Webster and Repatriation Commission
[2006] AATA 162
•24 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 162
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/685
VETERANS’ APPEALS DIVISION )
Re ROBERT DENNIS WEBSTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date24 February 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that malignant neoplasm of lymph nodes of the neck, hypopharyngeal oedema and oesophageal web are war-caused within the meaning of s9 of the Veterans’ Entitlements Act 1986. Mr Webster’s rate of pension continues at 100% of the General Rate.
.
. .........[Sgd].......
M J Carstairs
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – entitlement - operational service in far eastern strategic reserve and Vietnam – malignant neoplasm of lymph nodes of the neck – hypo-pharyngeal oedema and oesophageal web –veteran’s smoking history - whether conditions war caused
Assessment – whether special rate payable - whether extreme disablement rate payable
Veterans’ Entitlements Act 1986 ss9, 22, 24 29, 120, 120A
Grundman and Repatriation Commission (1996) 42 ALD 474
Deledio v Repatriation Commission (1997) 47 ALD 261
Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997)
Cavellv Repatriation Commission (1988) 9 AAR 534
Hendy v Repatriation Commission [2002] FCA 602.
Raisbeck v Repatriation Commission (1993) 31 ALD 704
Repatriation Commission v Gorton (2001) 110 FCR 321
Flentjar v Repatriation Commission (1997) 48 ALD 1REASONS FOR DECISION
24 February 2006 Ms M J Carstairs, Member 1. Robert Webster lodged a claim to have three medical conditions of secondary squamous cell cancer in the left submandibular lymph glands, hypopharyngeal oedema, and oesophageal web accepted as due to his naval service. Mr Webster currently receives disability pension, assessed at 100% of the general rate, which is the maximum amount of general rate pension. He asks that, if these claims are successful, his rate of pension be re-assessed by considering his entitlement to one of the higher rates payable under the Veterans’ Entitlements Act 1986 (the Act), paid where a veteran is unable to continue to work, or is suffering severe levels of disability.
BACKGROUND
2. Mr Webster, who is now aged sixty-six, enlisted in the Royal Australian Navy in 1957 when he was aged 17. He then served for some 12 years and within that time had two periods of operational service within the Far Eastern Strategic Reserve (FESR) and when he was involved in naval operations connected with the Vietnam War.
3. The periods of operational service were:
FESR: 26 January 1959 to 24 December 1959;
2 January 1960 to 17 February 1960;
28 March 1991 to 17 April 1961;
4 May 1961 to 28 May 1961;
7 July 1961 to 14 August 1961;
12 September 1961 to 3 October 1961.
Vietnam: 27 May 1965 to 6 June 1965;
14 September 1965 to 20 October 1965;
14 May 1965 to 25 May 1965
4. Before he joined the navy, Mr Webster commenced but did not complete an apprenticeship as a fitter and turner, choosing instead to enlist in the navy, where he then served for some 12 years and at discharge he had reached the rank of petty officer.
5. After he left the navy Mr Webster became a member of the Naval Association and was an honorary instructor for the Naval Reserve Cadets and reached the rank of sub-lieutenant for training. Between 1990 and 2000 he was president of the Gladstone Branch of the Naval Association.
6. From the time that he left the navy in 1969 Mr Webster undertook a range of civilian employment, including as watch-keeper with the Melbourne Harbour Board; as a security guard; as proprietor of a roadside café; and then for the last twenty years until retiring at the age of 61 years in 2000, he worked with Queensland Aluminium Ltd in Gladstone, firstly as a forklift and truck driver and later as a storeman.
7. In 2002, Mr Webster was diagnosed with cancer - a secondary squamous cell cancer was found in the left submandibular lymph glands. The surgical removal of lymph nodes and subsequent radiotherapy has left Mr Webster with severely incapacitating symptoms including a substantial loss of salivary function, alimentary problems, loss of teeth, pain and general debility. Mr Webster observes a very restricted, primarily soft diet and must take alimentary lubricants. This has meant that he now has minimal capacity to enjoy normal social interactions with others. He has difficulty with speech due to loss of teeth and salivary function. The restricted food intake has also led to major weight loss which has physically weakened him.
8. In 2003, Mr Webster was diagnosed with a squamous cell carcinoma of the left cheek. In 2005, Mr Webster had several keratoacanthoma removed from his legs, requiring complicated skin grafting after which he needed crutches for some time while the skin grafts healed. Medical reports suggest that Mr Webster will need further surgical excisions in the future (exhibit A8).
9. The summary of Mr Webster’s medical conditions which have been accepted as due to war service is: chronic solar skin damage, squamous cell carcinoma of the left cheek; bilateral sensorineural hearing loss with tinnitus, chronic bronchitis and emphysema; gastro-oesophageal reflux disease; and impotence. Mr Webster also has a number of medical conditions that have not been accepted as due to war service, and these include alcohol dependence and depression.
ISSUES
10. There are two issues in Mr Webster’s case, one is his entitlement to disability pension for tumour in the lymph glands of the neck, hypo-pharyngeal oedema and oesophageal web and the other if the correct assessment of his rate of pension, should the first issue be resolved in his favour.
11. To summarise those issues, they are:
§ whether Mr Webster’s medical conditions are war caused – the entitlement question? and
§ what is the correct assessment of Mr Webster’s rate of pension?
As Mr Webster already receives the maximum general rate of pension, this aspect of his claim concerns assessment for:
a.special rate of pension under s24 of the Act
b.extreme disablement adjustment rate under s22 of the Act.
THE CLAIMS FOR SECONDARY MALIGNANT NEOPLASM OF LYMPH NODES OF NECK, HYPOPHARYNGEAL OEDEMA, AND OESOPHAGEAL WEB
12. In regard to the first question on entitlement to disability pension for the medical conditions, the respondent does not dispute that Mr Webster suffers from the three claimed conditions. In 2002 he was diagnosed as having had a metastatic tumour in the lymph glands of the neck, for which no primary site subsequently was found despite doctors undertaking biopsies and other investigative procedures. Hypopharyngeal oedema and oesophageal web were conditions diagnosed by Dr J Hough, general practitioner, in reports he supplied to the respondent dated 28 May 2003 and 9 July 2003 (T4).
13. Based on the evidence before me, I accept that the conditions of metastatic tumour in the lymph glands of the neck, hypopharyngeal oedema, and oesophageal web are established to the standard of reasonable satisfaction.
14. In a medical report dated 9 July 2003 (T4), Dr Hough stated that Mr Webster had undergone a radical block dissection in the neck, removing lymph nodes. Dr Hough said that the subsequent treatment led to Mr Webster having alimentary difficulties, oral hygiene problems, as well as neck and shoulder pain. In a report dated 23 February 2004 (T4), Dr D Hinchley, plastic and reconstructive surgeon, stated that she had carried out Mr Webster’s surgery, and for the subsequent radiation treatment, several of Mr Webster’s teeth required removal as they were in the path of the planned radiation. Other teeth were removed in 2005.
15. At the times that Mr Webster’s claims were being considered by the respondent and by the Veterans’ Review Board (VRB), there was no Statement of Principles (SoP) in force for Malignant Neoplasm of Unknown Primary Site, but there is now. The Repatriation Medical Authority formulated a SoP for Malignant Neoplasm of Unknown Primary Site, No 44 of 2004, which was gazetted on 17 November 2004. That SoP provides, as one factor connecting the condition with the circumstances of a person’s relevant service:
(a)smoking at least ten pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of unknown primary site, and where smoking commenced at least five years before the clinical onset of malignant neoplasm of unknown primary site; ….
16. Mr Webster’s metastatic tumour in the lymph glands of the neck comes within the definition in the SoP of malignant neoplasm of unknown primary site, as a metastatic malignant neoplasm for which the site or origin cannot be determined after investigations have been carried out: Clause 2 of the SoP. That is the case with Mr Webster’s tumours.
17. Mr Webster’s claims were refused by the respondent and the VRB on the grounds that causation could not be established. Whether a condition is war-caused is governed by the provisions of s120 of the Act, which prescribes the standard of proof of “reasonable hypothesis” for questions of war causation, and by s120A of the act which deems that standard to have been met when an hypothesis conforms to a factor or factors in a relevant SoP. This legislative framework was interpreted by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as requiring a number of steps to be taken to determine whether a condition is war caused. The steps are:
§ whether the material raises a hypothesis connecting the condition with the circumstances of Mr Webster’s service and whether there is in force an SoP relevant to his conditions;
§ whether the hypothesis contains one or more of the factors set out in the SoP. This, in turn, will require an examination of the elements of the relevant factors of the SoP; and
§ whether Mr Webster’s hypothesis can be disproved beyond reasonable doubt.
18. The Tribunal must apply the SoP in force at the time of the Tribunal’s decision: Repatriation Commission v Gorton (2001) 110 FCR 321.
19. I have concluded that Mr Webster’s claim for metastatic tumour in the lymph glands of the neck is answered must be granted , applying the SoP, which in factor 5(a), refers to smoking cigarettes, where the evidence in regard to smoking points to the necessary connection between the smoking habit and relevant service.
20. Mr Webster completed a smoking history on 5 June 2002 (exhibit A2, dated 25 October 2002) in which he set out that he smoked 2 cigarettes per day between 1957 and 1959, increased to 20 per day from 1959, and again increased to 40 per day in about 1964. In his statement dated 3 December 2004 (exhibit A1) Mr Webster said that when he enlisted he started smoking about 2‑3cigarettes per day to fit in with other navy personnel who smoked. However he said that he increased his consumption during sea-going operations because naval personnel then had access to duty-free cigarettes.
21. In his statement Mr Webster said his smoking habit increased about 1959 when he was posted to HMAS Vendetta as part of the FESR during the Malay/Indonesian confrontation and he smoked about 20 cigarettes per day between 1959 and 1961. He said this was a stressful time for him. The FESR were engaged in confrontations in Malaysian and Indonesian waters. He also said that as leading seaman of the watch he had no restrictions placed on his against smoking while on watch. He said that the working circumstances encouraged smoking and the navy had even provided ashtrays in the sleeping quarters. He also said of this time that he was having little home leave and his first marriage was under pressure.
22. Mr Webster said his cigarette consumption rose to about 40 per day in 1964, which was about the time of his first voyages to Vietnam. He said that his smoking again increased (to about 50 per day) when he took discharge from the navy, because he was unsettled, was in unsuitable work, and his second marriage was under strain.
23. It seems to me that the necessary steps from Deledio are answered in Mr Webster’s case as follows:
§ The material raises an hypothesis connecting the condition with the circumstances of Mr Webster’s service; there now is in force a SoP relevant to his condition of metastatic tumour in the lymph glands of the neck.
§ The hypothesis raised by Mr Webster in regard to smoking is reflected in factor 5(a) of the SoP. His hypothesis connects smoking to his service in the navy, because he says that his levels of smoking increased during periods of relevant service. He said that this was for a number of reasons connected to his operational service, particularly increased levels of stress and the access to duty-free cigarettes while at sea. Mr Webster’s evidence supports his having the necessary number of pack years and shows that he meets the requirement of commencing five years before the clinical onset of malignant neoplasm of unknown primary site.
§ The final step is that Mr Webster’s hypothesis was not disproved beyond reasonable doubt. The respondent noted in its Statement of Facts and Contentions (exhibit R3), that there was no reason to doubt Mr Webster’s honesty. Mr Webster has given consistent evidence over time about his levels of smoking and reasons that he gave for the increase in his habit. It does not defeat his claim that his smoking habit commenced prior to the period of his naval service covered by the legislation. His case rests upon increasing his consumption during periods of service that are covered by the legislation, and which, being operational service, attract the more generous standard of proof in s120 of the Act. This is a connection contemplated by s9 of the Act. I note that my acceptance of Mr Webster’s metastatic tumour in the lymph glands of the neck as war-caused is consistent with the respondent’s earlier acceptance of gastro-oesophageal reflux disease in 2002, also based upon Mr Webster’s smoking history, and the respondent’s acceptance of chronic bronchitis and emphysema for the same reasons.
24. Mr Webster’s claim for metastatic tumour in the lymph glands of the neck, a malignant neoplasm of unknown primary site therefore succeeds.
25. It follows from the acceptance of malignant neoplasm of unknown primary site that the conditions of hypo-pharyngeal oedema and oesophageal web, which resulted from surgery and radiotherapy for the lymph node cancer, are also war-caused. In a medical report dated 5 February 2005, Dr Hough said that Mr Webster’s treatments had resulted in major speech and swallowing problems. Dr E Nicoll, the respondent’s compensation medical adviser, stated in a report dated 12 August 2003 that :
The swallowing difficulties and oedema of the neck are a direct result of the treatment for the secondary lymph node cancer.
26. Treatment for disabilities can be regarded as war-caused within the meaning of s9 of the Act if the specific treatment was necessitated by the existence of war-caused disability: Grundman and Repatriation Commission (1996) 42 ALD 474
IS MR WEBSTER ENTITLED TO SPECIAL RATE OF PENSION?
27. The requirements for special rate of pension are set out in a series of provisions in s24 of Act. The parties agreed that Mr Webster passes some of the tests in s24 of the Act. His general rate entitlement is more than 70%, which is a requirement in s24(1)(a) of the Act – he satisfies that requirement. The parties agree that he satisfies s24(1)(b) of the Act because he is unable to work more than 8 hours per week by reason of his war-caused disabilities alone. The medical evidence particularly that of Dr Gough, confirms that to be the case. I accept that medical evidence and conclude that Mr Webster satisfies s24(1)(b).
28. Thus the only real issue is that to be considered under s24(1)(c) of the Act. This sub-section deals with the question of whether Mr Webster’s loss of remunerative work is attributable to service-related incapacities and not to something else as well. The questions of entitlement must be addressed in the assessment period. Mr Webster is aged 65 now, but at the time of his claim in 2003 he was 63 ½. The question of a person’s age at the time of the claim is relevant because the Act provides different tests for those aged under and those aged over 65, and also because the tests in s24 of the Act must be considered during the assessment period which commences from the date the claim was lodged and ends at the time that the matter is determined by the Tribunal: s19(5C)(a) of the Act. In Mr Webster’s case the issue of his entitlements under s24 of the Act requires that I consider the assessment from the date of the claim in about June 2003 to the current time.
29. The Federal Court in Flentjarv Repatriation Commission (1997) 48 ALD 1 has said that s24(1)(c) of the Act poses the following questions :
1. What was the relevant "remunerative work that the veteran was undertaking" ..?
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?
30. The operation of s24(1)(c) is ameliorated for those aged under 65 by the provisions of s24(2)(b) of the Act. Mr Webster was aged under 65 at the start of the assessment period, though he is now over 65. Section 24(2)(b) of the Act permits under 65 year old veterans, who might not have met the special rate tests at the time they ceased working, to retain their eligibility if they are genuinely seeking work and their service-related incapacity remains the substantial cause of the inability to undertake remunerative work.
31. In his oral evidence Mr Webster said that when he left the navy in 1969 he had taken up a position as a security officer, but then was offered a position by the harbour master in Melbourne, a position which he clearly enjoyed. His work at Queensland Alumina Ltd (QAL) came after he purchased a café but found it unprofitable. QAL provided him with stable employment from 1982 onwards, variously as plant serviceman in the salvage yard, as a truck and forklift driver, and more recently as a warehouse officer. In his last years at QAL Mr Webster was assigned to indoor work, issuing and receiving merchandise, and the attendant paperwork.
32. Mr Webster took a redundancy payment offered by QAL in August 2000 and ceased work in December 2000. In a letter dated 15 November 2005 (exhibit A2) Mr P Tooker, human relations superintendent at QAL, stated that in 2000 the company had decided to reduce staffing levels by abolishing positions and offering voluntary redundancy packages to affected workers, particularly those in areas of purchasing and supply where Mr Webster worked. He said that there were no alternative positions to redeploy Mr Webster within QAL.
33. Mr Tooker stated that Mr Webster had never requested the termination of his employment on medical or other grounds. Mr Tooker said that if Mr Webster had still been employed by QAL when he was diagnosed with cancer in 2002, any questions of termination for medical unfitness or on grounds of permanent incapacity would have been dealt with within the relevant superannuation fund guidelines. Mr Webster agreed in his evidence that he took the offer of a voluntary redundancy, and agreed with Mr Tooker’s statement that he was not qualified to work in other areas of QAL.
34. In a form dated 19 August 1999 (exhibit R2), Mr Webster indicated that he intended to enrol in the Pension Bonus Scheme, which provides a payment to veterans who remain in the workforce without claiming their entitlement to a pension after they reach service pension age at age-60 (in Mr Webster’s case this was 5 December 1999). Handwritten on the form were the words: intend to retire 12/20. In the subsequently signed claim for pension bonus, dated 5 September 1999 (exhibit R2) Mr Webster stated, in answer to the question: How many years and months are you intending to defer? – 12 mths. When Mr Webster was cross-examined on the answers given on these forms, he said that the first of them was taken by phone, and he would have said that he intended to retire in 2006,not 2000, and the notation intend to retire 12/20 had to be a misprint. Mr Webster pointed out that there had been no proposals made by QAL for redundancies in 1999 when he was answering these questions in the respondent’s forms. However Mr Webster did not address why he wrote and signed in the second form that he intended to defer applying for service pension for 12 months.
35. In a statement to his solicitors dated 21 January 2005 (exhibit A2) Mr Webster wrote as follows about the time when he accepted the redundancy from QAL:
Yes I left work taking redundancy at the age of 61. Where I worked in the Warehouse of Queensland Alumina downsizing of the workforce ebbed and flowed but turn came in early 61. At the time we enjoyed staff status, salary and a good super. Those of us that was targeted, old time workers (I did 19 years) If we do not accept, a transfer to another dept was on the cards. That meant returning to wages, non-productive jobs because of lack of specialize (sic) knowledge in that area. This would lead to dissatisfaction etc and you resign. So yes I was in the age to receive a service pension plus 30% disability …so I accepted – I would be mad if I didn’t. The package plus super enabled me to buy my house, upgrade the car, set up a garden etc. I still had social problems that have been documented…
In January 64 (sic) I could see my finances changing. My daughter’s wedding, as well as car trouble etc. On advice I applied to Centrelink…I was interviewed by Mr Greg Clifford who was very surprised that before him was a 64 year old ex naval man with 100% disability seeking work. He was very good about it but it was very humiliating to me. (Naturally nothing came of it).
36. In oral evidence Mr Webster said that he had intended to continue working when QAL offered the redundancy. After he left work he said that at first he was occupied with developing the garden at the house he had bought with the assistance of the redundancy money, and this kept him busy. He said also that he was making wooden planter-boxes and pot plant stands in his workshop, for sale, though not earning much income from these.
37. Mr Webster said that he would have liked to obtain work in a casual capacity after he left QAL, but he found that in order to obtain casual work he needed to be a sub-contractor, which required an application to the Australian Taxation Office for an Australian Business Number (ABN) and required that he comply Occupational Health and Safety requirements. He said that he found the paperwork too daunting to complete. Mr Webster also referred on 6 January 2004 (T4) to being offered other jobs that required completing forms and finding himself unable to manage this task.
38. In regard to his condition of alcohol dependence, claimed in the past as related to his naval service, but rejected by the respondent, Mr Webster acknowledged his problem levels of drinking, but said he has never allowed this to interfere with his work. He said he drank only outside of working hours, never earlier than 5pm. He continues to drink daily, his consumption now being about 5-7 cans of mid strength beer each day. Mr Webster also acknowledged that he takes medication for depression. In a report dated 30 June 2000 (exhibit A2) Dr J Barry, consultant psychiatrist, noted the presence of significant depression, but said that it was not possible to independently diagnose depression in the face of persisting alcohol dependence.
39. Taking into account all the written and oral evidence it seems to me that when Mr Webster retired in 2000 he did so voluntarily. His position in stores was abolished and there was no other suitable position to which QAL could deploy him. In all the circumstances, and at his age of 61, years he no doubt appreciated that the redundancy package offered him the opportunity of a lump sum, which enabled him to purchase a house and set himself up more comfortably.
40. I do not accept that Mr Webster was intending to work until the age of 65. I prefer the evidence on this point that is reflected in his answers to questions on his claim for service pension in relation to deferring his access to that payment for one year. In the context of his eligibility for service pension from age-60, as well as his lack of the necessary skills and education to be redeployed elsewhere in QAL, but also his lack of desire for such a transfer expressed in his statement to his solicitor in exhibit A2, it seems that Mr Webster had a number of reasons to find the redundancy offer attractive to him. However those circumstances do not necessarily defeat his later claim for special rate pension.
41. At the time of his retirement there was no evidence that Mr Webster was other than a satisfactory employee.. His most significant medical problems came later, when he was diagnosed with cancer and then suffered complications from its treatment , as evidenced by Dr Gough’s reports. QAL Mr Webster was not singling Mr Webster out for redundancy based on any medical condition. I accept Mr Webster’s evidence that his alcohol dependence has not interfered directly with his work. The issue of the relationship between his depression and the alcohol consumption is perhaps less clear but I have no evidence before me that indicates that either condition interfered with his work at QAL.
42. However the circumstances of how and why a person left their last employment, while often relevant, is not the test that is required by s24 of the Act. For one thing, the test in s24(1)(c) most usually will be applied at a date later than the veteran’s date of retirement. For another thing, remunerative work in s24(1)(c) is wider than simply the last work that a person has undertaken.
43. In Mr Webster’s case, addressing the first question as set out in Flentjar’s case, which asks what is the person’s relevant remunerative work, Mr Webster can draw upon a range of remunerative work during his working life. Although this was some time ago, he has worked as a harbour master and has various skills from his naval training that would fit him for sea-going positions. He also has truck and forklift licences, and has worked as a rigger. He has experience in stores, presumably encompassing ordering, despatch and general warehouse operations. He has experience of running his own small business. I do not include his woodworking after his retirement from QAL. Mr Webster did not rely on this and it is in the nature of occasional work which offered little by way of return: Re Forrester and Repatriation Commission (AAT 12510, 22 December 1997).
44. On the medical evidence before me and Mr Webster’s evidence about his limitations brought on by war-caused disease I was satisfied that during the assessment period Mr Webster was prevented from undertaking any of the kinds of remunerative work that he has undertaken in the past. This was not disputed and allows the second of the Flentjar questions to be answered “Yes”.
45. However, it seems to me that the third of the Flentjar questions must be answered “No”. Bearing in mind that Mr Webster was 63½ at the start of the assessment period he was at a stage in life well-recognised as being one where it is hard to achieve further employment. Also by the start of the assessment period he had some two and a half years out of the work-force, again a long time for a man in his sixties. As the case of Cavellv Repatriation Commission (1988) 9 AAR 534 points out, a commonsense approach must be taken to the questions posed by s24(1)(c) of the Act. Mr Webster’s experience when he went to Centrelink in 2004 to seek help with employment confirms to me the commonsense conclusion that the employment prospects for a man of his then age of 64 were slight. Mr Webster indicated that the Centrelink interviewer implied to him that he was too old, a conclusion that accords with everyday experience.
46. In his evidence, Mr Webster also referred to other factors that affected him in seeking remunerative work. In several documents, and in his oral evidence, Mr Webster referred to being overwhelmed by the paperwork involved in seeking casual work that he believed he was still capable of doing. His reaction to the paperwork may be related to his age, but he also concurred in cross-examination with the suggestion that his reaction may have been related to his depression. In written submissions, his counsel, Mr George, referred to the effects of Mr Webster’s depression in preventing him completing the necessary paperwork as an independent contractor and to depression affecting Mr Webster’s cognitive functions. Mr Webster honestly acknowledged the impact of depression. However his depression, and related effects of alcohol dependence, must be taken into account as possible factors playing their part in preventing Mr Webster from undertaking remunerative work and they are not non war-caused..
47. I was reasonably satisfied that the evidence here shows that a combination of Mr Webster’s age, depression, and time out of the workforce prevent him from being able to satisfy s24(1)(c). As a consequence, I was satisfied that it was not incapacity from war-caused injury or disease alone that was the direct cause of Mr Webster being out of the workforce during the assessment period: Hendy v Repatriation Commission [2002] FCA 602.
48. In considering whether Mr Webster can take advantage of the ameliorative provisions of s24(2)(b) of the Act, I accept that he did make genuine attempts to seek to engage in remunerative work. There is some force to the view that his cancer and consequent debility from that condition remains the substantial cause of his inability to obtain that work, even taking into account his age when making his attempts. However even were I persuaded that s24(2)(b) operates in Mr Webster’s favour I was satisfied that the ultimately disentitling factor for Mr Webster arises from the operation of s24(2)(a) of the Act. That sub-section provides that a veteran will not be taken as having suffered a loss of earnings required as part of the test in s24(1)(c) of the Act, if they have ceased to engage in remunerative work for reasons other than war-caused incapacity. These are matters which must be addressed under the fourth Flentjar question.
49. Again, the factors of Mr Webster’s age, the time he was out of the workforce at the start of the assessment period and the impact that Mr Webster’s depression had on his not continuing in remunerative work must be taken into account as reasons other than .…incapacity from war-caused injury for ceasing to engage in remunerative work:s24(2)(a)(i) of the Act. This part of the test is differently cast than that in s24(1)(c) or s24(2)(b). I was satisfied that the evidence, including Mr Webster’s statements on service pension forms, shows that his access to service pension after age-60, his lack of desire to work elsewhere in QAL, his interest in developing his garden and new home, were all factors other than war-caused injury leading him to cease engagement in remunerative work. I was satisfied that there were positive benefits for him in accepting the redundancy when offered by QAL and this fitted in with his more general intention to cease to engage in remunerative work and take retirement when he did. The fourth of the Flentjar questions must be answered “No”.
50. For these reasons and taking into account the requirement to make a decision that is practical and based on all the material (Cavell) I was satisfied that Mr Webster does not satisfy s24(1)(c) of the Act and cannot qualify for special rate of pension in the assessment period.
IS MR WEBSTER QUALIFIED FOR EXTREME DISABLEMENT ADJUSTMENT?
51. The provision for payment at the extreme disablement adjustment rate, which is a payment at 150% of the general rate of pension, is made in s22 of the Act. It is a rate of payment which:
§has an age requirement of being over 65 years – s22(4)(b)
§a rating requirement, namely that the veteran is assessed under the Guide to the Assessment of the Rates of Veterans’ Pensions (the Guide) at 100% of the general rate of pension, attributable only to war-caused injury or war-caused disease: s22(4)(a)(i); and
§a requirement that the veteran’s impairment rating is 70 points under the Guide and he has a lifestyle rating of at least 6 points under the Guide.
52. As the Federal Court pointed out in Raisbeck v Repatriation Commission (1993) 31 ALD 704, the Act requires in s29 that the Guide is used to determine a veteran’s incapacity from war-caused disease, and the lifestyle effects arising from that incapacity, not incapacity generally. Thus, the 70 points and 6 points referred to in s22 must arise from war-caused incapacity only, not the veteran’s overall incapacity from both war and non war-caused disability.
53. The medical evidence included a report of Dr P Grant, the respondent’s senior medical officer, dated 3 March 2005 (exhibit R1) that Mr Webster’s combined accepted war-caused disabilities mean that Mr Webster achieves the necessary rating of 70 impairment points.
54. Thus the nub of the issue is whether Mr Webster has a rating averaging 6 on lifestyle which refers to the four equally weighted components of:
§ personal relationships;
§ mobility;
§ recreational and community activities; and
§ employment and domestic effects.
55. Personal relationships: Mr Webster gave evidence that he maintains a relationship with his son and daughter, although they live in Brisbane and Noosa respectively and their contact is largely by telephone. Mr Webster said that he visits them when he is in Brisbane for medical treatment, but they rarely visit him at Gladstone and have only done so once in over four years. Mr Webster referred to one occasion dining at a hotel with his son and son’s friends, but being unable to partake in the meal, so removing himself from the group to play the poker machines while they ate (exhibit A6). He said he has contact with the local RSL, but this is impeded by his food restrictions, and his embarrassment about his appearance and speech and constant throat clearing. Mr Webster said that he attended the RSL Homecare Xmas party in 2004, but only stayed 10 minutes or so. He said he attended three marches on Anzac Day including the Dawn Service and the main march through Gladstone.
56. In his oral evidence Mr Webster said that he gets on well with neighbours but does not socialise with them largely because of the difficulties that he has with eating, which he says affects all social relationships. He said it is difficult for those without his problem to understand how much his disability impacts upon his interactions with others. He also referred to his missing teeth causing him to slur his speech as affecting his social life. In his Lifestyle Questionnaire dated 9 January 2004 (T4) Mr Webster described his life as completely ruined.
57. Doing the best with the evidence available, I was satisfied that Mr Webster’s personal relationships better met the description at :
§ FIVE Severely affected relationships. Able to relate only to particular or few people eg spouse or children. These remaining relationships are strained and of low quality
but did not meet the description at:
§ SIX Extreme difficulty in relating to anyone for example – difficulties in relating because of psychosis; or social interaction limited to carer due to confinement; or ability to communicate restricted due to stroke….
58. Mobility: Mr Webster said that he has been made more frail by his restricted diet which has caused him to lose a great deal of weight. He stated (exhibit A6) that his weight had dropped 25kg between 2003 and 2005 with 5kgs of that weight loss being during hospital admission in 2005. In addition he said that his bronchitis and emphysema prevent him walking any further than about 150 metres. Mr Webster referred to stumbling and falling at times, including falling fully clothed into the swimming pool at his son’s home.
59. In oral evidence Mr Webster said he was not mobile as a pedestrian, only as a driver. Mr Webster also referred to his need to use crutches from time to time as an impediment to mobility. He required crutches during 2005 after his skin grafts and will continue to need these intermittently. However a report of Dr Howe dated 5 August 2005 stated that the wounds to Mr Webster’s legs had healed and Mr Webster did not require crutches at the hearing in November 2005.
60. In regard to driving he said that he drove from Gladstone to attend the hearing in Bundaberg, however the drive took him three hours.
61. I accept Mr Webster’s evidence on his limitations when walking and his uncertain stability. However his ability to manage private transport limits the rating that can be assigned. The best description is a rating of four as Mr Webster has diminished mobility due to frailty, and while he can still drive this is done with considerable difficulty. Taking into account Mr Webster’s frailty and tendency to fall, he would not be able to use public transport.
62. Recreational and community activities. It was conceded by the respondent that Mr Webster achieved a rating of six for recreational and community activities, which is a level described as:
able to engage in only a few satisfying recreational activities. Restricted to a few passive activities such as watching TV, listening to radio, reading and receiving visitors.
63. Mr Webster said in his statement dated 18 April 2005 (exhibit A4) that he is limited to watching TV and drinking beer. He stated that he gave up his involvement with the Naval Association, because of his embarrassment about his appearance and the impact of his dietary restrictions. He said that he cancelled his attendance at a naval reunion scheduled for March 2005 in Hobart. I agree with Mr Smith that a rating of six is a correct broad description of Mr Webster’s recreational restrictions.
64. Employment and domestic effects. On domestic activities I was satisfied that Mr Webster rated five. He said that he can cook and wash-up for himself, though he pointed out that this is merely warming a tin of soup and mashed vegetables because his diet is so restricted. In oral evidence he said that he now obtains RSL homecare assistance to do tasks such as sweeping. He avoids making beds but said that he can change the bed linen when needed. He said that he can shop for himself but at times friends help out – such as when he has needed to use crutches. I was satisfied that these descriptions of what he can do, do not warrant a higher rating.
65. I took into account the medical reports that have been completed in the course of the claim, and conclude that there is no significant partially contributing impairment, except perhaps depression, that reduce the above assessments. The introduction to the Guide provides:
…assessment of impairment must take into account the contribution to impairment from other conditions and the expected course of the condition including the effect of aging by reference to age adjustment tables as appropriate.
66. However, there was no direct medical evidence that suggests a basis for discounting and I conclude, taking into account the respondent’s submissions that no discounting is required for depression.
67. On the evidence before me Mr Webster does not have the required level of impairment of lifestyle to qualify for the higher rate of extreme disablement at the present time. Mr Webster’s social relationships are severely affected (rating 5), his mobility markedly reduced (rating 4); his recreational pursuits are severely limited (rating 6) and his domestic activities limited (rating 5). Taken together these figures do not result in an average rating of 6 overall. For these reasons the applicant is not entitled to payment of pension at the extreme disablement adjustment rate.
DECISION
68. The Tribunal sets aside the decision under review and substitutes the decision that malignant neoplasm of lymph nodes of the neck, hypo-pharyngeal oedema and oesophageal web are war-caused within the meaning of s9 of the Veterans’ Entitlements Act 1986. Mr Webster’s rate of pension continues at his assessed level of 100% of the general rate.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 22 November 2005
Date of Decision 24 February 2006
Counsel for the Applicant Mr E George
Solicitor for the Applicant Sciaccas Lawyers and Consultants
For the Respondent Mr M Smith, Departmental Advocate
0
4
0