Cave and Repatriation Commission [1999] AATA 7 (12 January 1999)

Last Updated: 29 January 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 7

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o Q97/1092

VETERANS' APPEALS DIVISION )

Re STANLEY MARTIN CAVE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member)

Brigadier IRW Brumfield (Member)

Dr JB Morley (Member)

Date 12 January 1999

Place Brisbane

Decision The Tribunal sets aside the decision under review only insofar as it determined that pension was payable to the applicant at 90% of the General rate, and substitutes a decision that pension is payable to the applicant at 100% of the General Rate with effect from 7 April 1997.

(Sgd) WJF Purcell

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - special rate - whether applicant capable of working more than eight hours per week - whether applicant's accepted disabilities alone caused cessation of remunerative employment

Veterans' Entitlements Act 1986 ss 24(1), 24(2)

REASONS FOR DECISION

12 January 1999 Miss WJF Purcell (Senior Member)

Brigadier IR Brumfield (Member)

Dr JB Morley (Member)

1. This an application for review of a decision of the Repatriation Commission (the Commission) of 2 June 1997 in so far as it set pension at 90% of the General Rate. The decision was affirmed by the Veterans' Review Board on 15 September 1997.

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 and called Dr W Douglas, Rheumatologist, and his treating General Practitioner, Dr Morrow, as witnesses. Mr Patchen represented the Commission which called Dr S Goode, a specialist in Occupational Medicine, as a witness.

3. The applicant is 55 years of age, and enlisted in the Australian Regular Army (the Army) as an Infantryman at the age of 17, in 1960. He served in Australia, Malaya, Borneo and Vietnam, and held the rank of Warrant Officer, Class I Regimental Quartermaster Sergeant (RQMS) when he was discharged from the Army at his own request in August 1982. From 1970 onwards he performed the duties of Company Quartermaster in charge of stores; firstly for the Battle School at Canungra, then Central Command, Adelaide; then Sydney, and finally Canberra.

4. The standard of proof is that of reasonable satisfaction in accordance with section 120(4) of the Veterans' Entitlements Act 1986 (the Act). The applicant seeks payment of pension at the Special Rate, in accordance with section 24 of the Act, which as far as is relevant for the purposes of this review provides:

24(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.

5. At the commencement of the Hearing we were informed that the Commission conceded now, that the applicant is eligible for payment of pension at 100% of the General Rate. Section 24(1)(a)(1) of the Act is satisfied therefore. The applicant argues that he satisfies the balance of the section, in that he is unable to work more than 8 hours per week because of his accepted disabilities alone, and his incapacity resulting from these accepted disabilities alone prevents him from undertaking remunerative work and he has suffered economic loss.

6. The Commission submits that the applicant does not satisfy s24(1)(b) or s24(1)(c) of the Act, in that he has significant disabilities which have not been accepted as being related to his service, and which affect his ability to undertake remunerative work. The applicant has not suffered a loss of earnings through war-caused incapacity alone; and as he has not genuinely sought to obtain employment, subsection 24(2)(b) of the Act does not apply. The Commission maintains also that, in any event, the applicant's accepted disabilities are not the substantial cause of his inability to undertake remunerative work.

7. The applicant has the following accepted disabilities:

* Traumatic arthropathy left elbow (arthritis)

* Traumatic arthropathy left wrists (arthritis)

* Hyperhidrosis both feet complicated by bronchidrosis (excessive sweating of the feet)

The following conditions have been determined as not being related to the applicant's service:

* Sensori-neural deafness left ear

* Varicose veins both legs

* Old fracture of right ankle

The applicant has not lodged a claim for treatment or pension from the Department of Veterans' Affairs, in relation to the following conditions:

* Nerve damage of the right elbow and hand

* Fracture of the left ankle

* Recurrent dislocation of the right elbow

8. The applicant was involved in a motor vehicle accident in 1960 and suffered left arm fractures. His left elbow was dislocated in 1967, and whilst he was serving in Vietnam, the elbow was struck by a falling beam during an enemy mortar attack. His left arm and elbow condition has deteriorated over the years, and is now his most serious accepted disability.

9. The applicant said in evidence that in relation to the disability referred to as "nerve damage of the right elbow and hand" for which he has never lodged a claim; this arose from an incident in 1989 in the course of his civilian employment in the Army. The applicant commenced work in March 1983 as a civilian storeman at the Army's Enoggera Barracks, initially at the Ammunition Depot, and from 1986 at the Foodstuffs Depot, until he ceased work in April 1997.

10. In January 1989, the applicant and a fellow workman were unloading crates from the back of a truck into a walk-in refrigerator. The applicant was attempting to unload with his right arm only, because with his accepted disability he could not use his left arm at all. As the applicant swung around, the steel door of the refrigerator closed and crushed his right arm. He says that the injury has caused intermittent problems, in that as he has been obliged to work one-armed because of his accepted disability, the right arm has also deteriorated over the years. He suffers pins and needles, and then, because of the pain, is unable to use the right arm to write, or to lift and carry objects.

11. The applicant said in evidence that during the last 11 years he worked as a storeman in the Foodstuffs Unit at Enoggera, the most time-consuming duties were the issuing and receipt of combat rations. In his oral evidence he described the manner in which he carried out these duties:

"MR O'GORMAN: Looking at those duties, are you able to give some idea as to which of the tasks took up most of your time?--- Most of the time was the issuing and receiving of combat rations.

What would that entail?--- That entails a unit sends in their indent for ration packs to go to the field and as a result we break that down into unit-sized lots by taking off major stacks, breaking it down onto small stacks.

And how would you do that?--- By breaking down pallets and by lifting from one major stack pallet to another. Rations come in five menus, so you've got to break them down so they get an even amount of each menu, you see. So you've got to go from stack to stack and break them down, physically break them down and repack them on another pallet.

All right. You say physically break them down; what do you mean by that?--- You physically break them down. You've got to cut off the plastic, cut off the banding then start loading from one pallet to another by hand.

All right. And what would you load from one pallet to another after you had cut off the plastic and the banding?--- Combat rations.

All right. And what size were the - - -? --- They were anything from 18 to 22 kilograms per box.

Right. And how would you go about moving from one pallet to another these 18 to 22 kilogram boxes? How would you physically go about it?--- By using one arm and my knee. I used to lift it up by the, they come banded with a thin, thin nylon band, and I'd put my fingers in through those nylon bands, lift them and kick them across with my knee, my right knee. It was the only way I could do it.

And when you ceased work were you still lifting in that manner? ---Yes." [Transcript p.16-17]

12. The applicant gave evidence that his right upper leg (a non-claimed disability) would become tired through overuse because of the continual lifting under the bands of the packs; but that he never took time off from work because of his right leg. Because of his accepted disability he was unable to put any weight on his left arm it at all, he could use it only as a guide. He said that the strain this placed on the right arm caused deterioration after the first few years. The deterioration was gradual. He could go for months without problems, but if he lifted an object incorrectly, the right arm would be affected for up to two weeks, with pins and needles which felt like an electric shock. He said that the accepted disability was a problem the whole 9 years he worked in the Foodstuffs Unit, but that the right arm deteriorated over the years until the stage where "at the end there I couldn't write properly or things like that". [Transcript p.24]

13. The applicant said in evidence that by April 1997 his accepted disability was damaging his right arm, and his accepted foot disability was causing him problems also. He says that he ceased work on the advice of his treating doctors, and that he has not sought alternative employment.

14. The applicant gave lengthy oral evidence. We think that he did his best to tell us the truth of the situation as he perceives it; but we formed the impression that he attempted to downplay the effect his work-related right arm disability had upon his decision to cease work and the effect it continues to have upon his ability to return to the workforce. He has not sought employment nor has he attempted any retraining. He impressed us as a person convinced that he will never work again, and is not motivated to retrain.

15. The other witnesses were medical practitioners, all of whom were suitably qualified and gave objective and careful evidence. Both Drs Douglas and Morrow emphasised the effects of the applicant's accepted disabilities upon the applicant's ceasing work. They relied on the complaints and symptoms outlined to them by the applicant, and their view of the significance of these disabilities was influenced by the applicant's own emphasis on these disabilities to the exclusion of others. We have taken this into account in our assessment of the weight to be given to their opinions and evidence; and we prefer the opinion and evidence of Dr Goode in any area of conflict in the medical evidence.

16. Dr Douglas, Rheumatologist, gave evidence that the first time he saw the applicant was on 10 February 1989 when he was referred by his treating General Practitioner, Dr Morrow, because of sensory problems "electric shock" type sensations in the right hand, in the middle and ring finger. The applicant was complaining also, of severe pain, and Dr Douglas referred him to Dr J Walters, an orthopaedic surgeon with a particular interest in surgery of the hand. Dr Walters reported that the applicant may well have traumatised the ulna nerve, at the elbow, as a result of the work-related accident in January 1989, with the refrigerator door. Dr Walters found no clinical evidence of loss of conduction in the nerve; and in his report of 10 March 1989, he stated in part:

"My feeling is against any form of surgery on the nerve at this point of time and I would prefer to wait and give time for things to settle down. He claims he is having considerable difficulty working, and if a clerical type job cannot be found he may require some time off work." [Exhibit A7]

17. Dr Douglas gave evidence that he has seen the applicant now on seven occasions, between 19 January 1994 and 3 April 1997. On only one of those occasions (24 October 1995) did he mention the right hand, saying that he had vague sensory problems that were not really worrying. Dr Douglas said that the applicant's grip strength and muscle bulk remained normal. He said also that all 7 consultations related to the applicant's accepted disability. He said also that when he reported to the Department of Veterans' Affairs on 3 April 1997, that he had advised the applicant to finish work, that the applicant was unable to work more than eight hours per week, and was totally and permanently incapacitated, Dr Douglas was under the impression that it had become increasingly difficult for the applicant to work because of his accepted disability and the pain in his ankles.

18. Dr Douglas, during the course of his cross-examination, was asked by Mr Patchen to give consideration to the manner in which the applicant carried out his duties.

"MR PATCHEN: He indicated that what he would do is he would pick the packs up - an individual pack up with his right hand and sort of balance it on his knee - right leg - - -?---Yes,

- - - not using his left arm other than to make a guide for the pack, and swing it round to where he had to place it, and he would be doing that. He indicated that he did that for nine years, and that his left arm played part in that duty as just a guiding sort of role?---Yes.

He also indicated that his right arm deteriorated over that time, and, in fact, affected him for several weeks at a time?---Yes, I suppose if he couldn't use his left arm very well, and was taking the pack in his right hand and taking the weight on his elbow on to his knee, it could possibly have been compressing the nerve each time he did that. I wasn't aware of that. He certainly didn't indicate that to me at any point.

So that, in itself, may have aggravated the condition, or continued the condition?---Yes, yes, if that is correct in what he was doing, taking the weight through his elbow on to his thigh, I suppose it is possible, yes. [Transcript p.65]

...

MR PATCHEN: Okay. Well, from `96 to `97, if Mr Cave is doing those duties where he's lifting those pallets, then he's not really using his left arm at all?---Yes.

I don't see how the situation has deteriorated to the point where he can't do that anymore - only if there's a deterioration in his right arm and he can't pick up those ration packs with his right arm. Did you comment on that?--- Well, he didn't mention that to me, as I said previously, during the visits he had, up until the last one, which was on 3 April `97. And the reason he came to see me was because he wasn't coping, mainly due to pain in his left upper arm and his feet.

Okay?---The right upper arm was not, to my knowledge, a - a major concern to him. I mean, there may be records elsewhere that it was, but I certainly haven't got it." [Transcript p. 67]

19. Dr Douglas was asked also whether he had turned his mind, theoretically, to the types of work the applicant was capable of performing. He said that in April 1997 he took into account the applicant's age, training and experience, and the attitude at Enoggera Barracks, to the effect that a storeman's work was all that was available. Dr Douglas was of the opinion then that the applicant, at 51 years of age, had little opportunity for retraining and was due to retire.

20. Dr Morrow, the applicant's treating General Practitioner, gave evidence that the applicant had been a patient since about 1987, and that his main complaints have related to pain and weakness in the left arm, with some references to pain and numbness in the fingers of his right hand. Dr Morrow said that he assumed it was the applicant's left arm, his accepted disability, which was gradually getting worse over the 9 years of treatment, and that the applicant was able to do less and less work because of his accepted disability. Dr Morrow said that he was not aware that the applicant did not really use his left arm whilst performing manual tasks. He was unaware also, that the applicant had said that his right arm had deteriorated over the 9 years. He said in evidence:

"I really can't comment much about his right arm, whether - whether his right arm actually has worsened because he just didn't complain to me about his right arm - it was all relevant - all - you know - all talk of his left arm." [Transcript p.74]

21. The Commission called Dr Goode, a registered specialist in occupational medicine, who gave evidence of his opinion that the applicant's right arm condition contributed to the decision to cease work. He said that the applicant's most significant disability is his left arm, accepted disability. This has led to stiffness of both the elbow and the wrist, with associated pain. Because of its effects on manual handling the disability would impair the applicant's ability significantly to do storeman work, infantry training and weapon training. Dr Goode said that the applicant could consider supervisory/clerical/administrative work; and could develop computer skills and renew his clerical skills. He could work part time, initially, eight hours per week; and if he was tolerating that, adequately supervised by the treating General Practitioner, he could build up to full time at such work, were he able to obtain it.

22. Dr Goode said in evidence that the applicant's right arm problem is a significant condition. It is intermittent, so there will be times when it is more relevant than at other times. Sometimes, when the applicant has these symptoms, combined with his accepted disability, he cannot even dress himself without assistance. This right arm disability has the potential to interfere with his return to work even now, and could intermittently interfere with the applicant's ability to write, and to undertake clerical/supervisory and management work. Dr Goode said in evidence that in his view the applicant's right arm symptoms contributed to his ceasing work, but they are relatively quiescent now that he is not undertaking the heavy manual handling required previously. We accept Dr Goode's evidence.

23. We have examined the whole of the evidence carefully and in detail and we have taken into account the parties' submissions. We accept Dr Goode's evidence that the applicant is capable of working eight hours per week initially, and that he could build up eventually to full time work. We are satisfied on the evidence that the applicant is not totally and permanently incapacitated, in that his accepted disabilities alone do not render him incapable of undertaking remunerative work for more than eight hours per week. The applicant does not satisfy, therefore, section 24(1)(b) of the Act. It follows also that he does not satisfy section 24(1)(c) of the Act. We are satisfied on the evidence also, that the applicant's right arm disability was one of the reasons he ceased to engage in remunerative work; and that he would not satisfy section 24(2)(a) of the Act in any event. The applicant is not qualified for payment of pension at the special rate.

24. For these reasons the Tribunal sets aside the decision under review only insofar as it determined that pension was payable at 90% of the General Rate, and substitutes a decision that pension is payable at 100% of the General Rate, with effect from 7 April 1997.

I certify that this and the 10 preceding pages are a true copy of the decision and reasons for decision herein of Miss WJF Purcell (Senior Member), Brigadier IRW Brumfield and Dr JB Morley (Members)

Signed: Susan Gray

Associate

Date/s of Hearing 25.8.98

Date of Decision 12.1.99

Counsel for the Applicant Mr D O'Gorman

Solicitor for Applicant Gilshenan & Luton

For the Respondent Mr P Patchen