Tinning and Repatriation Commission (Veterans' entitlements)
[2024] AATA 3427
•26 September 2024
Tinning and Repatriation Commission (Veterans' entitlements) [2024] AATA 3427 (26 September 2024)
Division:GENERAL DIVISION
File Number:2021/4472
Re:Eugene Tinning
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Member A McLean Williams
Date:26 September 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review insofar as the Applicant is ineligible for Special Rate pension.
Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 the Tribunal further directs that the matter be remitted for GARP-5 impairment assessment, for calculation of the Applicant’s entitlement to General Rate pension.
..................[SGD]....................
Member A McLean Williams
CATCHWORDS
VETERANS’ AFFAIRS – medical conditions – claim for special rate of pension – whether medical conditions caused by incapacity from war or war-caused disease – whether Applicant rendered permanently incapacitated – Tribunal finding against the Applicant – decision under review affirmed – further question of whether the Applicant’s current pension rate calculated correctly – Tribunal making a further order to remit the matter back to the Respondent for consideration of the Applicant’s current pension rate
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veteran’s Entitlements Act 1986 (Cth)
CASES
Clearihan and Repatriation Commission (Veteran’s entitlement) [2019] AATA 1339
Leigh and Repatriation Commission [2006] FCA 395
McDonald v Director-General of Social Security [1984] 1 FCR 254
Re Harris and Repatriation Commission (1998) 51 ALD 789
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Watkins [2015] FCAFC 10
REASONS FOR DECISION
Member A McLean-Williams
26 September 2024
PRELIMINARY
The Applicant, Mr Eugene Tinning, seeks review before the Tribunal of a decision made on 8 June 2021[1] by the Veteran’s Review Board (‘the VRB’), under the Veteran’s Entitlements Act 1986 (‘the VEA’).
[1] T2, pp. 6-10.
By that decision, the VRB had affirmed an earlier decision by the Repatriation Commission (‘the Respondent’) made on 15 April 2020, by which the Respondent had determined to continue Mr Tinning’s pension at 80% of the General Rate, with effect from 6 November 2019. In doing so, the VRB had determined that Mr Tinning did not qualify for either the Intermediate Rate, or the Special Rate of pension, pursuant to either s.23, or s.24 of the VEA.
During this application for review the question for the Tribunal again becomes whether Mr Tinning is entitled to either the Intermediate Rate of pension under s.23 of the VEA, or the Special Rate of pension, under s.24 of the VEA. Distilled to an essence, this requires consideration whether:
(a)Mr Tinning is totally and permanently incapacitated, in the sense that Mr Tinning’s incapacity from either ‘war-caused injury’ or ‘war-caused disease’ (or both of these), is of such a nature “by itself alone” as to render Mr Tinning incapable of undertaking remunerative work for periods of more than eight hours per week (s.24(1)(b));[2] or 20 hours per week (s.23(1)(b));[3] and
(b)by reason of the incapacity from war-caused injury or war-caused disease (or both of these), alone, Mr Tinning is prevented from continuing to undertake the paid work that he was previously undertaking, and is, by reason thereof, suffering a loss of income that would not be the case if he were free from the incapacity (s.24(1)(c) or s.23(1)(c)); and
(c)Mr Tinning has been genuinely seeking to engage in remunerative work but for the incapacity, and that incapacity is the substantive cause of Mr Tinning’s inability to obtain remunerative work (s.24(2)(b) or s. 23(3)(b)).
[2] Incapacity for remunerated employment of more than eight hours per week by reason of war-caused injury/disease is the threshold for Special Rate pension: VEA s.24(1)(b).
[3]Incapacity for remunerated employment of more than 20 hours per week by reason of war-caused injury/disease is the threshold for Intermediate Rate pension: VEA s.23(1)(b).
In addition, the Tribunal needs to consider whether Mr Tinning has been correctly assessed as eligible for his veteran’s pension at 80% of the General Rate.
It is necessary to set out both s.23 and s.24 of the VEA. These provisions provide:
Section 23 Intermediate rate of pension:
(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's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(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; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) 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:
(i) if 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;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.
(3A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) (as affected by subsection (2)) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 24 or 25 does not apply to the veteran.
(3B) For the purposes of paragraph (3A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, to the extent set out in paragraph (1)(b) is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason; or
(c) the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both.
(4) Subject to subsections (5) and (6), the rate at which pension is payable to a veteran to whom this section applies is $619.80 per fortnight.
(5) Subject to subsection (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
General rate + (14 x Reduced daily pension amount worked out under section 115D)
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4) or (5) of this section, reduced in accordance with section 25A.
Section 24 Special rate of pension
(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.
(2A) This section applies to a veteran if:
(a) 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
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a) 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
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3) This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4) Subject to subsections (5), (5A) and (6), the rate at which pension is payable to a veteran to whom this section applies is $1,595.66 per fortnight.
(5) Subject to subsections (5A) and (6), the rate at which pension is payable to a veteran to whom section 115D applies (veterans working under rehabilitation scheme) is the reduced amount worked out using the following formula:
General rate + (14 x Reduced daily pension amount worked out under section 115D)
(5A) If:
(a) section 115D applies to a veteran because of subsection 115D(1A); and
(b) the veteran is engaged in remunerative work of more than 8 hours, but less than 20 hours, per week as a result of undertaking a vocational rehabilitation program under the Veterans' Vocational Rehabilitation Scheme;
then, subject to subsection (6) of this section, the rate at which pension is payable to the veteran is the higher of the following amounts:
(c) the amount worked out under subsection (5) of this section;
(d) the amount under subsection 23(4).
(6) If section 25A applies to a veteran, the rate at which pension is payable to the veteran is the rate per fortnight specified in subsection (4), (5) or (5A) of this section, reduced in accordance with section 25A.
FACTUAL BACKGROUND & CHRONOLOGY
Mr Tinning was born on 28 July 1962, and is now aged 62-years.
Mr Tinning was enlisted in the Australian Army between 22 September 1981 and
3 April 2015, as both an enlisted soldier and later as a commissioned officer in the Royal Corps of Australian Electrical and Mechanical Engineers (‘RAEME’), ultimately attaining the rank of Major. On 3 April 2015, Mr Tinning transferred to the active army reserve, and still remains a member of the army standby reserve.
Over the course of his military career Mr Tinning has undertaken operational deployments. In consequence of his military service Mr Tinning now has a number of VEA-accepted medical conditions (‘the VEA-accepted conditions’):
(a)lumbar spondylosis;
(b)bilateral pterygium;
(c)rotator cuff syndrome, right shoulder;
(d)sprain of the right wrist; and
(e)rotator cuff syndrome, left shoulder.
On 3 December 2003[4] Mr Tinning was granted a pension at 80% of the General Rate, with effect from 16 July 2003.
[4]T4.
On 15 September 2014, Mr Tinning commenced post-military employment as a project manager working for Thales Australia Ltd (‘Thales’). Initially, this was pursuant to a short-term contract. On 1 September 2015, Mr Tinning’s job at Thales became a permanent (i.e. on-going) role.
On 6 November 2019,[5] Mr Tinning lodged an application for an increase in the rate of his pension. At that time, Mr Tinning was 57 years of age. His application stated that his back pain had become significantly worse over the preceding two years, and that he was experiencing regular back spasms. Mr Tinning also indicated at that juncture that he was employed as a project manager for Thales, working 38-hours per week.
[5]T5.
On 15 April 2020,[6] a contracted medical advisor (‘CMA’) completed an assessment of Mr Tinning under the fifth edition of the Guide to the Assessment of Rates of Veterans’ Pensions (the ‘GARP-5’). The CMA assessed Mr Tinning under the
GARP-5 as having a medical impairment rating of 45 points[7] in respect of his
VEA-accepted conditions. The CMA further noted that Mr Tinning was also suffering from a right knee meniscal tear, a left-sided frozen shoulder, and in consequence of right-sided AC joint problems. These are not VEA-accepted conditions.
[6]T8, T9.
[7]Although conducted on 15 April 2020, the GARP-5 assessment is conducted as if it were as at the date of application for pension increase (in this case: 6 November 2019).
By a determination dated 15 April 2020,[8] a Delegate of the Respondent refused
Mr Tinning’s application for an increase in the rate of his pension. The Delegate determined that Mr Tinning’s impairment rating was 45 points; and his lifestyle rating was 3 points, such that when these were combined under the applicable formula,
Mr Tinning has a degree of incapacity of 80%. The Delegate also found that
Mr Tinning was not eligible for either the Intermediate Rate (s.23) or the Special Rate (s.24) of pension, because Mr Tinning had indicated that he was in full-time employment.
[8]T10.
On 7 May 2020, Mr Tinning gave notice of his resignation to Thales,[9] stating ‘due to personal and family reasons I have decided it is time for me to move on to my next challenge’.
[9]ST3/723.
On 23 June 2020,[10] Mr Tinning requested a review of the determination dated
15 April 2020, on grounds that ‘I believe I am under-assessed and am now unable to continue working’.
[10]T11.
Mr Tinning worked his last day for Thales on 26 June 2020.
On 8 June 2021,[11] the VRB affirmed the decision which is now under review before the Tribunal.
[11]T15.
On 22 June 2021[12] Mr Tinning applied to the Tribunal for review of the VRB decision.
[12]T2.
APPLICANT’S CONTENTION
Mr Tinning contends that he should be entitled to 100% of the General Rate of pension prior to his ceasing work and should be assessed as entitled to the s.24 Special Rate of pension, following his retirement from Thales on 26 June 2020.
LEGISLATIVE SCHEME
Mr Tinning is already the beneficiary of a Veteran’s pension obtained by means of a successful application under s.14 of the VEA. Section 15 of the VEA thereafter affords a pathway for Veterans to apply for an increase in their rate of pension. Once such an application is made, s.19(5C) of the VEA outlines the matters that must be assessed. These are:
(a)the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b)subject to subsection 19(6), the rate at which the pension is payable.
The assessment period as referred to in s.19(5C) is defined in section 19(9) of the VEA, as the period starting on the day on which the application was received, and ending when the application is determined. Mr Tinning had applied for an increase in the rate of his pension on 6 November 2019. Accordingly, the assessment period commences on 6 November 2019, and now runs until the date of this Tribunal’s decision.
Subsection 19(6) provides that, where pursuant to subsection 19(5C), the Commission has assessed that the pension was payable at some point during the assessment period at the rate provided by either s.23 or s.24, then subject to s.24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of either of s.23 or s.24 is applicable (or, if both are applicable, the one of these which was applicable most recently), during the assessment period.[13]
[13]See also: Repatriation Commission v Smith (1987) 15 FCR 327 at [40], wherein this interpretation of the provision is confirmed.
Subsection 19(5D) next provides that after making an assessment under subsection 19(5C), the Commission must determine that the pension is payable at the rate assessed.
By way of his application for review, Mr Tinning seeks payment at 100% of the General Rate of pension for the period prior to his ceasing work at Thales on 26 June 2020, and then payment at the (s.24) Special Rate of pension, after the cessation of his employment. Pursuant to s.19(6) of the VEA, if the Special Rate is payable at some point during the assessment period, then, subject to s.24A, Mr Tinning will become eligible for the Special Rate for the whole of the assessment period.[14]
[14]Repatriation Commission v Smith, supra, note [12].
Section 24A of the VEA provides:
Continuation of rates of certain pensions
(1) Subject to subsections (1A) and (2), if the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a) the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b) in the case of a veteran to whom section 23 applies:
(i) the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(ii) in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking--the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) in the case of a veteran to whom section 24 applies--the veteran is undertaking or is capable of undertaking remunerative work for periods aggregating more than 8 hours per week.
(1A) However, subsection (1) does not prevent a rate applicable under subsection 24(4), (5) or (5A) from being reduced to give effect to subsection 24(6).
(2) Paragraphs (1)(b) and (c) do not apply to a veteran if the veteran is undertaking a rehabilitation program under the Veterans' Vocational Rehabilitation Scheme or section 115D applies to the veteran.
[the emphasis is not in the original, but has been added here, by the Tribunal].
In this particular case:
(a)Mr Tinning has made an application (on 6 November 2019) for increase in pension under s.15 of the VEA (s.23(1)(aa) & s.24(1)(aa));
(b)Mr Tinning has not yet turned 65-years of age (s.23(1)(aab) & s.24(1)(aab)); and
(c)
Mr Tinning’s degree of incapacity from war-caused injury or disease (or both of these) is at least 70% (s.23(1)(a)(i) & s.24(1)(a)(i)), by reason that
Mr Tinning was assessed - by way of the 15 April 2020 determination after the CMA assessment on that same date - to have an 80% incapacity.
Ultimately, determination of this Application for Review turns on whether Mr Tinning meets the remaining requirements in either s.23 or s.24 of the VEA (or both of these), at any stage during the assessment period. Hence, the Tribunal must determine:
(a)for the Special Rate pension,[15] whether Mr Tinning’s incapacity from war-caused injury or war-caused disease (or both of these) “of itself alone” renders Mr Tinning totally and permanently incapacitated, and thus incapable of working any more than eight hours per week.
(b)for the Intermediate Rate pension,[16] whether Mr Tinning’s incapacity from war-caused injury or war-caused disease “of itself alone” renders Mr Tinning incapable of undertaking remunerative work other than on a part-time basis or intermittently;[17] and
(c)if so, whether Mr Tinning is prevented, by that incapacity “alone” from continuing to undertake the remunerative work that he was previously undertaking.
Is Mr Tinning ‘totally and permanently incapacitated’?
[15]VEA s.24.
[16]VEA s.24A(1)(c).
[17]For more than 20 hours per week: VEA s.23(2)(b).
To be eligible for the Special Rate pension available under s.24, Mr Tinning must be ‘totally and permanently incapacitated’. That is to say, Mr Tinning’s incapacity referable to war-caused injury or disease (or both) must be such that “of itself alone” Mr Tinning is incapable of undertaking remunerative work for more than an aggregate of 8-hours per week.
‘Totally and permanently incapacitated’ is not defined in the VEA, yet the state of the authorities[18] on the meaning of this expression is such that a finding of incapacity capable of rendering a veteran totally and permanently incapable of working for more than 8-hours per week is open if the available evidence suggests that it is more likely than not that the incapacity will persist into the foreseeable future. This entails some assessment as to whether the impairment will be likely to improve; as well as consideration of the likely time span, before that improvement. The longer is the period of incapacity - and the less likely is the probability of any improvement - then the more appropriate a finding of permanent incapacity becomes. In so doing, the Tribunal need not be satisfied that the incapacity will thereafter continue for the remainder of the veteran’s life, as the Tribunal need only be satisfied that the incapacity will render the veteran incapable of working for more than 8 hours per week, for ‘a long and indeterminate period’.[19]
[18]McDonald v Director-General of Social Security ([1984] 1 FCR 254), cited with approval as applicable to the VEA in Clearihan and Repatriation Commission (Veteran’s entitlement) [2019] AATA 1339 at [254]; see also Leigh and Repatriation Commission [2006] FCA 395 per Dowsett J at [12].
[19]Clearihan, ibid, at [256].
Is Mr Tinning incapable of undertaking remunerative work part-time or intermittently?
Although Mr Tinning contends that he should be eligible for the Special Rate of pension under s.24, for completeness, his eligibility for Intermediate Rate of pension under s.23 of the VEA should now be considered, as a necessary preliminary. In the event that the evidence shows that Mr Tinning cannot work part-time (20 hours), then consideration can move to s.24, to determine whether Mr Tinning cannot work for more than an aggregate of 8-hours per week.
Ultimately, these are factual questions, to be answered on the basis of the medical evidence that is available for the Tribunal’s consideration.
Medical evidence received before the Tribunal
(i) Dr Christopher Cunneen
Mr Tinning seeks to rely on the medical opinion evidence provided by Dr Christopher Cunneen, an Occupational and Environmental Physician. Dr Cunneen examined
Mr Tinning on 31 January 2023 and has provided a report, also now dated 31 January 2023.[20]
[20]A3, pp. 17 – 27.
In his report, Dr Cunneen notes that during 2020, Mr Tinning had suffered from a
left-sided frozen shoulder condition, yet Dr Cunneen also considers that this condition had fully resolved by 2021. Dr Cunneen reports that Mr Tinning had ceased his employment at Thales in June 2020 ‘on the basis of his symptomatic degenerative lumbar spine and symptomatic degenerative bilateral shoulder joints’[21] (each of which are VEA-accepted conditions).
[21]A3, p.18.
Similarly, Dr Cunneen notes that since June 2020, Mr Tinning has not worked in any paid employment.[22]
[22]A3, p. 19.
Dr Cunneen did not consider that Mr Tinning was engaging in any abnormal illness behaviour and felt that Mr Tinning’s presentation upon examination was consistent and appropriate with Mr Tinning’s reported symptoms. Only ‘active’ range of movement was tested by Dr Cunneen, as part of his clinical examination.[23]
[23]A3, p.20. ‘Active’ range of movement (‘ROM’) is that which the patient is able to achieve without any intervention or assistive guidance by the examining clinician. It is to be held in contrast to ‘passive’ ROM, which is that achieved by the clinician guiding the limb or joint.
Ultimately, in his report, Dr Cunneen opined that Mr Tinning now qualifies for Special Rate pension:
‘Mr Tinning has accepted Defence Service-related medical conditions involving his bilateral shoulder conditions and his lumbar spine. During June 2020, he ceased work as a full-time project manager with Thales on the Bushmaster project due to the negative impact of his symptomatic degenerative bilateral shoulder conditions (also associated with constitutional left frozen shoulder at the time - now settled) and his symptomatic degenerative lumbar spine (lumbar spondylosis). Since, he has not returned to any paid employment. I would highlight Mr Tinning’s constitutional left frozen shoulder (adhesive capsulitis) settled during 2021 and is not affected now in his ongoing incapacity to return to paid employment.
…
I would opine Mr Tinning, due to the combined impact of his symptomatic degenerative lumbar spine with grossly restricted range of lumbar motion and limited capacity for prolonged sitting and standing, does not possess sufficient functional capacity to return to work, even in clerical, administrative roles on a periodic basis of eight or more hours per week. To return this Veteran to future clerical, administrative or supervisory roles as he previously had prior to June 2020, would be associated with a very high risk of future work-related aggravations of his symptomatic degenerative lumbar spondylosis and his symptomatic degenerative bilateral shoulder pathology’.[24]
[24]A3, pp. 22-23.
Dr Cunneen was specifically requested to opine in relation to the “ameliorating provisions”[25] in the VEA, in response to which Dr Cunneen expressed the following:
‘[Q: Has the applicant been genuinely seeking to engage in remunerative work?]:
“No. Apparently since ceasing work and retiring during June 2020, Mr Tinning has not attempted to return to any paid employment on the basis of his symptomatic and degenerative bilateral shoulder conditions and his degenerative lumbar spondylosis”.
[Q: If so, but for incapacity from war-caused injury or war-caused disease, or both, would the applicant be continuing to seek to engage in remunerative work?]
If not for this Veteran’s symptomatic and degenerative bilateral shoulder conditions with restricted range of joint motion and stiffness, along with his symptomatic and degenerative Lumbar Spondylosis causing restricted range of spinal motion and movement, I would opine that it is more than probable Mr Tinning would have remained in full-time paid employment, most probably with Thales as a Project Manager or similar managerial roles.
Overall, I would state Mr Tinning does satisfy the criteria for the special Rate of Pension on the basis of his accepted Defence Service-related conditions……. I am not aware of any other factors or other medical conditions relevant here for this Veteran’.[26]
[25]VEA s.23(3); & s.24(2).
[26]A3, pp. 25 – 26. The emphasis is not in the original, but has been added here, by the Tribunal.
(ii) Dr Marcus Navin
The Respondent seeks to rely on the medical opinions expressed by Dr Marcus Navin, Consultant Occupational Physician, in two reports dated 13 July 2022,[27] and 5 April 2023.[28]
[27]R1, p.48.
[28]R2, p. 74.
In his first report (13 July 2022), Dr Navin expressed the view that Mr Tinning has no incapacity for ongoing employment that is now referable to his VEA-accepted conditions, stating:
‘In my opinion, Mr Tinning’s circumstances are such that he has no prospect of returning to any form of employment given his orientation and belief state which he holds to himself, and this includes his self-care. He adopts a passive approach to any episodes of discomfort.
By his history, he avoids any activity that could improve his condition. He participates in no preventative program. He takes no formal medication that might in some way improve his general situation. He has not, seemingly, been offered (it may have been declined by him) evidence-based modalities of chronic pain management treatments, that may also assist the evident anxiety, presumptively part of his wider psychiatric disorder.
I have formed the clinical impression (again acknowledging that I am neither a psychiatrist nor a psychologist but bringing more than 50 years of clinical experience to the assessment of Mr Tinning) that his lack of adoption of a traditional form of care is impeding his well-being and his future capacity for enjoying activities of daily living, less impairment and reduced distress.[29]
…
He has a full physical capacity for employment within his experience, training and education.
…
I opine that he has no spinal condition, the symptoms are disproportionate to those with similar radiological findings, often with no symptoms. He has the changes of time and ageing, they would not prevent him from any employment…”
....
In my opinion, Mr Tinning’s response to his symptoms is related to his refusal to accept a holistic therapeutic approach. I conjecture that, due to his perspective and the emotional overlay evident, his perception of his pain causes him to adopt a passive approach, with recumbency for days. This is accompanied by his non-adoption of any activity that might prevent and/or minimise any chronic or acute experiences of his musculoskeletal pain.’[30]
[29]R1, pp. 59-60.
[30]R1, pp. 60 - 61.
Dr Navin’s supplementary report (5 April 2023)[31] was requested by the Respondent in response to the contrary views now expressed in the report obtained by Mr Tinning’s representatives from Dr Cunneen.
[31]R2, p.74.
In the supplementary report, Dr Navin indicates that the ‘new information’ does not change his opinion,[32] and, although noting the contrary opinion expressed by
Dr Cunneen - to the effect that Mr Tinning is now unfit for any form of employment - Dr Navin considers that this is only the case because ‘Mr Tinning does not participate in therapeutic and holistic care that might improve his well-being, and that would address his emotional and psychological states that impact upon his experience of pain’.[33] Later in his supplementary report, Dr Navin also stated:
‘I would consider that Mr Tinning, were he to participate in appropriate process and care model (not provided to him for some unknown reason), that he would be able to continue in employment. In my opinion, he could work 8 to 20 hours per week without any impairment or adverse consequences upon him.
….
Mr Tinning’s ROM would not prevent preparing food, driving a vehicle, using a computer, tending to his home and garden, nor attending at desk-based employment. Therefore, in my opinion Mr Tinning could return to work were he so to desire and assisted by appropriate medical care.
….
I consider that his incapacity is related to conditions other than the accepted physical conditions. In my opinion, any incapacity for work is linked with his expressed orientation with respect to himself, his psychosocial situation, and his attitude to treatment’.[34]
[32]R2, p.77.
[33]R2, p.77.
[34]R2, pp. 78-79.
As becomes evident, Dr Cunneen and Dr Navin have given opinions that are essentially the ‘polar opposite’ of each other.
During Dr Navin’s examination-in-chief, the following exchange took place:
‘MR DUBE: Can I ask you a couple of questions firstly, Doctor, about your report of 13 July 2022? Can you go to page 12 of your report?
DR NAVIN: Yes.
MR DUBE: Your answer to question 4.2 and the first sentence you have there, where you express an opinion that Mr Tinning has no prospect of returning to any form of employment. That’s that first sentence there?
DR NAVIN: That’s it, yes.
MR DUBE: Yes?
DR NAVIN: Yes.
MR DUBE: If you then turn the page, so page 13, the answer to question 4.4(b), the second paragraph, there’s the sentence where you say, ‘Mr Tinning has a full capacity for employment with his – in his experience, training and education.’ Doctor, it may be suggested to you in cross-examination that those two statements are wholly inconsistent and demonstrate a lack of appreciation of the issues or simply that you haven’t understood the questions. Are you able to comment on those two answers and explain?
MEMBER: I take it you’re juxtaposing the statement in 4.2 and 4.4, …?
MR DUBE: Yes.
MEMBER: All right, yes.
MR DUBE: Doctor, do you understand the question? I do, thank you, and I’m happy to respond.
DR NAVIN: Thank you? At the time when Mr Tinning was seen by myself, it was evidence that Mr Tinning has major underlying emotional and psychological issues which impact upon his appreciation of his physical status, and it would be inappropriate to – and unfair to Mr Tinning and, indeed, to any person who sought to employ him that, without addressing these significant emotional and psychological issues, that he would be placed in a parlous state by returning to any form of work due to the lack of holistic assessment and management of his several conditions, all of which interpose and interact with one another. And, indeed, the response that Mr Tinning has to his expression of discomfort from his conditions is to withdraw and to isolate himself from any form of employment because of his perception of his pain. I’m not denying his pain is the true pain, but merely that his response to that perception of pain and his appreciation of it is for him to withdraw, and this would make him an unreliable and unsafe employee in any workplace. By contrast, however, by 4.4(b), the issues of concern with respect to the physical and other structural defects applicable to his spine in respect specifically to the spinal condition suggest that Mr Tinning could in – well return to employment were he to engage in or – and/or receive interventions and therapies that would abate or, indeed, modify significantly the degree of pain that he receives and to which he responds. In that regard, the physical structure of his physical accepted condition – namely, the spinal condition – would not in and of itself stop him from being employed. Therefore, to ensure that Mr Tinning was not in any way jeopardised from his spine, he is unsafe for work, but the spine of itself would not impede him from some form of employment within the terms of the Act. Does that satisfy the question?[35]
[35]Transcript (24 November 2023) p.23 (commencing at line 10) to p.24, line 14.
Dr Cunneen was not available to give his oral evidence until 12 June 2024. When under cross-examination, Dr Cunneen confirmed that he had not had any opportunity to consider the clinical notes kept by Mr Tinning’s general practitioner, or those from a Dr Brown, psychiatrist, on the basis that these had not been provided to Dr Cunneen at the time of his clinical examination and report preparation.[36]
[36]Transcript (12 June 2024), p.43, lines 16-25.
During his evidence, Dr Cunneen said:
‘DR CUNNEEN: So, you’ve got this individual who has resigned, I’d seen him once six months afterwards, I then see him two and a half years later, I notice that the frozen shoulder is gone and that basically what you’ve got is pretty much de novo as it was without the frozen shoulder. He’s basically got a significantly reduced range of motion for both shoulders and his lumbar region, he’s complaining of significant pain, yes, pain is subjective, and what some people may consider a , maybe an eight others and [sic] six. But basically, there’s no objective testing for pain, it’s all subjective. But range of motion and other clinical assessments are fairly black and white. So, if someone has got a restricted range of motion and he’s complaining of pain and decreased function, has problems with prolonged standing and sitting particularly. He basically, in my assessment, as someone who probably does a couple of hundred fitness for works a year across states and territories, big industries, little industries, government and otherwise, basically, in some respects I wrote a fitness for work assessment, and basically – which is par for the course, as an occupational and environment physician – and yes, my assessment is different from Dr Navin’s, but I can only reflect what I found on the day - - -
MR DUBE: Yes?
DR CUNNEEN: and what I was told and how I put it together, and that’s how it – that’s how the assessment was to me and my conclusions.
MEMBER: Dr Navin says he has a full physical capacity for employment. It struck me that that’s completely contrary to your opinion, did that cause you to want to examine Dr Navin’s report more closely, to try and understand how he’d come to such a different conclusion?
DR CUNNEEN: Yes. I mean, to do this job you’ve got to be a bit of a medical detective, I have no legal qualifications and I’m not trying to dumb down the word detective, but you’ve got to be a little bit forensic in how you approach it. So basically, what I’m – you know, Marcus, Dr Navin, I know him, but that’s beside the point, on page 14 of his report under point 4.4, talks about no spinal condition. Well, I would say that the history but also the radiology that we have on Mr Tinning’s lumbar spine from March 21 would reflect that this is a spine that has documented lumbar spondylosis as referenced by the radiologist and basically filling international and national criteria. So, on the point alone, I would disagree. I think his interpretation, on still page 14, 4.5(c), I basically believe that the back is symptomatic, certainly his range of motion and his presentation was consistent. I didn’t believe there was any inconsistencies, and he wasn’t embellishing it. As I said, I’m a pretty straight shooter, that may be a subjective assessment by me, but basically, I think I’m known as a pretty straight shooter. And if I thought there was any inconsistencies, or basically, there was Waddell signs, I believe he has – he doesn’t have sufficient capacity to return to his previous employment, particularly with (indistinct). And basically, yes, I know Dr Navin spoke on page 20 under 4.15 about recommendations, I actually agreed with some of those. But even the recommendation of a pain management program would suggest that there’s significant pain and that basically, this person is not coping. So that may have some overtones of mental health because basically, people in chronic pain, of whatever musculoskeletal cause or causes, this tends to affect their capacity to cope, which doesn’t help their mood, which doesn’t help their pain and then it becomes a vicious cycle. And if they haven’t had mental health conditions before the vast majority of those with a chronic pain state tend to have a secondary mental health condition, and that’s just from first principle and I’m sure that any psychiatrist would concur. I just think, yes, Marcus, Dr Navin, you know, gave a clinical examination but, I suppose, mine was set out in a more structured format and certainly it reflects what I’ve found on the day. His examination found different ranges of motion, I can only reflect what I found and what I saw, yes, he’s of the opinion that he’s fit for work. I actually think he’s at high risk of future work-related aggravations and exacerbations, be it his shoulders or his degenerative lumbar spine if he returns to work, and that basically, he doesn’t have capacity for future employment.’[37]
[37]Transcript (12 June 2024) p.46, line 06 – to p.47 line 20.
Dr Cunneen also expressed a reservation that it was unclear from Dr Navin’s report whether Dr Navin had used an active range of motion when examining Mr Tinning,[38] and that:
[38]Transcript, p.48, lines 27 – 43.
‘DR CUNNEEN: …. I don’t know whether he used a goniometer for the, you know, measuring on page 11, straight leg raising or whether he was eyeballing and his lumbar motion, you know. He’s done, you know, I mean, his overall assessment, particularly on the spine I think, you know, has been very thorough. But the thing is – the problem is I had a claimant – an applicant whose range of motion for their shoulders, left and right and their back was significantly restricted, so I just measured what I saw and replicated that. He had significant pain, the pain for the back may be very low at times, but it took a minimal amount of effort to give rise to significant pain. And basically, even just clinically assessing him for his pain and Mr Tinning did most of the work. So, yes, my findings reflect what I saw, and I documented and used whatever visual aids or tools I can to reflect that – that tends to reflect best practice.[39]
[39]Transcript p.49, lines 25 - line 37.
MR DUBE: All right. Now Dr Navin gave evidence when we were last before the Tribunal in 2023?
DR CUNNEEN: Yes.
MR DUBE: He wasn’t specifically asked how he measured the range of motion, but in his – in answers to some questions that Mr Cullen asked him, I have noted that he was referring to active use of the shoulders. If you were to assume – and sorry – the other point I will put to you as to what Dr Navin said in his evidence in November, was that he accepted that people could have, with these sorts of difficulties, could have different ranges of motion on different days depending on the fluctuating nature of a condition. You’d accept that?
DR CUNNEEN: No. No.
MR DUBE: No?
DR CUNNEEN: No. I wouldn’t accept it. Not where you have a full range of motion in one report and then you have a range of motion – I mean, you’d expect maybe, you know, 5, 10, 15 per cent, so maybe 20 degrees, you know, but it shouldn’t be full. With the pathology that Mr Tinning has got in his shoulders, I wouldn’t anticipate a full range, yes. If I refer, say, to page 5, in my experience having seen some claimants maybe once or twice over a 20-year period, maybe for different jurisdictions, if they’ve got, say, a left shoulder flexion, so that’s basically in this direction walking forwards, 90 is there, 110 is there, yes, basically, they might go to 90 or they might come up to 130, even 140, but they’re not going to go 170, 180 unless they’ve had some procedure or some treatment that’s significantly impacted positively. I do accept the fact that with backs, not so much shoulders, but backs, yes, there can be more variation, but if someone’s got significant pathology in their back, and this chap has got, basically, multilevel, he’s got all levels of his discs are worn and the bottom one has got a vacuum effect. Vacuum effect is where you form gas, it happens in all humans if you live long enough, but it’s more – it’s prevalent in people 85 and over, there’s hardly a disc in (indistinct) particularly in the lower lumbar region, it doesn’t have gas. But the thing is for people that have significant injury or damage or early degeneration, you develop gas sooner. And so, in someone who is 61 who has developed gas, that’s a disc that’s, basically, 20 years older than them. So, I would not anticipate that that person would ever have a normal range of motion. But humans aren’t black and white, they do vary, and I’ve seen people who have terrible looking backs, not very many, who are on radiology who actually have little pain and, basically, a reasonable range of motion. And then I’ve also seen the opposite, polar opposite, where they can’t move and can’t do anything, Mr Dube, and they’ve, basically, essentially, got normal radiology. So, the problem is our radiology has limits and things like muscle spasm and tight ligaments and tight joints don’t show up. But sticking to this paradigm for Mr Tinning, he’s got four levels of discs out of five for the lumbar region that are worn, the bottom one, particularly, is like 15, 20 years older. And then you’ve got little knuckles that are 2 centimetres from the middle that are the size of the knuckle just before – on your ring finger just before the nail, so it’s like two little 5-cent pieces. And he’s got facet joint arthritis, so it’s like there’s sandpaper in there rubbing and that tends to cause muscle spasm and pain, and that’s on several levels, but, particularly, the bottom one again. So, that means the nerve is getting compromised sometimes, but it’s usually a pain generator. So, with these extensive findings in someone who has had a history of pain and restricted motion, I’d be surprised if they had days where they had actually a normal – or their normal range of motion. Normally my clinical assessments and my exposure as a treating doctor is that even on a good day, they quite often have symptoms, and they have a restricted range of motion.
MR DUBE: I take it you haven’t seen a CT that was done of Mr Tinning’s lumbar spine in August of 2023?
DR CUNNEEN: No. I haven’t seen that.
MR DUBE: Okay. The doctor ?
DR CUNNEEN: I didn’t have access to that.
MR DUBE: Dr Navin gave evidence with respect to that, he thought – his evidence to the Tribunal was that looking – comparing the pathology present in the March 2021 with the August 2023 CT scan was that he felt that there was some – I’m just – this is what my notes say, suggests reabsorption of some of the pressure, and that he felt that there was an improvement in the spinal condition?
DR CUNNEEN: I can’t comment on that - - -
MR DUBE: No?
DR CUNNEEN: in the absence of having – I was around when CTs came out, MRIs, so we got trained by our bosses to read them. I’m not a radiologist, but I can read a CT and (indistinct). But for that, you’d need to have a look at what the radiologist said, and I don’t have access to that, I’m sorry, so I can’t comment.’[40]
[40]Transcript p.50, line 09 to p.51 line 14.
Having heard the evidence from both doctors, and especially in light of the critique of Dr Navin’s opinion provided during oral evidence by Dr Cunneen, the Tribunal is ultimately left in a state of not feeling reasonably satisfied about the clinical findings and conclusions expressed by Dr Navin; particularly insofar as these relate to Mr Tinning’s lumbar spine and shoulders, and Dr Navin’s views that Mr Tinning’s presenting symptomology is mostly an artefact of a “belief state”, and a “presumptive psychiatric disorder”. Accordingly, the Tribunal does not accept the opinions expressed by Dr Navin. This extends to include the GARP-5 assessment at pages 17 – 19 of his report dated 13 July 2022.[41]
[41]R1.
However, non-acceptance by the Tribunal of the opinions expressed by Dr Navin does not, as if by default, give rise to a simple binary choice which begets a result in which reliance is instead reposed by the Tribunal on the contrary opinion expressed by Dr Cunneen. The Tribunal must also be reasonably satisfied regarding the correctness of the conclusions that have been expressed by Dr Cunneen. Yet, the Tribunal is not reasonably satisfied regarding the ultimate opinion expressed by Dr Cunneen, wherein he solely attributes Mr Tinning’s cessation of employment to his bilateral shoulder conditions and degenerative lumbar spondylosis. This is an opinion that was given by Dr Cunneen in circumstances in which Dr Cunneen had not been provided with the medical records from Mr Tinning’s general practitioner, which do now suggest a contributory role for other factors, other than Mr Tinning’s VEA-accepted conditions towards the cessation of Mr Tinning’s employment.
Mr Tinning’s evidence before the Tribunal:
Mr Tinning has provided written statements to the Tribunal as follows:
·Statement dated 10 February 2022;[42]
·Personal Submission, dated 11 November 2023;
·Supporting Statement dated 20 April 2024 (Exhibit 8).
[42]A1, p.1.
It is sufficient for present purposes to record only the gravamen of Mr Tinning’s written evidence, which contends matters to the following effect:
·Mr Tinning records that he resigned from Thales on 26 June 2020, which he now claims was due to the increasing frequency and severity of his back pain;
·Mr Tinning has not applied for any other employment since separating from Thales;
·Mr Tinning refutes the opinions expressed by Dr Navin. He says that he has ‘good days’ and ‘bad days’, and Dr Navin happened to see Mr Tinning on one of his ‘good days’. Mr Tinning also refutes that he told Dr Navin that he would not take medication, or ever try other treatment modalities. Indeed, Mr Tinning says that he has trialled a number of pain medications, as well as having used a TENS machine; and he conducts ‘stretching and strengthening’ exercises on most days;
·Mr Tinning rejects completely the opinions expressed by Dr Navin regarding impairments caused by his bilateral Pterygium, right wrist, and shoulder rotator cuff conditions;
·Mr Tinning considers that Dr Navin’s opinions about his capacity for part-time employment are unrealistic, given the amount of latitude and adjustments that Mr Tinning feels would be necessary, in terms of additional sick leave from any prospective employer;
·any mental health overlay is attributable only to the fact of Mr Tinning’s back pain.
In his oral evidence given on 24 November 2023, Mr Tinning acknowledged that during the period leading up to his resignation from Thales he had been experiencing panic attacks; had not been sleeping well; and had told his general practitioner on
22 April 2020 that his work situation made him ‘feel like not being there’; and that he was becoming emotional at work, and crying during meetings, and felt as if he could no longer cope.[43] Mr Tinning further acknowledged that, at that juncture, he had been diagnosed by his general practitioner as suffering from mild depression, and had been given a medical certificate for two weeks off work.
[43]Transcript, p.10, lines 25 & following.
Mr Tinning also agreed that during a follow-up visit on 6 May 2020 his general practitioner had prescribed the antidepressant Zoloft.[44]
[44]Transcript, p.11, lines 31 – 35.
Next, Mr Tinning conceded that on 20 May 2020 his general practitioner had written a referral for him to see a psychologist, as well as having provided a prescription for an alternate anti-depressant, Brintellix, in lieu of Zoloft.[45] Mr Tinning’s medical records also indicate that on 9 June 2020 his general practitioner had referred him to see a psychiatrist, a Dr Brown, who Mr Tinning also agreed he has now been seeing for a bit over two years.[46]
[45]Transcript, p.12, line 23.
[46]Transcript, p.15, line 10
Mr Tinning also agreed that during a follow-up visit to see his general practitioner on 25 June 2020, his doctor had made a note: ‘at work ethical dilemmas which he found hard to face so he has resigned and retired will focus on his mental health” would have been a note recorded by his GP solely on the basis that this is what he had told his doctor at the time.[47] The medical record for 25 June 2020 also include the further entry: ‘feels his low back pain – pain above five for more than three months - has affected his mental health’. The fact of this further entry prompted the following supplementary question from the Tribunal:
‘MEMBER: Earlier I had heard that you were considering resigning because of pain?
APPLICANT: “Yes….…. You know, that three months leading up, the pain had been above the five, and that’s when I - everything was sort of coming to a crunch and I made a decision. Well, I can’t - the ethical situation doesn’t sit well with me. The quality of life because of my back pain and that – like if I was taking tramadol and Valium then I couldn’t drive, and if I was taking painkillers at work, then that wasn’t sitting comfortable with me either, so I did sort of, like, a deep dive into the whole thing personally and decided, you know, quality of life, it was time to -- get out”.[48]
[47]Transcript, p.12, lines 45 – 47. See also Transcript, p.13, lines 34-35.
[48]Transcript, p. 13, lines 13 – 26.
Respondent’s Contentions
The Respondent contends that the Tribunal should prefer the opinion of Dr Navin over that expressed by Dr Cunneen and should find that Mr Tinning is ineligible for a Special Rate pension (per s.24) because the extent of any incapacity arising from his VEA-accepted conditions does not render Mr Tinning totally and permanently incapacitated.[49]
[49]Respondent’s Amended Statement of Issues Facts and Contentions (‘SIFC’), (19 June 2023), paragraphs 4.25 – 4.33.
Similarly, the Respondent contends[50] that Mr Tinning is ineligible for a Special Rate pension (s.23) because he retains a capacity for part-time work of more than 20-hours, per week.
[50]Ibid, paragraph 4.35.
Ultimately however, and for reasons already indicated, the Tribunal does not accept the opinion expressed by Dr Navin, and observes that the opinion given by
Dr Cunneen is also limited by reason of relevant contextual information not having been provided to Dr Cunneen, for his necessary consideration, at the time of his preparing his report.
Is the ‘alone test’ satisfied?
Even if the Tribunal were to find that Mr Tinning is incapable of working either more than eight-hours (s.24) or 20-hours (s.23) per week, the Respondent submits[51] that Mr Tinning’s reduced capacity for work during the assessment period is a matter that does not arise solely because of any incapacity caused by the accepted VEA conditions. Here, the Respondent submits that Mr Tinning’s incapacity is something that is also attributable to other factors, other than either ‘war-caused injury’, or ‘war-caused disease’. As such, the Respondent submits that Mr Tinning’s circumstances do not meet the necessary requirements of the ‘alone test’ as raised in both s.23(1)(c), and in s.24(1)(b) of the VEA. Ultimately, the Tribunal is of the view that this submission must be accepted.
[51]Ibid, paragraph 4.46.
Although Dr Cunneen’s evidence provides the basis for the Tribunal’s rejection of the contrary opinion expressed by Dr Navin, Dr Cunneen’s report and oral evidence is not sufficient to overcome the fact of there being other evidence (unknown to Dr Cunneen at the time of preparing his report) that alludes to non VEA-accepted factors contributing to Mr Tinning’s cessation of employment. Here, the Tribunal particularly notes that Mr Tinning had advised Thales that his resignation was ‘due to personal and family reasons’. Furthermore, in the lead-up to Mr Tinning’s resignation:
·On 16 January 2020, after an ultrasound had shown no major pathology or any rotator cuff tear of the left shoulder, Dr Fairbairn (orthopaedic surgeon) had postulated that Mr Tinning was suffering from left-sided frozen shoulder. That the left shoulder mobility was found to have subsequently improved somewhat by 18 March 2020 was then enough for Dr Fairbairn to confirm the diagnosis of frozen shoulder.[52]
·On 22 April 2020 Mr Tinning was found to be suffering from depression and was prescribed Zoloft and given a medical certificate.[53]
·On 6 May 2020 Mr Tinning’s GP noted that he was ‘still depressed and had no motivation’. Although Mr Tinning had tried to work from home this had not been possible as he was ‘too anxious’.[54]
·On 20 May 2020 Mr Tinning’s GP referred him to a Mr Mark Pitcher, clinical psychologist, for anxiety and mild depression. the GP noted in the referral that Mr Tinning had gone through a divorce and had had a few panic attacks. It was also noted that Mr Tinning was feeling better and could go back to work.[55]
·On 25 May 2020 Mr Tinning reported to his GP that he felt that his low back pain was affecting his mental health. Mr Tinning told his doctor that he had resigned and had retired and would now try to focus on his mental health.[56]
·On 25 June 2020 Mr Tinning had told his doctor that he was feeling better and not experiencing much anxiety, but still ‘feeling down’. He again stated that he had pain in his lower back for more than three months which affected his mental health. Mr Tinning also stated that there were ethical dilemmas at work which he found hard to face. It was also noted that he had had a tough five years due to physical reasons, a divorce, and a change in jobs.[57]
·On 30 June 2021, Mr Tinning was referred by his GP to see Dr John Brown, psychiatrist, in the context of PTSD, and a divorce. Mr Tinning told Dr Brown that he had retired on 26 June 2020 because of back pain, and on 17 November 2021 Dr Brown reported ‘this man suffers from a chronic major depressive illness, this largely stemming from his back pain’.
[52] Summonsed records of Dr Fairbairn, ST1/4/5.
[53]Summonsed records of Bywater Medical Jindalee ST2/56, 434.
[54] Summonsed records of Bywater Medical Jindalee, ST2/57, 435.
[55]Summonsed records of Bywater Medical Jindalee, ST2/436.
[56]Summonsed records of Bywater Medical Jindalee, ST2/58.
[57]Summonsed records of Bywater Medical Jindalee, ST2/58.
In light of the foregoing, the Respondent submits[58] that Mr Tinning’s decision to resign was really in consequence of a combination of factors, each contributing in some way towards Mr Tinning’s reduced capacity for work during the assessment period:
(a)the VEA accepted conditions of lumbar spondylosis, rotator cuff syndrome right shoulder and rotator cuff syndrome left shoulder;
(b)left frozen shoulder which was symptomatic from approximately November 2019 until December 2020;
(c)mental health conditions, including anxiety, depression and PTSD for which Mr Tinning was engaged in treatment until at least July 2022; and
(d)Mr Tinning’s unwillingness to engage in appropriate medical treatment.
[58]Respondent’s Amended SIFC, paragraph 4.45.
The Respondent contends[59] that each of factors (b) – (d), as listed in the paragraph (immediately above) are not factors that arise solely from Mr Tinning’s incapacity in consequence of war-caused injury or war-cause disease, such that it cannot be said that Mr Tinning is able to satisfy the ‘alone test.’
[59] Ibid.
The Tribunal expresses no view regarding (d), (the contention that Mr Tinning is ‘unwilling to engage in appropriate medical treatment’) other than to observe that the available evidence would not reasonably suggest that. However, the Tribunal does conclude that Mr Tinning’s incapacity for remunerative work during the assessment period is a matter that arises in consequence of a combination of factors, including matters (b) and (c) from the Respondent’s list above, which are beyond any relevant incapacity caused by Mr Tinning’s VEA-accepted conditions.
In these circumstances it is just not[60] possible to conclude that incapacity from war-caused injury or disease (or both of these) ‘of itself alone’ has rendered Mr Tinning incapable of undertaking remunerative work during the assessment period to such an extent for him to qualify under either of s.23(2)(b), or s.24(1)(b).
[60]Repatriation Commission v Richmond [2014] FCAFC 124, at [65]; Repatriation Commission v Watkins [2015] FCAFC 10 at [61].
Although s.23(3) and s.24(3) do seek to ameliorate the strictures of the alone test in some[61] instances in which a veteran has ceased remunerated employment, the ameliorative provisions do not apply to Mr Tinning’s circumstances. This is because in his statement dated 10 February 2022 Mr Tinning has indicated that he has not even attempted to apply for any other employment since leaving Thales on 26 June 2020.[62]
[61]The veteran needs to be under the age of 65 years as well as able to satisfy the Commission/Tribunal that he or she has been genuinely seeking to engage in further remunerative work yet has not been successful in finding work due to their (non-VEA) incapacity being the substantial cause of their not being able to secure work: s.23(3)(b); s.24(2)(b).
[62]Re Harris and Repatriation Commission (1998) 51 ALD 789 (at [34]); and Smith v Repatriation Commission (2014) 142 ALD 410 (at [49], per Rares J).
Accordingly, the Tribunal determines that it is not reasonably satisfied that Mr Tinning is able to meet the requirements of the ‘alone’ test, and in consequence Mr Tinning is not eligible for either of the Intermediate Rate or the Special Rate of pension.
Has Mr Tinning been correctly assessed as eligible for 80% of the General Rate of pension?
A secondary issue arises as to whether Mr Tinning has been correctly assessed as eligible for 80% of the General Rate of pension, which was determined[63] as at
6 November 2019 on the basis of a medical assessment conducted on 24 March 2020 by Dr Renu John, a general practitioner.[64]
[63]T9.
[64]T7.
Mr Tinning now relies upon an updated assessment from Dr John dated
28 July 2023,[65] to submit[66] that Mr Tinning has 85 impairment points under GARP-5, which the Respondent submits[67] equates to a 100% degree of incapacity under Chapter 23 of the GARP-5.
[65]A6.
[66]A5.
[67]Respondent’s Amended SIFC, paragraph 4.58, at p.19.
The Respondent further submits[68] that the most recent assessment of the impairment caused by the Applicant’s VEA-accepted conditions was that conducted by Dr Navin in his report dated 13 July 2022, which resulted in an incapacity estimate of 40%, which should now be preferred by the Tribunal, because Dr Navin is a specialist occupational physician, whereas Dr John is only a general practitioner.[69] In light of same the Respondent submits that Mr Tinning should now be assessed by the Tribunal as only eligible for a pension at 40% of the General Rate of pension.
[68]Respondent’s Amended SIFC, paragraph 4.58, & following.
[69]Ibid, paragraph 4.60.
Previously, the Tribunal has rejected the impairment estimates given by Dr Navin. Accordingly, the Tribunal will also not accept his GARP-5 assessment as affording any reasonable basis for determining Mr Tinning’s pension entitlements. Meanwhile, Dr Cunneen has not attempted to provide a GARP-5 impairment estimate.
The Tribunal has considered Dr John’s medical impairment assessment conducted on 28 July 2023,[70] as well as the GARP-5 assessment prepared on behalf
Mr Tinning.[71] Dr Renu John was not called to give any evidence before the Tribunal, and the GARP-5 assessment (A5) does not appear to be a document that was prepared by Dr John, but rather presents as if it were an assessment made by
Mr Tinning’s representative and purported to be “based on” the medical impairment assessment conducted on 28 July 2023 by Dr John.
[70] A6.
[71]A5.
It is by no means clear to the Tribunal how the impairment estimates in A5 correlate to Dr John’s medical impairment estimate. For example, Mr Tinning’s right shoulder is attributed 10 impairment points in A5, yet Dr John has not opined that Mr Tinning has lost about one quarter normal range of movement in the right shoulder. Similarly, in relation to the right wrist, Dr John describes Mr Tinning as being able to use the right limb reasonably well in some circumstances but to have poor digital coordination and markedly reduced grip strength. Yet this is now ascribed as attracting 20 impairment points (age-adjusted to 18) in A5. How that result can be said to arise is not clear to the Tribunal. In all the circumstances that Tribunal is unable to be reasonably satisfied regarding the impairment estimates now given in A5, and concludes that there is currently insufficient reliable evidence before the Tribunal to enable the Tribunal to make a determination as to whether Mr Tinning has been correctly assessed as eligible for 80% of the General Rate of pension.
In these circumstances the Tribunal now directs - pursuant to s.43(1)(c)(ii) of the AAT Act - that the matter be remitted for an updated GARP-5 impairment assessment for calculation of Mr Tinning’s entitlement to General Rate pension.
DECISION
The Tribunal affirms the decision under review insofar as Mr Tinning is ineligible for Special Rate or Intermediate Rate pension. The Tribunal further directs pursuant to s.43(1)(c)(ii) of the AAT Act that the matter be remitted for GARP-5 impairment assessment for calculation of Mr Tinning’s entitlement to General Rate pension.
1. I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member A McLean Williams
.................[SGD]................
Associate
Dated: 26 September 2024
Date of hearing:
12 June 2024
Representation for the Applicant:
Mr Ken Cullen (Military Compensation Advocate)
Gaythorne RSL
Solicitor for the Respondent:
Mr Ben Dube (Partner)
Sparke Helmore Lawyers
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