Watkins and Repatriation Commission
[2011] AATA 918
•21 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 918
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3204
VETERANS APPEALS DIVISION ) Re JOHN RAYMOND WATKINS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton Date21 December 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review. ........................[sgd]......................
Member
VETERANS’ AFFAIRS ‑ pension at special rate – whether war‑caused conditions alone cause of inability to work – reason why applicant stopped working – decision affirmed
Veterans’ Entitlements Act 1986 ss 24(1)(a)(b)(c), 24(2)(a)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Alexander (2002) 75 ALD 329
REASONS FOR DECISION
21 December 2011 Regina Perton, Member 1. John Watkins, who is 65 years old, served in the Royal Australian Navy for nine years which included operational service in Vietnam. Mr Watkins currently receives a service disability pension at 100 per cent of the general rate. He suffers from multiple medical conditions, of which bilateral sensorineural hearing loss with tinnitus, osteoarthrosis of the right ankle and foot, solar keratosis, post-traumatic stress disorder (PTSD) and alcohol dependence have been accepted by the Repatriation Commission (the Commission) as having been war‑caused.
2. Mr Watkins is seeking a special rate pension, which is a higher rate of pension paid to a working-age recipient who is unable to work due to his accepted disabilities alone.
3. Mr Watkins lodged a claim for increase in pension on 31 July 2009, shortly before his 64th birthday. On 29 October 2009, the Commission decided that Mr Watkins’s rate of pension should remain at 100 per cent of the general rate and that he was not eligible for a special rate of pension because he did not cease work due to his accepted war-caused disabilities alone. On 21 June 2010, the Veterans’ Review Board (VRB) agreed with the Commission. Mr Watkins then lodged an application for review of the VRB decision with this Tribunal on 30 July 2010.
4. In deciding whether Mr Watkins is eligible for pension at the special rate, the Tribunal needs to consider:
·Is Mr Watkins unable to work for more than 8 hours per week?
·When and why did Mr Watkins stop working?
·Do Mr Watkins’s accepted war-caused conditions alone prevent him from working?
Is Mr Watkins unable to work for more than 8 hours per week?
5. Based on the medical evidence, the parties agree that Mr Watkins is unable to undertake remunerative work for more than 8 hours per week. The Tribunal concurs.
When and why did Mr Watkins stop working?
6. In his written and oral evidence Mr Watkins stated that he left school at the age of 14 years. After leaving school, Mr Watkins worked as a delivery boy for about two years and then as a car detailer for 18 months. He then enlisted in the navy serving for nine years which included operational service.
7. After leaving the navy in November 1972, he joined the Melbourne Metropolitan Fire Brigade almost immediately and stayed until June 2008. He was employed as a general fire fighter until 1985 when he completed the station officers’ course and was promoted.
8. Mr Watkins stated that during the late 1990s, he had problems with his right ankle and foot. His hearing deteriorated. In October 2004 Mr Watkins underwent surgery for an acoustic neuroma and was off work until February 2005. He resumed full time work for the next three months. Mr Watkins’s hearing deteriorated further and he was finding it difficult to hear clearly in the fire truck. He said that his ankle was also troubling him in terms of getting in and out of the fire truck.
9. In May 2005 Mr Watkins’s doctor recommended he stop working. Mr Watkins then utilised his accumulated sick leave, long service leave and an available insurance plan. He officially stopped working on 24 June 2008.
Do Mr Watkins’s accepted war-caused conditions alone prevent him from working?
10. Section 24 of the Veterans’ Entitlements Act 1986 (the Act) makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(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…
(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…
11. Both parties agree that Mr Watkins meets sections 24(1)(a) and 24(1)(b) of the Act. The Tribunal concurs.
12. The parties disagree as to whether Mr Watkins meets s 24(1)(c) of the Act. Section 24(1)(c) and its qualifying provision, s 24(2)(a) state:
…
(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…
(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.
13. In Flentjar v Repatriation Commission (1997) 48 ALD 1, Branson J set out the issues posed by s 24(1)(c) in a series of 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 own account that he would not be suffering if he were free of that incapacity?
14. In respect of question 1, the Tribunal finds that the remunerative work undertaken by Mr Watkins was as a fire fighter and as a station officer which involved both management and operational responsibilities.
15. In respect of question 2, as stated above, the Tribunal accepts that Mr Watkins is prevented from working more than 8 hours per week due to his accepted war-caused disabilities. So the answer to question 2 is yes.
16. There are also other factors to be taken into account in relation to Mr Watkins’s employability apart from his accepted war-caused conditions. The Tribunal notes the comments of Nicholson J in Forbes v Repatriation Commission (2000) 101 FCR 50:
[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. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition.
[40] …it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension.
17. In Repatriation Commission v Alexander (2002) 75 ALD 329 at 334, Spender J stated:
[22] The test under s 24(1)(c) is not, "would Mr Alexander's war-caused conditions alone prevent him from undertaking the relevant remunerative work?", as the Tribunal indicated in pars 47 and 48 was the test it applied. As par 48 in particular indicates, the Tribunal concluded that if Mr Alexander did not suffer from war-caused difficulties, "he still would have been working". This is not the test for which s 24(1)(c) calls. It is whether war-caused conditions, alone, prevent the respondent from continuing to undertake remunerative work that he had been undertaking. It seems to me the Tribunal has not addressed the question of causation that s 24(1)(c) calls for, but has, in effect, applied the requirements of s 24(1)(b). The conclusion that "a combination of war service and non-war service related conditions preventing Mr Alexander from working is a non-issue" is simply wrong. If the non-service related conditions were a factor in preventing Mr Alexander from continuing to undertake remunerative work, albeit those conditions were "of secondary importance", the "alone" requirement of s 24(1)(c) would not be satisfied.
18. Mr Rudge, appearing for the Commission, suggested that hearing loss as a result of the acoustic neuroma, headaches, access to a considerable superannuation payment and ataxia were some of the other factors, other than his accepted war caused conditions, that contributed to Mr Watkins’s decision to stop work.
19. Dr Alan Rosenhain, Mr Watkins’s general practitioner, provided a report dated 5 October 2010. Dr Rosenhain stated that most of the medical certificates he wrote while Mr Watkins was on sick leave related to his patient’s war caused disabilities, namely bilateral sensori-neural hearing loss or osteoarthrosis of the right ankle and right foot. In Dr Rosenhain’s opinion, it was those disabilities that resulted in his patient’s decision to cease work. He also stated that he had not written any medical certificate where headaches were cited as the reason for the leave. In an earlier report dated 29 August 2008 Dr Rosenhain commented that the entitlement for bilateral sensori-neural loss and tinnitus preceded the acoustic neuroma. He stated that the acoustic neuroma had not been entered on any sickness certificates concerning fitness for work. Dr Rosenhain was not available to give oral evidence.
20. Dr Amanda Sillcock, occupational physician, prepared a report dated 10 February 2011 at the request of Mr Watkins’s solicitors. She examined Mr Watkins on 17 November 2010. Dr Sillcock reported that Mr Watkins had stopped working in early May 2005 because of his foot and his struggle with hearing in his truck cabin and with communications. Dr Sillcock described the impact on Mr Watkins of his accepted conditions and other conditions from which he suffers.
21. Mr Watkins told Dr Sillcock that he started to get headaches after he was cleared to return to work after surgery for the acoustic neuroma. He said he had a scan of his neck which showed some osteoarthritis and that it was thought this might be a cause of his headaches. He told her that taking a combination of two drugs appears to have helped and he no longer has headaches. Mr Watkins also has high blood pressure controlled by medication, had a right inguinal hernia repaired and gets occasional abdominal pain.
22. Dr Sillcock gave the opinion that Mr Watkins’s accepted disabilities alone would have prevented him continuing to be employed as a fire fighter. She also stated that she did not believe any of his non-accepted disabilities may have prevented him carrying out such duties. While removal of the acoustic neuroma had affected his hearing on that side, he already had hearing aids and was having difficulties with hearing before the surgery. She commented that his other complaints did not affect him.
23. In oral evidence, Dr Sillcock expressed her surprise that Mr Watkins had still been working as a fire fighter with hearing aids but noted that he had been allowed to do so. In cross examination, Dr Sillcock said that she had not been aware of Mr Watkins’s ataxia. She said that balance problems were not something that you would wish to see in a fire fighter. However she maintained her earlier comments in the report apart from her lack of awareness until the hearing of the ataxia.
24. Dr Robyn Horsley, occupational physician, provided a report to the Commission dated 8 December 2010 having examined Mr Watkins that day. She had also examined him on 19 March 2008 and provided reports dated 19 March 2008 and 12 May 2008. In relation to Mr Watkins’s accepted disabilities, Dr Horsley reported on their continued impact on him in her latest report.
25. In terms of Mr Watkins’s non-accepted conditions, Dr Horsley reported that he continued to wear glasses for his eyesight related issues. She stated that Mr Watkins told her that since he had been prescribed certain medication, his headaches had been better controlled. She reported his comment that he has had very few headaches in the last couple of years.
26. Dr Horsley noted that the surgical removal of the acoustic neuroma in October 2004 and correspondence from Dr Graeme R Symington, neurologist, in October 2005 concerning that procedure and its after effects. Mr Watkins had lost the hearing in his right ear as a result of the surgery. In late 2005, Mr Watkins was suffering from persistent and severe headaches which had commenced in April 2005, some months after the surgery. He had reported that the pain was worse with bending and straining and pain was felt in his neck. Dr Horsley reported a history of back strains but noted that there were no major issues for about a decade.
27. Dr Horsley gave the opinion that although the removal of the acoustic neuroma resulted in a total loss of hearing on the right side, the overall impact was probably not significant in that Mr Watkins’s hearing deficit was already such that it would have affected his communication with other fire fighters and causing difficulty in radio contact.
28. Dr Horsley was satisfied that his headaches at the time he actually stopped working in 2005 were at such a level that they were one of the bases for ceasing along with the right ankle and foot pain and his hearing deficit.
29. In her oral evidence, Dr Horsley expressed surprise that Mr Watkins was allowed to return to work following the surgery on the acoustic neuroma given his hearing loss and other issues. She said that hearing aids can be affected by heat, dust and the like that are found at fire sites. She also noted the severe headaches that were regularly occurring before and after early May 2005 would impact on a person. She noted that they had subsided in due course with effective medication but that it took a long time for that to happen.
30. Dr Symington, in a letter to Dr Rosenhain dated 7 October 2005, noted that Mr Watkins presented with persistent severe headache which had begun in April 2005. Dr Symington reported that the headaches interfered with Mr Watkins’s sleep. He also noted that x-rays of the cervical spine indicated spondylosis and that the examination showed restricted neck movements. Dr Symington’s opinion was:
With a background of common migraine he now has a chronic daily headache syndrome. There is cervical spondylosis which is probably a factor but his intake of analgesic compounds must surely be a significant factor in his persistent headache syndrome. I’m sure there is a migrainous element (provocation by red wind, aggravated by bending)…
31. In a letter to Dr Rosenhain on 16 December 2005, Dr Symington noted:
I’ve again reviewed your patient who has had severe headaches. He has been on Epilim 500 mg one bd this past month. He is a little disappointed with the results but in fact the improvement seems obvious. He may have intense headache up to three times per week but has been able to reduce his intake of Nurofen very considerably from 8 tablets daily to 2 every day, now only every two to three days. He has been able to increase his level of physical activity and has a more positive outlook. There is persistent cervical pain. Spondylosis is a likely factor and he may wish to re-visit the physiotherapist.
32. Letters from Dr Symington to Dr Rosenhain on 24 February 2006, 31 March 2006 and 19 May 2006 report that Mr Watkins is still suffering from a chronic daily headache. Dr Symington reported that attempts at physiotherapy for his neck aggravated the headache. Dr Symington thought there was a significant cervicogenic element. On 1 December 2001 Dr Symington reported his delight at the containment of Mr Watkins’s headaches. He notes that Mr Watkins suffers from cervical spondylosis. He also notes that:
In recent months, however, he has developed a subtle imbalance. This can be evident when he looks about while he walks or when he drives on an uneven surface.
In the examination I found no neurological abnormality except in the stepping test which was positive. He rotated firmly toward his right when he marched on the spot with eyes closed.
The positive stepping test does suggest that he has a vestibulopathy responsible for his imbalance. This may relate to his previous acoustic neuroma or to his migraine condition….
33. Dr Rosenhain’s clinical notes complement Dr Rosenhain’s letters. Extracts include:
Thursday January 13 2005…
…
Occasional headaches and ataxia when walking on slopes. Deaf in his right ear…
…
Thursday March 17 2005…
…Mon
Ataxia after riding in an old fire truck. M/C for 4 days from 17.03.05
…
Thursday March 31 2005…
…
Occipital headaches referred to frontal area. Neck is stiff and has crepitus.
…
Thursday June 9 2005…
…
Diagnostic Imaging requested: CT – Spine – Cervical
Increasing headaches
…
Friday June 17 2005…
…
C.T. shoows [sic] C. disc lesions and facet O.A. Add a soft collar. To apply to D.V.A.
…
Monday July 11 2005…
…
Episodes of vertigo. M/C for 30 days.
…
Thursday August 11 2005…
…
…Headaches are severe…
…
Monday September 12 2005…
…
Headaches are unremitting. Refer to Rd. G. Symington with a letter….
…
Tuesday September 20 2005…
…
Head aches are severe. Sharp and searing.
…
34. Later entries continue to refer to the headaches – on 4 November 2005…the Headaches are unchanged; on 3 January 2006…Heads are bad. No relief with Epilim. On 2 March 2006, Dr Rosenhain notes…Thinks he may not return to work…. On 4 January 2007, it is noted that headaches much easier since chiropractic.
35. Clinical notes obtained from Austin Health include a note written by an anaesthetist on 21 November 2008 stating:
R/O Acoustic neuroma - mild ataxia which prevents running but good walker.
36. Mr Watkins received a significant superannuation payout of several hundred thousand dollars. However he denied that access to the moneys, or the assets since purchased, were a factor in his decision to stop working.
37. In respect of question 3, Mr Watkins has emphasized the impact of his accepted war-caused conditions on his inability to work. However, when Mr Watkins actually stopped working, in May 2005, he was suffering from balance problems and headaches as well as his accepted war-caused conditions. While he was technically still employed until June 2008, he had not physically worked for the three years prior. He lodged his application in July 2009, five years since he had actually stopped working and a year after he stopped receiving workplace related payments. He is now 66 years of age. It is now effectively six years since he stopped working.
38. Dr Rosenhain, in his report and clinical notes, stressed that none of the medical certificates he issued gave the cause of his patient’s inability to work as anything other than his accepted war-caused conditions. However, the issue in dispute is not whether Mr Watkins’s accepted conditions were sufficient to stop him working for more than 8 hours. Section 24(1)(b) of the Act has been met. As was pointed out in Alexander (at paragraph 17 above), the decision maker is required to determine if there are any other factors that also impacted on Mr Watkins’s ability to continue to work to determine if he meets s 24(1)(c).
39. The Tribunal is not satisfied that Mr Watkins’s accepted war-caused disabilities are the only factors preventing him from working for more than 8 hours per week during the assessment period. His health issues at the time he commenced extensive leave in May 2005 included chronic headaches and ataxia which were not accepted conditions. His hearing was slightly worse than it had been previously, namely a total loss in one ear as the result of his surgery for the acoustic neuroma. However, the Tribunal notes that both Dr Horsley and Dr Sillcock stated that the audiometric reports they had seen indicated that his hearing overall was not much worse than previously was the case. They expressed surprise that he would have been able to continue working with a hearing problem of that magnitude.
40. The Tribunal finds it unlikely that a person with Mr Watkins’s health history would be employed as a fire fighter. He was almost 64 years of age at the beginning of the assessment period. It was then four years since he had actually worked as a fire fighter. There are onerous physical requirements for those working as fire fighters as well as medical standards to be met. An examination of Mr Watkins’s medical history, which included the chronic headaches and ataxia at the time he stopped working with those conditions continuing for some time thereafter would be likely to rule him out of such a role as would his accepted disabilities. His age and time out of the workforce would also be likely to rule him out of reappointment to a similar role. The answer to the third Flentjar question is therefore no.
41. The Tribunal finds that Mr Watkins ceased work as a fire fighter due to his accepted disabilities but also due to his headaches and ataxia. The Tribunal finds that Mr Willis fails to satisfy s 24(2)(a) of the Act. He does not claim to meet, nor does the evidence show he meets, s 24(2)(b) of the Act.
42. Mr Watkins fails to meet the criteria in s 24(1)(c) of the Act. He is therefore not eligible for payment of a pension at a special rate.
DECISION
43. The Tribunal affirms the decision under review.
I certify that the forty-three [43] preceding paragraphs are a true copy of the reasons for the decision of:
Ms Regina Perton, Member
… … … … … … …[sgd]…… … … … … … … … …
Associate
Date of hearing: 16 August 2011
Date of decision: 21 December 2011
Counsel for applicant: Mr D De MarchiCounsel for respondent: Mr K Rudge
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