012 and the special rate of pension from 9 June 2017.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President

.........................[sgd]...............................................

Associate

Dated: 1 February 2019

Date(s) of hearing:	19 November 2018
Advocate for the Applicant:	RSL Veterans' Centre
Solicitors for the Respondent:	Sparke Helmore Lawyers