Moorcroft and Repatriation Commission [1999] AATA 2 (5 January 1999)

Last Updated: 29 January 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 2

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o Q96/537

VETERANS' APPEALS DIVISION )

Re BRIAN KEITH MOORCROFT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member)

Dr KP Kennedy (Member)

Major-General JN Stein (Member)

Date 5 January 1999

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) WJF Purcell

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - Veterans' entitlements - special rate - applicant suffering non-accepted kidney condition requiring dialysis - whether applicant ceased work because of accepted conditions alone - whether accepted conditions alone prevent return to workforce - kidney condition the major condition affecting applicant's employment activity

Veterans' Entitlement Act 1986 ss. 24, 120(4)

REASONS FOR DECISION

5 January 1999 Miss WJF Purcell (Senior Member)

Dr KP Kennedy (Member)

Major-General JN Stein (Member)

1. This is an application for review of a decision of the Repatriation Commission (the Commission), dated 28 June 1995, which refused an application for increase in the rate of disability pension and continued pension at 80% of the general rate. On 29 April 1996 the Veterans' Review Board affirmed the decision.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. Mr O'Gorman of Counsel appeared for the applicant, who gave oral evidence by way of telephone link-up and called Dr T Furlong, renal physician, Dr Ottone, his treating general practitioner and Ms B Houston, occupational therapist, to give evidence also by telephone link-up. Mr Dobbie appeared for the Commission which called Dr P Grant, Senior Medical Officer with the Department of Veterans' Affairs, as a witness.

3. The applicant is 61 years of age. After serving for two years in the British Army he served in the Australian Army as a plant operator from 27 March 1962 until his discharge on 11 April 1968. He served in Vietnam for the periods 25 June 1965 until 6 December 1965, and 7 April 1967 until 26 February 1968, periods constituting eligible service including operational service. The standard of proof required is that of reasonable satisfaction in accordance with section 120(4) of the Veterans' Entitlements Act 1986 (the Act), which provides:

4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

4. The applicant has been in receipt of disability pension at the rate of 80% since 25 October 1983, and has the following accepted disabilities:

* Gout with urinary calculus and right partial nephrectomy

* Anxiety state

* Tinea cruris

* Tinea pedis

* Essential hypertension

* L5-S1 Disc lesion

* Obesity

* Gastro-oesophageal reflux disease

5. On 18 April 1995 the applicant sought an increase in pension to the special rate of pension in accordance with section 24 of the Act, which as far as is relevant for the purposes of this review 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

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; 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; and

(d) section 25 does not apply to the veteran.

(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.

(2A) This section applies to a veteran if:

(a) 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

(b) the veteran had turned 65 before the claim or application was made; and

(c) paragraphs (1)(a) and (1)(b) apply to the veteran; and

(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and

(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and

(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and

(g) when the veteran stopped undertaking his or her last paid work, the veteran:

(i) if he or she was then working as an employee of another person--had been working for that person, or for that person and any predecessor or predecessors of that person; or

(ii) if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling--had been so working in that profession, trade, employment, vocation or calling;

for a continuous period of at least 10 years that began before the veteran turned 65; and

(h) section 25 does not apply to the veteran.

(2B) For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:

(a) 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

(b) the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.

6. The applicant gave evidence that after he left the Army in 1968, he worked in his own take-away food business for around five and a half years. He worked then as a labourer at the Sugar Mill, and as a bondsman at the Bundaberg distillery and for Comalco, at Weipa as a plant operator for eight years, before undertaking weighbridge work with the Atherton Maize Board. This was seasonal employment, from May to September, and he did not work over the off-season period. He was employed as caretaker of a mining site by an accountancy firm for two years, before returning briefly to the weighbridge work before ceasing this work permanently, and going on to service pension, in late 1988/early 1989. He said in evidence that he was offered a job in 1989, but felt that his back would not be able to "stand up to it". He was offered a later job at Port Douglas, estimating concrete, but the firm failed to obtain the contract. He has not attempted to gain employment since 1990.

7. The applicant suffers from a number of non-defence caused conditions, the most serious of which a kidney condition diagnosed in 1990/91. A report from Dr Furlong, renal physician, dated 4 September 1997, outlines the nature of the kidney condition, in part as follows:

"Mr Moorcroft has end stage renal failure from focal sclerosing glomerulonephritis and receives haemodialysis three times a week (Tuesdays, Thursdays and Saturdays) at Cairns Base Hospital. Each treatment lasts five hours and, given that he travels to and from Atherton, I consider work impossible on these days. On the other hand, work is theoretically possible on the days that he does not receive haemodialysis (Mondays, Wednesdays and Fridays). Work for greater than eight hours a week is therefore possible.

Many patients receiving haemodialysis work either full time or part time. however, they are in the minority. I emphasise that in making these statements I have disregarded Mr Moorcroft's other medical conditions." [Exhibit A2]

8. The applicant contends that if it were not for his accepted spinal disability, he would be able to continue in remunerative employment. In a statement dated 4 September 1997 [Exhibit A7] he stated in part as follows:

"10. I currently also suffer from glomerulonephritis which is on appeal to the VRB. I have five hours of dialysis three times a week for this condition.

11. My kidneys do not interfere with my ability to work. In fact my renal physical (sic) Dr Tim Furlong has many patients on dialysis who are able to work 20 plus hours a week. If it were not for my back I would be able to work at least 25 hours a week, maybe more.

12. My kidney condition was diagnosed in 1991, two or three years after I last worked. My kidneys were causing me great pain at this time, but not back in 1989, and played no part in, my decision to give up work. It was my back condition alone that caused me to stop working."

The applicant maintains that he satisfies also the balance of the requirements of section 24 of the Act, and is qualified for payment of pension at the special rate.

9. The Commission argues that the applicant does not satisfy section 24 of the Act, in that he did not cease work in 1988 because of his accepted disabilities alone; that it is his non-accepted kidney condition which contributes to a major degree to the applicant's inability to work. His condition is chronic, and having regard to the skills the applicant has, and the degree of incapacity he suffers from the kidney condition, he is not prevented from undertaking paid work by his accepted disabilities alone. In addition the applicant has not been genuinely seeking to obtain work.

10. The applicant gave evidence that since December 1997 he has been undertaking the dialysis treatment at the nearby Atherton Hospital for 5 hours a day, 3 days a week. He said the day after dialysis he feels quite good, and that if it were not for his back condition he could get into a lot of things, and be able to get back into the workforce.

11. Dr Furlong, the applicant's treating renal physician, gave evidence that dialysis is a life sustaining treatment, that heavy work puts strain on those on dialysis, but that the applicant could undertake employment if it could be worked around his dialysis schedule. Dr Finlay said that in relation to the applicant's total level of disability he would accord his accepted disabilities 40 points and the kidney condition 60 points, and that in the context of the applicant's other problems the kidney problem/renal failure was a significant condition.

12. Dr Ottone of Atherton, who is the applicant's treating General Practitioner also gave oral evidence by telephone. In a report dated 18 December 1995, (T4/46) Dr Ottone had stated that the war service disabilities of obesity, gout, hypertension, low back pain, anxiety state and tinea had caused the applicant total disability. In his oral evidence, Dr Ottone stated that because of the kidney problem he did not believe that the applicant should work, or even "try to look for a job". Yet in that 1995 report Dr Ottone did not even mention the non-accepted serious kidney condition. When questioned by the Tribunal as to the relative percentages he would allocate to each condition to reach his assessment of total disability due to accepted war service disabilities, Dr Ottone attributed 20% to lower back disability, 10% to each of obesity, gout and anxiety state. He attributed 40% to hypertension. We note that hypertension has been assessed by Dr Grant, the Senior Medical Officer Compensation for the Department, at five impairment points. Nowhere else in either the documentary or oral evidence was Dr Grant's assessment of five impairment points disputed and we therefore accept this assessment as the appropriate rating for that condition. In our view Dr Ottone tried his best to be supportive of the applicant's claim, but the lack of balance and objectivity of his report and his evidence, rendered his opinions and evidence of little assistance.

13. Ms Houston, occupational therapist, who assessed the applicant on 21 July 1997 to identify his functional impairment in relation to his back injury and capacity to work, and to assist him with improving his functional abilities, gave evidence. It is her opinion that the applicant's ill health limits him with numerous activities, and that even sedentary tasks are restricted by his back pain. She said that she was asked specifically to look at the applicant's back, and its effect on his work capacity. The applicant has restrictions also in both hips. Ms Houston said that if the applicant's disabilities related only to his back and his obesity, she would be looking at a sedentary occupation, but that he would have restrictions walking and standing for lengthy periods. As Ms Houston had not been required to assess the applicant's disability from the kidney condition, we have taken this into account in assessing the weight to be given to her opinion and evidence.

14. The Commission called Dr Grant, who gave evidence of his view that as the applicant was receiving dialysis treatment three days per week, it would be difficult to fund an employer who would be prepared to schedule the workload around this treatment regime. Dr Grant assessed the applicant's accepted disabilities at 40 impairment points, and his ongoing use of haemodialysis from Table 9.1.1. at 60 impairment points.

15. We have examined the whole of the evidence carefully and in detail and we have taken into account the parties' submissions. The applicant ceased his seasonal work in 1989, but there is not specialist medical evidence that he ceased work because of his accepted disabilities, nor that he could not have continued to work in suitable employment. We are not satisfied on the evidence that the applicant ceased work because of his accepted disabilities alone.

16. In relation to the applicant's kidney condition, we accept Dr Furlong's evidence that in his opinion the applicant is capable of undertaking remunerative work, but that in reality the dialysis treatment program makes it difficult to obtain suitable employment. We found Dr Ottone's evidence unhelpful, and prefer the evidence of Dr Furlong and Dr Grant to the effect that the applicant's kidney condition is the major disability he suffers, and we are satisfied on the evidence that this disability is a significant reason for the applicant being unable to return to the workforce.

17. We are not satisfied on the evidence that the applicant's accepted conditions alone prevent him from undertaking remunerative work. He does not satisfy section 24 of the Act, and is not qualified therefore for payment of pension at the special rate.

18. For these reasons the Tribunal affirms the decision under review.

I certify that this and the 8 preceding pages are a true copy of the decision and reasons for decision herein of Miss WJF Purcell (Senior Member), Dr KP Kennedy (Member), Major General JN Stein (Member)

Signed: .....................................................................................

Associate

Date/s of Hearing 19 November 1998

Date of Decision 5 January 1999

Counsel for the Applicant Mr O'Gorman

Solicitor for Applicant Gilshenan & Luton

For the Respondent Mr Dobbie