Tolhurst and Repatriation Commission
[2005] AATA 739
•4 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 739
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/513
VETERANS' APPEALS DIVISION )
Re ALLAN JAMES TOLHURST Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date4 August 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]......................
KS Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS –s29 Veteran’s Entitlement Act – Special rate of Pension – Defence caused injury – Osteoarthrosis –Chondromalacia Patellae
Veterans’ Entitlements Act 1986 ss 19, 24, 28, 120, 196B
Leane v Repatriation Commission [2004] FCAFC 83
Forbes v Repatriation Commission (2000) 171 ALR 131
Flentjar v Repatriation Commission (1997) 48 ALD 1
Chambers v Repatriation Commission (1995) 129 ALR 219
Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Fox v Repatriation Commission (1997) 45 ALD 317
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Moorcroft v Repatriation Commission (1999) 58 ALD 143REASONS FOR DECISION
4 August 2005 Dr KS Levy, Member 1. The applicant, Allan Tolhurst, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of the decision of the Veterans’ Review Board dated 13 May 2004. That decision set aside the decision of the Repatriation Commission dated 17 December 2002 whereby the Commission assessed the veteran’s pension at 80% of the general rate on and from 15 August 2002. The decision of the Veterans’ Review Board substituted a rate of 90% of the general rate with effect from 15 August 2002.
2. The present application is based on the applicant’s contention that he satisfies the provisions of section 24 of the Veterans’ Entitlements Act 1986 (the Act) and that he should be eligible for the special rate of pension. This would require medical evidence to demonstrate that the veteran is totally and permanently incapacitated, that is, that the veteran is unable to undertake remunerative work for periods aggregating more than 8 hours per week, as a result of his defence-caused injuries. The applicant also contends that these defence-caused injuries alone are the cause of his present incapacity for work. Consequently, he claims that he is prevented from undertaking remunerative work and thereby has suffered a loss of salary or wages.
3. The applicant was represented by Mr N Jarro of Counsel instructed by Ms H Taylor of Sciacca’s Lawyers and Consultants. The respondent was represented by Mr B Williams, an Advocate of the Department of Veterans’ Affairs.
4. The following documents were admitted into evidence:
Exhibit 1“T” Documents filed under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Work history of the applicant since discharge from the Royal Australian Navy – dated 7 January 2005
Exhibit 3 Photograph of SkyWorker Series 1 (access equipment affixed to a truck) filed 14 February 2005
Exhibit 4Report of Dr T Ganko, orthopaedic surgeon, dated 12 October 2004
Exhibit 5Report of Dr T Ganko dated 11 March 2005
5. The applicant gave evidence in person. Dr Tony Ganko gave telephone evidence on behalf of the applicant and Dr John Morris gave telephone evidence on behalf of the respondent.
Background
6. The applicant was born on 15 June 1953. He is now 52 years of age.
7. Mr Tolhurst enlisted in the Royal Australian Navy (RAN) on 12 July 1969 and was discharged on 11 July 1989 after 20 years continuous service. During that period, he had operational service from 31 October 1970 to 1 November 1970, a period of 2 days. The period from 7 December 1972 to 11 July 1989 was eligible defence service.
8. Since his discharge from the Navy, the applicant worked continuously from July 1989 to August 2002, when he ceased work. During that period he worked for various labour hire companies from February 1994 to October 1994 as a fitter/welder. Exhibit 2 indicates that most of the time during that period he was waiting to be allocated work. It was during this period that he started taking pain medication for pain in his left knee.
9. The applicant has the following accepted injuries or diseases:
(a) Bilateral sensori-neural hearing loss with tinnitus;
(b) Chronic obstructive lung disease; and
(c) Localised osteoarthrosis of the left knee.
10. The applicant also has the following rejected injuries or diseases:
(a) Recurrent left patella dislocation; and
(b) Recurrent right patella dislocation.
Issues for Determination
11. The following issues are relevant for the Tribunal’s decision:
(a)Is the applicant prevented from undertaking remunerative work for periods greater than 8 hours per week?
(b)Is the applicant incapacitated from a service-related injury alone, such as to render him incapable of undertaking remunerative work in excess of 8 hours per week?
(c)Has the applicant suffered a loss of salary or wages?
(d)Should the applicant be awarded a rate of pension higher than 90% as determined by the Veterans’ Review Board?
12. If the statutory requirements in the Act are satisfied at any time during the assessment period as set out in section 19 of the Act (in this case, between 15 August 2002 and the date of determination of this matter), then payment of the special rate of pension will be justified (Leane v Repatriation Commission [2004] FCAFC 83; Forbes v Repatriation Commission (2000) 171 ALR 131).
Legislation
13. The following provisions of the Act are relevant in determining this matter:
“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.
….
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
….
120 Standard of Proof
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
….
196B Functions of Authority
(1)This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act and the MRCA.
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
(ca) warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2:For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces referred to in paragraphs (2)(b) and (c), see subsection 5Q(1A).
Note 2A:For warlike service, non-warlike service and members referred to in paragraph (2)(ca), see section 196KA. (These definitions are for the purposes of the MRCA.)
Note 3: For factor related to service see subsection (14).
….
(11)If, after reviewing a decision of the Authority not to determine a Statement of Principles under subsection 196B(2) in respect of a particular kind of injury, disease or death, the Review Council has, by a decision notified in the Gazette, directed the Authority to make such a Statement of Principles, the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out, in accordance with the directions of the Council:
(a) the factors that must as a minimum exist; and
(b)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For factor related to service see subsection (14).
Note 2: The Statement of Principles may be determined for the purposes of this Act, the MRCA, or both Acts, in accordance with the directions of the Council (see subsection 196W(4A)).”
14. The relevant Statements of Principles in this matter are:
§ Instrument No 82 of 2001 - Osteoarthrosis
§ Instrument No 34 of 2001 - Chondromalacia Patellae
Facts
§ The Applicant
15. The applicant provided evidence of his service in the RAN where he completed a number of courses of trade training and was admitted as a fitter and turner in 1983. He rose to the rank of Petty Officer prior to discharge.
16. The applicant referred to the injuries to his knees which occurred firstly in 1969, the year of his enlistment, where he had a dislocation as a result of an injury with a soccer ball. The next year, in 1970, he had difficulty with the right patella and had surgery to rectify the problem with his right knee. He mentioned that he then had no trouble with his right knee. In 1971 he had an operation on his left knee as a result of an injury playing volley ball in a sandpit. Between 1971 and 1986, his left knee was getting progressively worse such that he was using some pain killers in 1986. Also in 1986 he fell off a ladder on HMAS Vampire. He continued until early 2002 and when the pain was unbearable he then sought medical attention. He was prescribed some medication early in 2001 but from then until the time he ceased work, he stated he could stand for only 10 to 15 minutes and then had to sit down. He undertook his duties 50% of the time walking around and the other 50% on an office chair wheeling himself around a workshop.
17. The applicant informed the Tribunal that he was on pills all day and the driving force behind his resignation was the pain in his left knee. He stated the right knee had a “niggle” but was not providing any real difficulty for him. Since ceasing work, the applicant now does very little but can occasionally vacuum a room or clean a window at home. He sometimes does a little weeding of the gardens but does not mow the lawn.
18. The applicant complained that the medical reports were based on only a short consultation (15 minutes) with Dr Morris and about 20 to 30 minutes with Dr Ganko. He reiterated again that he left because of the pain in his left knee and because he was taking pills.
19. Under cross-examination, the applicant took issue with the report of Dr Morris and stated that he had never told him that he had difficulty with the right knee. He said all the pain was in his left knee. However, despite repeating that there was only a “niggle” in the right knee, he agreed that he had had an operation on his right knee in April 2003, the year after he completed work. He was asked why he needed surgery on the right knee when there were no problems with it. He responded that if it could be fixed with surgery in half an hour then he would not have to put up with it. However, he has had no operation on his left knee since 1971. Dr Ganko apparently told him that he might be able to do something about the left knee although it might not take the pain away. Mr Tolhurst said if he would guarantee that the pain would be fixed, then he would undergo the surgery, but not otherwise.
20. In response to a question from the Tribunal, the applicant stated that he was still taking some medication but only about one-third of what he was taking previously.
§ Dr T Ganko
21. Dr Ganko provided telephone evidence and was referred to his report dated 12 October 2004. He indicated that he had 10 or 11 consultations with the applicant and that the left knee was probably more serious than the right knee.
22. Under cross-examination, Dr Ganko stated that on 8 May 2002 when the applicant first presented, there was bilateral pain reported. He sent the applicant for an MRI scan although he stated that Mr Tolhurst told him it was the right knee which was bothering him. The right patella was clicking and catching and so the original problem presented was the right knee. Dr Ganko indicated that pain killers may help deal with the problem but will never make the problem go away. He further reported that in May 2003 he undertook surgery on the right knee for the applicant. In his notes, Dr Ganko stated that the applicant had advised him that he ceased work in 2002 because of the right knee symptoms. He advised Dr Ganko on 3 January 2003 that he had given up work because of his knees although Dr Ganko’s notes did not record which knee was causing the most problem. Dr Ganko reiterated that he initially presented with the right knee problem but that the left knee was now continuing to be a problem. He thought that there was more generational arthrosis with the left knee although the right knee was the one which the applicant specified had greater pain.
23. In relation to the definition of “osteoarthrosis” in the Statement of Principles (SoP), Dr Ganko said that the applicant does not have advanced osteoarthrosis of the left knee but has the start of it, or a mild form of osteoarthrosis. In relation to possible surgery of the left knee, Dr Ganko said that he did not regard that as being necessary for the applicant at present and that he would not need a knee replacement. He thought it would be 10 to 15 years before surgery for his knee would be necessary.
24. Dr Ganko, in response to a question about whether Mr Tolhurst was capable of working, indicated he had not seen Dr Morris’ report (and therefore his view might be seen to be independent and unaffected by the views of Dr Morris). In relation to whether the applicant was capable of working, Dr Ganko thought that he could work more than 8 hours per week and that he could also work more than 20 hours per week. In fact, Dr Ganko said he could work full hours with the limitations on the sort of work that he could do. He advised that he could do light work or office work but not where there was a repetition of squatting or similar movements with the knees.
25. Dr Ganko also referred to the applicant taking narcotic analgesics and thought that commenced just prior to his seeing the applicant. He said that he had not prescribed that medication and thought that it was at a level much higher than would be necessary for his knee problems. When asked what he thought would be appropriate medication, Dr Ganko indicated that ordinary paracetamol would be necessary for someone of this level of deterioration. He thought non-steroidal anti-inflammatories would be appropriate, such as glucosamine with chondroitin. Dr Ganko also indicated that the medication he suggested, unlike the medication which Mr Tolhurst was taking, was free of narcotics and therefore would not have an effect on cognition or moods.
§ Dr J Morris
26. Dr John Morris also provided telephone evidence. Dr Morris provided a report dated 8 November 2002 and indicated that the applicant might fit some of the criteria for osteoarthrosis. He stated that he had examined the applicant and that the movement of the hips were normal. In relation to both knees, Dr Morris said that there was a full range of movement although there was a slight patellofemoral crepitus, which was worse on the right side. There was no patella malalignment evident. On standing and crouching, he observed a slight crepitus evident in both knees.
27. Dr Morris also examined the MRI study of the left knee and noted there was no evidence of a meniscal tear and all ligaments were in tact. He said there was some thinning of cartilage over some areas of the knee but thought it reflected two conditions –
(a) chondromalacia; and
(b) osteoarthrosis
28. Dr Morris said in his opinion, it was difficult to substantiate a diagnosis of osteoarthrosis at this time as Dr Ganko showed the only abnormality was in the patella. There was no evidence of problems in upper parts of the knee. In respect of the two conditions which he identified, he stated that he would allocate 100% of the problem to chondromalacia.
29. In summary, he said that the applicant now presents with a mild chondromalacia patella but clinical examination revealed a full range of movement and few abnormalities with respect to the knee condition. In his opinion, Dr Morris said that –
“the degree of his symptoms would appear to be in excess of the degree of physical signs and the MRI investigation findings.”
30. In relation to whether the applicant had the capacity for work, he thought the applicant could work in any job which involved sitting but not jobs involving standing and squatting. He gave an example of occupations such as a taxi driver or court attendant. When asked by Mr Williams how many hours per week he thought Mr Tolhurst could work, he stated that he thought he could work 40 hours per week as a taxi driver or even 20 hours per week working 4 hours per day in his trade as a fitter and turner.
31. Under cross-examination, he stated the last time he saw the applicant was when he saw him on 6 November 2003. When questioned about the length of the consultation which was complained about by the applicant, Dr Morris said the consultation was about 20 to 25 minutes and he also referred to a survey which he said indicated that patients usually understate their estimate of the time of consultation by about half.
32. Dr Morris also informed the Tribunal that he was a knee specialist and he confirmed that the applicant had consulted him about his right knee, not the left knee.
Consideration And Analysis
33. All of the written and oral material available to the Tribunal has been taken into account in reaching the decision in this matter. Also, the decision is based on the standard of proof of reasonable satisfaction, that is, the civil standard of proof as required by section 120(4) of the Act. Pursuant to section 19 of the Act the relevant time period for determining Mr Kelly's entitlement to the special rate of pension is during the "assessment period", that is from 4 November 2002 (the date on which the applicant lodged an application for the special rate of pension with the Department of Veterans’ Affairs), until the date of the Tribunal's decision: Forbes v Repatriation Commission (2000) 171 ALR 131.
§ Diagnosis
34. While there is some divergence of medical opinion about whether Mr Tolhurst has osteoarthrosis, that was the opinion tendered by Dr De Vries in his report of 31 July 2002. However, Dr De Vries does not appear to be a specialist in musculoskeletal medicine. However, his opinion seems to be based on a version of events put to him in a questionnaire and in consultation with Mr Tolhurst.
35. Other medical advice has been received by Dr David McEvoy who is a consultant respiratory physician and clinical associate professor of the University of Queensland. In his report of 3 December 2002, he states:
“Physical examination revealed a well man who was not breathless. He moved easily without any evidence of pain or restriction in his knees. There are closely bitten nails evident. Cardiovascular findings are normal and blood pressure 115/85 mmHg…..There is a full range of active and passive movement in both knees with minor bilateral crepitus on palpation.”
36. Opinions were also available from two orthopaedic surgeons, Dr John Morris and Dr Tony Ganko. Dr Morris in his report of 8 November 2002 opined that of the two conditions which were revealed by the MRI scan, he would allocate 100% of the problem to chondromalacia and said it is difficult to substantiate a diagnosis of osteoarthrosis. His summary concluded that Mr Tolhurst now has a mild chondromalacia patellae.
37. Dr Tony Ganko has treated Mr Tolhurst on a number of occasions since 2002. In his report of 12 October 2004, Dr Ganko refers to the MRI scans and said that:
“There was again evidence of chondromalacia of the articular cartilage of the medial patellar facet.”
38. In his opinion at the conclusion of that report, he again says:
“He has developed chondromalacia of the medial facet …. and there is some early osteophyte formation laterally on both sides…..
…He seems to have high levels of patellofemoral pain, possibly somewhat greater than the degree of chondromalacia evidence on MRI and x-ray would suggest …..”
39. In cross-examination by Mr Williams, Dr Ganko said chondromalacia is a diagnosis in explanation of Mr Tolhurst’s case. He was then asked specifically:
“There is a further possible diagnosis of osteoarthrosis. Is that present in Mr Tolhurst’s knees?”
Dr Ganko answered:
“Osteoarthrosis is the end point of generation of wear and tear on the articular cartilage surfaces, and I certainly did originally say that this would be my original clinical note, which I’ve had typed out. I did say at the time I first saw him, I had two – I said left knee shows the sign of patellofemoral arthrosis….However, I said his right knee is …. better preserved. So that was just based on his original presentation. He had his x-ray films. He had an MRI scan done, and his right knee showed the articular cartilage flap, which I treat arthoscopily. I thought he had not reached point of having degeneration or arthrosis in his left knee, but his right knee was more acute, sort of onset of a chondral flap.”
40. Mr Williams then asked:
“And that is confirmed by the – what you say – the MRI, of the left knee, is it, the osteoarthrosis?”
Dr Ganko replied:
“Again, I’m relying on the report. I don’t have the films in front of me. But basically there is some thinning of the cartilage involved in the patella…but they again have called it chondromalacia of the medial facet rather than osteoarthrosis. But chondromalacia, as it worsens, becomes osteoarthrosis, so the two certainly blend at a certain point.”
41. In referring to the definition of “osteoarthrosis” in the SoP, Dr Ganko was asked whether Mr Tolhurst satisfies that definition for his left knee. Dr Ganko replied:
“The very early end of that definition….So he certainly doesn’t have advanced or particularly severe osteoarthrosis, but certainly, based on my notes, I did feel that he was tending towards osteoarthrosis in his left knee.”
In discussing whether surgery was necessary for this condition, Dr Ganko said:
“….He certainly doesn’t need a knee replacement or anything like that, if that is what you are suggesting….I mean, I would have thought, with early osteoarthrosis of only his patella femoral joint that he would have 10, 15, 20 years before I would consider offering him a knee replacement. It is a long way away from that level of arthritis.”
42. Considering the evidence provided by the medical specialists, the Tribunal prefers the evidence of the two orthopaedic specialists, Dr Morris and Dr Ganko. Both of these doctors refer to Mr Tolhurst having chondromalacia. Dr Morris would attribute 100% of the problem to chondromalacia. Dr Ganko said he originally thought there was osteoarthrosis but referred to the MRI scans and implied a diagnosis of chondromalacia. However, after indicating that chondromalacia ultimately over time will become osteoarthrosis, and in considering whether Mr Tolhurst fitted the SoP for osteoarthrosis, he said based on his notes, he felt that the applicant was “tending towards osteoarthrosis in his left knee”.
43. Based on the best medical evidence, a diagnosis of chondromalacia, which is a very mild form of osteoarthrosis, is probably a preferable diagnosis. Both Dr Morris and Dr Ganko have expressly or implicitly referred to chondromalacia as a diagnosis. Also, Mr Tolhurst’s presentation seems to have been inconsistent in whether he was reporting the greatest trouble in his right or left knee, and given there is evidence from both Dr Morris and Dr Ganko that the applicant complained of his right knee as being more troublesome, I accept that both documents are unlikely to be wrong. Also, there were multiple entries in the notes where the applicant had referred to his right knee.
44. The lesser diagnosis of chondromalacia is therefore a persuasive diagnosis. Dr Ganko, however, has also referred to Mr Tolhurst perhaps having a very mild form of osteoarthrosis and his evidence was that it could be said that Mr Tolhurst does meet that definition at “the very early end of that definition”. Based on his notes he felt that the applicant was “tending towards osteoarthrosis in his left knee”. To give Mr Tolhurst the benefit of the doubt and based on the evidence that is most favourable to the applicant which is that of Dr Ganko who has greater experience with Mr Tolhurst’s case, the Tribunal finds that the diagnosis of osteoarthrosis should be accepted.
Findings of Fact
45. The following findings of fact are made:
(a)The applicant lodged a valid claim with respect to osteoarthrosis of the left knee on 15 August 2002.
(b)The date of effect of any decision if favourable to the applicant would be 15 May 2002.
(c)In relation to the inconsistent evidence of the applicant and Dr Ganko and Dr Morris as to whether the applicant referred to his right knee as being problematical, the Tribunal accepts the consistency of records kept independently by both Dr Ganko and Dr Morris in preference to that of the applicant.
(d)The evidence of Dr Ganko and Dr Morris, who are specialists in knee surgery, are to be preferred to that of Dr De Vries who relayed the applicant’s view of the extent of the applicant’s disabilities and capacity for work, as Dr De Vries’ opinion was not supported by the level of testing and analysis and specialist knowledge that was provided by Dr Ganko and Dr Morris.
(e)The applicant suffers from a mild form of osteoarthrosis.
(f)Based on expert medical evidence, the Tribunal accepts that the applicant is capable of working at least 20 hours per week or perhaps even 40 hours per week in a sedentary role and where only light work is involved and with no repetitive squatting, and where he can also have some opportunities for walking, sitting and fully extending his legs while in the sitting position.
(g)Based on medical evidence provided at the Tribunal, the applicant’s use of narcotic pain killers may be a barrier to effective reintegration into the workforce in certain occupations, e.g. taxi driving.
(h)The applicant left his employment voluntarily and for reasons other than his knee injury.
§ Assessment
46. The assessment in this matter primarily revolves around the relevant statutory provisions in sections 24 and 28 of the Act, and their interface with the Federal Court decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5:
“1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
47. In distilling these requirements together, there are 10 questions set out below which must be answered to determine whether the applicant satisfies the provisions for special rate of pension.
Question 1: Has the applicant lodged a claim (section 24(1)(aa) of the Act)?
48. The applicant lodged a claim in respect of osteoarthrosis of the left knee. No dispute arose over this issue.
Question 2: Was the applicant aged under 65 when the claim was made (section 24(1)(aab) of the Act)?
49. The applicant is currently 52 years of age. He is therefore under 65 years of age as required by that subsection.
Question 3: Is the applicant’s degree of incapacity at least 70% under section 21A of the Act (section 24(1)(a)(i) of the Act)?
50. The applicant’s degree of incapacity under section 21A of the Act is at least 70% (T1).
Question 4: What are the vocational, trade and professional skills, qualifications and experience of the applicant (section 24(1)(b) and 28(a) of the Act)?
51. In determining whether Mr Tolhurst satisfies the criteria in section 24(1)(b), the Tribunal may take into account only the matters set out in section 28 of the Act. The Tribunal notes that section 28 is exhaustive of the matters to be taken into account when making a determination under section 24(1)(b). From the Federal Court decision in Chambers v Repatriation Commission (1995) 129 ALR 219, Mr Tolhurst could not be expected to undergo extensive training or skill upgrading in order to render him competent to undertake remunerative work. The type of work a veteran can be expected to perform must be reasonably available, given the veteran’s current level and type of skills and qualifications, and taking account of any restrictions imposed by any disability.
52. The joint judgment in Chambers held that a narrow approach is not to be taken to the construction of either section 28(a) or section 28(b). Their Honours found that the purpose of section 28(a) is to direct attention to the range of employment opportunities available to a veteran, subject to his or her disability. A veteran's skills and qualifications that enable him or her to undertake remunerative work must be taken into account, even if some skills and qualifications have been acquired but have not been utilised in any previous employment. In relation to section 28(b) it was noted that :
"A broad view of s.28(a) does not produce the result that opportunities for remunerative work must be considered, even where it would be unreasonable for a person with the veteran's skills, qualifications and experience to undertake that work. Section 28(b) requires the question of reasonableness to be addressed." (Chambers at p 236).
53. The applicant joined the RAN when he was 16 years of age and served on HMAS Sydney and HMAS Anzac. He also worked on HMAS Vampire. He undertook a number of trade courses whilst in the Navy and in 1983, he qualified as a fitter and turner. He also qualified for and was promoted to the rank of Petty Officer during his service with the RAN. He therefore has technical skills as a tradesman and some supervisory and administrative training in that he was a senior non-commissioned officer in the RAN. His work experience since leaving the RAN has been as a service technician or as a fitter/welder.
Question 5: What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in Question 4 might reasonably undertake (section 24(1)(b) and 28(b) of the Act)?
54. Dr Morris and Dr Ganko both refer to the applicant’s capacity for work in his present trade as being at least 20 hours per week, subject to some mobility limitations. It may therefore not be entirely practical to work in his trade in all positions which might be available.
55. He may be suitable to utilise his trade skills in some positions. As Dr Ganko suggested, he could even work in his trade as a fitter and turner for 20 hours per week (or 4 hours per day), subject of course, to the prohibition of repetitive standing and squatting. He might also undertake work in an advisory or supervisory role or as a storeman or other allied positions which uses his technical knowledge. Any such position could not involve standing and squatting, but should provide some opportunities for walking, sitting and fully extending his legs while in the sitting position. Without being specific about the allied positions which might be suitable, they may be more technical (such as advisory or storeman positions) or they may be in sales which are related to his knowledge area.
56. As a consequence of the reasoning outlined in Question 4 and taking account of the limitations on employment for the applicant as highlighted by Dr Ganko and Dr Morris, unskilled work in an administrative capacity, either in a technical engineering business or industrial organisation needing a knowledge of technical trade skills would seem to be reasonable options for Mr Tolhurst. His technical knowledge might also be used as an inspector in some government organisations.
57. Apart from the above skills, he would also undoubtedly qualify for various unskilled jobs . Dr Morris suggested occupations such as a taxi driver, or court attendant. Other jobs requiring no additional formal training and skill should be available to the applicant.
Question 6: What is the degree to which the physical or mental impairment of the applicant as a result of the defence-caused injury or defence-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in Question 5 (sections 24(1)(b) and 28(c) of the Act)?
58. Turning to section 28(c), it is necessary to have regard to the degree to which Mr Tolhurst's defence-caused impairment has reduced his capacity to undertake the kinds of remunerative work referred to above. The range of accepted injuries or diseases for the applicant are bilateral sensori-neural hearing loss with tinnitus, chronic obstructive lung disease and localised osteoarthrosis of the left knee. The applicant’s osteoarthrosis conditions would appear to preclude the applicant from doing any significant manual work, or at least for not more than 4 hours per day on the advice of Dr Morris, although he could do light work or any job where he is not standing or squatting. He could perhaps even undertake work on a full time basis, again, subject to adoption of Dr Ganko’s recommended restrictions and subject also to the applicant being able to walk and stretch periodically. Dr Ganko also said the applicant could work 4 hours each week within the limitations that he described, which were that the work must be light work such as an office job, but must not be one requiring repetitive squatting which might aggravate the knee condition.
59. The Tribunal is conscious of the issue of narcotic analgesics and that this would place severe limitations on some occupations which the applicant might otherwise have engaged in successfully (e.g. taxi-driving). Dr Ganko’s specialist opinion is however, that these substances are not necessary for the state of Mr Tolhurst’s knee joints.
60. On the basis of all the medical evidence of Dr Morris and Dr Ganko, the Tribunal accepts that the applicant is not prevented from undertaking remunerative work of the type appropriate to his specific and general qualifications, skills and experience and that he could work for 20 or even 40 hours per week, in some jobs, subject to the medical cautions previously highlighted.
61. There was no significant evidence of psychiatric disorder in relation to his condition, although it has been reported that he has withdrawn socially to some degree because of his conditions. There is no suggestion by the applicant or any of the medical specialists that he could not work because of any interpersonal or psychiatric impediments.
Question 7: What was the relevant remunerative work that the applicant was undertaking within the meaning of section 24(1)(c) of the Act?
62. For the purposes of section 24(1)(c) of the Act, the relative remunerative work being undertaken was that of a fitter/welder and the role of service technician.
63. In considering the expression “remunerative work” the Full Court in Banovich v Repatriation Commission (1986) 69 ALR 395 at 402 said:
“But it is, in our opinion, erroneous to read the phrase ‘remunerative work that the member was undertaking’ as referring to a particular job with a particular employer. The term ‘remunerative work’ is used in the schedule in a context which indicates an intention to refer to work generally….Consistently with that use, the phrase ‘remunerative work which the respondent was undertaking’ should be read as a reference to the type of work which the member previously undertook and not to any particular job.”
64. Applying that principle, the Tribunal finds that the work carried out by Mr Tolhurst as a fitter/welder and service technician (in a workshop or otherwise) or related work in such trade or industry, including related unskilled work, is the remunerative work for the purpose of section 24(1)(c).
Question 8: Is the applicant by reason of his defence-caused injury or defence-caused disease, or both, prevented from continuing to undertake that work (section 24(1)(c) and Flentjar (supra)?
65. Based on the evidence traversed in Question 6 above, the answer to this question is no. However, there are clearly some limitations upon any employment for the applicant for the future.
66. At 52 years of age, it is not that he would be unemployable. He has some trade skill and could work in some unskilled occupations. Contract administrative support work within the public sector or other organisations may also be realistic expectations for employment. However, issues of motivation and even reliance upon narcotic analgesics, would be factors relevant to most employers. The fact that the applicant also has a hearing loss may provide other barriers which reduce the opportunities for employment.
67. The Tribunal is mindful also of the evidence of Dr Ganko in referring to the effect of narcotic analgesics which may have been having an adverse effect on the applicant. These seem to be in excess of his need in comparison to the medical evidence presented by MRI scan and Dr Ganko’s specialist opinion. The degree of pain stated by the applicant was also considered by the medical specialists to be disproportionate to the evidence from physical examination, X-Rays and MRI scan. The Tribunal therefore finds the conclusions of both Dr Morris and Dr Ganko compelling in this regard and that the applicant has not, by reason of his defence-caused injuries, been prevented from continuing to undertake the relevant remunerative work .
Question 9: If the answer to Question 8 is “yes”, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the applicant from continuing to undertake that work (section 24(1)(c) and Flentjar’s case (supra)?
68. This question requires consideration of the “alone” test provided for in section 24.
69. In accordance with Flentjar’s case it is necessary to determine whether the defence-caused incapacity is the only factor preventing him from continuing with his usual line of work. Some assistance in answering this, is drawn from Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 who approved the following statement made by the Tribunal as being an appropriate application of the statutory test:
“Again it follows from the use of the word ‘alone’ in s 24, that any factor having employment consequences which play a part in the applicant’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant’s case for pension at the special rate.”
70. This question must consider some of the conflicting views of the applicant and the respondent, particularly where other factors have contributed to the applicant’s cessation of remunerative work.
71. In considering the approach to resolving the conflicting views in evidence, the Tribunal is also mindful of the following principle espoused by Burchett J in Cavell’s case (supra) at 539:
“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.”
72. In applying this principle in a realistic and commonsense manner, the Tribunal must endeavour to balance the factors affecting employability of the applicant. The applicant is a person with some skills, qualifications and extensive experience gained in a technical trade which may be attractive to a prospective employer. He also has some training from the RAN in terms of supervision and working within organisations, and one might reasonably expect therefore that he has at least some rudimentary level of administrative knowledge because of his service experience. However, those factors must be balanced against a prospective employer looking for indications of future productive capacity as an employee, and Mr Tolhurst’s period out of the workforce over the last 3 years or so may be a disincentive.
73. Having regard to the whole of the material, the Tribunal is satisfied on the balance of probabilities that the defence-caused injuries are not, based on expert medical evidence of Dr Morris and Dr Ganko, of such magnitude that the applicant ceased work or was prevented from continuing to undertake his work. Also, there is reference in the evidence to the employer’s statement of 12 September 2002 which indicates that the duties for the applicant were limited by the small size of the workforce of that firm. It indicates the applicant left voluntarily.
74. In light of the answer to Question 8, the Tribunal does not accept that the evidence reveals injury which would prevent the applicant from working more than 8 hours a week, and the Tribunal has also found that the use of narcotic analgesics is a factor unrelated to the level of osteoarthrosis. The applicant also ceased working voluntarily and for reasons other than his knee injury.
75. The Tribunal therefore answers this question as “No” – that is, the identified defence caused injuries are not the only reason preventing the applicant from continuing to undertake the relevant remunerative work.
Question 10: If the answers to Questions 8 and 9 are “yes”, is the applicant by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity (section 24(1)(c) and Flentjar’s case (supra)?
76. As neither of the above questions were answered in the affirmative, it is not strictly necessary to answer this question. However, it is clear from the analysis of the previous questions that for the purpose of section 24 (2) (b) that the applicant is under 65 years of age but has not been genuinely seeking to engage in remunerative work and that his defence caused incapacity is not the substantial cause of not seeking such work (Fox v Repatriation Commission (1997) 45 ALD 317). Seeking relevant remunerative work would not be an unrealistic challenge for the applicant (Re Hornery and Repatriation Commission (1998) 52 ALD 317).
77. In respect of section 24(2)(a), the applicant will not be regarded as suffering a loss of wages or salary if he ceased his remunerative work for reasons other than his incapacity (which must prevent him from working for more than 8 hours per week. The Full Court in Banovich v Repatriation Commission [1986] 69 ALR 395 at 402-403 referred to a previous equivalent section to section 24(2)(a) and said:
“We accept that the loss referred to in para [1](b)(iii) may be caused either by a loss of existing employment or by an inability to obtain new employment. There is no difficulty in regarding either circumstance as preventing the member 'continuing to undertake' remunerative work. ... the phrase 'remunerative work which the respondent was undertaking' should be read as a reference to the type of work which the member previously undertook and not to any particular job. It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain, at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity - and by that incapacity alone - from continuing in that field of remunerative activity.” (adopted in Starcevich v Repatriation Commission (1987) 14 ALD 160; and Hall v Repatriation Commission (1994) 33 ALD 454).
78. In addition to ceasing work for a reason unrelated to his incapacity from defence caused injury, the applicant also has no “supervening cause” (Moorcroft v Repatriation Commission(1999) 58 ALD 143) or other concurrently operating factor such as deteriorating health or advancing age to prevent his continuing to work. (Cavell v Repatriation Commission (1988) 9 AAR 534). Therefore, this question is also answered in the negative.
Conclusion
79. As a result of the above, the Tribunal finds that the applicant does not satisfy the requirement that he is unable to undertake remunerative work for 8 hours or more per week. Therefore, the application must fail.
80. As to the amount of pension to be paid, it is being assessed at present at 90% by the Veterans’ Review Board on 13 May 2004. The assessment by Dr P Grant of 6 April 2004 which was accepted by the Veterans’ Review Board, shows a GARP rating of 54, which included a rating of 20 for item 3.2.2 (functional loss of musculoskeletal function: lower limbs) and a rating of 10 for item 3.4.1 (resting joint pain).
81. This rating seems appropriate based on the GARP scales. However, while the evidence of Dr Ganko and Dr Morris raises some doubt about the severity of the pain, the above assessment of localised osteoarthrosis of the left knee seems consistent with the GARP methodology and scales. Given the evidence that has been provided and the rating scales provided under GARP, the present rating seems appropriate. No alteration to the previous GARP rating is necessary.
Decision
82. The decision under review is therefore affirmed.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 14 June 2005
Date of Decision 4 August 2005
Counsel for the Applicant Mr N Jarro
Solicitor for the Applicant Sciacca's Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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