Wade and Repatriation Commission

[2006] AATA 1001

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1001

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/115

VETERANS' APPEALS DIVISION		)
Re		ROBERT ARTHUR WADE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)

Date24 November 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – rate of pension payable – special rate – accepted disabilities not the only factor preventing remunerative work – decision affirmed

Veterans’ Entitlements Act 1986 s 24

Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50

Repatriation Commission v Hendy (2002) 76 ALD 47

REASONS FOR DECISION

24 November 2006      Mr J G Short (Member)
  Professor P Reilly AO (Member)    

introduction

1.      Robert Wade has accepted disabilities of bilateral sensorineural hearing loss with tinnitus; tinea; post-traumatic stress disorder (PTSD) and emphysema.  Mr Wade suffered injuries in two motor vehicle accidents, approximately 12 months apart in 1993 and 1994.  Mr Wade’s rate of Disability Pension has fluctuated during the assessment period, that is from 24 November 1999.  At hearing the parties agreed that the general rate assessments in force have been appropriate.  The current rate is based on an award of 70 impairment points and results in Disability Pension being paid at 100 percent of the general rate with effect from 29 July 2002.  On the evidence before it, the Tribunal is reasonably satisfied that these general rate assessments have been appropriate.  Mr Wade however argues that an earnings related rate of pension, in this case the special rate of pension, should have been paid with effect from 12 May 2000, that is the date upon which psychiatrist, Dr Martyn Ewer, indicated that the Mr Wade was unable to work. 

2. The parties agreed that the applicant satisfied ss 24(1)(a) and (b) of the Veterans’ Entitlements Act 1986 (the VE Act), that is that since 12 May 2000 Mr Wade’s accepted disabilities warranted at least 70 impairment points and that his accepted disabilities alone were sufficient to prevent him working at least 8 hours a week. Noting this agreement and in light of the evidence before it, the Tribunal is reasonably satisfied that from at least 12 May 2000 Mr Wade has satisfied these two conditions.

3. The remaining issue is whether Mr Wade satisfies s 24(1)(c) of the VE Act, that is whether his war-caused injuries alone prevented him from continuing to undertake remunerative work that he had been undertaking, and whether, as a consequence, he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free from that incapacity.

4. Although Mr Wade is under the age of 65 years, his counsel conceded that the ameliorating provisions of s 24(2)(b) of the VE Act are not applicable in this case. The Tribunal so finds.

issue for determination

5.      Put simply, the issue before the Tribunal is whether Mr Wade’s war-caused injuries alone prevented him from continuing to undertake remunerative work with the consequence that he is suffering a loss of wages or earnings, or whether, as is suggested by the respondent (the Commission), other factors contribute to Mr Wade’s inability to work.

6. The Tribunal has concluded that Mr Wade has not satisfied the requirements of s 24(1)(c) of the VE Act and consequently is not entitled to either of the earnings related rates of pension.

legislation

7. Sub-sections 24(1)(c) and s 24(2)(a) of the VE Act relevantly provide as follows:

“24(1)  This section applies to a veteran if:

…

(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

…

(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; …”

background and evidence

8.      Mr Wade described the type of work he had previously undertaken as sales and quoting for the building trade.  Mr Wade said that he had last worked in this industry as an employee for B & D Roller Doors from about 1988 until he was retrenched on 7 July 1995.

9.      Mr Wade said that he had been paid a flat wage and was also provided with the business use of a company car together with bonuses if his monthly targets were met.  Mr Wade said that initially he achieved bonuses two or three times a year.  He said that his employers were always pushing for higher productivity.

10.     Mr Wade described two motor vehicle accidents, the first occurring on 8 March 1993 and the second on 18 March 1994.  Mr Wade said that as a result of the first accident he had been stunned and had experienced neck and back pain.  He said that he was off work for two days.

11.     Mr Wade said that the second motor vehicle accident was similar to the first in that he had been stationary in a vehicle which had been struck from behind.  He said that again his back and neck had been injured and he had been seen by a doctor and this time was unable to return to work for one and a half weeks. 

12.     Mr Wade said that his employer conveyed the impression to Mr Wade that the employer did not want another worker on WorkCover.  Mr Wade said that after the second motor vehicle accident he was required to slow down his work effort.  He noted that he had become more aggressive and that he was having trouble with stress.  He found it hard to communicate.  He was tired, irritable and found that courses of physiotherapy and chiropractic treatment had not helped.  He said he could hardly move his neck and could barely bend his back.  He also said that he experienced significant headaches.  He described these symptoms as still current, being experienced “on and off”.  Mr Wade said that although he had reduced his hours of work, he was still working at least 30 hours a week, but that his productivity had declined.  Mr Wade described his difficulties in performing his duties as including difficulty in driving for extended periods.  He said that he had to periodically stop the vehicle and stretch.   He also said that standing and sitting for extended periods were uncomfortable and he repeated that his headaches were significant.

13.     Mr Wade said that in late 1994 and early 1995 his employer had provided written warnings with reference being made to customer complaints.  Mr Wade was retrenched on 7 July 1995.

14.     Mr Wade said that he considered that the reasons for his termination of employment included his employer not wishing to have a second person in receipt of WorkCover payments.  He also said that his employer was constantly pushing for higher sales figures and that when Mr Wade reduced his working hours (but still worked a full-time week), his production figures also declined.

15.     In cross-examination Mr Wade was referred to the Department of Veterans’ Affairs employment questionnaire which he agreed he had signed on 21 January 2000.  This document asked Mr Wade, amongst other things, to list any difficulties which he experienced in working full-time.  Mr Wade referred to “back and neck, work related”.  He also answered question 16 of that form “What do you believe is preventing you from getting a job or being employed?” as “Back and neck due to 2 motor accidents caused while sales rep for B & D Australia”.  Mr Wade told the Tribunal that at the time he believed that these responses were the only responses he could make.  He said that the responses were “partially correct”.  He said that he now believes he should have added more detail.  He now believes that his back and neck symptoms were only part of the reason why he was unable to work.  Mr Wade described the limiting effects of his back and neck injuries as including difficulties getting in and out of a car, driving, talking with customers and feeling irritable as a result of the pain he experienced.  He said that his back and neck problems were “part of the reason” he was not meeting his targets.  He also referred to shortness of breath.  (Emphysema was accepted as war-caused with effect from 29 July 2002).  Mr Wade said that he believes his employer had been unreasonable.  He said that he felt angry with his employer, but could see that the employer wanted to retrench him because the employer did not want another person on WorkCover. 

16.     Mr Wade said that after ceasing work in July 1995, he used his holiday pay for 5 or 6 weeks before receiving Newstart Allowance and then 6 months later commencing to be paid a Disability Support Pension by Centrelink. 

17.     Mr Wade was referred to medical reports prepared at or shortly after the time he applied for a Centrelink Disability Support Pension.  At T22/288  there is a medical review form in which Mr Wade answered a question asking him to list all medical conditions by listing “back and neck, 2 motor vehicle accidents”.  He was also asked how it affects his ability to work and Mr Wade wrote “lifting, bending, standing & sitting for long periods”.  In another medical review form completed by Mr Wade in August 1996 he again referred to the two motor vehicle accidents, but added to the difficulties of lifting and bending, a difficulty in concentrating.  That same form referred to an inability to undertake training programs because of “concentration, depression”.

18.     Mr Wade told the Tribunal that he had eventually settled his two claims for compensation flowing from the injuries he received in the two motor vehicle accidents, for a total payment approximating $72,000. 

19.     Mr Wade said that he still takes Panadeine Forte for pain and also now takes anti-depressants.  He said that his headaches were different from the occasional headaches he experienced prior to the first motor vehicle accident.

local medical officer – dr begg

20.     Dr Begg provided a medical report dated 8 November 2005.  He told the Tribunal that he first remembers meeting Mr Wade in 1996, although he said that Mr Wade recalled that Dr Begg had been his family doctor approximately 20 years ago.

21.     Dr Begg told the Tribunal that his initial view of Mr Wade’s presentation was that the affects of Mr Wade’s motor vehicle accidents were the primary reason why Mr Wade was unable to work.  He did say, however, that at the time (1996) he thought something was not quite right.

22.     Dr Begg said that he referred Mr Wade for psychiatric assessment and that in 2002 neurosurgeon, Mr Brian North, had reported that he could not find an organic cause for Mr Wade’s injuries.  He then referred Mr Wade to neurologist, Professor Richard Burns.  Dr Begg quoted Professor Burns as saying, in relation to Mr Wade, “His symptoms do not really sound organic to me and I think there are a lot of psychological problems influencing his symptomatology”.  Professor Burns had noted a report from psychiatrist, Dr Ewer who had diagnosed PTSD. 

23.     Dr Begg told the Tribunal that he now held the opinion that Mr Wade’s disabling symptoms were as a result of his accepted psychiatric condition of PTSD with little, if any, evidence of organic problems.  Tribunal Member, Professor Reilly referred Dr Begg to various neurological reports which included reference to Mr Wade as experiencing a minimal L5/S1 spondylolisthesis with L5 pars interarticulares defects.  A report dated 29 January 1996 went on to indicate that the medical imaging report also showed “moderate narrowing of the L5/S1 disc space with some marginal osteophytic lipping indicating chronic disc degeneration at this level”.  Dr Begg was also asked why, if he considers Mr Wade’s symptomatology was primarily somatisation of symptoms of PTSD, he continued to prescribe strong pain killing medication in the form of Panadeine Forte and to prescribe physiotherapy.  Dr Begg said that he would not have prescribed Panadeine Forte and physiotherapy for a condition which was entirely psychiatric.  However, he said that he considered that Mr Wade’s condition was an interaction between muscular-skeletal signs and a psychiatric state, which relationship was detrimental to both.  Dr Begg did say however that if Mr Wade did not have depression, then he believes that although Mr Wade would still have some pain, it would not have been of a disabling nature.  He said it probably would have been mild pain with periodic exacerbations and that Mr Wade would have been able to continue to lead a normal life with moderate restrictions.

24.     Dr Begg was referred to a report of psychiatrist, Dr Cotton dated 2 December 1998 in which Dr Cotton records Mr Wade as telling him that his back and neck pain had been made worse by lifting and bending and strenuous activity.  Dr Begg said that if the pain were predominantly of psychiatric origin, then it probably would not be made worse by working through the pain or by strenuous activity.  Dr Begg later agreed that in some circumstances, even if a pain were psychogenic, a sufferer might report increased pain on exertion.  Dr Begg also said that it was more likely that the physical component of Mr Wade’s pain experience would have been greater, relative to the psychiatric component, closer to the time of the motor vehicle accidents, than now.

consideration

25. In considering the application of s 24(1)(c) of the VE Act, the Tribunal considered to the analysis of Branson J, with whom the other members of the Full Court of the Federal Court agreed, in Flentjar v Repatriation Commission (1997) 48 ALD 1. Her Honour said that a proper consideration of s 24(1)(c) required responses to the following four questions:

“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 account that he would not be suffering if he were free of that incapacity?”

26. A determination of the responses to these questions entails an examination of the facts relevant to each question. Under s 120(4) of the VE Act, the Tribunal must decide these issues to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).

27. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5C) and 19(9) of the VE Act; Rehabilitation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996. 

28.     In this case, and as the Tribunal has already indicated, the Tribunal answers question one of Flentjar by reference to sales and quoting for the building trade and question two by the Tribunal’s finding that the veteran would be, as a result of his war-caused injuries, prevented from continuing to undertake that type of work.

29.     The third question in Flentjar refers to the “alone” test in s 24(1)(c). On the authority of Cavell v Repatriation Commission (1988) 9 AAR 534, and the analysis of Burchett J’s judgment in that case in Forbes v Repatriation Commission (2000) 101 FCR 50 at [33], the word “alone” should not have substituted for it other words in the absence of ambiguity. The word “alone” as it appears in s 24(1)(c) requires a practical decision on whether the veteran’s loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in the veteran’s inability to work or to obtain and hold remunerative employment, is sufficient to displace the veteran’s case for pension at the special rate.

30.     In Cavell, Burchett J said further, at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in s 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well.  It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.  In Forbes, RD Nicholson J said at [39]:  “The question whether the veteran by reason of the war-caused condition ‘alone’ has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists”.

31.     The correct approach to the “alone” test, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:

“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period.  The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past.  That is the exercise that the tribunal undertook.  The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.

[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”

32.     The Tribunal has considered this third Flentjar question in the light of the above mentioned authorities.  The Tribunal has taken a common sense approach to the issue.  The Tribunal accepts that the injuries and symptoms flowing from the two motor vehicle accidents experienced by Mr Wade may well have been magnified to some extent by Mr Wade’s accepted disabilities, particularly his PTSD.  The Tribunal also accepts, as suggested by Mr Wade’s counsel, that Mr Wade has only a modest insight into the cause of his symptoms.  Nevertheless the Tribunal cannot blind itself to the fact that radiological reports indicate that Mr Wade does have a back condition (spondylolisthesis) which would provide an organic explanation for his pain and that, using whatever insight Mr Wade may possess, he considered, at the time he claimed a Disability Support Pension, and earlier sought compensation for injuries flowing from his motor vehicle accidents, that his back and neck pain had impacted significantly on his ability to work.  The Tribunal also notes that during court proceedings, Mr Wade accepted an offer to settle his claim for compensation for injuries received in the motor vehicle accidents for a gross sum approximating $72,000.  The Tribunal is reasonably satisfied that factors other than Mr Wade’s accepted disabilities did materially contribute to his termination of employment and his inability to work as at the start of the assessment period.

decision

33.     The Tribunal affirms the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
And Professor P Reilly AO (Member)

Signed:         .....................................................................................
  Associate

Date of Hearing  25 September 2006
Date of Decision  24 November 2006
Counsel for the Applicant         Mr G Hemsley
Solicitor for the Applicant          Graeme D Hemsley
Advocate for the Respondent   Mr A Crowe (DVA)