Wesley Hall and Repatriation Commission
[2014] AATA 569
[2014] AATA 569
Division Veterans' Appeals Division File Number
2011/5148
Re
Wesley Hall
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Date 15 August 2014 Place Brisbane The Tribunal varies the decision under review to decide that the applicant is entitled to pension at 70% of the general rate with effect from 5 May 2009; otherwise the decision is affirmed.
.............................[Sgd]........................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Agreement that applicant entitled to pension at 70% of general rate – Whether applicant eligible for special rate of pension – Whether incapacity from defence-caused conditions sufficient to prevent the applicant from undertaking remunerative work for more than 8 hours per week – Accepted disabilities alone not responsible for inability to undertake remunerative work – Applicant not entitled to special rate of pension – Decision under review varied and otherwise affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42D
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 19, 23, 24, 73, 120
CASES
Flentjar v Repatriation Commission (1997) 40 ALD 1
Jebb v Repatriation Commission (1988) 80 ALR 329
Repatriation Commission v Smith (1987) 15 FCR 327
Shi v Migration Agents Registration Authority [2007] FCAFC 59
Willis v Repatriation Commission [2012] FCA 399
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
15 August 2014
INTRODUCTION
We have to determine whether Mr Wesley Hall (the applicant) is eligible for an earnings-related rate of pension in respect of conditions that have been accepted as attributable to his service in the Australian Army. We consider that he is not eligible for an earnings-related rate of pension, but accept the concession made by the respondent that the rate of his pension should be increased.
PRIOR DECISIONS
On 23 May 2011 a delegate of the respondent determined that the applicant’s pension should be assessed at 40% of the general rate with effect from 16 August 2009
and increased to 60% of the general rate with effect from 21 March 2011. On
19 October 2011 the Veterans’ Review Board affirmed the decision. The applicant has made an application to this Tribunal for review of the decision.
ISSUES
To be eligible to be paid pension at the special rate, the applicant must satisfy the requirements of s 24 of the Veterans Entitlement Act 1986 (Cth) (“the Act”).
There is no issue that the applicant satisfies ss 24(1)(aa) and (aab) of the Act. During the hearing the Repatriation Commission (the respondent) conceded that the applicant is entitled to pension at 70% of the general rate from 5 May 2009 and thereby satisfies
s 24(1)(a) of the Act.
We have to determine whether the applicant meets the requirements of s 24(1)(b) and (c) of the Act which provides as follows:
(1) This section applies to a veteran if:
...
(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;
Section 19 of the Act provides that the rate of pension payable to the applicant has to be determined during the “assessment period”: this period commenced on
16 November 2009 when the applicant made his claim and ends when the claim is determined.
We are required by s 120(4) of the Act to determine any issues to our reasonable satisfaction. This provision has been held by the Federal Court of Australia to require that any issues are determined on the balance of probabilities.[1]
[1] Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
ACCEPTED CONDITIONS
The applicant has a number of accepted conditions:
·Thoracic spondylosis;
·Cervical spondylosis;
·Lumbar spondylosis;
·Sensorineural hearing loss
·Tinnitus; and
·Intervertebral disc prolapse at C3-C4 & C5-C6.
The last accepted condition relates to an injury which occurred at a rugby match in 1988. There are no medical records of this injury as the applicant did not seek treatment at the time of the injury.
EVIDENCE OF APPLICANT
In his statement dated 2 April 2012, the applicant has outlined the nature of his employment since he was discharged from the Army in November 1994. He initially spent twelve months caring for his son. He then worked for three months as a wardsman in a hospital. The applicant left that casual position to obtain permanent employment.
From 1996 until 2005 the applicant was employed as a correctional service officer in the prison service. He worked in a high security facility where there were riots and assaults on prison officers, including himself. The applicant stated that in the prison service he could be a unit manager who manages the day to day administration of the unit, a support officer who supports that officer in unit patrols and who assists the unit manager, or a control officer who controls the movement of inmates and would sound a duress alarm if somebody is attacked. He could also serve as the officer at the gate who would control the entry of contractors and inmates into the facility. The applicant also stated that there are armed officers who patrol the perimeter of the unit; the applicant was authorised to perform this duty. The applicant was medically retired from the prison service after he was diagnosed in 2003 or 2004 with post-traumatic stress disorder.
The applicant stated that he would have remained in the employment of the prison service if he could have worked in a position with general security duties with minimal contact with prisoners, but no such positions were available. The applicant stated that he was willing to return to prison work if he was allowed to work at the gate but that they wanted him to work with prisoners and he would not return to such work which would be “not good”. The applicant stated that his employment in the prison service had enabled him to do basic security work such as driving around in a van checking doors.
In 2005 the applicant worked for a short period of time as a tradesman’s assistant in a company which refurbished electric motors for the mining industry. He was familiar with this work as he had an apprenticeship in 1979-1980 as an electrical fitter/motor rewinder which he left in his second year of the apprenticeship. The applicant outlined the work that he did as a tradesman’s assistant. As well as working on electric motors and transformers he would do truck deliveries, use the forklift, hydraulic jacks and the overhead crane, as well as paint motors. The applicant stated that he did everything that a tradesman did not want to do. He did that work as a tradesman’s assistant for 8 weeks. During that time he went home sick twice. These times of sickness were avoidable incidents because he could have stayed if Panadol was available.
The applicant remarked that he left the employment as a tradesman’s assistant because of a “disagreement with management and not because of any of [his] medical conditions”.[2] The applicant explained the nature of his disagreement was with the junior manager. The applicant stated that he had to remove carbon from a heat exchanger and scrape carbon from the centre to make it work. He did this work in the workshop but on the next day the manager insisted that he do this work outside in the sun and he went home sick after an hour when he thought that he had heat exhaustion. The applicant told the manager that it was his intention to resign. The applicant considered that he was asked to work in breach of occupational health and safety regulations. He resigned on good terms with management but not junior management. In giving evidence he emphasised that his disagreement was with his immediate manager and not the manager of the company who was a friend.
[2] Exhibit I at [10].
The applicant stated that after his last employment he looked for work mainly in the paper for about 12 months. He was unsuccessful in obtaining employment.
The applicant in his statement has claimed that it was subsequent to leaving his employment as a tradesman’s assistant that his orthopaedic injuries “deteriorated to the extent that [he was] now precluded from undertaking any type of work whatsoever in which [he had] had previous experience, training or qualifications”. The applicant has stated that but for his orthopaedic injuries, he could undertake employment in security as a correctional officer where he was not involved in daily face-to-face contact with prisoners and as a tradesman’s assistant to an electrical fitter or motor rewinder.
The applicant stated that the problems with his back have gotten worse and he has profuse sweating. The applicant stated that he does not leave his house and cannot put on shoes or socks. It takes him 2-3 days to mow a small block of grass. He has not gone for a walk since 2009 when his dog died. He can drive his son to the shops to get milk. He can drive some 2 km to shops and if he fully supports his back he can drive a bit further. If he is prepared for it he can drive for an hour. A loaded truck that he drove in 2005 did not hurt his back but it was different once the truck was unloaded. The applicant was asked whether he could use public transport. He said that trains were fine but that council buses were “a bit painful”. The applicant confirmed his current medications which were written on a pharmacy card which was admitted into evidence.[3]
[3] Exhibit J.
The applicant claimed that before 2006 he should have been able to get some employment but asserted the State Government would not employ him. He said that well before 2006 he was unfairly denied employment as a council bus driver because he had failed a maths test. He also stated that he was prevented from obtaining employment at Australia Post. The tenor of what was said by the applicant was that he was prevented from obtaining employment by a network. He added “there is a network but you would not believe it if I told you”.
During the hearing the applicant stated that he had pain in the centre of his back, in his forehead and behind his eyes which was like an ice-pick. He said that he did not have lower back pain “at the moment”. The applicant goes to a practitioner who works on his muscles. He said his pain varies and he can now move his neck. He indicated that he did not want to have nerve block injections in his back because he has previously had such injections in his back and they were not effective. The applicant said he was advised by the doctor that the injections “might work” but that he knew they would not.
The applicant informed the Tribunal that after he left his employment in 2006 he just looked for jobs in the paper and by the end of the year gave up as he was in too much pain.
The applicant confirmed that he got to his hearing in the Administrative Appeals Tribunal by walking from the train station to the courthouse. He said he has put on a lot of weight recently. At one time he was 146kg, but he believes that he has lost 10kg, and would now weigh 137kg. He acknowledged that his weight does not help with his medical problems. He was about 74kg when he joined the army and 85 kg when he left. In the army it was easy to keep the weight down with exercise. The applicant stated that the drugs have an effect on weight, with his weight increasing when he started taking methadone and OxyContin.
MEDICAL WITNESSES
Dr Michael Bryant, who specialises in neurosurgery, was called to give evidence on behalf of the applicant. His medical reports, which had not been filed before the hearing, were admitted into evidence.[4] Dr Bryant opined that the applicant could not work because of his accepted injuries of cervical and thoracic lumbar spondylosis. Dr Bryant remarked: “The amount of pain associated with those injuries limits his usefulness in terms of his ability to function, his requirement for multiple medications to keep his pain under control”.
[4] Exhibit B.
Under cross-examination Dr Bryant remarked that he first saw the applicant in 2009. On that occasion the applicant had a number of complaints, but at that particular review his worst pain was in-between his shoulder blades in the thoracic region. Dr Bryant remarked that the applicant came to him with a history of multiple issues in relation to the spine, but he did not delve into the intricacies of his past treatment and the management of his spinal condition prior to 2009. Dr Bryant was able to glean that the applicant was on large doses of analgesics to keep his pain under control.
Dr Bryant was asked about whether an MRI report of September 2009 showed any active spinal lesions. Dr Bryant stated that it was difficult to interpret the report. He considered that there was spondylotic change throughout the cervical and thoracic spine at that stage. Dr Bryant was asked about the report of Dr Johnstone dated 9 February 2010, in which he reported that a bone scan did not reveal any active spinal lesions and an MRI showed two level disc degeneration consistent with age rather than a previous injury. Dr Bryant answered by stating that the changes on the MRI scan are anatomical changes only and to say that it is consistent with age is a “brave call” when you have a patient who has a lot of pain.
Dr Bryant was asked about the conclusion of Dr Johnstone who considers that the effects of post-traumatic stress disorder make the applicant susceptible to higher levels of pain than objective findings would suggest. Dr Bryant answered: “it’s well known that post-traumatic stress and other stressors will exacerbate the pain effects”. Dr Bryant also remarked: “I would have to agree that the post-traumatic stress and other stressors in
Mr Hall’s life would certainly have been contributing to his pain levels and to the level of disability that Mr Hall presents with”.
Dr Bryant was unable to speculate about what would be the measure of the disability of the applicant from the cervical, thoracic and lumbar spines if he did not have the other precipitating events. Dr Bryant remarked that “it would be impossible to speculate how bad Mr Hall’s pain levels would be if it were not for the post-traumatic stress disorder”.
Dr Bryant was asked about whether the applicant would be incapable of working
eight hours a week. Dr Bryant stated that it could be argued that he might be able to work for eight hours a week if not for the post-traumatic stress disorder. He further indicated that the applicant may be able to work part-time between eight and twenty hours a week, provided he had some kind of retraining to assist him to work in an office.
Dr Johnstone, Consultant Orthopaedic Surgeon, gave evidence by telephone.
Dr Johnstone confirmed that he had written his report dated 9 February 2010. He was asked about the complaints made by the applicant in relation to pain in his neck and back, and he responded that the applicant complained that he had severe symptoms.
Dr Johnstone opined that the applicant’s current intake of 200mg of OxyContin per day was a huge dose of analgesic in respect of any pain management requirement, and that this seemed to be at odds with what was found clinically upon examining the applicant. His examination on the day revealed that the applicant had a full range of cervical spine motion; this was a full range of movement for his age without any significant pain. There did not appear to be any tenderness in the cervical spine. The lumbar spine appeared to have a range of motion that was consistent with his age and the only clinical finding that he could find was some mild aching on forward flexion and extension. Dr Johnstone found no abnormal neurological signs or symptoms originating from the spine.
Dr Johnstone made observations on scans that were taken. In his capacity as an orthopaedic surgeon, he opined that the scans showed minor age-related change rather than anything consistent with a significant injury. He also pointed out that the paucity of the changes seemed at odds with the level of discomfort that the applicant was complaining about. The changes were consistent with 40-50% of the normal population who would not have such pain.
Dr Johnstone was asked about his conclusion in his report that the applicant could have a chronic pain disorder potentially triggered by his post-traumatic stress disorder.
Dr Johnstone stated that the applicant advised him that he was suffering from post-traumatic stress disorder and that, while he did not treat that condition, he understood the condition could cause pain to be worse than the reality of the situation. Dr Johnstone could not confirm that the level of pain the applicant was experiencing was appropriate for the level of orthopaedic structural pathology. He remarked that he was not saying that the applicant was not experiencing pain, rather that the orthopaedic condition did not seem to be sufficient to account for the level of symptoms he was complaining of and/or the analgesic requirements of the applicant.
Dr Johnstone was asked about his answer in his report in response to a question about the effects of the orthopaedic conditions on the working life of the applicant. He stated that the applicant was not then currently working “because of the overall picture that he was presenting”. Dr Johnstone stated that on the basis of his clinical findings he was not able to confirm that the orthopaedic condition alone would prevent him from working and undertaking jobs in the prison service like a unit manager, a support officer, a control officer (to control access to inmates), gate house work, main control room work or vehicle patrol. Dr Johnstone stated that he based his opinion on his orthopaedic findings.
Under cross-examination Dr Johnstone was asked whether clinical observations of an orthopaedic condition ever differ from a person’s subjective feeling of pain. Dr Johnstone responded that there is not always a direct correlation and that if a person has pain and there are orthopaedic changes then one might attribute the pain to those changes if there are the appropriate signs on examination. In the case of the applicant, he did not have such appropriate signs in relation to his complaint of pain. Dr Johnstone was asked whether he would accept that it is likely that there is some pain caused by the orthopaedic conditions. He responded that about 50% of the population who have such changes do not experience pain. He was also asked whether it was reasonable to attribute pain to orthopaedic changes. He responded that orthopaedic changes may cause pain but there may be other reasons for the pain, such as problems with surrounding tissues, and the receptor messages sent to the brain may not be accurate in pinpointing the location of the pain.
Dr Johnstone was further cross examined about whether he accepted that some degree of pain was caused by the orthopaedic conditions. His response was that it was possible that the applicant could have pain from those conditions but that was not borne out by his clinical examination of the neck. He stated that if that hypothesis were correct, he would expect to see a reduced rate of movement and pain on movement which was not present. Dr Johnstone concluded that the changes present were not causing pain at the time of his examination in January 2010.
Dr Johnstone did not have any psychiatric reports at the time of his examination and would not give a psychiatric opinion as it was outside the sphere of his expertise. He estimated that his examination of the applicant took 25 minutes and agreed that a treating specialist would have a greater scope to make an assessment of functional capacity.
Dr Johnstone was asked by the Tribunal to comment on the 280 mg dosage of OxyContin that the applicant was taking at the time of his examination. Dr Johnstone stated that simple analgesics and anti-inflammatory medication would be the usual treatment for back pain and that, at the time of examination, the applicant’s intake of OxyContin was at a higher level than the 40 mg dose of OxyContin or Endone normally used for post-operative patients. Dr Johnstone opined that the 280 mg dosage taken by the applicant would likely cause a physical or mental addiction to the drug.
Dr Jonathan Mann, psychiatrist, gave evidence by telephone. Dr Mann confirmed that he wrote his report dated 12 February 2013. Dr Mann stated that the applicant did not identify any particular matters that he wished to avoid. During cross-examination,
Dr Mann stated that the applicant was taking methadone as an analgesic, that his pain was well treated and that upon examination he determined that the applicant had no ongoing psychological illnesses or psychological pain. Dr Mann considered that there was no link between his post-traumatic stress disorder and his physical pain. Dr Mann considered the pain must be caused by something other than the applicant’s post-traumatic stress disorder.
Dr Christian Rowan, an addiction medical physician, gave evidence by telephone. He confirmed that he first saw the applicant in 2009. He wrote reports dated 9 October 2009, 27 October 2012 and 30 November 2013. Dr Rowan opined that there was a physical and a psychological basis for the applicant’s pain.
CONSIDERATION
On 28 October 2013 this application was, by consent of the parties, remitted to the respondent for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The respondent arranged for the applicant to be seen by a specialist but a compensation medical advisor found medical information provided by the applicant to be contradictory.[5] One of the matters raised by the applicant was that there was no indication in the documents that the respondent had not affirmed, varied or set aside the decision in accordance with s 42D(2) of the of the AAT Act. The parties have recognised that there is some tension between ss 42D(2) and (5) of the AAT Act, with
s 42D(2) providing that the respondent “may” make certain decisions and s 42D(5) requiring that the respondent “must” reconsider the decision within the time specified by the Tribunal. However, after consideration of the terms of s 42D(7) of the AAT Act, we have concluded that where there is no evidence that the respondent has reconsidered the decision, the respondent will be taken to have affirmed the decision under review.
[5] Exhibit F.
We have previously mentioned that the respondent now accepts that the applicant is entitled to pension at 70% of the general rate and thereby satisfies the requirements of
s 24(1)(a) of the Act.
We have to consider whether the applicant’s accepted disabilities, by themselves, render the applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Dr Bryant, who was called by the applicant, has given his opinion that the applicant may be able to work for eight hours per week if not for the post-traumatic stress disorder. Dr Bryant further stated that the applicant may be able to work part-time between eight and twenty hours a week provided he had some kind of retraining to assist him to work in an office. The applicant’s post-traumatic stress disorder is not an accepted condition. Even with the post-traumatic stress disorder, the applicant was able to hold down a position as a tradesman’s assistant for eight weeks. However, having regard to that evidence of Dr Bryant, we cannot make a finding that we are reasonably satisfied that the requirements of s 24(1)(b) of the Act has been met during the assessment period.
We next consider whether the applicant has satisfied s 24(1)(c) of the Act. The Federal Court of Australia in Flentjar v Repatriation Commission[6] (“Flentjar”) has held that
s 24(1)(c) of the Act requires the consideration of the following 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?
[6] (1997) 40 ALD 1 at 4-5.
We will consider the first Flentjar question. The term “remunerative work” is defined in s 5Q(1) of the Act as including “any remunerative activity”. It was submitted that the applicant has had a variety of occupations. He has served part of an apprenticeship in relation to electrical fitting and motor rewinding and he has been a tradesman’s assistant, a hospital wardman and has served in the Australian Army. The applicant has also been a correctional services officer, which the applicant considers would qualify him for general security work. We are reasonably satisfied that each of those occupations would constitute remunerative work in the case of the applicant.
We answer “no” to the second Flentjar question which reflects the first limb of s 24(1)(c) of the Act. We rely upon the evidence of Dr Johnstone who has stated that on the basis of his clinical findings he was not able to confirm that the orthopaedic conditions of the applicant would prevent him from working. The report of Dr Johnstone reveals that he has made a comprehensive examination of the applicant. Dr Bryant remarked that the applicant’s worst pain at his review was in-between his shoulder blades in the thoracic region, although at the hearing the applicant did not have pain in that region but in the centre of his back. Dr Johnstone reported that there was no loss of range of movement in both the cervical and thoraco-lumbar spines.
Dr Johnstone reported the following:
The cervical spine had a full range of movement. [The applicant] was very quick with the movements of his neck and did not complain of any pain on movement.
Palpation of the cervical spine did not reveal any tenderness. Thoracolumbar spine movement appeared to be essentially full for his age but with some aching on forward flexion and extension.
…
There was tenderness to palpation over the first to sixth thoracic spines of a mild nature.
Both shoulder girdles had a full and pain free range of movement.
There was no evidence of any significant neurological abnormality in the upper or lower limbs.
Dr Johnstone also concluded that the upper and lower limbs had satisfactory circulatory function.
We accept the report of Dr Johnstone who concluded that the complaints of worsening symptoms in the neck and upper back could not be substantiated at his consultation.
Dr Johnstone concluded that the applicant appeared to be functioning much better than his symptoms would suggest and he opined that the symptoms of the applicant were “over-represented in respect of the minimal objective findings”. He also did a thorough examination of the investigations that were available in the forms of MRIs, X-Rays and bone scans.We also mention that Dr Bryant, who was called by the applicant, has remarked: “I don’t think that it could be argued that he had significant pain concerns as a result of his spinal spondylosis”.
Both Dr Bryant and Dr Johnstone consider that there could be subjective pain from the post-traumatic stress disorder of the applicant.
After the applicant was medically discharged from the prison service he was employed in two positions (as a wardsman and as a tradesman’s assistant). We do not consider that there is any evidence to warrant a finding that the applicant was unable to continue in both of those positions because of his orthopaedic or any other accepted conditions. The applicant has given different accounts of why he ceased his employment at the hospital. During the hearing he stated he left the hospital work to seek a permanent job. However, he recently informed Dr Watson that he ceased that employment on the medical advice of Dr Bryant.[7] We have reviewed a number of reports of Dr Bryant that have been admitted into evidence.[8] There is no record in those reports of Dr Bryant having provided such advice to the applicant. Dr Bryant in giving evidence did not state that he advised the applicant to cease work at the hospital. We have earlier mentioned that the applicant stated that he did not leave the tradesman’s assistant position because of medical reasons, the applicant has related some of the physical tasks that he had to undertake in that work.
[7] Exhibit E, p 5.
[8] Exhibit B.
The third Flentjar question raises what is often referred to as the “alone test” in
s 24(1)(c) of the Act. In view of our answer to the second Flentjar question it is not strictly necessary to answer the third Flentjar question; however, we express our views on that question.
In Willis v Repatriation Commission [2012] FCA 399, Bromberg J has recognised that different judicial views have been expressed on the “alone” test. His Honour has provided the following guidance on the proper application of the “alone” test:
[23] The question raised by the “alone test” is not whether, on its own, the war- caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
[24] Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c)is that the alone test requires that the war-caused
incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.[9]
[9] Willis v Repatriation Commission [2012] FCA 399 at [23]-[24].
We mention that the reference to “war-caused’ in s 24(1)(c) of the Act is, by reason of the application of s 73 of the Act, to be read as a reference to a defence-caused injury.
In applying the “alone” test we are conscious that there must be no other factor, apart from the accepted disabilities of the applicant, which prevent the applicant from undertaking remunerative work during the assessment period. We have to consider if there is another reason which, independently of the defence-caused reason, is preventing the applicant from working. If there is such a reason, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
Dr Bryant has stated that the post-traumatic stress condition of the applicant prevents the applicant from being employed and he remarked the applicant might be able to work for eight hours per week if not for the post-traumatic stress disorder. The post-traumatic stress disorder of the applicant is not an accepted condition.We have considered the operation of s 24(2)(a) of the Act which provides:
(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;
Again, the reference to “war-caused’ in this provision is, by reason of the application of
s 73 of the Act, to be read as a reference to a defence-caused injury.
We are reasonably satisfied that the applicant’s remunerative work did not cease solely because of his accepted disabilities. Dr Rowan in his report of 27 October 2012 has stated that the applicant was “incapacitated to participate in remunerative employment” He based this view on “his physical limitation and also his psychological state”.
Dr Rowan has been treating the applicant since 2009.
We therefore answer “no” to the third Flentjar question.
The applicant relies upon s 24(2)(b) of the Act which provides:
(2) For the purpose of paragraph (1)(c):
...
(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.
We have considered the application of s 24(2)(b) of the Act as the applicant is under
65 years of age. A pre-condition to the application of s 24(2)(b) of the Act is that the applicant must have been genuinely seeking to engage in remunerative work. The applicant stated that he looked for employment in the newspaper. We accept that the applicant has satisfied the first limb of s 24(2)(b) by genuinely seeking to engage in remunerative employment prior to the assessment period by working in the hospital, prison service and as a tradesman’s assistant. However, the conjunctive “and” in
s 24(2)(b) of the Act indicates that it is also necessary for the applicant to also satisfy the second limb of s 24(2)(b) of the Act by showing that the defence-caused incapacity is the substantial cause of his inability to obtain remunerative work.
We do not consider that the applicant is able to satisfy the second limb of s 24(2)(b) of the Act by showing that the defence-caused incapacity is the substantial cause of his inability to obtain remunerative work. This is an instance where the Tribunal regards the administrative review as a “continuum” and the Tribunal’s function is a part of that “continuum” so that the Tribunal considers the entitlement of the applicant during the whole assessment period.[10] We consider that the applicant’s post-traumatic stress disorder has contributed to his inability to engage in remunerative work.
[10] See Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, cited by Downes J in Shi v Migration Agents Registration Authority [2007] FCAFC 59 at [37].
We appreciate that specialists have questioned whether the applicant still has
post-traumatic stress disorder. Dr Mann reported that the applicant did not appear to be suffering from post-traumatic stress disorder. Psychiatrist Dr Jetnikoff, in his report dated 5 November 2012, also reported that the post-traumatic stress disorder was fully remitted in 2006. Both of these opinions were based upon one meeting with and the self-report of the applicant. However, on 9 February 2010, Dr Bryant wrote a report in which he stated that the applicant had post-traumatic stress disorder. It is not plausible that the
post-traumatic stress disorder had remitted in 2006 because in 2010 the applicant had informed Dr Johnstone that he had the condition and Dr Johnstone wrote his report on the assumption that the applicant still had post-traumatic stress disorder. Dr Rowan, who has treated the applicant since 2009, reported on 27 October 2012 that the post-traumatic stress disorder will impact on the chronic pain condition of the applicant. We are not satisfied that the post-traumatic stress disorder of the applicant was in remission in 2006 when the treating doctors consider that the condition was in existence after that date.
We mention that in his report Dr Jetnikoff made the observation that the only document relating post-traumatic stress disorder to military service was by Dr Rowan and “this appears to be a simple error”. However, Dr Jetnikoff was not briefed with the report of Dr Bryant who states that the applicant had post-traumatic stress disorder from military service in Somalia. Although there are references in these reports to the applicant having post-traumatic stress disorder from military service, we comment by way of clarification that the applicant’s post-traumatic stress disorder is not an accepted condition under the Act.
We do not consider that the accepted orthopaedic conditions of the applicant (as well as the other accepted conditions) are the substantial cause of the inability of the applicant to obtain remunerative work. We rely on the evidence of the orthopaedic specialists to come to this conclusion. Dr Johnstone, who has undertaken a comprehensive examination of the applicant, has indicated that the orthopaedic conditions of the applicant alone do not prevent him from engaging in remunerative work. Dr Bryant, who was called by the applicant, has indicated that it is arguable that the orthopaedic conditions of the applicant would not prevent him from working in a sedentary role for eight hours a week and has indicated that the applicant would be looking at some sort of retraining so that he would be able to work in an office. We note that the term "remunerative work"
is defined in
s 5Q of the Act as including “any remunerative activity”.
We are reasonably satisfied that the applicant is not entitled to pension at the special rate as the applicant does not satisfy s 24(1)(c) of the Act. We have also considered whether the applicant is entitled to the intermediate rate of pension. However, we are reasonably satisfied that the applicant cannot be paid pension at the intermediate rate as he is unable to satisfy s 23(1)(c) of the Act which is in the same terms as s 24(1)(c) of the Act.
CONCLUSION
In our opinion, the applicant does not meet the requirements for the payment of pension at either the special or intermediate rate.
We consider that there is merit in the suggestion of Dr Bryant that the applicant be given retraining so that he can undertake office work. We would recommend that the respondent provide assistance to the applicant to undertake such retraining.
DECISION
We vary the decision under review and decide that the applicant is entitled to pension at 70% of the general rate with effect from 5 May 2009; otherwise the decision is affirmed.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member .......................[Sgd]..............................................
Associate
Dated 15 August 2014
Dates of hearing 28-29 October 2013 and 16-17 June 2014 Counsel for the Applicant Mr Matt Black Solicitors for the Applicant Woods Prince Lawyers Solicitors for the Respondent Mr Bruce Williams, Department of Veterans' Affairs
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