Yurgen Horst Milenz and Repatriation Commission
[2015] AATA 48
•30 January 2015
[2015] AATA 48
Division VETERANS' APPEALS DIVISION File Number
2013/2943
Re
Yurgen Horst Milenz
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President F J Alpins
Date 30 January 2015 Place Melbourne The decision under review is affirmed.
[sgd]........................................................................
Deputy President F J Alpins
VETERANS’ ENTITLEMENTS – application for increase in pension – special rate of pension – whether veteran prevented by incapacity from war-caused condition “alone” from continuing to undertake remunerative work
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 15, 19, 22, 23, 24, 120, 175
Cases
Baini v R (2012) 246 CLR 469
Brennan v Comcare (1994) 50 FCR 555
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327
Richmond v Repatriation Commission (2014) 140 ALD 380
Smith v Repatriation Commission (2014) 220 FCR 452
REASONS FOR DECISION
Deputy President F J Alpins
30 January 2015
INTRODUCTION
This application for review concerns the entitlement of the applicant, Mr Yurgen Milenz, to a special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (Cth) (the “Act”). The essential issue before the Tribunal is whether, for the purposes of s 24(1)(c), Mr Milenz’s war-caused incapacity “alone” prevented him from continuing to undertake remunerative work that he was undertaking.
BACKGROUND
Mr Milenz was born on 29 July 1948. He served in the Royal Australian Navy from 12 February 1966 to 11 February 1978, including operational service in Vietnam from 22 February 1971 to 1 March 1971.
Mr Milenz suffers from various medical conditions, some which the respondent has accepted are “war-caused” for the purposes of the Act (see s 9), namely osteoarthrosis of the right knee, cervical spondylosis, bilateral sensorineural hearing loss, tinea pedis and, most relevantly for the purpose of this proceeding, lumbar spondylosis. His medical conditions which has not been accepted as being war-caused include, relevantly, obesity, alcohol abuse and dependence, a depressive disorder and diabetes mellitus.
At all material times Mr Milenz has been in receipt of a pension at 90% of the general rate under s 22 of the Act. In November 2011, when he was 63 years of age, Mr Milenz applied in accordance with s 15 of the Act for an increase in the rate of his pension, then making his claim with respect to his lumbar spondylosis. Mr Milenz ceased work on 6 December 2011.
In a decision made on 4 April 2012, the respondent accepted Mr Milenz’s lumbar spondylosis as a war-caused condition but determined that he was not eligible for the special rate of pension (under s 24 of the Act) or the intermediate rate of pension (under s 23 of the Act) and that his pension would remain at 90% of the general rate (s 22 of the Act). On 10 May 2013, the Veterans’ Review Board affirmed the respondent’s decision. Accordingly, the the respondent’s decision is the decision under review (s 175 of the Act).
RELEVANT LEGISLATION
A pension under the Act may be paid at the general rate, the intermediate rate, or the special rate. As Mr Milenz applied for an increase in the rate of his pension, s 19(4A) of the Act directs that his application be dealt with in accordance with sub-sections (5A), (5B) and (5C) and be determined under subsection (5D).
As the Full Federal Court recently stated in Repatriation Commission v Richmond [2014] FCAFC 124 at [18], “[t]he effect of these provisions is that the Commission was required to assess whether at any time during the assessment period [the veteran] was entitled to an increase to the special rate of pension pursuant to s 24”. The assessment period starts when the application was made and ends when it is determined and therefore continues to run until the Tribunal makes its decision (see at [19]). I note in passing that it is also necessary for the reasons expressed by the Full Federal Court in Smith v Repatriation Commission (2014) 220 FCR 452 to consider whether the veteran was entitled to an increase to the intermediate rate of pension at any time during the assessment period, given the provisions of s 19(5C) and (6) of the Act.
Section 24 relevantly provides:
“24 Special rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
… and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;
(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.”
I note that a reference to the incapacity of a veteran from a war-caused injury or a war‑caused disease, such as that made in s 24(1)(c), refers to the effects of that injury or disease, not the injury or disease itself (s 5D(2) of the Act; see also Smith at [2]).
Section 120(4) of the Act requires that a veteran’s entitlement to an increased rate of pension be decided to the respondent’s, and therefore the Tribunal’s, “reasonable satisfaction”, which involves a civil standard of proof (Repatriation Commission v Smith (1987) 15 FCR 327).
RELEVANT AUTHORITIES
The Full Federal Court’s decision in Richmond was handed down after the hearing of his proceeding. The Court’s reasons for judgment fortunately lift much of the “nearly impenetrable shroud” the drafting style employed in s 24 has created over its meaning (Smith at [26] per Rares J, quoted with approval in Richmond at [69]). I note that the parties were given the opportunity to lodge written submissions about the significance of the Full Court’s decision in Richmond.
The “overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason” (Smith at [47]-[48] per Buchanan J (espec. at [48]), adopted by the Full Court in Richmond at [24], [54]).
The first limb of s 24(1)(c), being the limb giving rise to the issue in dispute in this proceeding (and which is capable of being informed by s 24(2)(b)), is:
“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 ...”
That limb of s 24(1)(c) “requires a causal connection between the veteran’s war-caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in” (Richmond at [52]).
In Richmond, the Full Court held, with respect to the first limb of s 24(1)(c) (at [57]‑[58]):
“The first limb of s 24(1)(c) requires the decision-maker to decide whether the veteran’s war-caused injury or disease (or both) alone prevented him or her from continuing to undertake the remunerative work the veteran was engaged in. The alone element of the test is concerned with whether or not there is more than one cause of the preventative effect that the veteran claims has resulted from his or her war-caused incapacity.
The first limb provides that to qualify for the special rate, the preventative effect must arise from the veteran’s war-caused incapacity alone, and not from other non war-caused preventative factors as well. If other non war-caused factors contribute to the preventative effect, even if they are only of secondary importance and not of themselves sufficient to prevent the veteran from engaging in remunerative work, their presence will deny the veteran eligibility for the special rate.” (Emphasis added.)
The Full Court cited various authorities as supporting its interpretation, including the decision of the Full Court in Repatriation Commission v Hendy (2002) 76 ALD 47 at [37], in which the Court also set out the exercise to be undertaken by the Tribunal in determining whether the first limb of s 24(1)(c) is satisfied:
“…The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact [of] the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to the veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. Error on the part of the tribunal in determining whether the veteran’s war-caused injury or war-caused disease is the sole determinant in the prevention of continued remunerative work is, similarly not open to review.” (Underlined emphasis in original; bold emphasis added.)
Similarly, in Smith Rares J observed that the question of whether the “alone” test in s 24(1)(c) is satisfied is “a question of fact, informed by commonsense” (at [16]).
In Richmond, the Full Court quoted with approval the following passage from the trial judge’s reasons for judgment (Richmond v Repatriation Commission (2014) 140 ALD 380 at [108]):
“The authorities in my view establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the “alone” test will not be satisfied.”
In contrast, the Full Court (at [67]-[69]) disapproved of the contrary interpretation recently reached by Bromberg J in Watkins v Repatriation Commission [2014] FCA 787 at [24], [28] and [46].
The Full Court acknowledged that “this may be seen as a harsh result”, but noted that it arose from the plain words of s 24. Also, the Court noted that “the special rate of pension is almost three times higher than the general rate, and the extrinsic materials indicate that the legislature intends the special rate to be reserved for a limited category of veterans” (at [65]). Furthermore, the Court observed that “the harshness of the ‘alone’ requirement is ameliorated to some extent by s 24(2)(b)” (at [66], see also at [21]; Smith at [11], [21], [48]-[49], [173]-[174], [176]), although that provision does not arise for consideration in this proceeding.
The Court was also required to consider the meaning of the word “prevented” and more particularly the expression “prevented from” in the first limb of s 24(1)(c). The Court held that the word “prevented” in s 24(1)(c) took its ordinary meaning and that there was no need to use other words or expressions in its place; to that extent the Full Court departed from the trial judge’s “gloss” on the word “prevented” (at [73]-[76]).
Given a contention initially made by the respondent in this proceeding, it is worthwhile to mention the other aspect of the Full Court’s reasons for judgment in Richmond, although as I explain below, ultimately that contention was not pressed.
The Court held that, having regard to the text of s 24(1)(c), including the ordinary meaning of the expression “prevented from”, read in the context of the rest of s 24 and with proper regard to the legislative policy and purpose of s 24(1)(c) and the beneficial purpose of the Act, the first limb is concerned only with factors that prevent the veteran from engaging in remunerative work ((at [73]-[74], [78]-[79], [92]-[93], [97]). Accordingly, a veteran will not be disqualified from entitlement to the special rate for failure to satisfy the first limb on the basis that the veteran made a voluntary or elective decision to cease work for a reason other than incapacity, as factors which induce or provide the veteran an incentive to cease the remunerative work in question are not relevant for the purposes of the first limb.
However, the Full Court held that such factors are relevant to the second limb of s 24(1)(c) (which is amplified by s 24(2)(a) (Richmond at [21]-[23], [53], [80]-[81]; Smith at [10], [48], [172]). Accordingly, the Court stated (at [86]):
“However we accept that the operation of the second limb of s 24(1)(c) and s 24(2)(a) means that a veteran who voluntarily chooses to cease remunerative work for reasons other than war-caused incapacity (for example, to access superannuation benefits or because of dissatisfaction with work unrelated to war-caused injuries) will usually not be eligible for the special rate, as he or she will usually be unable to establish financial loss by reason of his or her war‑caused incapacity.”
Earlier in its reasons (at [56]), the Court noted that the issue of whether a voluntary decision to cease working falls under the first or second limb of s 24(1)(c) is “not just a theoretical question” as “the enquiry under the second limb is less stringent than under the first limb”.
Although, as the Full Court acknowledged in Richmond (at [29]), the questions distilled from the provisions of s 24(1)(c) by Branson J in the Full Court’s decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 have been followed in many Federal Court decisions (both at trial and appellate level), in Richmond the Full Federal Court declined to ascertain the application of s 24(1)(c) by reference to the Flentjar questions, given that “the application of s 24(1)(c) is not to be ascertained by construing the words in the authorities as if they were the words of the statute” (citing Brennan v Comcare (1994) 50 FCR 555 at 572 per Gummow J). In that respect, they agreed with Buchanan J in Smith (at [45]), where his Honour adverted to the dangers of such an approach, given that the distillation of issues in Flentjar necessarily occurred in the context of the particular facts of that case (see also at [67], with respect to the third Flentjar question).
As the High Court stated in Baini v R (2012) 246 CLR 469 at [14], “paraphrases of the statutory language ... in cases decided under [an] Act ... are apt to mislead if attention strays from the statutory text”. An illustration of how one might be led astray in the application of s 24(1)(c) to particular facts by consideration of the Flentjar questions can be found in the second and third questions, which are both directed to war-caused injury or war-caused disease and their preventative effect. However, the text of the provision is instead directed towards “incapacity from” war-caused injury or war-caused disease, that is to say the effects of that injury or disease, not the injury or disease itself (see s 5D(2); see also Richmond at [52], Smith at [47]-[48]).
Accordingly, I have addressed the construction and application of s 24(1)(c) by reference to the statutory words (as construed in relevant case law: see Brennan v Comcare at 572), not by reference to the Flentjar questions. I note however, for the sake of completeness, that it was common ground between the parties that, put in terms of the Flentjar questions, it was only the third – “is the war-caused injury or car-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?” – that arose for consideration in this case.
EVIDENCE
Mr Milenz gave evidence about his education and work history. He left school before completing Form 3 and then obtained employment as a storeman handling spare parts, until enlisting in the Royal Australian Navy. During his navy service, he eventually became Leading Seaman in Stores-victualler.
After he was discharged from the navy, he had a number of short-term unskilled labouring jobs. In 1997 he commenced employment in his final job, with Furphy Galvanising. He was initially employed as a fettler – his duties in that capacity involved cleaning galvanised steel. Eventually he was promoted to the position of Production Operator. His duties involved operating a forklift, loading and unloading trucks, unpacking steel to be galvanised, checking and tagging stock, recording the delivery of stock for processing onto the computer and monitoring the progress of production.
Mr Milenz gave detailed evidence about the severe back pain he suffered in the last few months of his employment at Furphy Galvanising, which ceased on 6 December 2011. Prior to ceasing work, he had taken a lot of time off work on sick leave because of his increasing back pain. In his witness statement, Mr Milenz said that the “final straw for me was that on my first day back at work following an extended period of sick leave due to back pain, I immediately suffered an acute exacerbation when I commenced operating the fork lift”. Mr Milenz gave detailed oral evidence about the events of that day, which occurred after he had been absent from work for about a month and which turned out to be his final day of work. He described the severe back pain he experienced that day when operating the forklift and said that “my back went on me”.
He then immediately spoke to his manager, Mr Tim Doye, with whom he had had a number of discussions in the prior months about the deterioration of his back condition. Then or at about that time he saw Dr Mackellar, who advised him that he should stop work. Mr Milenz informed Mr Doye of his doctor’s advice. In his oral evidence, Mr Milenz said that Mr Doye said words to the effect that “I’m going to have to let you go”, as he was concerned about the consequences for the company under occupational health and safety laws.
Mr Milenz gave evidence that he enjoyed his work and that he had intended to continue working in the same job until his retirement, which he had planned to occur when he reached 67 years of age. He explained how he had suffered financially as a consequence of ceasing work earlier than he had expected. He denied that his superannuation benefits and existing pension entitlements had influenced his decision to cease work.
In his witness statement Mr Milenz said that the “sole reason for my decision to cease work was the symptoms from my back and but for the back condition, the other conditions would not have prevented me from continuing to work”. In oral evidence, Mr Milenz reiterated that:
“[M]y back was the only reason I left there. The only reason, otherwise if that hadn’t have been an issue I’d still be there today”.
Under cross-examination, he pointed out that he had been obese since joining the navy. He acknowledged that he snores “sometimes” and that sometimes after dinner he “might have a little catnap, 10 minutes”. He denied that he felt fatigued during the day.
Mr Milenz’s wife, Mrs Gioselina Milenz, also gave evidence. She has been married to Mr Milenz since 1978. In oral evidence, she said that her husband liked his job at Furphy Galvanising and that he had intended to keep working there for “quite a long time”. In her witness statement, she said that “[a]s far as I am concerned, the only reason Yurgen ceased work was the pain he was suffering from his back. He has suffered back problems for many years but they gradually worsened.” In oral evidence, she said that only her husband’s back problem caused him problems at work.
In oral evidence, Mrs Milenz also said that he had been obese for “[a]s long as I can remember” but later said, as her husband had, that it was when he was in the navy that “it really happened more, because he was never like that when he was younger”. In her witness statement, Mrs Milenz said “I do not believe that his obesity contributed to the decision to cease work and, since ceasing work, Yurgen has actually lost weight”.
She acknowledged that he snored heavily but said that he had done so “for as long as I can remember”. She said that she had woken him up on occasions when he had stopped breathing, but that such occasions were rare. In her witness statement, Mrs Milenz also said that she had noticed since her husband stopped work that he now takes naps during the day but that she had “never noticed this while he was still working”. However, under cross-examination, she acknowledged that he “slept a lot” taking naps during the day when he took a month off for sick leave in October 2011.
Mrs Milenz also acknowledged that he was becoming short of breath, depending upon what he was doing, for example it “just depends whether he was mowing or something”, but that it “wasn’t happening a real lot”, although she also acknowledged that “I wasn’t around him a lot when he was doing .... different jobs”. Mrs Milenz also acknowledged that Mr Milenz’s depression sapped his motivation “[q]uite a lot of times” up until 2011 to 2012. She said that he did drink excessively but denied that it affected his work.
Mr Doye also gave evidence. In his witness statement he said that Mr Milenz was “always a very good worker” and “had an excellent work ethic”. He said that Mr Milenz “seemed to cope reasonably well” with his duties at work until about 2011. He confirmed that Mr Milenz took increasing amounts of sick leave in 2011, particularly in October and that he was aware that it was because of a back injury. He said “I became concerned that he was an occupational, health [sic] and safety risk at work”. His evidence was that Mr Milenz “last actually worked on 21 November”. He confirmed that Mr Milenz had subsequently provided him with a certificate from Dr Mackellar recommending that he cease work and that he discussed it with Mr Milenz.
Mr Doye said in his witness statement that “[t]he sole reason for terminating his employment was his inability to undertake the bending and lifting duties which his job demanded because of his back complaint” and that “I was unaware of him suffering any other physical problems which affected his ability to work”.
Under cross-examination, Mr Doye denied that Mr Milenz’s obesity affected his agility in undertaking his work tasks. He also denied that shortness of breath affected Mr Milenz’s work capacity, although his response was phrased in terms of Mr Milenz’s stated complaints about the back pain he was experiencing and the limitations that his back problems imposed on his movement. He acknowledged that he was not aware of Mr Milenz’s other health problems. In re-examination, Mr Milenz said that he had observed in the latter part of 2011 that Mr Milenz was experiencing difficulty because of his back pain, which “seemed to be obvious to me”.
Medical evidence
Doctor John Mackellar gave evidence for Mr Milenz. He is a general practitioner and has been Mr Milenz’s doctor for about 35 years, having seen him quite regularly as a patient.
In a collection of reports prepared by Dr Mackellar dated on or about 16 January 2012, Dr Mackellar stated that the clinical onset of Mr Milenz’s lumbar problems occurred on 8 October 2011 and that levels 4 and 5 of his lumbar spine were affected by spondylosis, involving disc protusion. In a “Work Ability Report” dated 19 January 2012, Dr Mackellar diagnosed Mr Milenz as suffering from “major” medical conditions, namely alcohol abuse (since 1971), osteoarthritis, depression (since 1999) and diabetes (for the last five years) and “minor” conditions including cervical spondylosis. He also commented that Mr Milenz suffered from obesity (since 1981) and hypertension (since 1998). (I note that in his clinical notes, Dr Mackellar recorded that Mr Milenz had been obese since 1980.)
With respect to Mr Milenz’s nervous system, Dr Mackellar noted that Mr Milenz “can walk Normal movement” (sic). With respect to the impact on his mental state, Dr Mackellar opined that depression was “still an issue” and was aggravated by his alcohol intake. He noted again that Mr Milenz was obese but did not specify any impact of that condition. He measured Mr Milenz as being 178 cms tall and as weighing 131 kilograms. He said that Mr Milenz’s diabetes was controlled “on average”. He concluded that Mr Milenz was “unable to work because of severe osteoarthritic pain in the lower back and cervical spine”. In answer to the question of whether other factors also prevented the veteran from working, Dr Mackellar specified Mr Milenz’s age and obesity. Dr Mackellar also noted that Mr Milenz “has no skills which would permit clerical or professional work”.
In a “Medical Attendant’s Statement” dated 27 February 2012, Dr Mackellar stated that Mr Milenz suffered lumbar disc disease, causing “moderate” disability and was unable to use a fork lift and that he suffered from obesity, causing “severe” dyspnoea (shortness of breath). He specified that Mr Milenz had become totally disabled on 6 December 2011. He stated that the treatment plan for Mr Milenz’s conditions involved retirement, reduction in weight, physiotherapy and use of analgesics. He said that Mr Milenz was no longer able to perform his duties of ascending and descending from a forklift, lifting heavy goods and walking long distances and also noted that Mr Milenz was “computer illiterate”. In a medical certificate prepared by Dr Mackellar on the same date for the purposes of Mr Milenz’s superannuation entitlements (“Medical Certificate – Permanent Incapacity”), Dr Mackellar again specified that Dr Milenz’s (permanent) incapacity was caused by lumbar disc disease and obesity.
In a subsequent “Work Ability Report”, dated 16 January 2013, Dr Mackellar diagnosed Mr Milenz as suffering from “major” medical conditions, namely obesity, diabetes (type 2) and hypertension (having suffered those conditions for 20-30 years) and minor conditions including depression and cervical spondylosis, having suffered those conditions for 10 years, although elsewhere it was noted that he had suffered depression for “13 years +”.
With respect to the impact of those conditions, Mr Milenz’s obesity was noted as causing dyspnoea, his diabetes was noted as being “poorly controlled” and causing episodic infection but as having minimal impact on his endocrine system and his hypertension was noted as being well-controlled and as not having an impact on his cardiovascular system. His depression was noted as causing him to lack energy and drive. He expressed the opinion that Mr Milenz is “unable to do manual work which requires heavy lifting, moving about quickly or jumping”. Although he considered that Mr Milenz could prima facie do clerical work, as it is sedentary, he considered that Mr Milenz’s depression precluded him undertaking such work or even training for that purpose. Dr Mackellar also noted in that report that “[p]oorly controlled diabetes does not bode well for general health”. He noted that Mr Milenz was 182 cms tall and weighed 128 kilograms.
In his oral evidence, which was given by telephone, Dr Mackellar said that Mr Milenz’s obesity caused Mr Milenz to experience “considerable difficulty” and to be “hard‑pressed” “getting around”.
Some of Dr Mackellar’s preliminary oral evidence was directed towards consideration of the effects of Mr Milenz’s conditions on his life expectancy, rather than his ability to work and was also at times affected by his apparent irritation at the questions posed. Nevertheless, his evidence quickly returned to being on point once the distinction was clarified, and his comments were frank and impartial in nature.
Under cross-examination, Dr Mackellar confirmed that a Body Mass Index (“BMI”) measurement of 38 (taken in February 2011 and recorded in his clinical notes in February 2011) indicated that Mr Milenz was obese at that time. He confirmed Mr Milenz’s general health was poor in the period leading up to November and December 2011 and that he would have felt unwell. When asked about Dr Horsley’s opinion that Mr Milenz suffers from obstructive sleep apnoea (to which I refer below), he said that he had not made that diagnosis but that “it doesn’t surprise me”, given Mr Milenz’s obesity.
In the concluding part of his oral evidence, in answer to questions posed by the Tribunal, Dr Mackellar opined, in emphatic terms, that Mr Milenz’s obesity had contributed to him being unable to work – he confirmed that his view was that “he’s so short of breath as a consequence of the obesity” that he “couldn’t do his work”. He ultimately discounted Mr Milenz’s hypertension as a factor contributing to Mr Milenz being unable to work. He concluded that Mr Milenz’s depression “would certainly interfere with his ability to work”, sometimes to the extent that he would be unable to do his work. He concluded that Mr Milenz’s diabetes “seems to be out of control”, but his concern was stated more in terms of the reduction of Mr Milenz’s life expectancy, rather than in terms of it affecting his ability to work.
Finally, Dr Mackellar opined that the “number one thing” that contributed to Mr Milenz being unable to work was pain in his back and neck, as “he just could not get on and off his forklift”. (I note that earlier in his oral evidence he said that “I would have put down cervical spondylosis as the main thing for this man” and said that “the cervical spondylosis which we have known about for some time ... was just slowly getting worse, causing pain in his neck and shoulders”.) However, Dr Mackellar said in conclusion that an “additional thing” which stopped Mr Milenz being able to work was his “shortness of breath” and that Mr Milenz’s obesity “would contribute” to his back pain and also to his shortness of breath (and his high blood pressure).
The respondent called Dr Robyn Horsley, an occupational physician, who had prepared a report dated 20 November 2013 based upon her examination of Mr Milenz conducted that day. In that report, Dr Horsley recounted Mr Milenz’s personal, work and medical history, including his conditions which had been accepted as war-caused and those which had not. With respect to his obesity, she noted that “Mr Milenz has always been a substantial gentleman”, that he currently weighed 122 kilograms, but that in 2006/2007 “his weight ballooned to 149 kgs”, had “plummeted 40 kgs down to 109 kgs” after he was diagnosed with diabetes. She said “[o]ver the last couple of years, his weight has crept up to 130 kgs” but that it had recently decreased to 122 kilograms.
Dr Horsley addressed the issue of obstructive sleep apnoea:
“Mr. Milenz stated that he believes that he suffered from obstructive sleep apnoea for many years. He has never had sleep studies. He knows that he snores. His wife wakes him up when he has apnoeic episodes. He described several episodes where he was not breathing and his wife woke him ‘for fear that he had died’. She sleeps in the same bed.
Mr. Milenz believes that his snoring has some relationship to alcohol. I note his bull neck and his obesity. He has had daytime somnolence since ceasing work. He naps up to three times per day.”
In her report, Dr Horsley indicated that she had undertaken a clinical examination of Mr Milenz. Dr Horsley expressed the opinion that Mr Milenz has lumbar spondylosis, cervical spondylosis and osteoarthritis of the right knee, “all of which contribute to his inability to participate in heavy manual work”. She then said:
“Mr. Milenz has clinical evidence of general degenerative change. He does not proactively manage his multiple medical conditions.
On history, his lumbar spondylosis was the primary factor resulting in the discussion about cessation of work on the 6th December 2011.”
Near the conclusion of her report, Dr Horsley opined:
“Mr. Milenz presents as a poorly conditioned and unfit gentleman of 65 years of age. He is obese at 126 kgs.
He suffers from obstructive sleep apnoea that is not currently treated. This results in daytime somnolence and fatigue.
He suffers from poorly controlled diabetes which impacts upon his general sense of wellbeing.
He suffers from a depressive illness, although this appears to be reasonably well controlled on his current medication.
I believe that Mr. Milenz’s acute back episodes was ‘the straw that broke the camel’s back’ for his employer, but I believe there was background unwellness related to his multiple medical conditions and increasing disability related to his accepted lumbar spondylosis, cervical spondylosis and osteoarthritis of the right knee that resulted in his cessation from work.
Overall, I believe that his accepted disabilities resulted in his final cessation from work, but other factors including his non accepted disabilities and his age at 63 years at the time of cessation were also influential.” (Bold for emphasis in original.)
In her oral evidence, Dr Horsley stated that Mr Milenz had a BMI of 37.7 when she examined him, which meant that “he’s well and truly in the obese range”. Dr Horsley said that Mr Milenz’s obesity had resulted in obstructive sleep apnoea. She said that Mr Milenz’s obesity had also contributed to his diabetes. Furthermore, she said that Mr Milenz’s obesity “[a]bsolutely” affected his manual handling techniques in his work. She explained that, “because of his substantial habitus and also because of the arthritis in his right knee ... he would have had difficulty having good manual handling technique which would have put his back at further risk of mechanical back pain”.
Furthermore, in answer to a question from the Tribunal, Dr Horsley said that “his obesity, his obstructive sleep apnoea, his poorly controlled diabetes, the impact of his arthritis in the right knee, the impact of the lumbar spondylosis and the reduced range of motion in his cervical spine, as a package, make him unfit for work”, agreeing that she meant that that “package” of conditions prevented him from working.
Dr Horsley opined that Mr Milenz’s obesity did not, considered in isolation, in itself prevent Mr Milenz from working. She opined that his diabetes would make him feel “generally unwell” and would therefore reduce his work capacity, but wouldn’t of itself prevent him from working. She explained that if “he just had the obesity, the obstructive sleep apnoea and the diabetes, he could work but he wouldn’t be great”. However, when asked whether, given Mr Milenz’s accepted conditions, namely lumbar spondylosis, cervical spondylosis and the osteoarthritis, the other conditions contributed to preventing him from work, she answered affirmatively, adding “and then he’s had his back and that’s the end ... [h]e’s now stopped work.”
Under cross-examination, Dr Horsley adamantly defended her “clinical diagnosis” of sleep apnoea, despite not having confirmed the diagnosis by a polysomnogram test, explaining that such a test would only serve to determine the severity of the condition for the purpose of treatment. She explained in that context that her reference to Mr Milenz’s napping in her report was a reference to involuntary dozing. She accepted that she had not discussed with Mr Milenz how his obesity was affecting his work.
CONSIDERATION
As I have said, the only issue in dispute with respect to Mr Milenz’s entitlement to the special rate of pension under s 24 of the Act was whether the first limb of s 24(1)(c) was satisfied. It was common ground that Mr Milenz was by reason of incapacity from a “war-caused” condition within the terms of s 24(1)(c), prevented from continuing to undertake remunerative work that was undertaking. Both parties pointed to Mr Milenz’s lumbar spondylosis as answering that description, although I note that Dr Mackellar pointed to Mr Milenz’s cervical spondylosis as having the primary preventative effect while Dr Horsley also pointed to that condition, and to Mr Milenz’s osteoarthritis in his knee too.
However, the respondent contended that there were other factors that affected Mr Milenz so as to preclude the satisfaction of the “alone” test in the first limb of s 24(1)(c), being the effect of other medical conditions he suffered from which were not accepted as “war‑caused” and his age, those factors contributing to him being prevented from continuing to do his work.
The applicant contended that those other medical conditions, such as Mr Milenz’s obesity, diabetes and depression, may have hindered Mr Milenz, made him generally unhealthy and reduced his work efficiency, but said that the evidence established that it was only his lumbar spondylosis which “prevented” him from undertaking relevant remunerative work for the purposes of s 24(1)(c) (which the parties essentially agreed was heavy manual work and forklift driving).
As I have indicated, the respondent initially contended that s 24(1)(c) was not satisfied because Mr Milenz’s decision to cease work was affected by his financial circumstances, particularly his superannuation and pension entitlements, but that argument was not pressed, given Mr Milenz’s denial of that suggestion under cross-examination.
I note that it was not in dispute that the earliest “date of effect” of a determination increasing Mr Milenz’s pension would be 7 December 2011, being the date after he ceased work, as he could not satisfy the second limb of s 24(1)(c) until that time.
It is true that mere reduction in work capacity does not necessarily amount to a preventative effect for the purposes of s 24(1)(c). Whether it does or not is a matter of degree, but the statutory question is clearly concerned with latter, not the former.The satisfaction of the first limb of s 24(1)(c) is not precluded merely by factors that make a veteran less able to do his or her work – they must either prevent him or at least contribute to preventing him from doing that work.
Furthermore, as the applicant accepted, the question of whether a factor has a preventative effect for the purposes of s 24(1)(c) is an objective one – it does not depend upon a veteran’s subjective belief that one factor prevented them, nor does it depend upon their reason for ceasing work in the sense of what motivated them. Although there was much focus in Mr Milenz’s evidence upon the particular symptoms that Mr Milenz experienced most acutely that day, namely his back pain, that does not preclude the possibility that other factors also contributed to preventing him from working – the factual inquiry is not confined to ascertaining the condition manifesting the most pronounced symptoms immediately prior to the cessation of work.
Nor is a medical condition necessarily precluded from having a preventative effect or contributing to such an effect merely because a veteran has had that condition for a long period of time, as conditions can worsen and a person’s physical state can deteriorate. The evidence establishes that Mr Milenz had been obese for a long time – however, merely because that had not prevented or contributed to preventing him from working before does not mean that it therefore could not do so later. As a general matter, that would depend upon other factors such as his other medical conditions and age.
The applicant submitted that Dr Mackellar’s evidence should be preferred to that of Dr Horsley, as Dr Mackellar was Mr Milenz’s doctor of long standing, while Dr Horsley had only met and examined him on a single occasion and her report was too speculative and overly based on her general expertise rather than clinical observation of Mr Milenz.
The difficulty with that submission is that Dr Mackellar and Dr Horsley both concurred in a critical respect in their evidence. They both opined emphatically that Mr Milenz’s obesity had contributed to him being unable to work, albeit in different ways – Dr Mackellar focussed primarily on Mr Milenz’s dyspnoea, which he described as “severe”, while Dr Horsley focussed on the sleep apnoea she diagnosed him as suffering from. Although neither doctor considered that Mr Milenz’s obesity prevented him in itself from working, each of those effects of his obesity were considered to have contributed to preventing him from working. Dr Mackellar considered that Mr Milenz’s shortness of breath made such a contribution while Dr Horsley considered the same to be so with respect to Mr Milenz’s diagnosed sleep apnoea.
Given Dr Mackellar’s steadfast evidence on the point, I find that Mr Milenz’s obesity, particular the shortness of breath it caused, contributed to preventing him from working. Mrs Milenz’s evidence tended to suggest the same. To the extent that Mr Milenz’s or Mr Doye’s evidence suggested otherwise, it tended to be overly focussed on his back condition, in the context of the pain he was suffering. To the extent that Mr and Mrs Milenz denied that his obesity contributed to preventing him from working, I prefer the medical evidence in that regard.
I conclude, based on the evidence of Dr Horsley and Mrs Milenz, that Mr Milenz’s obesity also caused him to suffer from obstructive sleep apnoea. As the respondent said, Mrs Milenz’s evidence that Mr Milenz had taken daytime naps during October 2011 was consistent with Dr Horsley’s diagnosis of obstructive sleep apnoea. However, I am not satisfied on the evidence before the Tribunal that that condition prevented or contributed to preventing him from working – there was no evidence he had fallen asleep at work, nor any reasonable basis for an inference to be drawn that he had done so or been at real risk of doing so.
I also accept Dr Mackellar’s evidence that Mr Milenz’s obesity exacerbated his back pain. However, it is not necessary to consider the significance of that finding, as the fact that his obesity, particularly his shortness of breath, contributed to him being prevented from working makes it unnecessary to consider the relevance to the application of the first limb of s 24(1)(c) of the contribution of that condition to his war-caused condition.
Based upon the evidence of Dr Mackellar and Dr Horsley, I find that Mr Milenz’s age also contributed to preventing him from working, given his general ill health and the nature of his heavy manual work.
On the balance of probabilities, I find that Mr Milenz’s depression, diabetes and hypertension did not prevent him or contribute to preventing him from working – the evidence considered in its totality indicates that those conditions merely reduced his work capacity by making him generally unwell during the relevant period.
Given the Tribunal’s finding that Mr Milenz’s obesity and his resultant shortness of breath played a part in preventing him from continuing his work, it follows that the “alone” test in s 24(1)(c) was not satisfied and accordingly Mr Milenz was not entitled to an increase to the special rate of pension under s 24 at any time during the assessment period.
As I have indicated, although the parties reached common ground in this case that the sole issue before the Tribunal was whether s 24(1)(c) was satisfied, that cannot be the case. As s 24 does not apply to Mr Milenz, it is prima facie also necessary to consider whether Mr Milenz was entitled to an increase to the intermediate rate of pension during the assessment period (see also s 23(1)(d)). However, as the first limb of s 24(1)(c) is not satisfied, neither is the “alone” test in the analogous provision in s 23 (s 23(1)(c)). Accordingly, Mr Milenz is not eligible for the intermediate rate of pension.
CONCLUSION
For the above reasons, the Tribunal will affirm the decision under review.
I certify that the preceding 79 (seventy‑nine) paragraphs are a true copy of the reasons for the decision herein of F J Alpins, Deputy President. [sgd].......................................................................
Associate
Dated 30 January 2015
Dates of hearing 28 & 29 July 2014 Date final submissions received 17 October 2014 Counsel for the Applicant Mr T Smyth Solicitors for the Applicant Mr Michael Jorgensen, Williams Winter Advocate for the Respondent Mr K Rudge, Department of Veterans’ Affairs, Review Section
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