Thomson and Repatriation Commission

[2011] AATA 833

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 833

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4041

VETERANS' APPEALS DIVISION		)
Re		David Thomson

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal

M D Allen, Senior Member

Dr Haikal-Muktar, Member

Date25 November 2011

PlaceSydney

Decision The decision under review is AFFIRMED.

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

M D Allen, Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS:  Whether entitled to pension at the special rate.  Ceased employment due to availability of superannuation as well as incapacities so “alone” test not met.  Residual capacity to engage in some form of remunerative work.  Decision to refuse pension at special rate affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 s24.

CASES

Cavell v Repatriation Commission (1988) 9 AAR 534

Chambers v Repatriation Commission (1995) 36 ALD 207 

REASONS FOR DECISION

25 November 2011 M D Allen, Senior Member            

1.      By application made 22 September 2010 the Applicant sought review of a decision by the Veterans’ Review Board that increased his pension for incapacity from war-caused injuries and diseases to 100% of the general rate of pension but declined to grant pension at the special rate.

2. The criteria for the grant of pension at the special rate are set out in section 24 of the Veterans’ Entitlements Act 1986 (“VEA”) which section reads inter alia:

(1)  This section applies to a veteran if:

(aa)  the veteran has made a claim under section 14 for a pension, or 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)  the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; 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

(d)  section 25 does not apply to the veteran.

(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.

3.      The Applicant’s evidence was that he completed an apprenticeship as a pastry cook.  When called up for National Service he was allocated to the Catering Corps and trained as a cook.

4.      He served in South Vietnam as a cook and then after returning to Australia he worked for 18 months as a pastry cook then, because he had gained a truck driver’s licence while in the Army, he worked for a period as an offsider on a furniture removalists van.  After two years in London where he worked as a cook, he returned to Australia and was employed as a cook in a restaurant at Wollongong.

5.      Following his marriage the Applicant looked for what he termed “a 9 to 5 job” and was employed first as a cook then as the chef with the Illawarra Health Service (“IHS”).

6.      The Applicant said that he enjoyed this job and he was in the kitchen for a period of 22 years.  When he became the chef he was responsible for the roster for cooks and kitchenhands.

7.      Because of changes in the manner in which the IHS decided to manage its catering, the Applicant ceased his employment as a chef but continued to work for the IHS as a van driver delivering pre-prepared meals.  In 2001 in the course of his employment as a van driver he injured his left shoulder.

8.      As a consequence of the injury to his shoulder the Applicant was redeployed as a technician in a microbiology laboratory.  In evidence he said he had “eight happy years there”.

9.      The Applicant retired from employment on 16 October 2009.  There is dispute as to the reasons that led to that retirement.

10.     To the Tribunal the Applicant claimed that he increasingly found it difficult to cope with his employment due to incapacity from his accepted disabilities, in particular his asthma and osteoarthritis of both knees and both ankles.

11.     In particular he found that his asthma caused him to become short of breath and fatigued and his osteoarthritis made it difficult for him to walk.  He said that he became increasingly physically tired to the extent weekends were spent resting up ready to start again on the Monday.

12.     At the same time the Applicant was suffering from anaemia as the result of constant nose bleeds.  Although the Applicant claimed that his anaemia was no more than an inconvenience and that it was his asthma and knees that caused him to take time off work, other reports suggest otherwise.

13.     In his report of 7 March 2011, occupational physician Dr Mark Burns states:

“Mr Thompson reported that beginning in about 2008 had significant problems with nose bleeding.  The nosebleeds would in fact occur on a daily basis.  He was seen by Dr Tamane, an ear nose and throat surgeon, and his nose was cauterised.  He stated, though, that he continued to have regular nosebleeds.  It appears from the documentation that the bleeding was so severe that he became anaemic.

Additionally, from the documentation, it would appear that between October 2008 and 1 October 2009 he had approximately 97 days off sick due to epistaxis or his anaemia.  He reported that he had used up all his sick leave and was taking time without pay.”

14.     Occupational physician Dr Robin Chase did not obtain any history from the Applicant of having suffered anaemia.

15.     As stated above the Applicant claimed that his anaemia played no part in his decision to cease work.

16.     Both Dr Burns and Dr Chase were provided with pathology reports relative to the Applicant’s haemoglobin counts for the periods 06/01/09 to 23/01/10.  As we understand their evidence at the time the Applicant retired his anaemia was unlikely to be causing symptoms of tiredness and lethargy.

17.     This evidence from Drs Burns and Chase is to be contrasted to the report of the Applicant’s treating General Practitioner (“GP”) Dr Fuller, dated 24 November 2009, who stated that the Applicant retired from his employment due to his exhaustion caused by a combination of conditions which included his accepted disabilities as well as anaemia.

18.     We do not know if Dr Fuller had the pathology reports referred to by Drs Burns and Chase as those reports were directed to the Applicant’s endocrinologist Professor Moses.  However, there is no doubt that the Applicant did suffer from anaemia and that he had undergone treatment including iron injections for that condition.

19.     Dr Fuller’s further report, at Document T26 pages 90 and 91, also refers to “weakness due to low haemoglobin” and as late as June and September 2009 to “low iron”.

20.     Given the evidence of Drs Burns and Chase we cannot be reasonably satisfied that the Applicant was affected by exhaustion contributed to by his anaemia at the time of his retirement, although this had been the case in the period commencing in October 2008.  In particular we make reference to a memorandum at Document T18 dated 30 March 2009 which reads inter alia:

“I therefore wrote to the LMO and asked if the veteran would be able to undertake such a blood test as required for serum dioxide testing.  The LMO has advised such a blood test would be a health risk for this veteran due to anaemia.”

21.     As pointed out by Dr Burns in his report “His nose bleed and anaemia has now almost ceased.  He has a normal red cell count and is having no further problems in this area.

22.     The Applicant’s evidence was that his asthma was of ongoing severity and a chronic condition.  This is in contrast to the history obtained by Dr Burns who states in his report dated 7 March 2011: 

“… He has not had any recent hospitalisation due to his asthma.

At the current time his asthma is overseen by Dr Fuller, his general practitioner.  He stated that he has not needed to see a respiratory physician for his asthma.  He currently uses a nebuliser on a daily basis.  He has Symbicort twice a day and Atrovent as required.  He would need the Atrovent every day.

His problems associated with his breathing are tightness in the chest, occasional wheeze and lethargy.   He reported today that prior to ceasing work he was able to walk between 2.5-3km home from his workplace.  This was on a daily basis.  Therefore, even though he did have a degree of asthma, he did not have any marked restriction due to his breathing [our own emphasis]. He believes, though, that his asthma may have been deteriorating slightly in the last few years.”

Compare the report of Dr Chase, dated 12 May 2011, who obtained the following history, namely:

“He said that since leaving work his cough has got worse.  For example six weeks before this consultation the cough got worse for no clear reason.  He describes it as a ‘terrible’ cough.  In the past he required Prednisone treatment two or three times a year but since he retired he has only required it a couple of times.  In a normal week he said that he will have a cough for about two days which he describes as ‘coughing fits’ for several minutes.  The cough is usually not productive.”

23.     The extent of his incapacity while the Applicant was in employment was explained by Professor Moses in a report dated 8 October 2008, namely:

“I understand that you have received reports indicating that he does suffer from intermittent asthma attacks several times a year.  David is very cognisant of the effects of asthma treatments on his diabetes.  Hence he would tend to try and use minimal therapy for his asthma for as long as possible so as not to compromise his diabetic control by the use of steroids.  The end result of this is that each of his asthma attacks takes on average longer than a person without diabetes to resolve…”

Taking into account all of the above, we do not accept that the Applicant’s asthma attacks were as chronic and of ongoing severity to cause him to be totally incapacitated,  as he attempted to make out in his evidence to us. 

24. Both paragraphs 24(1)(b) and (c) VEA impose the so called “alone” test upon the criteria for the grant of pension at the special rate. Of this test, Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 said that the task of the Administrative Appeals Tribunal was:

“to make a practical decision whether the Veterans’ 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.”

25.     Both in evidence in chief and in cross examination, the Applicant stated that he had decided to retire as with his superannuation and disability pension he could maintain his income stream.  If he had not been able to access his superannuation he would have had to struggle on.

26.     To us that indicates, and we so find, that the Applicant did not cease work because of incapacity from war-caused injury or disease “alone” but that his ability to access his superannuation played a part in his decision.

27.     Counsel for the Applicant submitted that the Applicant’s ability to access his superannuation was not a determining factor, pointing out that the Applicant could have accessed his superannuation as at January 2009 when he turned 60 years of age.  We disagree.  Not everyone retires immediately upon becoming entitled to access superannuation payments.

28.     In the opinion of Dr Burns the Applicant is incapable of working for more than eight hours a week due to his accepted disabilities alone.  He does state however that his previous work as a laboratory technician, working more than eight hours a week, would in fact have been the most preferable work for him.

29.     Dr Chase on the other hand in his report of 12 May 2011, was of the opinion that the Applicant could work as a laboratory technician.  Dr Chase adhered to this opinion in evidence although subsequent to his report he had access to spirometry tests conducted on 24 May 2011.

30.     We are more persuaded by Dr Chase’s opinion.  The Applicant himself said that at the time of his retirement he could have struggled on if required.  We note that the Applicant is no longer affected by symptoms of his anaemia.

31.     Dr Chase obtained a history of daily living that indicated that the Applicant has no problem using the stairs in his two story residence and has no problems driving his manual car.  Recently the Applicant has completed a course at a community college with reference to computers.

32.     In Chambers v Repatriation Commission (1995) 36 ALD 207 at 222 the majority, after referring to the second reading speech in relation to the 1985 amendments to the Repatriation Act 1920, said:

“These comments support the view that the kinds of remunerative work considered to be available to a Veteran should not be limited to current skills or qualifications acquired independently of formal training or previous employment”.

33.     In this matter, unfortunately, the full range of employment options that might be open to the Applicant were not explored.  Dr Chase refers to general capacity for work with employment as a laboratory technician as a specific and preferable option.  Other possible employments of a light nature come to mind, for example the Applicant did drive a delivery van for the IHS and drives his own motor vehicle so a courier driver might be possible (having regard to lifting restrictions) or, if he could sit and stand as required, as a service station cashier.

34.     The Applicant has not sought to test his ability to attract an employer as he is in receipt of superannuation together with a 100% disability pension and this course of action is entirely understandable and appropriate.  But it does not mean that the Applicant has no ability to engage in remunerative work.

35. As the criteria in paragraphs 24(1)(b) and (c) VEA have not been met the decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member and Dr Haikal-Muktar, Member.

Signed:         ..................[sgd]....................................
  K Lynch, Associate

Date of Hearing  17 November 2011
Date of Decision  25 November 2011
Counsel for the Applicant  Mr C Colborne
Representative for the Applicant               Mr T Latimore
Representative for the Respondent          Mr T O'Reilly,
  Department of Veterans’ Affairs.