Tudor and Repatriation Commission
[2003] AATA 234
•13 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 234
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/418
VETERANS' APPEALS DIVISION
Re: DONALD TUDOR
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Date: 13 March 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
VETERANS' AFFAIRS – whether entitled to special rate – whether war‑caused incapacity alone prevents undertaking remunerative work for more than eight hours per week – whether war‑caused incapacity prevents from continuing to undertake remunerative work – contribution of non‑accepted disabilities – contribution of other factors
Veterans' Entitlements Act 1986
REASONS FOR DECISION
13 March 2003 Mr B.H. Pascoe, Senior Member
This is an application to review a decision of the Veterans’ Review Board (VRB) dated 15 March 2001, which affirmed a decision of the respondent of 28 September 2000 that the applicant was entitled to a pension at 100 per cent of the general rate but not entitled to pension at the special rate.
At the hearing the applicant, Mr D. Tudor, was represented by Mr D. Hyde, of counsel, and the respondent by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. Evidence was given by the applicant, Dr R. Gunter and Dr T. Gidley, consultant psychiatrists, and Dr J. Rowe and Dr R. Horsley, occupational physicians. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered:
Report by Dr Rowe dated 7 March 2002 Exhibit A1
Report by Dr Gunter dated 7 May 2002 Exhibit A2
Applicant’s Income Tax Assessment 1987‑1990 Exhibit A3
Clinical notes of Dr Hough, general practitioner Exhibit R1
Documents from applicant’s file with the
Department of Veterans' Affairs Exhibit R2
Report by Dr Gidley dated 6 September 2001 Exhibit R3
Report by Mr Horsley dated 20 November 2001 Exhibit R4
Mr Tudor served in the Australian Army (the army) from 26 March 1962 to 25 March 1982. His eligible and operational service was from 8 June 1965 to 11 June 1966 in Vietnam. He has accepted disabilities of:
Lumbo‑sacral spondylosis
Sensorineural Deafness
Basal Cell Carcinoma
Hyperkeratosis
Anxiety Depression
Post Traumatic Stress Disorder with associated Mild Alcohol Abuse and Anxiety and DepressionBilateral Tinnitus
Mr Tudor was born on 6 November 1932. He lodged his application for an increase in pension on 1 August 1997, some three months prior to his 65th birthday.
Mr Tudor said that, after Vietnam, he moved to the army apprentice school at Balcombe, Victoria. He was transferred to Sydney in his final year of army service and decided to leave the service in March 1982, when he became "disappointed with how things were going". He was then a warrant officer. He said that he was offered a position running a hotel in Footscray but the job did not eventuate. His subsequent work can be summarised as:
March 1982 to November 1982 — operation of a milk bar in East Bentleigh. This business was started by his wife in September 1981. It was not sufficiently profitable and Mr Tudor said that he had difficulty relating to some customers. The business was sold.
January 1983 to November 1983 — Mr Tudor operated a car detailing business. He said that the work was hard and he had difficulty with staff. At one time he sacked all of the staff, including his son. He said that he sold the business as the stress, back, arm and neck pain made it difficult to continue.
December 1983 to November 1985 — during this period, Mr Tudor operated a hardware store in Ormond, assisted by his wife and daughter. He said that the business went well but, eventually, he could not cope with the loading and unloading of stock and the stress of financial management. In a statement, prepared for the VRB hearing, Mr Tudor stressed the constant aches in his neck, arms and shoulders.
May 1986 to September 1086 — Mr Tudor operated as a self‑employed business of light home delivery service and handyman. He again gave up the business because of physical pain in wrists, arms, shoulders and back.
January 1987 to February 1988 — Mr Tudor said that he was invited by a friend to become a partner in a plant hire business. His role was to maintain the equipment and to do the occasional delivery. He said that he was let down by his partner and the work became progressively heavier. He said that his back and knee became worse to the extent that he dissolved the partnership and recovered his investment.
February 1988 to September 1988 — Mr Tudor was self‑employed undertaking handyman jobs and light deliveries, charging hourly rates. He said that he quoted on jobs such as painting on the basis of a reasonable number of hours, although would take longer with a need for frequent rests. He ceased in September as his knee was a problem, his weight became 120 kgs and the tension made him decide to retire.
January 1989 to August 1990 — Mr Tudor said that he was approached to assist a transport company, Merretts Transport, with light pick‑ups and deliveries, using a one tonne van and being paid an hourly rate. He said that he had to cease this work in August 1990 because of the effect of heavy lifting and constant driving on his back, legs and arms.
Mr Tudor said that, after ceasing work in 1990, he had no income other than his superannuation and a small pension. He sold his house in Bentleigh and he and his wife moved permanently to a house they owned in McRae, a seaside town on the Mornington Peninsula. He sought work in the area by calling on retail shops, particularly hardware stores, without success. He contacted real estate agents seeking work. He responded to an advertisement for an administrative position with the local municipal council but was unsuccessful. Mr Tudor said that he put cards in local letter boxes advertising his services as a gardener and handyman. He did a small amount of this in 1992‑1993, but found that he could not cope. Mr Tudor said that he would like to be working and believed that he presented well and was good at dealing with customers. He would prefer to be self‑employed and acknowledged he had difficulty dealing with people who had some authority. He said that any work involving travel was difficult with only one car and the fact that he suffered from road rage and anxiety attacks. He acknowledged that there was little work available in the area and, for those advertised, he would have been seen as being too old.
Mr Tudor said that he joined the Rosebud RSL and Bowling Club and was chairman of the Bowling Club for a period. He joined the Mornington Peninsula Vietnam Veterans Association as he thought it might assist in obtaining work but found that he did not match the others in that group. He joined Probus and was president for a period and activities organiser for a period of some three years. He said that this latter activity involved organising all trips for members, involved a considerable amount of time and he enjoyed the role. He is currently treasurer of Probus. He played 9 holes of golf regularly, using a golf cart, until a knee operation in March 2002.
Mr Tudor said that he had arthritis in his joints. In May 2002, he had a right knee replacement, which became infected involving a further operation in November 2002. He had been told that he needed an arthroscopy on his left knee but, to date, has refused to undergo that procedure. He acknowledged that he had been diagnosed with cervical spondylosis with ongoing neck, shoulder and arm pain and that the arm pain had been stated as being a significant factor in ceasing various work since 1982. However, he maintained that his lower back problem had resulted in putting a greater strain on arms and shoulders causing pain in that area. It is noted that, in a note attached to his application for an increased pension, Mr Tudor stated:
…
If I do any lifting – pushing – digging or standing – sitting for long or short periods, I am affected + disabled for a period of time.
Most days I awake with 'dead arms', pins + needles and have to get up + move around to fix the pain.
Mr Tudor was first seen by Dr Gunter on 28 September 1999 on referral by his general practitioner. There were four subsequent consultations between October and December 1999. Dr Gunter provided a report dated 4 January 2000 (T17) and a supplementary report of 7 May 2002 (exhibit A2). Dr Gunter stated that:
…
Mr Tudor presents as a man with fairly high traits of obsessionality in his personality. He likes things to be done right and he likes to be in charge. Both of these qualities probably made him into an excellent Sergeant and Warrant Officer in the Regular Army. However they also probably render somebody with such marked traits to be more prone to develop depression and anxiety when their life is not going within their control.
Dr Gunter expected that the totality of Mr Tudor's accepted disabilities would have been sufficient to make him incapable of being fit to work in 1997. In his supplementary report, Dr Gunter stated that Mr Tudor was incapacitated by his accepted psychiatric disability and although such disability was not the sole cause of an incapacity to work for more than 8 hours per week, it contributed about 80 per cent to such incapacity. In his oral evidence, Dr Gunter was of the opinion that the psychiatric disability could "stir up" other physical problems from the resulting anxiety and tension. Dr Gunter accepted that there would be difficulties for a 58 year old to find work.
Dr Gidley examined Mr Tudor on 6 September 2001 and provided a report of the same date. He said that Dr L. Chester, a consultant psychiatrist, had examined Mr Tudor at the request of the respondent on 29 October 1997 and had concluded that he did not suffer any significant psychiatric disorder, although there was a marked obsessional trait in his personality structure. Dr Gidley, however, concurred with Dr Gunter that an appropriate diagnosis was post traumatic stress disorder (PTSD) with anxiety and depression and alcohol abuse as secondary manifestations of the PTSD. In the opinion of Dr Gidley, this condition, of itself, did not prevent Mr Tudor from working more than 20 hours per week. However, Dr Gidley believed that the psychiatric condition, when coupled with Mr Tudor's physical status, his shortness of breath, his obsessional nature and his age, prevent him working more than 8 hours per week. While being reluctant to do so, Dr Gidley attributed 50 per cent of the work incapacity to Mr Tudor's psychiatric disability. He considered that Mr Tudor's psychiatric condition may well have deteriorated with age and since he was seen by Dr Chester and since he ceased work. He noted that an obsessional personality copes less well with ageing and physical deterioration.
Dr Rowe examined Mr Tudor on 7 March 2002 and provided a report of the same date. In addition to lumbo‑sacral spondylosis, Dr Rowe noted signs and symptoms of degenerative change and internal derangement of the left knee, degenerative change or osteoarthritis in the right knee and cervical spine and possible mild chronic obstructive pulmonary disease. He was of the view that Mr Tudor was not employable because of the combination of psychological and physical disorders. In arriving at this opinion, Dr Rowe referred to the PTSD, chronic low back pain and the condition of the knees, particularly the left one. In his oral evidence, Dr Rowe accepted that it was possible that Mr Tudor would do things to reduce the strain on his lower back which could have an effect on the arms and shoulders. He was not aware that Mr Tudor had a total knee replacement of his right knee only two months after his examination and accepted that it was likely that the right knee would have caused difficulties at work prior to that time. He accepted, also, that the symptoms described by Mr Tudor in the arms and neck were more likely the result of cervical spine problems, although his examination had not detected any signs of neuropathy.
Dr Horsley examined Mr Tudor on 12 November 2001 and provided a report dated 20 November 2001. She commented solely on his physical disabilities and capacity for work with the psychiatric assessment being outside her area of expertise. She was of the opinion that his physical disabilities limited his capacity for work to tasks that involve light manual work, but that, with appropriate restrictions on bending, lifting, sitting or standing for periods greater than 1 hour, he had the physical capacity to work more than 20 hours per week. However, she considered that his then age of 69 years and the area in which he lived were a considerable barrier to obtaining employment. While unable to suggest any percentage contribution of specific disabilities to Mr Tudor's incapacity, she believed that the degeneration of the cervical spine was the most significant problem, then the bilateral degenerative condition of the knees with the lower back as the less significant problem. She said that the degenerative changes in the cervical spine were greater than those in the lumbar spine. Dr Horsley did not accept that Mr Tudor might have compensated for his lumbar spine problems by greater use of his upper limbs and believed that it was more likely to have been the contrary as he would have placed a strain on his lower back to protect the greater problem of the cervical spine. Dr Horsley believed that her comments in the report relating to difficulty with employment at age 69 would have applied also at age 64 and accepted that being over age 58 presented difficulty in obtaining employment.
Entitlement to pension at the special rate is governed by s.24 of the Veterans' Entitlements Act 1986 (the Act). Where a claimant is under the age of 65 at the date of the claim, the relevant provisions are subsections (1) and (2), which state:
…
24(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.
The first question to be considered is whether Mr Tudor satisfies s.24(1)(b) in that his war‑caused conditions alone rendered him incapable of undertaking remunerative work for periods aggregating more than 8 eight hours per week. There was a general consensus among those medical practitioners who examined Mr Tudor between 1999 and 2002 that the totality of his physical and psychiatric problems together with his age resulted in an incapacity to work more than 8 hours per week and would have done so in 1997. One difficulty is that the psychiatrists could not provide an opinion on the effect of the physical conditions and the occupational physicians could not assess the contribution of the psychiatric problems. Although Dr Gunter was prepared to suggest that the psychiatric component of work incapacity was 80 per cent, Dr Gidley thought that it was no more than 50 per cent and, in October 1997, Dr Chester did not regard Mr Tudor's ability to undertake remunerative employment as being affected by any psychiatric disability. All psychiatrists agreed that Mr Tudor's obsessional personality would have exacerbated any anxiety and depression when age and physical limitations impacted on his life. The evidence of Mr Tudor was that it was primarily his physical problems, which caused him to cease work and that he felt that he presented well and was good at dealing with customers. His voluntary work with Probus appears to demonstrate this. As a consequence, it can be found that his psychiatric condition did not prevent him from undertaking remunerative work.
The evidence of Dr Horsley was that Mr Tudor had the physical capacity to undertake light manual work for more than 20 hours per week. She explained that the major physical limitations resulted from degeneration of the cervical spine and degeneration of the knees, neither of which an accepted war‑caused condition. This accords with the evidence of Mr Tudor who regularly attributed his cessation of various occupations to problems with his neck, shoulders, arms and knees. The evidence of Dr Horsley is preferred to the argument advanced by Mr Tudor and marginally supported by Dr Lowe, that his arm problems were the result of seeking to reduce the strain on his lumbar spine.
While it is possible to find that the totality of Mr Tudor's psychiatric and physical disabilities prevented him from undertaking remunerative work for more than 8 hours per week, it was not the war‑caused conditions alone which so prevented him. From the evidence, the most significant disabilities contributing to the inability to work were the non‑accepted disabilities of cervical spondylosis and degeneration of the knees. Consequently, Mr Tudor did not satisfy s.24(1)(b).
Having made a finding that s.24(1)(b) is not satisfied, it is unnecessary to consider s.24(1)(c). However, I am satisfied that Mr Tudor does not meet the requirements of that provision in any event. Mr Tudor was last engaged in remunerative work in 1990. He moved to McRae where, on his evidence, little work was available particularly for a person of his age. At the date of his application in 1997, he was three months from his 65th birthday and had not actively sought remunerative work for some time. I am not satisfied, pursuant to s.24(2)(b), that his war‑caused incapacity was the substantial cause of his inability to obtain remunerative work. The major causes of that inability were age, location and the non‑accepted disabilities from the cervical spine and knees. In my view, the accepted disabilities contributed, but not in a substantial way, to the inability to obtain employment.
It follows from these findings that the decision under review should be affirmed.
I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 27 September 2002
5 February 2003
Date of Decision: 13 March 2003
Counsel for applicant: Mr D. Hyde
Solicitor for the applicant: Peter J. LiefmanAdvocate for the respondent: Mr K. Rudge, Department of Veterans’ Affairs
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