Vickery and Repatriation Commission
[2000] AATA 235
•17 February 2000
DECISION AND REASONS FOR DECISIONS [2000] AATA 235
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A1999/49
VETERANS' APPEALS DIVISION )
Re ROBERT ALBERT VICKERY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Pamela Burton, Senior Member
Date17 February 2000
PlaceCanberra
Decision The tribunal gave an oral decision in this matter on 17 February 2000 varying the decision of the Veterans' Review Board made on 28 October 1998 so as to provide that, pursuant to section 24 of the Veterans' Entitlements Act 1986, the veteran qualifies for payment of pension at special rate with effect from 8 January 1998. Following are the written reasons of the tribunal for that decision.
.................(Sgd.)......................
Pamela Burton Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – rate of pension – assessed at 90% of general rate - whether veteran entitled to special rate under section 24 of the Act – war caused disability arising from two hip replacements – whether obesity, age and other health problems contributed to his decision to retire – capacity to perform some suitable work
Legislation
Veterans' Entitlements Act 1986 s24
Authorities
Repatriation Commission v Smith (1987) 74 ALR 537
REASONS FOR DECISION
17 February 2000 Pamela Burton, Senior Member
The veteran made application under section 24 of the Veterans' Entitlements Act 1986 ("the Act") for special rate of pension. The veteran has accepted war-caused disabilities, assessed at 90% of the general rate of pension. Of relevance is the veteran's war caused bilateral osteoarthritis of the hips. The veteran seeks a review of the decision of the Veterans' Review Board dated 28 October 1998 which decided that the veteran was not entitled to above general rate of pension.
At the hearing Mr Crabb appeared on behalf of the veteran, and Mr Godwin appeared on behalf of the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition, medical reports of Dr Scott, occupational physician, dated 23 July 1999 (Exhibit A), Dr Bromley, dated 20 July 1999 (Exhibit B), and of Dr McEwin, dated 4 August 1999 (Exhibit 1), were tendered at the hearing. Drs Scott and McEwin gave telephone evidence at the hearing, as did Mr Andrew Carrington, Mr Vickery's supervisor at the War Memorial.
The LegislationSection 24 of the Act makes provision for a veteran who has an assessed degree of incapacity of 70% or more, to receive a pension at above general rate in certain defined circumstances. The relevant provisions of the section are as follows:
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.24(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.
Standard of Proof
The standard of proof relevant to the issue before the tribunal, that is in making a determination in respect of assessment of the rate of disability pension, is set out in section 120(4) of the Act. The Tribunal is to decide the matter to its reasonable satisfaction and, therefore, a standard of proof on the balance of probabilities is applicable (Repatriation Commissionv Smith (1987) 74 ALR 537).
The issueThe issue for the tribunal is to decide whether the veteran satisfies section 24 at some time during the relevant assessment period. The veteran was born on 15 June 1933. His claim for pension was received on 20 August 1992 (T3) when he was 59 years old. He retired from his position at the War Memorial on 7 January 1998. He has been assessed as having a degree of incapacity of 90%. He therefore satisfies paras. (aa), (aab), and (a) of subsection 24(1).
There is no real issue as to the veteran's capacity to work. As a consequence of his disabilities both parties agree that the veteran is capable of working only a few hours a week. Dr Scott, occupational physician, says that the veteran's capacity to work more than a few hours a week is prevented by the pain and restricted mobility from which he suffers as a result of having two hip replacements. Dr McEwin, rehabilitation specialist, says that there are other medical reasons as well as the veteran's war caused disabilities that prevent him from working. Thus, the task for the tribunal is to determine the reason or reasons for the veteran's resignation from his employment, and to construe and apply the "alone" test in section 24 to the veteran's circumstances.
ContentionsThe veteran contends that he satisfies paras. (b) and (c) of subsection 24(1) in that, his war caused disabilities on their own caused him to resign from his position with the War Memorial on 7 January 1998 and that he does not have the capacity to work for more than a few hours a week. On his behalf it is submitted that it is sufficient if the war caused disability or disabilities on their own prevent him from working, and that he does not have to establish that he has no other disabilities that might also prevent him from working. He contends, in any event, that his non-war caused disabilities did not prevent him from working.
The respondent contends that the veteran's resignation occurred because of a number of factors, only one of which was related to his war caused disabilities. The respondent submits that subsection 24(2)(a)(ii) clarifies the provision, and that the "alone" test in paras. (b) and (c) of subsection 24(1) should be construed to mean that if the veteran has two conditions, either of which on its own, prevents him from working, then he does not qualify for special rate under that provision.
Date of effectThe earliest date of effect is 18 May 1992. However, the veteran was employed until 7 January 1998, and thus the assessment period commences on 8 January 1998 running to date, and any increase in the rate of pension would be effective as of 8 January 1998.
The evidenceThe veteran had a total of some 33 years in the military service, which included relevant periods of operational service as set out in the reviewable decision. He was discharged from the permanent army in 1981. He obtained civilian employment soon after. The veteran was 64 and a half years old when he retired from his position with the War Memorial in January 1998. He was due to retire by virtue of his age on 15 June of that year. His evidence is that he intended to continue to work after his retirement. But for his war-caused disabilities he would have had the qualifications, skills and abilities to seek employment as a driver, for example. Because of his disabilities, he planned after his retirement to seek part-time employment with the War Memorial on an out-sourced basis. Neither his age nor his premature retirement precludes him from seeking work on this basis. However, as it transpired the work has not been available to him.
The veteran had an accepted war caused condition of bilateral osteoarthritis of the hips. He had undergone two hip replacements in the time he was working for the War Memorial. The War Memorial preferred the staff to stand up while on duty, and interact with the public. He explained that under the veterans' rehabilitation scheme, the War Memorial allowed him to sit, lean, or stand at his own convenience when carrying out his duties.
The War Memorial initially employed the veteran as a security officer. After some restructuring of staff duties, his duties included those of an information and a security officer. He received training as an information officer. He was required to mix with the public and answer questions, as well as physically protect the artworks. His security duties also required him to open the rooms, clear them, and make sure that visitors conducted themselves properly. One of his duties was to supervise evacuation in emergencies. For this purpose he was required to do a First Aid course. The veteran said that he commenced the course but he could not complete it because he was unable, by reason of his hip pain, to get down on his knees to help with resuscitation. He found it very difficult to get up, once bent down in the position required.
It became clear to him that in the event of an evacuation, he would not be able to move fast enough to make sure the visitors were cleared from the premises, and, if he fell, he saw himself as posing a risk to other people. As a consequence he felt he was not performing his duties adequately.
The veteran's duties as an information officer required him to take organised tours and give lectures. He said he had a problem because of his hip pain with the constant walking and standing on his feet that this involved. He said that sitting down alleviated the pain for a short time, and then he had to stand up or lean against something. He said that his hips ached if he walked, or sat, or stood leaning for a long time. This problem first occurred not long after he started at the War Memorial because it was soon after he commenced this employment that the first hip operation was undertaken. His recuperation took some three months and he then underwent the second hip operation, and once again, this took some three months to settle.
His decision to retire before the compulsory retirement age was triggered by the fact that some structural changes were planned to be made to the War Memorial. He said that because of his limited mobility he was having difficulty coping with his duties, and unable to perform them satisfactorily, and unable to perform some of them at all. He took pain-killing drugs in order to continue to work. The physical reconstruction was going to make it more difficult for him to fulfil his duties, and he believed that it was not feasible for him to continue his employment.
When the veteran retired construction work had commenced. The War Memorial was being completely refurbished. As a consequence the lift that the veteran relied on to avoid going up stairs was expected to be out of service for some months pending its replacement. As the veteran could not handle the stairs, he realised that he would be required to walk right around the building to gain access through the front door. This still required the use of steps. This problem added to the concern he had that he would be a hindrance in the event of an emergency requiring the premises to be cleared.
The veteran said that he first approached his supervisor Mr Andrew Carrington towards the end of 1987. He suggested to Mr Carrington that he cease work in December, believing that he would not be able to cope with the Christmas rush. Mr Carrington pointed out that there would be a staff shortage over the Christmas period, and asked the veteran to stay until 7 January 1998. The veteran agreed. He said that he coped by taking more Panadeine.
The veteran was questioned about his other medical conditions. He said that he had secondary diabetes, which was now under control with his change in diet. He also suffers from sleep apnoea. This affected his work for a time because he sometimes nodded off. However, he told the tribunal that he received treatment for this a couple of years ago. This consists of a sleeping oxygen mask, and since using the mask he had no further trouble at work on that account. The veteran has some hearing loss. He gave evidence that the loss was not significant and that it did not affect his ability to work. He said that he may have to wear a hearing aid in the future, but his condition is not serious enough to require that at this stage. The veteran is also obese. He said that as a consequence of his hip condition he has become less active, and he has put on weight. Carrying excess weight causes him to suffer more hip pain. He also suffers oedema, which is caused by blood pressure pills he takes. As to this, the veteran says that it affects his walk. He walks with a rolling gait and as a result his hip pain is worse.
The veteran's evidence is that he suffered a financial loss because of his early retirement. He says that by retiring six months early he missed out, not only on his usual income, but on the income he would have received from the extra weekend work he was rostered to do. His annual income would have been $40,000 and it is now down to the "early $30,000s and a small DVA pension of $24 a fortnight to make up to the breadline as they call it".
Mr Carrington, the veteran's supervisor, verified that the veteran had the problems he complained about in coping with his hip pain. He said that the veteran's major complaint was the difficulty he was having, walking, sitting, and standing because of pain in his hips.
The medical evidenceBoth Drs Scott and McEwin saw the veteran in 1999 after he had left work. Both seem to accept that at the time he was seen, he was not fit for work. Dr McEwin expressed some reservations about whether or not he was fit to work at the time of his retirement, not having seen him at that time. However, he did not go so far as to suggest that the veteran was likely to have had much greater capacity to work.
The veteran has some other conditions, some of which are not war-caused. In particular Dr McEwin thought the veteran's obese condition impacted on his capacity to work. In giving evidence, he agreed that he took into account the veteran's height (174 cm) and size and Dr McEwin conceded that the veteran's excess weight contributed to his mobility problems because it placed more strain on the replacement hip joints making his hips more painful. To this extent, the hip condition which is war-caused, causes the mobility restrictions, not the obesity in itself.
Dr McEwin indicated that the obesity could cause the veteran other health problems, such as pain in other age-worn joints, like the knees. However, he agreed that he saw no evidence in the veteran's case of his knee joints being a problem. Nor is it suggested that obesity has affected the veteran's health generally, making worse his hypertension or his cardiac condition, as neither of those conditions prevented the veteran from working.
The other factor Dr McEwin relied on to support his opinion that the veteran's war caused injuries alone were not responsible for his retirement is the factor of his age. However, Dr McEwin had not appreciated that the veteran was only some 6 months off retirement age in any event and, on that realisation, he agreed that the age factor was a minor one.
Drs McEwin and Scott did not hold significantly different opinions. Dr Scott, in paragraph 9 on p.6 of his report dated 23 July 1999 (Exhibit A) expresses his view clearly that the veteran's non war caused conditions do not prevent him from undertaking remunerative work, and that his war caused hip problems alone prevented him from continuing with his employment, or undertaking other employment. Of all the non war caused conditions from which the veteran suffers, Dr McEwin had regarded the obesity and the veteran's age as the major contributing factors. He has modified his view on the age factor. I have already indicated that to the extent that the veteran's obesity impacted on his mobility, it arises as a result of the aggravation it causes to his war caused injury. There is no evidence that the obesity itself prevents the veteran from continuing in his employment or engaging in employment.
FindingsI accept that the reason the veteran decided to retire was because he felt he was unable to perform his duties properly given the pain and discomfort he was having from his hips and his lack of mobility. I accept that he was coping with great difficulty at the time of his retirement. Towards the end of 1997 the veteran faced the prospect of his problem being made much worse by the planned refurbishment to the War Memorial. It meant that the veteran would have had to do a lot more walking in the course of his job and use steps in the absence of a serviceable lift. He knew he would be unable to cope with that. I accept that he was already unable to perform all his duties, and it was reasonable for him to foresee that he was not going to be able to cope with the additional walking and the stairs.
The inconvenience caused by the refurbishment was likely to last for some months only. Counsel for the respondent suggested that the veteran might have been able to take that time off work and return when normal access to the building was restored. The veteran did not explore this option, pointing out that he would by then have turned 65, and had to retire anyway. He intended to continue to work on an out-sourced basis in any event, and applied for such work, which he said he had intended to do beyond retirement age. The medical specialists found the veteran to be motivated to work. I find that to be the case. If work were available, I have no doubt that the veteran would attempt to do it, though, on the medical evidence, I doubt whether he has sufficient capacity to continue the type of work he was doing for even a few hours a day. I have no doubt that the veteran, but for his hip pain, intended to continue to work after his retirement. He obviously took pride in his information officer work and in the lectures he gave.
I am unable to distinguish the effect of the veteran's obesity on the veteran's capacity to work, from the effect of his hip pain. The obesity simply makes his hip pain worse. The other conditions from which the veteran suffers have been brought under control by appropriate treatment and did not impact on his capacity to work at the time of his retirement. I note that the veteran has experience as a driver. His evidence is that he can not drive for more than some 20 minutes, or half and hour at a time. He needs to stop and take breaks and he relies heavily on Panadeine. Driving is not suitable work for the veteran given the condition of his hips. On the evidence I am satisfied that at the time of his retirement the veteran had the capacity to work no more than the few hours he said he was willing to try on an out-sourced basis, being less than 8 hours a week.
DecisionThe tribunal varies the decision of the Veterans' Review Board made on 28 October 1998 so as to provide that, pursuant to section 24 of the Act, the veteran qualifies for payment of pension at special rate with effect from 8 January 1998.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed: Eva Dimopoulos .....................................................................................
AssociateDate of Hearing 17 February 2000
Date of Decision 17 February 2000
Counsel for the Applicant Mr Paul Crabb
Solicitor for Applicant Sneddon Hall & Gallop
Counsel for the Respondent Mr Peter Godwin
Solicitor for the Respondent Department of Veterans' Affairs, Advocacy
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