Warren Muras and Repatriation Commission
[2013] AATA 727
[2013] AATA 727
Division VETERANS' APPEALS DIVISION File Number
2012/2911
Re
Warren Muras
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr H Haikal-Mukhtar, MemberDate 9 October 2013 Place Sydney The decision under review is set aside and instead the Tribunal decides that Mr Muras is eligible to be paid the special rate of pension.
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Ms N Bell, Senior Member
CATCHWORDS
VETERANS ENTITLEMENT – special rate of pension – whether applicant satisfies s 24(1)(c) of the Veterans’ Entitlements Act 1986 – accepted conditions are lumbar spondylosis, bilateral osteoarthrosis of the knees, hearing loss, tinnitus – whether applicant ceased remunerative work for reasons other than his war-caused incapacity – decision under review set aside
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 24, s 24(1)(c)
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr H Haikal-Mukhtar, Member
Warren Muras joined the Royal Australian Navy as a 17 year old in 1964. He served for seven years. In civilian life, he worked as a chef, a pool maintenance engineer and then as a carpenter and builder until he ceased work in 2009.
Mr Muras seeks the higher special rate of pension. While there is no dispute that Mr Muras satisfies all other requirements for eligibility for this rate of pension, the Commission contends that he fails to satisfy the requirement in section 24(1)(c) of the Veterans Entitlements Act 1986 that he is prevented by service caused injuries alone from continuing to undertake remunerative work that he was undertaking.
Mr Muras receives disability pension for his accepted conditions of lumbar spondylosis, bilateral osteoarthrosis of the knees and for his sensorineural hearing loss and tinnitus. He contends that it was these conditions alone that caused him to cease work in 2009. The Repatriation Commission contends that Mr Muras had other reasons for ceasing work, namely, his osteoarthrosis of the right shoulder and left hip, neither of which are service caused.
This is the sole issue for us to decide.
Do Mr Muras’ shoulder and hip osteoarthrosis prevent him from continuing his work?
Mr Muras said of his right shoulder that he had tennis elbow, shoulder and arm but it never stopped him from doing anything. He could not recall having any treatment for his shoulder. He said that although he had some pain in his right shoulder, for about six months in 2000 and intermittently after that, he had no limitations on his ability to lift or work above shoulder height. He was adamant that his shoulder played no role in his decision to cease work.
As to his left hip, Mr Muras said his hip replacement in 1996 was a great success. He said it allowed him to squat, sit and stand without pain. He said the revision he had in 2010 was not prompted by any symptoms but rather was at the suggestion of his treating doctor as a way of maintaining the good results he obtained from the initial hip replacement. After the revision his hip returned to its normal problem free condition.
Mr Muras said he stopped work towards the end of 2009 because his back and knees were “killing him”.
When shown clinical notes made by his general practitioner, Dr Subbiah, noting complaints of multiple pain and chronic pain, he said he was complaining about his back and knees.
Dr Shatwell, orthopaedic surgeon, said of Mr Mural’s left hip that he had a good range of movement and was pain free when he saw him in 2012. He said Mr Muras was young (49) when he had his hip replacement in 1996. He said most people who have hip replacements are elderly and are often advised to avoid squatting and kneeling, but in Mr Muras’ case he simply got on with his life without any problems and was still without hip problems in 2009.
Dr Shatwell explained that the revision surgery was a prophylactic measure designed to ensure that the minimal and typical dissolving of bone around the prosthesis is accommodated and no loosening occurs. He referred to positive descriptions of Mr Muras’ progress by his treating doctors from 2009 to 2012.
As to Mr Muras’ right shoulder, Dr Shatwell said that an X-ray result that shows abnormality does not amount to a disability.
Dr Robin Chase, occupational physician, who reported on but did not examine Mr Muras’ shoulder and hip, considered that both contributed to his ceasing work.
Dr Chase said that a 2002 x-ray that shows degenerative changes in Mr Muras right shoulder indicates a joint in need of protective restrictions. He said Mr Muras told him he had intermittent pain but he did not know the frequency. He agreed that his shoulder was not a reason for Mr Muras to cease work.
Dr Chase said that following a hip replacement a person needs restrictions on kneeling, squatting, climbing and walking on rough or broken ground. When it was noted that Mr Muras continued to do building work after his hip replacement, Dr Chase said some people do such work and get away with it but it can result in acceleration and an earlier revision. He said Mr Muras’ hip replacement was on the way to early failure. However, he said he did not know why Mr Muras had the revision. He said he cannot accept that a hip replacement did not contribute to Mr Muras’ ceasing to work.
Later Dr Chase accepted that Mr Muras was asymptomatic before he had the revision. He said he only knows about Mr Muras’ work capacity now. He said that, now, Mr Muras’ hip is part of what prevents him from working. In particular, he referred to loss of range of movement, loss of proprioception, (and inability to squat, kneel and walk on rough ground. When pressed, he said that does not mean he could not do these things, but it does mean that he is asking for trouble if he does.
The clinical notes of Dr Subbiah provide general support for Mr Muras’ claim. In particular we note the following entries:
·21 May 2002 – X-ray Right Shoulder – Report of Dr Stevens: “The joint space is preserved. There is a tiny focus of calcification projected in the proximal supraspinatus tendon region on only one view, the significance of this is uncertain. There is minor degenerative change in the A.C. joint. A separate ossicle above the distal clavicle probably represents previous trauma.”
·10 August 2009 – “Deciding to give up work. Knee pain. Back pain.”
·8 October 2009 – Reports of Dr Walter, Orthopaedic Surgeon: “He has a great result with no complaints and no pain. He does have a rather limited range of motion compared to normal…” “… it is advisable to revise this hip and remove the metal on metal bearing. It is not urgent but it should be done at some point in the next year or so.”
·10 November 2009 – Report of Dr Baker, Orthopaedic Surgeon, noting “he has a good painfree range of hip movement.”
·12 September 2012 – Report of Dr Walter: “It has been 2 ½ years since his left hip replacement. He was a great result. He is back to his fishing and other activities. He has a range of motion from 0 to 100 degrees, 10 degrees abduction and 20 degrees external rotation and 20 degrees internal rotation.”
·16 September 2010 – Report of Dr Walker: “His hip is doing well. He has no pain and no complaints. The surgical wound is well healed and he has a good range of motion in that hip.”
We prefer the opinion of Dr Shatwell. Dr Chase’s opinion appears to be based more on the restrictions he would prefer to see placed on Mr Muras after his hip replacement than on assessment of Mr Muras’ actual response to the hip replacement. Dr Shatwell’s opinion, by reference to the reports and clinical notes of Mr Muras’ treating doctors and the history given to him by Mr Muras, reflects the fact that Mr Muras continued to work for over a decade after his hip replacement and for a further two years after his revision. We also note that Dr Chase accepted that Mr Muras was asymptomatic when he had the revision.
We do not doubt that Mr Muras’ hip was a major problem for him until he had his replacement. However the evidence shows that he had a particularly good outcome. His revision was prophylactic rather than a response to any symptoms of stiffness or pain. It was not an indication of a worsening condition or a developing impediment to working. We conclude that Mr Muras’ left hip osteoarthrosis did not contribute to his ceasing to work.
There is no evidence that Mr Muras’ right shoulder osteoarthrosis, while apparent on an X-ray ten years ago and the source of intermittent pain, played any part in his ceasing to work.
DECISION
The decision under review is set aside and instead the Tribunal decides that Mr Muras is eligible to be paid the special rate of pension.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell and Member Dr Haikal-Mukhtar. ......[Sgd]..................................................................
Associate
Dated 9 October 2013
Date of hearing 6 September 2013 Applicant In person Counsel for the Applicant Mr C Colborne Advocate for the Respondent Mr A Crowe, DVA Advocacy
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