Warburton and Repatriation Commission
[2004] AATA 106
•6 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 106
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/125
VETERANS' APPEALS DIVISION ) Re Charles Warburton Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Date6 February 2004
PlaceBathurst
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Administrative Appeals Tribunal sets aside the decision under review and in substitution therefor, the Tribunal decides:
(1) Mr Warburton is entitled to pension at the Special Rate pursuant to section 24 of the Veterans’ Entitlements Act1986 with effect from and including 7 May 1999.
...............................................
Ms S M Bullock
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability Pension – Assessment – Qualification for Special Rate Pension
LEGISLATION
Veterans’ Entitlements Act 1986 ss 24, 120
AUTHORITIES
Repatriation Commission v Haskard (2002) 71 ALD 29
Counsel v Repatriation Commission (2002) 122 FCR 476
Repatriation Commission v Greenwood (1990) 22 ALD 289
Sheehy v Repatriation Commission (1996) 66 FCR 569
Cavell v Repatriation Commission (1988) 9 AAR 534
REASONS FOR DECISION
6 February 2004 Ms S M Bullock, Senior Member 1. The late Mr Charles Warburton, the Applicant, lodged an application for review on 29 January 2002 (T1) to the Administrative Appeals Tribunal (“the Tribunal”) from a decision of the Repatriation Commission (“the Commission”) dated 31 July 1999 (T2) which was affirmed by the Veterans Review Board (“the Board”) on 7 November 2001 (T19), which assessed Mr Warburton’s Disability Pension at 80 per cent of the General Rate with effect from 7 May 1999.
2. A Hearing was held before the Tribunal in Bathurst on 25 July 2003. Mr Warburton was represented by Ms J Buss, Solicitor, Legal Aid Commission of New South Wales and the Respondent, the Commission, was represented by Mr S Modder, Departmental Advocate. Oral evidence was provided to the Tribunal by Mr Warburton, with assistance from his wife, Mrs Moira T Warburton. Mrs Warburton and Mr Warburton’s son-in-law, Mr Anthony Dunhill, also provided oral evidence. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeal Tribunal Act 1975 (“T Documents”, T1-T20) in addition to the exhibits contained in Schedule 1 attached to this decision. Submissions were made in writing and final written submissions were received by the Tribunal on 15 September 2003.
3. Subsequent to the hearing Mr Warburton sadly died on 21 October 2003. Mrs Warburton is the executor of his estate, his legal personal representative and wishes to continue Mr Warburton’s application for review.
ISSUES
4. The main issue for the Tribunal to determine in this matter is whether Mr Warburton qualifies for assessment of pension at the Special Rate. In particular, the issues in contention in relation to Mr Warburton’s qualification for Special Rate pension are:
· Whether Mr Warburton was, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that Mr Warburton was last undertaking before he made his application for increase in pension; and if so,
· Because Mr Warburton is so prevented from undertaking his or her last paid work, whether Mr Warburton is suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free from that incapacity
LEGISLATION
5. A decision in this matter requires consideration of the provisions of the Veterans’ Entitlements Act1986 (“the Act”). The relevant legislation is provided in Schedule 2 to this decision.
BACKGROUND
6. Mr Warburton was born on 22 April 1925. He served in the Royal Australian Air Force (“the RAAF”) as a radio maintenance mechanic from 13 October 1943 until 8 July 1946 including overseas service in Morotai (T Documents, p78).
7. Mr Warburton lodged an application for an increase in pension on 7 May 1999 (T4). While Mr Warburton was successful in obtaining an increase in Disability Pension to 80 per cent of the General Rate, he believed he was entitled to pension at the Special Rate and accordingly made applications for review to the Board and this Tribunal.
8. On 22 May 2002, the Repatriation Commission assessed Mr Warburton’s pension at 100 per cent of the General Rate with effect from 16 November 2000 (T Documents, p73). There is no dispute about this General Rate assessment and the Tribunal is reasonably satisfied that Mr Warburton’s pension is at least 80 per cent of the General Rate in relation to the decision under review.
9. Mr Warburton presently has the following accepted and non-accepted conditions:
Accepted as War-Caused:
25 July 1946-Post Perforation Left Tympanic Membrane
25 July 1946- Folliculitis Chin19 February 1995-Post Traumatic Stress Disorder with Major Depression
19 February 1995-Bilateral Sensorineural Hearing Loss
7 February 1999- Malignant Melanoma
7 February 1999-Basal Cell Carcinoma
7 February 1999-Bilateral Cataracts
7 February 1999-PterygiumNot Accepted as War-Caused
3 November 1993-Diabetes Mellitus
22 May 2002-Hypermetropia22 May 2002-Perifoveal Pigment Epithelial Changes
22 May 2002-“Headaches”-unble to confirm diagnosis (T Documents, pp73-77)
EVIDENCE
mr charles warburton
10. Mr Warburton provided a statement dated 16 February 2003 (Exhibit A1) and provided oral evidence at Hearing with the assistance of his wife due to his illness and in particular, his difficulties of hearing and communicating. The Respondent consented to this approach.
11. Mr Warburton told the Tribunal that before taking up farming, he was a builder. Mr Warburton found that type of work stressful and agreed that when he switched to farming that was less stressful and he felt more relaxed.
12. Mr Warburton stated that he purchased his farm “Arley” in 1985 and after one year of growing an oat crop, started grazing cattle on that property. Mr Warburton stated that he bought another farm “Muggletons” in 1988. In his statement, he noted that he bought Muggletons in 1991. In his statement, Mr Warburton also noted that Arley was 311 acres in area and Muggletons was 640 acres (Exhibit A1, paragraph 1). After the purchase of Muggletons, Mr Warburton continued running cattle on both properties.
13. In his statement, Mr Warburton noted that he stopped farming in 1997, due to his anxiety and hearing problems. Mr Warburton noted that his son-in-law, Mr Dunhill, has since then helped out Mr and Mrs Warburton by leasing half the cattle and doing the work on the farms (Exhibit A1, paragraph 2).
14. In 1999, Mr Warburton stated that he entered into an agreement with his daughter, Mrs Roslyn Dunhill and son-in-law, Mr Dunhill, for them to work Muggletons.. In his statement, Mr Warburton noted that the agreement drawn up in 1999, was that Mr Dunhill would pay $5000.00 for the leased cattle, he would supply the labour for all the cattle and receive half the income from the cattle. Mr and Mrs Warburton received the other half of the income (Exhibit A1, paragraph 3). Mr Warburton stated that in 1999, he was there to manage the farm but was incapable of doing any hard physical work. Mr Warburton stated that Muggletons was the bigger property and this was the property that Mr and Mrs Dunhill took over in 1999. Mr Warburton’s oral evidence was that Mr Dunhill also did work on Arley, which Mrs Warburton ran after 1999. Mr Warburton at that time was just opening gates for cattle and that is about all he did, he stated.
15. Mr Warburton thought that the reason for the general increase in profitability of the farm from after Mr Dunhill entered into the agreement in 1999 and particularly in 2001, was probably a rise in cattle prices.
16. Mr Warburton sold Muggletons in December 2002. In his statement (Exhibit A1, paragraph 5), Mr Warburton noted that the lease arrangement continued but had become increasingly difficult because of Mr Dunhill’s workload and the drought conditions particularly in 2002. Mr Warburton noted that as a result, Mr Dunhill no longer paid income for the lease of half the cattle, and in late 2002, their cattle on Muggletons had to be sold.
17. At hearing, Mr Warburton stated that the drought first began to affect them about 15 months ago. There was not enough water or feed for the cattle. Mr Warburton stated that at the time of the Hearing he still owned Arley, but that farm had also run out of water and they had to sell the breeding stock. The land on Arley is now leased to Mr Dunhill and Mr and Mrs Warburton do not have any cattle on the farm. Mr Dunhill has his own cattle on the property. Mr Warburton noted that if the season goes against Mr Dunhill, they do not charge Mr Dunhill under the lease agreement. Mr and Mrs Warburton no longer own any cattle apart from one bull.
18. In his statement (Exhibit A1, paragraph 6), Mr Warburton noted that in round figures the income for Mr and Mrs Warburton for each of the last ten years he was farming was $15,000.00, less expenses and the source of that income was from beef/cattle. He noted that his wife and himself relied on that income for their living. Mr Warburton noted that they lost income from farming after 1997, when Mr Warburton could no longer work the farm and needed to rely on Mr Dunhill, at the cost of half the income from the cattle.
19. Mr Warburton stated that he was first diagnosed with what was thought to be Parkinson’s disease approximately two years ago, in 2001. This condition has now been diagnosed as myelodysplasic syndrome. Mr Warburton noted that it was difficult to decipher when the symptoms of the myelodysplasic syndrome started because he has been diabetic for 30 years and there was an overlap in the symptoms. He could not distinguish when he first felt the symptoms of the myelodysplasic syndrome.
20. Mr Warburton started using a walking stick in about 2002 because of a problem with balance. He shares his wife’s walking stick. Mr Warburton noted that neither his back nor his knees presented any problems. Mr Warburton last drove a car seven months ago on deserted roads. He has driven his own truck around his farm since then.
21. Mr Warburton was admitted into Dudley Hospital in January 1997 with bacterial pneumonia (Exhibit R2, p142), the symptoms of which were fatigue and headaches. He was in hospital for about one week. Mr Warburton stated however that he had recovered from this “flu”. Mr Warburton agreed that from the time he got back from hospital in 1997, Mr Dunhill was increasing the time he spent on the farm helping him, but stated that he has been a help all the way through. Mr Warburton stated that he was having trouble working at the farm at that time in 1997 and that it was “a continuous battle”. In 1997, he could not work on the farm because he had lost his strength, it became dangerous and he could not keep working properly.
22. Mr Warburton noted that he and his wife have had a series of small strokes. (Exhibit R2, p63). Mr Warburton noted that he was informed by Dr Barnes that 60 per cent of his eyesight problems related to his diabetes. Mr Warburton recalled that eye doctors have told him that his eyes were all right up until 2002, when he could read big print, but his eyesight has deteriorated since that time. He thought that his eyes were “pretty good” in 1999. At this time, he could read the local paper and he was driving on the road and on his property. Mr Warburton could not recall specifically being diagnosed with perifoveal pigment epithelial changes, a condition not accepted by the Department of Veterans’ Affairs as war-caused, and he was not sure of the affect of that condition on his vision.
23. In relation to Mr Warburton’s diabetes, which he has had for more than thirty years, Mr Warburton stated that most males in the Warburton family have had a problem with diabetes, that is, until it is brought under control. Mr Warburton stated that he tested his blood sugar levels every week and that these are well within the confines of what the doctors recommend. Mr Warburton told the Tribunal that he has had more problems with stress than diabetes, because stress is the part that he has trouble trying to control, especially at night. He is not able to relax and has sleeping difficulties. Mr Warburton stated that the stress is the worst part of his health. Mr Warburton noted that if he had not had stress and depression, he would have kept going on the farm and not retired. It would also take him two or three days to battle the depression, which affected him in the daytime hours as well. Mr Warburton stated that he believed that due to stress and depression, he lost concentration, was away from work for three or four days and lost a lot of weight in his cattle due to being unable to feed them on time. Mr Warburton noted that this also translated into a loss of money because the cattle sell by weight. Mr Warburton stated that this was happening from about 2001.
24. Mr Warburton found it difficult to accurately state when he ceased working, because neighbours had helped and from time to time, they had casual labour assist and he just got by with that assistance. However, he thought he ceased work in 1998, but told the Tribunal that the dates he gave were approximate. Mr Warburton noted that he had difficulty remembering things. Mr Warburton gave evidence that he could not work much after the 1999 agreement with Mr and Mrs Dunhill, but he could feed the cattle on Arley.. Mr Warburton stated that up until 1999, he did continue to attend some cattle sales himself. This was occasionally, once every two months. He did not take part in the bidding. Mr Warburton stated that he went to the sales for the purpose of replacing old bulls. The last time Mr Warburton bid for a bull was March 2001. In relation to the bookwork for the properties, Mr Warburton noted that he had an accountant in Bathurst and he kept the records.
25. When asked about the impact of his age on some of the problems he had on the farm, Mr Warburton noted that by comparison with neighbours they would have come out “pretty well” because cattle are easier to manage than sheep farming. He did not believe it was age that had affected his farming. Mr Warburton noted that although normal retirement age was 65 years, he would carry on past that quite comfortably.
26. Mr Warburton was referred to a report by Dr Conway, Ophthalmologist, dated 30 February 2001, (Exhibit R2, p43) who noted that Mr Warburton was a 76 year old man who was a cattle grazier and was apparently “still quite active in terms of running the property”.. Mr Warburton stated that in 2001, he would have been doing light work only. The light work that Mr Warburton stated he could do involved driving the utility, herding cattle from one paddock to another so they could feed. Mr Warburton further stated that he was in fact retired in 2001, that his wife Mrs Warburton was running the farm, but that in an emergency he had to go on the truck when the cattle did not have any water or ordinary feed, because there was nobody else. He stated that his wife took over running the farm two years ago, in 2001 and then they ran into trouble with the drought. He stated that he had managed fairly well up until that time.
mrs moira therese warburton
27. Mrs Warburton told the Tribunal that the effects on Mr Warburton of his post traumatic stress disorder and major depression included being unable to sleep at night. He was more exhausted and when he had an “attack” this sapped all his energy and he sat and slept a great deal. Mrs Warburton stated that Mr Warburton suffered from traumas when sleeping, kicking and throwing his arms around and he once broke Mrs Warburton’s toe in bed. Mr Warburton was also not very sociable. He used to be “a bit tough on the kids” and short-tempered. Mrs Warburton noted that prior to 1999, these symptoms effected Mr Warburton’s work on the farm in that he could not do what he used to do, as he did not have the capacity, strength or energy to do it because of the stressful days and being unable to sleep at night. Mrs Warburton thought that she first noticed these problems when Mr Warburton was in his sixties and at that time, she thought he started to deteriorate. She did not believe that these problems were due to old age because Mr Warburton had been a very active man but the depression “kicked everything off”.
28. Mrs Warburton stated that after Mr Warburton started seeing Dr Altman, Consultant Psychiatrist, he deteriorated, in terms of sleeping less and being more depressed. Mrs Warburton stated that Mr Warburton’s stress worsened gradually over the years, but she did not know how long this took.
29. Mrs Warburton stated that Mr Warburton first had the symptoms of the myelodysplasic disorder, which was at first thought to be Parkinson’s disease, about four years ago. These symptoms consisted of hand tremors and having no control over saliva. Mrs Warburton thought that it was not until 2002 that the condition was thought not to be Parkinson’s disease. Mr Warburton consulted another doctor in Cowra, who took a bone marrow sample and then diagnosed myelodysplasic disorder. Mrs Warburton believed that Mr Warburton started having problems with his memory at the time he was diagnosed with the myelodysplasic syndrome.
30. By 1999, when Mr and Mrs Dunhill took over, Mrs Warburton noted that Mr Warburton was doing only light duties and could only drive the truck, see if there was enough feed in a paddock and take the cattle from one paddock to another. After 1999, Mr Warburton was doing very little, if any, real work and he could not do any physical work. He could undertake simple tasks such as opening gates for Mr Dunhill, shifting cattle, checking the fences to see if they were all right and were electrified. He could still drive the truck around the property and he would organise a subcontractor to come out and spray thistles. After 1999, Mrs Warburton stated that Mr Dunhill took over doing this work. However, Mr Warburton would still go over and try to help Mr Dunhill open the gates and he maintained an interest in what they were doing with the cattle. Mr Dunhill did not ask him for assistance and he did not have work for Mr Warburton to do per se, but Mr Warburton just wanted to see what was happening, Mrs Warburton explained. She stated that the farm life was in Mr Warburton’s blood. Mr Warburton kept all the records, paid the accounts and maintained records for the Accountant up until early 2003. This would take about one day each month. She stated that the paperwork Mr Warburton was doing was filling in forms, paying rates, paying electricity and paying chemist bills. From September 2002, there was nothing going on on the farm because they had sold all the cattle. Mrs Warburton started doing the books/records in early 2003 as Mr Warburton is unable to do that now and can barely write his name.
31. After 1999, Mrs Warburton stated that she ran Arley, with limited help from Mr Warburton, help from Mr Dunhill and help from the man living in a cottage on the property who mowed the lawns. Mrs Warburton noted that at the time of the Hearing, Mr Warburton was driving the truck if she went with him, due to his eyesight. Up until early 2003, Mr Warburton still tried to keep an eye on the property, Mrs Warburton stated. He would go out with Mrs Warburton about twice a week to check the property and they would take it in turns driving. He enjoyed this very much and Mrs Warburton reiterated that her husband was always a very active man, with pride in his farm. Now he has stopped driving around the property with Mrs Warburton and hardly goes outside the door.
32. Mrs Warburton told the Tribunal that she has had some serious health problems in the last two years. Mrs Warburton broke her arm in November 2001 and spent ten days in Dudley Hospital. At that time Mrs Warburton also suffered from a stroke, which Mrs Warburton noted may have occurred as a result of the fall. In about April or May of 2002, she also broke her wrist, because of balance problems.
33. Mrs Warburton stated that she had discussed retirement with Mr Warburton. They thought they would never leave the farm and that they would be carried off in a box from Arley.. She stated that they never dreamt of being anywhere else but Arley. Mrs Warburton agreed that that was the mindset of a great deal of old farming people in the area. Mrs Warburton noted that Arley is currently on the market. She stated that if they sell the property, they may move into a nursing home at Bowral close to their daughter or possibly Albury, but their plans depend on Mr Warburton’s health.
34. Mrs Warburton concluded that in 1999 Mr Warburton went completely downhill in terms of his health because of stress and then the other health issues happened subsequently.
mr anthony william dunhill
35. Mr Dunhill provided a statement dated 21 July 2003 (Exhibit A2) and provided oral evidence to the Tribunal.
36. Mr Dunhill was born on 19 February 1955 and is Mr Warburton’s son-in-law. In his statement, Mr Dunhill noted that he first met Mr Warburton in the 1980s, when Mr Warburton was farming and very active. Mr Dunhill believed that Mr Warburton’s problems running the farm started in about 1998, but he did not have much to do with Mr Warburton then. He noted that Mr Warburton was assisted on the farm at that time in terms of fencing or with the stock by contract labour and also anyone living in the cottage on Arley, who worked on both Arley and Muggletons.. Having someone live in the cottage also provided security. It was usually occupied by a couple, the husband helping on the farms and the wife assisting Mrs Warburton in the house and garden. Mr Dunhill did not know what financial arrangements were associated with the cottage. Mr Dunhill noted that by February 1999, Mr Warburton was not doing much at all on the farm and was not even driving any long distance.
37. In his statement, Mr Dunhill noted that in late February 1999, Mr Dunhill’s wife, Roslyn and Mr Dunhill formally entered into an agreement with Mr and Mrs Warburton whereby they worked Muggletons in return for a share of the proceeds. Mr Dunhill noted that after they entered into this agreement, Mr and Mrs Dunhill ran Muggletons and the man who lived in the cottage gave a hand on Arley, or Mr Dunhill “ducked over” and helped. Mr Dunhill noted that Mr Warburton could not do anything and was also sometimes a cause of concern in that he would wander in amongst the cattle, risking his safety. Mr Warburton wanted to be involved and was unaware of the danger he was putting himself in amongst 50 or 60 cows. He could have been easily knocked over and broken a hip. Mr Dunhill noticed this behaviour when he first took over the lease in 1999. The difficulty was the tension between allowing Mr Warburton to feel he was involved and the fact that Mr Warburton was risking his safety.
38. In evidence to the Tribunal, Mr Dunhill stated that before they entered into the lease agreement in 1999, Mr and Mrs Warburton were managing to run the two farms, Muggletons and Arley. Mr Dunhill stated that Mr Warburton’s health had started to deteriorate and it became noticeable, particularly to Mr Dunhill who was by that time seeing Mr Warburton regularly. Mr Warburton was having both physical and mental health problems. Mr Dunhill initially used to help Mr and Mrs Warburton when they had a specific job such as calf marking or weaning or help them with mustering or drenching. His assistance was then required more and more culminating in Mr and Mrs Warburton approaching Mr and Mrs Dunhill as to whether they were interested in taking on the lease of Muggletons. This would save them having to drive all the time between the two properties and having to keep an eye on their cattle.
39. Mr Dunhill stated that Mr Warburton’s deterioration in his health was certainly noticeable. He was becoming physically quite weak. People that came to the farm, such as cattle agents, used to remark to him from about 1997 that Mr Warburton had deteriorated since they last saw him and that he was becoming harder to understand and slower in his decisions. Mr Dunhill stated that Mr Warburton has markedly deteriorated over probably the last two or three years.
40. Mr Dunhill stated that in 2002, Mr Warburton used to go around cleaning up a few sticks under trees or “poking around”. Mr Dunhill stated that even when the lease agreement was made in 1999, Mr Warburton was not doing any work on the property at all. Mr Dunhill noted that one of the reasons they took over the lease was so that Mr Warburton could maintain an input. They also made it open-ended so that if Mr Warburton decided they wanted to sell Muggletons, Mr and Mrs Dunhill would have just walked away from the contract. Mr Dunhill stated that they were helping Mr Warburton and giving him the opportunity to drive and have a look at the property when he needed to. Mr Dunhill noted that Mr Warburton was being prevented from making a contribution because he was physically unable, because he was too tired and became tired quickly. Mr Warburton would come over for an hour and then leave. He thought that in 2000 it was heading that way. Mr Dunhill noted that once they knew he had what was perceived to be Parkinson’s disease, that is what they put the problem down to.
41. Mr Dunhill noted in his statement that Muggletons was sold at the end of 2002. At this time, it was almost de-stocked and it was winding down. The drought also decreased cattle numbers. In relation to why Muggletons was sold, Mr Dunhill stated that the drought was a problem, but also that Mr Warburton liked to keep an interest in the property and when he could no longer even drive out there and was not getting any enjoyment out of it, then he decided that that was enough. The last time Mr Warburton drove himself to Muggletons was a couple of years ago, Mr Dunhill stated.
42. In relation to Arley, in his statement, Mr Dunhill noted that in 2002, Arley was also on the market and all but three bulls had been sold. He noted that two of those have since been sold and since June 2003, he has leased Arley for his own concerns as it has good pastures (Exhibit A2).
43. In relation to the increase in gross income after Mr and Mrs Dunhill became involved, Mr Dunhill believed this was due to an increase in cattle prices and also because of the work he was doing and his running of the cattle. Mr Dunhill stated that the cattle were not being run properly by Mr Warburton. He noted that there was also a significant increase in weeds on the place, which was not the way Mr Warburton normally kept the farm. Mr Dunhill stated that Mr Warburton normally ran a very good property. He was fastidious about keeping it neat and tidy. Mr Dunhill further noted that Mr Warburton was a man of integrity, a decent bloke, incredibly scrupulous and honest.
44. Mr Dunhill stated that there are also other farmers in the district that liked hanging onto their farms. He noted that they may run the farm to their abilities, which might not be to the maximum potential of the farm. They may have 40 instead of 100 cows, or 200 instead of 1000 sheep. Also attention to issues such as fencing and weed control diminished.
45. In relation to Mr Warburton’s symptoms of what was originally diagnosed as Parkinson’s disease, Mr Dunhill noted that he initially put it down to age deterioration, but he believed he first noticed some symptoms about the time when he had first entered into the agreement for Muggletons.. He noted that it was hard to put a timeframe on it. In relation to how Mr Warburton was coping with his farm work in about 1996, Mr Dunhill noted that he did not have much to do with it then as he was not over there much, but he thought that Mr Warburton was coping at that time. Mr Dunhill noted that Mr Warburton is a proud man, independent and does not easily ask for help. Mr Dunhill had been surprised when Mr Warburton eventually asked him for help. Mr Dunhill had assumed that Mr Warburton would just keep on doing what he was doing. Mr Dunhill believed that Mr and Mrs Warburton had discussed retirement regularly, but it was always open-ended. Mr Dunhill stated that his parents-in-law had no further plans to retire at 75, 78 or 80 years.
46. Mr Dunhill recalled that Mr Warburton last went to a cattle sale in Bathurst in 2002. He last bought cattle in early 2002. Mr Dunhill noted that Mr Warburton liked to keep his eye on the sale yards, but would just wander around and have a look and see what the prices were like. He was not buying or selling much.
evidence of dr m burns, occupational physician
47. Dr Burns provided a report dated 15 August 2002, having examined Mr Warburton on 12 August 2002 (Exhibit A5).
48. Dr Burns noted each of Mr Warburton’s accepted conditions. In relation to his perforation of left tympanic membrane, Dr Burns noted that Mr Warburton perforated his ear drum whilst overseas in 1945, and has since had difficulty hearing with his left ear. He continues to have significant hearing loss in the left ear. In relation to bilateral sensorineural hearing loss, Dr Burns noted a deterioration of hearing from 31 May 1999 to 16 November 2000, with an audiogram indicating a 33.9 per cent hearing loss, age-adjusted. Hearing aids do not give Mr Warburton any benefit. He also has occasional tinnitus present in both ears.
49. Dr Burns noted that Mr Warburton was seeing Dr Altman on a regular basis until three years ago, since Dr Altman diagnosed post traumatic stress disorder with major depression. Mr Warburton reported to Dr Burns that his major problem is depression most of the time. He has always been a restless sleeper and dreams on a regular basis. He dreams about war memories and other problems giving him stress. Mr Warburton told Dr Altman that he bottles up his problems and takes his stress to bed with him. Mr Warburton reported getting on reasonably well with family, but having fewer friends and acquaintances over the last two or three years. Dr Burns noted that in the last six or seven years Mrs Warburton would classify him as a loner.
50. In relation to Mr Warburton’s malignant melanoma and basal cell carcinomas, Dr Burns noted that Mr Warburton has had a number of skin cancers removed over the last five or six years.
51. In terms of the accepted conditions of bilateral cataracts and pterygium, Dr Burns noted that Mr Warburton reported being a diabetic for 25 years and that he is followed-up by Dr Barnes, Ophthalmic Surgeon, on a regular basis. Dr Barnes has reported bilateral pterygia for the last six or seven years. On 7 December 1998, Dr Barnes reported Mr Warburton’s visual acuity at 6/12 in both eyes. On 7 June 2001, Dr Barnes noted that visual acuity had dropped to 6/18 in both eyes, due to a mixture of early cataracts and pigment changes in his macular. Dr Burns noted that it appeared the early cataracts had developed between 1998 and early 2001. Mr Warburton reported that due to his visual problems he is unable to read the paper, has poor distance vision and difficulty driving. Dr Burns noted that his visual problems are 50 per cent caused by his accepted disabilities and 50 per cent by a condition called perifoveal epithelial changes.
52. Dr Burns also noted two other non-accepted conditions, of Parkinson’s disease and diabetes. In relation to Parkinson’s disease, Mr Warburton told Dr Burns that this disease was first diagnosed probably in 1999, but at this time did not cause him any significant functional incapacity. In 2000, he was referred to a Neurologist who decided the Parkinson’s disease was not severe enough to treat. Mr Warburton’s main difficulty by mid 2000 was an occasional tremor mostly in his right hand. By early 2001, his condition had deteriorated and in mid 2001, he was commenced on medication. In relation to diabetes, Dr Burns noted that Mr Warburton was diagnosed nearly 30 years ago and is controlled on tablets and diet. He currently tests his blood sugar about once per week and he does not have any major secondary problems associated with his diabetes.
53. Dr Burns assessed Mr Warburton on 7 February 1999, as having an incapacity of 80 per cent and by the end of November 2000, an incapacity of 100 per cent.
54. With respect to employment, Dr Burns noted that Mr Warburton had given up his work as a grazier in 1999 prior to his diagnosis of Parkinson’s disease. Dr Burns also noted that from the clinical notes of Dr Hazelton, it would appear that functionally he had no evidence of Parkinson’s disease in early 1999. The first diagnosis was not made on clinical grounds until late 1999, and he was not thought to be bad enough for medication until 2001. Dr Burns concluded that Mr Warburton’s Parkinson’s disease did not play any role in his decision to give up work. Dr Burns reported that Mr Warburton gave up work as he felt he was dangerous on the property. Dr Burns noted an increase in Mr Warburton’s depression and anxiety from about 1996 or 1997. Dr Burns’ opinion, as evidenced in Dr Hazelton’s clinical notes, was that Mr Warburton gave up work in 1999 solely due to his accepted disabilities of post traumatic stress disorder with major depression, bilateral sensori-neural hearing loss and visual problems. Dr Burns noted that whilst Mr Warburton’s visual problems are not all accepted, his vision was reasonably good up until 2001. Dr Burns noted that Mr Warburton’s current inability to work is due to a mixture of his accepted disabilities and two medical problems that have developed since 1999, being his Parkinson’s disease and further degeneration of his eye condition.
evidence of dr g altman, consultant psychiatrist
55. The Tribunal had available to it reports of Dr Altman, including: 16 August 1994 (Exhibit R2, p25); 6 March 1995 (T3) and 3 March 1999 (T5).
56. On 16 August 1994, Dr Altman examined Mr Warburton, noting that it was clear he was suffering from major depression, and prescribed “Prozac” 20 milligrams (Exhibit R2, p25). This diagnosis was confirmed in a subsequent report dated 6 March 1995 (T3), in which Dr Altman further reported that Mr Warburton suffered from post traumatic stress disorder and major depression as a result of his World War II experiences. His service experiences affected him in a number of ways including: suffering from nightmares; having recurrent intrusive distressing thoughts about his World War II experiences; suffering from flashbacks; avoiding thoughts associated with his World War II experiences; avoiding some situations and activities associated with his World War II experiences; becoming distressed on exposure to some reminders of his war experiences; generally being a loner; having significantly diminished activities and hobbies after his World War II experiences; having difficulty showing affection towards his loved ones; suffering from sleep disturbance and poor concentration; irritability; having an exaggerated startle reaction; and, being generally hypervigilant. In addition, Mr Warburton presented with a number of significant depressive symptoms including sleep disturbance; diurnal variation in mood, diminished appetite; low energy; low motivation; low confidence; low libido; poor concentration and described the future as depressing. Dr Altman noted Mr Warburton’s work as a grazier since 1979, and that in general over the years, he had experienced problems, for example, retiring from the construction business due to his irritability, problems with concentration, being irritable for many years and preferring to work alone.
57. On 3 March 1999 (T5), Dr Altman noted that Mr Warburton continued to suffer from post traumatic stress disorder and major depression. Dr Altman reiterated the previously reported symptoms from which Mr Warburton suffers.
evidence of dr gj shannon, consultant physician
58. Several reports from Dr Shannon were available to the Tribunal and contained in the Clinical Notes of Dr K Hazelton (Exhibit R2).
59. On 18 February 1999 (Exhibit R2, pp104, 105), Dr Shannon reported that he examined Mr Warburton on 15 February 1999 and found that overall his health appeared excellent and he had few complaints. Dr Shannon reviewed Mr Warburton’s glycaemic control and cardiovascular state. In relation to his diabetes, he noted that Mr Warburton recently underwent a fluorescein angiography by Dr B Barnes, which demonstrated no evidence of diabetic retinopathy.
60. On 16 June 2000, (Exhibit R2, pp23, 24), Dr Shannon noted that overall Mr Warburton appeared well. Dr Shannon noted Mr Warburton’s glycaemic control appeared satisfactory. He had no symptoms of hyperglycaemia and no symptomatic hypoglycaemic episodes. Dr Shannon noted a report of Dr Barnes showing no evidence of diabetic retinopathy, but showing early cataract formation and pterygia. Dr Shannon noted that since that review, Mr Warburton had noticed increasing grittiness in the eyes and visual blurring. He noted in relation to his cardiovascular state Mr Warburton was asymptomatic. Dr Shannon also noted a slightly mumbling mildly dysarthric voice and rather expressionless facies. Dr Shannon noticed a resting tremor of the left arm over the past six months or so and that he had increased muscle tone particularly in the right arm. Dr Shannon suspected early Parkinson’s disease, which could also explain Mr Warburton’s complaints of “dribbling” over the past few months.
61. On 16 May 2001 (Exhibit R2, pp36, 37), Dr Shannon reported that he received a letter from Dr A Tagkalidis last September expressing that there was not enough to support a definite diagnosis of Parkinson’s disease. He noted, however, that Mr Warburton had progressed since then and Dr Shannon thought he now had typical features of Parkinson’s disease, that he should be reviewed by Dr Hammond, Consultant Neurologist, and that Mr Warburton may now benefit from specific therapy. In relation to diabetic complications, he noted that Dr Conway had demonstrated changes of background diabetic retinopathy for which Mr Warburton was to be reviewed by Dr Barnes and he also had probable macular degeneration.
dr a tagkalidis, locum for dr sr hammond, consultant neurologist
62. On 12 September 2000 (Exhibit R2, p48), Dr Tagkalidis examined Mr Warburton in relation to possible Parkinson’s disease and provided a report to Dr Hazelton of that date. Dr Tagkalidis noted that Mr Warburton had diabetes since 1988 but apart from that was in good health and fairly active. Dr Tagkalidis noted that a number of symptoms had arisen over the last six months for Mr Warburton to suggest Parkinson’s disease, including: resting tremor on the odd occasion in his hands; deteriorating handwriting; dysphonia; and, an intermittent problem of drooling. Dr Tagkalidis noted no other motor manifestations leading to disability in Mr Warburton. Dr Tagkalidis’ assessment, following examination of Mr Warburton, was that whilst his symptoms were suggestive of Parkinson’s disease or another extrapyramidal syndrome, at that time, there was not enough evidence in terms of his physical examination to be certain of the diagnosis. He did not believe that treatment was pressing because Mr Warburton was not greatly impaired at that stage.
evidence of dr s r hammond, consultant neurologist
63. Reports from Dr Hammond were available to the Tribunal in the Clinical Notes of Dr Hazelton (Exhibit R2).
64. Of note, Dr Hammond examined Mr Warburton on 12 June 2001 and reported on 15 June 2001 (Exhibit R2, p40). Following examination, Dr Hammond was of the view, in agreement with Dr Shannon, that there was now no reasonable doubt that Mr Warburton had idiopathic Parkinson’s disease. Dr Hammond noted that it was clear that Mr Warburton had reached the point where commencement on a dopamine replacement therapy regime was advisable. Accordingly, Dr Hammond commenced Mr Warburton on “Permax”.
evidence of dr b barnes, ophthalmic surgeon
65. Several reports were available to the Tribunal from Dr Barnes, contained in the Clinical Notes of Dr Hazelton (Exhibit R2).
66. On 23 October 1997 (Exhibit R2, p133), Dr Barnes reviewed Mr Warburton and noted uncorrected distance acuity is 6/12 with both eyes. He noted inactive pterygia on the nasal aspect of each eye. Dr Barnes reported that overall Mr Warburton’s eyes remained remarkably healthy given the duration of his diabetes. He recommended a new pair of reading glasses. On 17 December 1998 (Exhibit R2, p103), Dr Barnes reported that Mr Warburton experienced some eye fatigue with reading towards the end of the day, mostly due to his mild uncorrected hypermetropia. Uncorrected acuity remained at 6/12 with each eye. There was no evidence of diabetic retinopathy. On 16 December 1999 (Exhibit R2, p29), Dr Barnes noted that Mr Warburton has had type 2 diabetes for 28 years and that his blood glucose levels have been reasonably well controlled. Dr Barnes reported that uncorrected distance acuity remained unchanged over the last few years. He noted also some mild perifoveal retinal pigment epithelial attenuation as well as discrete areas of pigment clumping just temporal to each fovea. No evidence of diabetic retinopathy was noted. He noted Mr Warburton did not need to change his reading glasses and required routine diabetic review in one year. On 8 December 2000 (Exhibit R2, p52), Dr Barnes noted uncorrected distance acuity was 6/18 with each eye. Dr Barnes reported that Mr Warburton’s mildly reduced vision in both eyes appeared to be due to a combination of mild cataract and non-specific juxtafoveal pigment clumping and attenuation in each eye. Distance glasses were not required and Mr Warburton already had reading glasses. On 7 June 2001 (Exhibit R2, pp38, 39), Dr Barnes noted that Mr Warburton had been aware of some deterioration in his central acuity in both eyes. In particular, he found that his reading vision had deteriorated in the past six months. Dr Barnes noted that Mr Warburton could still manage to read the Sydney Morning Herald in its entirety, but it took him longer than previously. Dr Barnes noted his glycaemic control remained satisfactory. Dr Barnes reported that Mr Warburton’s mildly reduced vision and in particular his difficulties with reading were due to a combination of cataract and the perifoveal epithelial changes.
evidence of dr m conway, ophthalmologist, clinical lecturer, save sight institute, university of sydney
67. Reports from Dr Conway were available to the Tribunal contained in the Clinical Notes of Dr Hazelton (Exhibit R2).
68. In a report dated 13 February 2001 (Exhibit R2, p43), Dr Conway noted that Mr Warburton was a pleasant 76 year old man, a cattle grazier and apparently was still quite active in terms of running the property. Dr Conway noted the main visual complaint that Mr Warburton had was a difficulty reading for two years. Dr Conway also noted some very mild cataract, and the possibility of a retinal dystrophy. Dr Conway further noted some atrophic changes in the retinal pigment epithelial of both fundi. He also wondered about whether there was some mild disc pallor. In a report dated 27 March 2001 (Exhibit R2, p47), Dr Conway noted that Mr Warburton had electrophysiology tests and reported changes at the macula involving abnormal intraretinal pigmentation suggesting macula dysfunction. He also noted changes in both eyes of background diabetic retinopathy. Dr Conway stated that he counselled Mr Warburton and his daughter regarding strategies to improve functioning. Dr Conway reported that “I believe he currently runs a farm and obviously there will be issues regarding this and also in relation to driving”.
CONSIDERATION AND FINDINGS
69. The Tribunal has made its decision in this matter having regard to the evidence, submissions, legislation and case law.
70. At the outset, I find that Mr Warburton provided evidence honestly and to the best of his ability. Mrs Warburton was also a credible witness as was Mr Dunhill who impressed the Tribunal with his integrity and forthright evidence.
71. In Mr Warburton’s case, he applied for an increase in his Disability Pension on 7 May 1999 (T4). The application was therefore made when Mr Warburton was 74 years of age. The issue for determination by this Tribunal, concerns whether Mr Warburton is entitled to a Special Rate of pension and because his application was made after he had turned 65 years of age, the Tribunal must make the determination in accordance with subsection 24(2A) of the Act. The legislative criteria in subsection 24(2A) are cumulative and failure to meet one criteria means the section as a whole is not met in which circumstance no Special Rate is payable. This determination must be made to the balance of probabilities standard of proof under section 120(4) of the Act. There is no dispute as to the assessment of Mr Warburton’s Disability Pension at 80 per cent of the General Rate as relevant to the decision under review or indeed, the subsequent assessment of 100 per cent of the General Rate. On consideration of this General Rate assessment, the Tribunal is reasonably satisfied that this assessment is correct.
72. Turning to the criteria in subsection 24(2A) of the Act, I note the view of the Applicant and the concessions made by the Respondent, that subsections 24(2A)(a), (b), (c), (f), (g) and (h) are not in contention and that Mr Warburton meets these legislative requirements. I am of the view given all the evidence, both documentary and oral including that of medical experts, that the Respondent’s concession in this regard has been correctly made. Mr Warburton, as I have already noted, made his application for an increase in Disability Pension and had turned 65 before that application was made, meeting subsections 24(2A)(a) and (b) of the Act. In accordance with subsection 24(2A)(c) of the Act, Mr Warburton must also meet subsections 24(1)(a) and (1)(b) of the Act. Mr Warburton does meet subsection 24(1)(a) of the Act. Determinations have been made by the Respondent that Mr Warburton has a degree of incapacity from war-caused injury or disease of at least 70 per cent. In respect of subsection 24(1)(b) of the Act, I am reasonably satisfied that Mr Warburton, at the appropriate time during the assessment period, was totally and permanently incapacitated, in accordance with this subsection. At the time of Mr Warburton’s application for increase in pension, I am of the view that Mr Warburton’s incapacity by virtue of his war-caused injuries and diseases was, of itself alone, of such a nature as to render Mr Warburton incapable of undertaking remunerative work for periods aggregating more than eight hours per week. This conclusion is supported, I believe, by Dr M Burns in addition to the evidence provided by Mr and Mrs Warburton and Mr Dunhill. Certainly, in accordance with subsection 24(2A)(f) of the Act, Mr Warburton was still undertaking his last paid farming/grazier work, after he had turned 65 years, in 1990 and continuing for some years after that. I am also reasonably satisfied that Mr Warburton meets subsection 24(2A)(g) of the Act, as when he stopped undertaking his last paid work as a farmer, which on the available evidence was at the earliest possible time 1997, even at this earliest date as argued by the Applicant, he had been working on his own account, and in partnership with his wife, in that employment for a continuous period of at least ten years that began before he turned 65 years of age. Finally, in accordance with subsection 24(2A)(h), I am reasonably satisfied that section 25 concerning temporary payments of pension for temporary incapacity is not appropriate in Mr Warburton’s circumstances.
73. I now turn to the two remaining criteria contained within subsections 24(2A)(d) and (e) of the Act. Subsection 24(2A)(d) of the Act requires that Mr Warburton must have been, because of his incapacity from war-caused injury or disease or both alone, prevented from continuing to undertake the remunerative work, or last paid work, that he was last undertaking before he made his application for an increase in pension. In relation to Mr Warburton’s last paid work, I am satisfied that this was as a farmer and cattle grazier which he commenced, on his evidence, in 1985, when he bought his first property, Arley.. This evidence does not appear to have been challenged. I am satisfied on the evidence available that this was remunerative work and Mr Warburton’s last paid work falls within the meaning of subsection 24(2A)(d) of the Act.
74. There is a preliminary issue which must be decided, in relation to subsection 24(2A)(d) of the Act, as to whether Mr Warburton was prevented from continuing to undertake farming, and if so, when Mr Warburton ceased undertaking this work. In this regard, Mr Warburton’s evidence in his statement was that he ceased working in 1997 (Exhibit A1). He also provided oral evidence that in 1997 he had lost his strength, it became dangerous to work the farm and that it was a continuous battle. In oral evidence, Mr Warburton thought that he ceased work in 1998, although he was not sure of exact dates. More certain was Mr Warburton’s evidence to the Tribunal that in 1999, at the time of the agreement being signed with Mr and Mrs Dunhill for them to work Muggletons, the larger of the two properties, Mr Warburton was unable to undertake any hard physical work. Mr Warburton’s evidence was that he was also unable to do the work on Arley, which after 1999 he stated was being run by Mrs Warburton. It was also Mrs Warburton’s evidence that after 1999 she ran Arley, with assistance from the tenant at the cottage on Arley, Mr Dunhill and limited help from Mr Warburton. Mrs Warburton’s evidence was that Mr Warburton could only undertake light activities after 1999 including opening gates, driving the truck with Mrs Warburton, helping get cattle from one paddock to another and checking the fences. Mr Dunhill’s evidence was that Mr Warburton’s health had begun to deteriorate in 1997 before the agreement was signed and agents were remarking on this when Mr Dunhill first starting helping Mr Warburton in 1997. Mr Dunhill also gave evidence that he was assisting Mr and Mrs Warburton more and more up to the time when the agreement was signed, however they were still managing to run the two farms in 1997.
75. I am reasonably satisfied that Mr Warburton was still continuing work as a farmer in 1997. I accept the evidence from Mr Warburton and Mr Dunhill that Mr Warburton was having difficulties in 1997, but I note that he and Mrs Warburton were still managing both Arley and Muggletons, albeit with assistance increasingly from Mr Dunhill. Considering all the evidence, I believe that the question is whether in February 1999, when the lease was signed with Mr and Mrs Dunhill to work Muggletons, Mr Warburton ceased work at this time. I accept the evidence that by February 1999, when the lease was signed, Mr Warburton was performing some tasks on Muggletons. Also at this time I accept that Mrs Warburton was running Arley with assistance from Mr Dunhill, the tenant on Arley and limited input from Mr Warburton. I find that Mr Warburton was undertaking some tasks in relation to both properties in 1999 and that this in fact continued in some way until about 2002 when Muggletons was sold and the Warburton’s cattle was sold. The issue is whether or not such tasks or input was work within the relevant legislative sense.
76. I note the Respondent’s submission that because Mr Warburton was still continuing to undertake such tasks until at least mid 2002, it cannot be held that Mr Warburton ceased work, but rather he continued working, although the quantity of his work declined. The Respondent referred to the Federal Court decision in Repatriation Commission v Haskard (2002) 71 ALD 29 as supporting this submission in which Hill J found that the remunerative work that Mr Haskard had previously undertaken of property valuations had never ceased but was ongoing as at the date of the Hearing. Hill J stated at paragraph 31:
“Whether the incapacity does so prevent the veteran from continuing to undertake the remunerative work is a matter of fact. Either the veteran is or the veteran is not prevented from continuing to undertake the last paid work he undertook. If that last paid work was as here, acting as a property valuer on his own account, the question to be asked is whether that last paid work has ceased or whether it has continued. On the facts here it has not ceased but continued. All that has happened is that the quantity of work has declined but that does not mean that the work itself has ceased.”
77. I note the Applicant has submitted that the facts of Mr Warburton’s case should be distinguished on the basis that, as opposed to Mr Haskard, it was not merely the quantity of work that had reduced for Mr Warburton, but qualitatively the work had declined and changed such that Mr Warburton was not able to effectively and efficiently undertake the work he was previously undertaking. I am of the view that this is the correct approach. As Hill J noted in Repatriation Commission v Haskard (supra), whether remunerative work has ceased is a matter which must be decided on the facts.
78. On the evidence, in my view, although Mr Warburton after 1999 was still engaged in some activities on the farm, this work was not of a quality or effectiveness that it could be characterised as continuing the remunerative work he had last undertaken. Accepting the evidence of Mr and Mrs Warburton and Mr Dunhill, I find that although Mr Warburton kept an interest in the farm, still lived on one of the properties and still owned both properties until 2002, after 1999, Mr Warburton was not able to perform the work that he had previously undertaken as a farmer in an effective or efficient way. On the evidence particularly of Mr Dunhill, since 1999, Mr Warburton was not only ineffective in performing what he believed to be work, but he was on occasion a danger to himself.
79. I have also noted the reports of Dr Conway, which refer to Mr Warburton being active in running the farm still in 2001. I accept, however, Mr Warburton’s response in evidence that Dr Conway’s comments in this regard meant that he was still active in terms of only emergency assistance and also noting the evidence of Mrs Warburton that Mr Warburton still had pride in his farm and kept an interest in both farms after 1999. What Dr Conway reported is also likely to reflect the failure of Mr Warburton to accept or understand the reality of his situation, particularly in light of Mr Dunhill’s evidence.
80. In this matter, it was clear throughout the hearing that Mr Warburton wanted to continue what was his life’s work indefinitely. He was faced however with increasingly declining health, the reality of which he did not wish to face. Hence his attempts at continuing minor activities. Should the reality of Mr Warburton’s inability to continue his farm work and further inability to accept the reality of this position, as evidenced by his attempts to press on regardless with activities, but under supervision of his wife or Mr Dunhill and designed to psychologically bolster him, be characterised as him continuing to undertake his last remunerative work? On any view of the evidence, the activities he undertook under supervision and often at a danger to himself cannot be considered a mere reduction of work from full-time to part-time. Mr Warburton was not carrying out the same duties but less, as was Mr Haskard. The fact was that the activity Mr Warburton undertook was allowed, on Mr Dunhill’s evidence, almost as an indulgence and out of respect of how he used to be.
81. In Sheehy v Repatriation Commission (1996) 66 FCR 569, the Full Court of the Federal Court discussed the application of subsection 24(1)(c) of the Act considering the phrase “prevented from continuing to undertake remunerative work that the veteran was undertaking”. The Court noted that this phrase “import[s] the notion of ‘performance’ or of a ‘successful’ or effective undertaking of work”. It is submitted by the Applicant that Mr Warburton’s inability, because of war-caused disability, to properly manage his farm, was a fundamental and significant failure in his work capacity. I agree with the submission by the Applicant that as a matter of fact, Mr Warburton was unable to undertake his last paid work of farming since making the Agreement with Mr and Mrs Dunhill in February 1999. Driving the truck, attending sales under supervision, checking fences all under supervision, do not in my view constitute carrying on work as a farmer as Mr Warburton had previously done. He was not merely cutting down his work, he had ceased effective farming. In so deciding I note Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, that a Tribunal’s task, obviously within the requirements of the legislation, is to make a practical decision not made up on “nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”.. This has application for section 24(2A). Thus, by February 1999, I find that Mr Warburton had ceased undertaking the last paid work that he had previously been undertaking in accordance with subsection 24(2A)(d) of the Act.
82. The next issue concerns what caused Mr Warburton to cease undertaking his work in 1999. To further meet the criterion for Special Pension in subsection 24(2A)(d), it must be Mr Warburton’s accepted conditions alone, which prevented him from continuing to undertake his last paid work. In relation to his health, Mr Warburton’s evidence at hearing was that stress and depression were the worst aspects of his health and that if he had not had stress and depression, he would not have retired from farm work. He noted his problems with concentration, sleeping difficulties and that when he had depression, it would take two or three days to resolve and during this period he lost concentration and was unable to feed his cattle. Although Mr Warburton stated in evidence that this was two years ago, I find that the overall affect of Mr Warburton’s evidence to the Tribunal suggests that this was in fact occurring before and at the time Mr Warburton ceased work in 1999. Mrs Warburton’s evidence was certainly that Mr Warburton’s post traumatic stress disorder and major depression affected his work on the farm prior to 1999. I accept her evidence that Mr Warburton was unable to sleep at night, had traumas during the night, and with depression, lacked energy and slept a great deal during the day. Mrs Warburton noted that this caused Mr Warburton to be unable to do the work he was previously able to do on the farm as he did not have the strength nor energy to do it. I accept both Mr and Mrs Warburton’s evidence in relation to the impact of Mr Warburton’s condition of post-traumatic stress disorder and major depression. In relation to the medical evidence, clearly the evidence of Dr Altman both in his reports of 1995 and 1999, supports Mr and Mrs Warburton’s evidence of the symptoms which impacted on his farming in terms of Mr Warburton suffering regular nightmares, sleep disturbances and impaired concentration and his general depressive symptoms including low energy. He also described other symptoms in both 1995 and 1999 of flashbacks, avoiding thoughts about war experiences, distress on exposure to reminders of war, being a loner, detached, difficulty showing affection, more irritable and exaggerated startle reaction and hypervigilant (T5). On examining the whole of the evidence, I find that both post traumatic stress disorder and major depression certainly were a cause of Mr Warburton ceasing work in 1999.
83. In relation to other health problems that have not been accepted as war-caused, Mr Warburton has recently been diagnosed with myelodysplasic disorder, which was initially thought to be Parkinson’s disease. In terms of the medical evidence, it would appear that there was no documentation of Parkinson’s disease in 1999. On 16 June 2000 (Exhibit R2, pp23, 23), Dr Shannon has noted a sightly mumbling mildly dysarthric voice, rather expressionless facies, a resting tremor of the left arm over the past six months or so and increased muscle tone. At this time Dr Shannon suggested early Parkinson’s disease. I note that there is no suggestion in this report of symptoms prior to six months ago, in late 1999. On 8 July 2000, in Dr Hazelton’s clinical notes there are references to “shakes/dribbles” and the notes suggest referral to a Neurologist, with a note of “?P.D”, suggesting Parkinson’s disease had been thought of at this time (Exhibit R2, p8). On 12 September 2000, Dr Tagkalidis, Locum Neurologist, reported that whilst Mr Warburton’s symptoms were suggestive of Parkinson’s disease or another extrapyramidal syndrome, at that time he could not be certain of the diagnosis and he did not believe that treatment was pressing because Mr Warburton was not greatly impaired at that stage (Exhibit R2, p48). On 16 May 2001, Dr Shannon reported that Mr Warburton had progressed, he thought now had typical features of Parkinson’s disease and should be reviewed by a neurologist (Exhibit R2, pp36, 37). Dr Hammond on 15 June 2001, also thought Mr Warburton had Parkinson’s disease and importantly, believed that Mr Warburton now had reached a point where treatment in terms of dopamine replacement therapy was warranted (Exhibit R2, p40). In my view, the medical evidence is not suggestive in 1999 of any symptoms of Parkinson’s disease, later re-diagnosed as myelodysplasic disorder, at the time Mr Warburton ceased work. Mr Warburton’s own evidence was that he could not distinguish when the symptoms of the myelodysplasia first commenced. Mrs Warburton’s evidence was that Mr Warburton first had the symptoms, including shaking of the hands and no control over saliva, four years ago, which would be during 1999. Mr Dunhill told the Tribunal he thought he first noticed the symptoms about the time when he first entered into the agreement, although he also stated two years ago, which was 2001, and he found it difficult to put a timeframe on it. Considering all the evidence, I am not satisfied that there is sufficient evidence to conclude that symptoms of myelodysplasic disorder were present in February 1999, such that they constituted a cause of Mr Warburton ceasing work at that time. In particular, there is no support for Mrs Warburton’s view that symptoms commenced four years ago in the medical evidence, although definitely in 2000 it was noted, but there is no evidence that even at this time it was impairing Mr Warburton in any significant manner. It appears that he was not thought to require treatment until 2001. On the balance of probabilities I do not believe the myelodysplasic disorder was a factor causing Mr Warburton to cease work in 1999.
84. I note that Mr Warburton also suffers from long-standing diabetes, which is not an accepted condition. The evidence from Mr Warburton himself appears to be that his diabetes was under control with regular testing of blood sugar levels. From the reports contained in the clinical notes, including those of Dr Shannon, the medical evidence confirms, and I so find, that the diabetes in 1999 was not causing Mr Warburton significant problems to suggest that it was a cause for Mr Warburton to cease work at that time.
85. Mr Warburton also suffers from visual problems. He has bilateral cataracts and pterygium, which have been accepted as war-caused and perifoveal pigment epithelial changes which is a condition not accepted as war-caused. In terms of the medical evidence, Dr Barnes, Ophthalmic Surgeon, reviewed Mr Warburton in December 1999 and noted uncorrected distance acuity as 6/12 in both eyes, which had not changed over the last few years. He also noted an inactive pterygium and some mild perifoveal pigment epithelial attenuation. Subsequent reviews by Dr Barnes and Dr Conway indicated slight deterioration each year. Mr Warburton’s evidence was that he thought his eyes were “pretty good” in 1999. He thought his eyes were all right up until about 2002, but had deteriorated since that time. Considering Mr Warburton’s evidence of his visual problems and the medical evidence, I find that in February 1999, when Mr Warburton ceased work, his vision problems were present but only in a mild form and I accept Mr Warburton’s evidence that they were not a significant problem for him then. I find that Mr Warburton’s visual problems, consisting of both accepted and non-accepted conditions, were not a factor contributing to Mr Warburton ceasing work in 1999.
86. The Respondent has also submitted that age itself was one factor why Mr Warburton could no longer work. In this regard, Mr Modder noted that in 1997, Mr Warburton was admitted to hospital with bacterial pneumonia, that he has borrowed his wife's walking stick since 2000 and the evidence from Mr Warburton, Mr Dunhill and Mrs Warburton that for some years he has been unable to do heavier jobs on the farm and was increasingly suffering from fatigue prior to 1999. Another consideration related to age is whether in February 1999, the decision by Mr Warburton to cease work was in fact consistent with his plans for retirement from his farming work and whether this was a factor in his decision to cease work.
87. In terms of the bacterial pneumonia contracted by Mr Warburton in January 1997, Mr Warburton’s evidence was that he recovered from “the flu”.. He noted that he did need more help from Mr Dunhill when he came back from hospital, but Mr Dunhill had been a help all the way through. On 29 January 1997, an X-ray report noted “No active pulmonary lesion is now demonstrated. The patchy shadowing present in the LLL at the last study of 23 January 1997 has virtually completely resolved. The heart size and shape are normal and there is no evidence of lymphadenopathy” (Exhibit R2, p143). On 31 January 1997 (Exhibit R2, p142), Dr J Milla, Physician, reported that Mr Warburton’s illness was a bacterial pneumonia with some atypical features. He noted that Mr Warburton had improved and he was happy to allow Mr Warburton to go home with a further five days of antibiotics. I note there is no evidence of further problems associated with this condition in the medical evidence. I accept Mr Warburton’s evidence that he recovered and I note that while further help may have been required from Mr Dunhill on return from hospital due to Mr Warburton’s convalescence, this does not have great significance. I am of the view this was not a contributing factor to Mr Warburton ceasing work in 1999.
88. In terms of Mr Warburton using a walking stick from 2000, this would not have impacted on his decision in 1999. Furthermore, although there was evidence of Mr Warburton having difficulties, particularly increasing from 1997, Mr and Mrs Warburton in their evidence did not attribute this to age and Mr Warburton’s evidence was that the stress and depression were the worse aspects of his health. Mr Dunhill may have believed that age was a factor making it difficult for Mr Warburton, but I note that he is not a medical specialist and was not aware of all Mr Warburton’s medical conditions. Moreover, I do not believe his view is sufficient to determine that age was a factor in causing Mr Warburton to cease work in 1999 when the whole of the evidence is considered. I also accept the evidence of both Mr and Mrs Warburton that they were not planning to retire and that they believed they would continue indefinitely running the farm. I accept Mr Dunhill’s evidence that ageing farmers in the area do tend to keep farming, sometimes tailoring their practices to continue doing what was part of their lives, as the Applicant has submitted. In my view, the impact of age was not a cause in 1999 for Mr Warburton to cease work and I agree with the Applicant, that Mr Warburton would not have ceased farming for reasons of age. I also do not believe the age-related factors raised by the Respondent, as discussed above, were factors in Mr Warburton ceasing work.
89. Mr Warburton’s evidence was also that he had suffered three small strokes. However, I am not of the view that there is evidence to suggest that strokes have contributed to Mr Warburton ceasing work in 1999. As submitted by the Applicant, it appears that there is mention of only one possible mild left parietal infarct in June 2001 (Exhibit R2, p39) but I agree that there is insufficient evidence to be satisfied that any stroke/s occurred in the relevant period or had any lasting impact.
90. I accept the evidence of Mrs Warburton that she has had some serious health problems, since 2001 and I am satisfied that Mrs Warburton’s health was not a contributing factor in 1999 in terms of Mr Warburton ceasing work. I also note that the drought was not a factor in 1999 and only caused problems in 2002.
91. In summary, I am reasonably satisfied that it was Mr Warburton’s war-caused post traumatic stress disorder and major depression, which caused him to cease work in 1999. Mr Warburton also raised the issue of his hearing problems, in his statement, although from the evidence of Mr and Mrs Warburton this does not appear to have been such a significant problem in 1999 that it contributed to Mr Warburton’s having to cease work. There are no other factors that were impacting on Mr Warburton at that time, such that they would have caused him to cease work. Therefore, I find on the balance of probabilities that Mr Warburton meets subsection 24(2A)(d) of the Act.
92. The remaining criterion is contained in subsection 24(2A)(e) of the Act, requiring that because Mr Warburton has been prevented from undertaking his last paid work, he is suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free from that incapacity. The Applicant has submitted that Mr Warburton was working on his own account and that he lost earnings in terms of “income, revenue or cash flow stream”, the meaning given by Gray J to such as loss in the Full Federal Court decision in Counsel v Repatriation Commission (2002) 122 FCR 476. The Applicant has also submitted that once the farm was being run by someone else, after 1999, any earnings from the farm were not earnings from Mr Warburton’s engagement in remunerative work. In this regard, the Applicant referred to the decision of Repatriation Commission v Greenwood (1990) 22 ALD 289 where the Court found that the Tribunal had correctly distinguished between earnings from work and earnings from investment.
93. I am of the view that Mr Warburton has, as the Applicant has submitted, lost earnings on his own account, by virtue of being unable to undertake remunerative work. In Mr Warburton’s circumstances, although there continued to be income generated on the farm after 1999 and this in fact began to increase after Mr Dunhill took over, this was not income attributable to Mr Warburton’s own personal exertion. In Counsel v Repatriation Commission (supra), Goldberg J stated:
“Section 24(2A)(e) contemplates that because a veteran may be prevented from continuing to undertake remunerative work he or she may thereby suffer one of two types of loss. First, a loss of salary or wages in circumstances where the veteran is employed under a contract of service. Secondly, a loss of earnings or money received as a result of or by reason of the veterans’ own personal exertion in circumstances where the veteran is not receiving the money as salary or wages. The common thread running through these two situations is that an income, revenue or cashflow stream available to the veteran is lost.”
94. Although Mr Warburton’s farms did not generate a profit in terms of net income for the period leading up to 1999 when he ceased work, except for one year, as detailed in the report of Mr S Menzies, McDonald Ross Chartered Accountants, (Exhibit R4, Schedule B) this does not mean that Mr Warburton did not suffer a loss of earnings on his own account after 1999, as discussed in Counsel v Repatriation Commission (supra). After Mr Dunhill took over in 1999, there was a move towards profitability because of the rise in cattle prices and Mr Dunhill’s endeavours. Of course, because of the agreement, Mr Warburton was only receiving half the income and was making a loss of earnings. In my understanding of Counsel v Repatriation Commission (supra), Mr Warburton lost earnings on his own account by virtue of the impact of his war-caused incapacity on his efforts of personal exertion. I therefore find that Mr Warburton meets subsection 24(2A)(e) of the Act.
95. Accordingly, for all the reasons set out above and as Mr Warburton meets all the legislative requirements for Special Rate, the Tribunal sets aside the decision under review and in substitution therefor the Tribunal determines that:
(1)Mr Warburton is qualified for pension at the Special Rate pursuant to section 24 of the Act with effect from and including 7 May 1999.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member.
Signed:......................................................................................
Associate
Date of Hearing 25 July 2003
Final Submissions 15 September 2003
Date of Decision 6 February 2004
Solicitor for the Applicant Ms J Buss, Legal Aid Commission of NSW
Representative for the Respondent Mr S Modder, Departmental Advocate
SCHEDULE 1
Exhibits
Description
Date
Exhibit A1
Statement by Mr C Warburton
16 February 2003
Exhibit A2
Statement by Mr A Dunhill
21 July 2003
Exhibit A3
Agreement between Mrs MT Warburton and Mr C Warburton; Mrs RM Dunhill and Mr A Dunhill
23 February 1999
Exhibit A4
Profit and Loss Statements for the Financial Years Ending 1994-1998.
Exhibit A5
Report of Dr M Burns, Occupational Physician and Curriculum Vitae
15 August 2002
Exhibit R1
Transcript of Veterans’ Review Board Hearing
7 November 2001
Exhibit R2
Clinical Notes of Dr K Hazelton, General Practitioner, excluding p165.
Various
Exhibit R3
Income Tax Returns and Notices of Assessment for Years Ending 30 June 1993 to 30 June 2002
Exhibit R4
Letter from Mr S Menzies, McDonald Ross, Chartered Accountants
14 July 2003
SCHEDULE 2
1. An assessment of Special Rate pension is made in accordance with section 24 of the Act, which states, as relevant:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking..
(2A) This section applies to a veteran if:
(a)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b) the veteran had turned 65 before the claim or application was made; and
(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B)For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3)This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4)Subject to subsection (5), the rate at which pension is payable to a veteran to whom this section applies is $571.70 per fortnight.
(5)If section 115D applies to a veteran, the rate at which pension is payable to the veteran is the amount specified in subsection (4) less the pension reduction amount worked out under that section.”
2. Under subsection 120(4) of the Act, a decision in relation to whether Mr Warburton qualifies for Special Rate of pension must be made to the Tribunal’s reasonable satisfaction. Subsection 120(4) states:
“(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.”
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