Weir and Repatriation Commission [2002] AATA 1149 (7 November 2002)

Last Updated: 8 November 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1149

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/184

) No N2001/1249

VETERANS' APPEALS DIVISION )

Re PETER MICHAEL WEIR

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member Mr S Webb, Member

Date 7 November 2002

Place Sydney

Decision The tribunal affirms the decision of the respondent dated 20 June 2000 as affirmed by the VRB on 25 July 2001 to refuse Mr Weir's claims in respect of lumbar spondylosis and intervertebral disc prolapse at L5-S1. The tribunal sets aside the decision of the respondent dated 3 December 1998 as affirmed by the VRB on 20 October 1999 and decides instead that the applicant has qualified for payment at the intermediate rate with effect from 3 July 1998.

..............................................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Disability Pension - lumbar spondylosis and intervertebral disc prolapse held not war-caused diseases - clinical worsening - aggravation - special rate pension refused - veteran able to work for 8 or more hours a week despite accepted disabilities- veteran unable to work 20 or more hours a week because of accepted disabilities - intermediate rate payable - veteran unable to continue remunerative employment because of accepted disabilities alone

Veterans' Entitlements Act 1986 ss 7(1)(a), 9(1)(e)(ii), (6), 19(6), 23(1), (2), (3), 24(1), (2), 28, 120(1), (3), (4), 157(2)(a)(ii), 177(2)(a)

Statement of Principles 130/96 as amended by 92/97 concerning intervertebral disc prolapse

Statement of Principles 46/2002 concerning lumbar spondylosis

Deledio, Repatriation Commission v (1998) 49 ALD 193

Gorton, Repatriation Commission v (2001) 33 AAR 370

Hendy v Repatriation Commission [2002] FCA 602

Smith, Repatriation Commission v (1987) 74 ALR 537

Williams, Repatriation Commission v [2001] FCA 1195

Yates, Repatriation Commission v (1995) 38 ALD 80

REASONS FOR DECISION

7 November 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member Mr S Webb, Member

THE APPLICATION

1. Application N2000/184 is an application to the Administrative Appeals Tribunal ("the tribunal") by Peter Michael Weir ("the applicant", "the veteran") for review of a decision of the Repatriation Commission ("the respondent") dated 3 December 1998 (T16) as affirmed by the Veterans' Review Board ("the VRB") on 20 October 1999 (T22). The decision was that the appropriate rate of Disability Pension was 100% of the general rate despite the acceptance of ischaemic heart disease as a war-caused disease in addition to bilateral sensori-neural hearing loss with tinnitus, solar skin damage/malignant neoplasm of the skin and chronic bronchitis and emphysema (ex TD1/1).

2. Application N2001/1249 is an application to the tribunal by the applicant for review of two decisions of the respondent, one dated 20 October 1999 already before the tribunal in application N2000/184 and the other dated 20 June 2000 (ST3) as affirmed by the VRB on 25 July 2001 (ST9). The decision was to reject the applicant's claim for Disability Pension in respect of lumbar spondylosis and intervertebral disc prolapse at L5-S1.

3. The issues before the tribunal were, therefore, whether Mr Weir's claim in respect of lumbar spondylosis and intervertebral disc prolapse should be admitted and, in any event, whether he qualifies for payment at the intermediate or special rate.

THE HEARING

4. The tribunal convened a hearing in this matter in Sydney on 2 August 2002. Mr Mark Vincent of counsel represented the applicant and Ms Philippa Hook of the Department of Veterans' Affairs ("DVA") Advocacy Service represented the respondent. The tribunal heard oral evidence from the applicant and from Dr P L Harvey-Sutton, an occupational physician. The tribunal took into evidence the following documents:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T23) in application N2000/184, provided by the respondent.

Exhibit TD2 - Supplementary Section 37 Statement and associated documents (exhibits ST1 - ST18) in application N2001/1249, provided by the respondent.

Exhibit A1 - Applicant's statement of facts and contentions, 11 July 2002.

Exhibit A2 - Statement of Peter Michael Weir, 13 April 2000.

Exhibit A3 - Statement of Christine Weir, undated.

Exhibit A4 - Report by Dr Harvey-Sutton, 30 May 2002.

Exhibit A5 - Report by Dr M Baz, occupational physician, 1 May 2000.

Exhibit A6 - Report by Dr D Maxwell, orthopaedic and spinal surgeon, 8 March 2002.

Exhibit A7 - Report by Dr Baz, 6 December 2000.

Exhibit A8 - Diagram of cockpit of Gannet aircraft.

Exhibit R1 - Respondent's statement of facts and contentions, 10 July 2002.

Exhibit R2 - Report by Dr J Chen, 20 May 2002.

Exhibit R3 - Report by Dr T Anderson, occupational physician.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

5. The tribunal makes the following uncontroversial findings.

* The applicant was born on 9 March 1938 and was aged 60 when he lodged his claim on 2 July 1998.

* The applicant served in the Royal Australian Navy ("the navy") and rendered operational service in the Far East Strategic Reserve on the following dates:

* From 5 April to 7 May 1957;

* From 7 to 28 June 1957;

* From 17 March to 3 April 1958;

* From 23 April to 13 May 1958 (ex TD1/T3).

* The applicant lodged a valid claim in respect of ischaemic heart disease on 2 July 1998 (ex TD1/T11) and in respect of lumbar spondylosis on 5 June 1999 (ex TD2/ST5).

* The date of effect of a decision favourable to the applicant relating to intervertebral disc prolapse or lumbar spondylosis would be 13 June 2000 because the application to the VRB was not made within three months of notification of the respondent's decision (ss 157(2)(a)(ii) and 177(2)(a) of the Veterans' Entitlements Act 1988 ("the Act")). The date of effect of any decision to pay pension at the intermediate or special rate would be 3 July 1998, the day after Mr Weir ceased work.

* The standard of proof in relation to whether Mr Weir's lumbar spondylosis and intervertebral disc prolapse are war-caused diseases is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to eligibility for intermediate or special rate is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).

* The SoPs relevant to the determination of this matter are, prima facie, SoP 130/96 as amended by 92/97 concerning intervertebral disc prolapse and SoP 46/2002 concerning lumbar spondylosis. If the hypothesis fails in relation to SoP 46/2002 then the SoP in force at the time of the primary decision (20 June 2000), SoP 52/98 can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).

the hypotheses

6. The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.

7. The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. In the present case there are hypotheses seeking to connect each disease to Mr Weir's operational service. As regards intervertebral disc prolapse the hypothesis suggested by the material before the tribunal was that "the applicant's operational service aggravated the intervertebral disc prolapse at L5/S1 that occurred during eligible service" (ex A1/2). The suggestion was that Mr Weir injured the disc while lifting a heavy battery and aggravated that injury while lifting stores during operational service. The tribunal notes an immediate problem. The suggestion in some of the material (eg ex A1) was that the initial injury occurred during eligible service. In fact the initial injury occurred at a time that was neither operational nor eligible service as defined in s 7 of the Act.

8. In relation to the lumbar spondylosis the hypothesis was that a trauma to the spine in operational service aggravated the lumbar spondylosis which had developed in eligible service. The tribunal repeats its comments, made in paragraph 7, about the veteran being not engaged in eligible service on the date of the trauma raised as part of the hypothesis. Alternatively the hypothesis was that Mr Weir's intervertebral disc prolapse led to the aggravation of his lumbar spondylosis. The veteran's material enlarging on these hypotheses appears below in paragraphs 16-23.

9. The second step is to ascertain whether there is a relevant SoP in force. It has already been ascertained that there are relevant SoPs in force for intervertebral disc prolapse and lumbar spondylosis (see paragraph 5 above).

10. The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.

11. It is first necessary to confirm to the standard of reasonable satisfaction that Mr Weir suffers from an intervertebral disc prolapse and from lumbar spondylosis. Dr D Maxwell, a prominent orthopaedic surgeon, has diagnosed a probable internal disc disruption at L5/S1 (ex A6/3) and the presence of lumbar spondylosis. The tribunal finds to its reasonable satisfaction that these are the relevant diseases affecting Mr Weir and the diseases to which the relevant SoPs relate.

12. The hypotheses raised before the tribunal suggest for each disease a trauma. For intervertebral disc prolapse the factor in the SoP is factor 5(g):

(g) suffering trauma to the relevant disc at the time of the clinical worsening of intervertebral disc prolapse; or

13. For lumbar spondylosis the factor in the SoP is factor 5(u):

(h) suffering a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis; or

14. It is therefore necessary to ascertain whether the hypotheses posit a trauma in relation to either or both conditions. However, before that can be done it must be noted that the SoPs define a trauma of the type that each hypothesis must describe as having occurred. The required trauma for intervertebral disc prolapse is described in SoP 92/97 in clause 2:

'trauma to the relevant disc' means an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery). Where medical intervention for the injury has occurred, and there is evidence relating to the extent of injury and treatment, such evidence may be considered. Examples of activities or events that may result in trauma to the relevant disc include:

(i) lifting, pushing or pulling an object weighing more than 10 kg; or

(ii) jumping from a height, for example, in a parachute jump, or jumping down from a tank; or

(iii) a fall; or

(iv) diving into a body of water; or

(v) participating in sports, for example, football, surfing, gymnastics; or

(vi) spinal manipulation; or

(vii) a motor vehicle accident; or

(viii) a blast explosion; or

(ix) a physical attack.

15. For lumbar spondylosis clause 8 defines "trauma to the lumbar spine":

'trauma to the lumbar spine' means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:

(a) immobilisation of the lumbar spine by splinting, or similar external agent; or

(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or

(c) surgery to the lumbar spine.

16. The events raised by Mr Weir to satisfy these requirements were discussed in his oral evidence to the tribunal. He said that on 20 April 1958, three days before a period of operational service and not a day occurring during eligible service, he was in Hong Kong and had to change an aircraft battery. The battery weighed an estimated 25 kg. Mr Weir had to lift it in limited space. He had to lift it straight up from a crouch position with arms outstretched. Mr Weir said that his back became very tender. The tenderness lasted more than nine days. It lasted for a few weeks before coming good. Also, in later weeks if Mr Weir had a job that aggravated it then the tenderness returned. This happened quite often. There was a sharp pain across the back at first before the tenderness set in. He saw the chief electrician immediately before going for treatment which lasted for nine days. He saw a doctor who prescribed the required treatment. The treatment was heat treatment to the back once a day plus painkillers. The sick berth attendant administered the heat treatment.

17. Mr Weir said that he could not easily remove himself from his bed which was the top bunk of three. He would roll off the side and be caught by his navy colleagues. This was the case for about a week. Mr Weir said that his back was still painful after nine days but he felt he had to return to full work duty because the chief electrician was becoming "uptight" about him. Others were covering for Mr Weir. Mr Weir told tribunal member, Dr Campbell, that he was not excused from any duty. He did return to work but continued taking Bex powders. He also had daily ray treatment from the sick berth attendant for the rest of the trip, which was a number of weeks. The Bex self-administration became virtually permanent.

18. Mr Weir described his movements immediately after lifting the battery as "jerky". He said he had to restrict movement to avoid pain. He could not move as freely as before the accident.

19. In cross-examination Mr Weir said that the lumbar symptoms returned throughout the tour of duty whenever he had work to do that was prone to producing the symptoms. He would relieve the pain with the Bex powders.

20. Mr Weir went on to describe the work he did removing the instruments from the cockpit of Gannet aircraft. This was said to involve an additional form of trauma to the spine and/or disc. Mr Weir had to edge into the cockpit on his back with feet in the air. His head went below the rudder pedals and curled around the joystick. His back was on the pilot's seat, except that it was not actually a seat, as such. The pilot sat on a bucket which was filled with the pilot's parachute which formed an upholstered cushion. When no pilot was aboard the seat was in "bucket" mode. The front edge of the bucket was across the base of Mr Weir's spine. This was illustrated by ex A8, the diagram of the Gannet cockpit.

21. Mr Weir referred also to other tasks performed. Mr Weir and his colleagues would have to move aircraft by pushing them around on the aircraft carrier deck. They performed engine changes which involved pushing the engine forward of the aircraft which was anchored to the deck. The engine was then swung away and worked on. The procedure was done in reverse when the engine was reinstalled. Three or four navy men at a time did this manual work. The work described in this and the previous paragraph was required after the battery lifting incident and took place during operational service. When dealing in the cockpit with the instruments, after the battery accident, Mr Weir adapted his action by trying to introduce a padded cushioning on the edge of the pilot's seat bucket.

22. Mr Weir said that in the weeks after the battery incident he removed batteries three or four times a week and performed these other functions and they aggravated his back condition. He found that his back pain grew worse when he performed these functions. He was able to arrange to have colleagues do these tasks instead of him on some occasions.

23. After the ship returned to Australia Mr Weir had four weeks leave. The lumbar symptoms went away during that time. Mr Weir remained in the navy for another 2½ years. He was engaged in similar tasks as before along with some clerical duties, driving and night watch work. Mr Weir said he hurt his back again in the navy in a similar way to 1958 when he was driving a heavy truck and had to unload it. This was heavy work again.

24. As was seen earlier, the hypotheses raised before the tribunal rely on clinical worsening of the lumbar spinal conditions resulting from events in operational service, which is a form of eligible defence service under s 7(1)(a) of the act. Clinical worsening in the SoPs would seem to reflect the concept of aggravation of a disease or injury that appears in s 9(1)(e)(ii) of the Act:

War-caused injuries or diseases

9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

...

(e) the injury suffered, or disease contracted, by the veteran:

...

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

...

(6) Paragraph (1) (e) does not apply to an injury suffered, or disease contracted, by a veteran (being an injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran):

...

(b) unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.

...

25. The description of the "aggravations" that occurred during operational service appear to the tribunal to amount not to "aggravation" of the earlier injury or disease, but to a simple flare up of symptoms. For an "aggravation" there must be a worsening of the underlying, pre-existing condition. Lindgren J in Repatriation Commission v Yates (1995) 38 ALD 80 at page 87 explained this:

"Symptoms worsened by service activity may or may not, depending on the medical evidence, be evidence of a defence-caused aggravation of the underlying injury or disease. The following passage from the judgment of Toohey J (with whom Mason CJ and Brennan, Dawson and McHugh JJ agreed) in Asioty at CLR 540; ALR 389-90 is pertinent:

'While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance.' [Emphasis supplied.]

"Asioty was a case under the Workers' Compensation Ordinance 1951 (ACT), s 6 (1) of which, unlike s 5 of the Act, defined 'disease' to include 'the aggravation, acceleration or recurrence of a pre-existing disease'. The importance for present purposes of the passage quoted above is in its recognition of the distinction between symptoms and the aggravation of a pre-existing disease, and in the references to the disease of dermatitis as 'underlying', to 'more permanent aggravation' and to 'enhanced susceptibility'. The passage quoted earlier from Heaps' case is generally similar. Those passages recognise that an occurrence or worsening from time to time of symptoms caused by work or service may not compel an inference that there has been an aggravation, caused by work or service, of a pre-existing disease."

26. This suggests that the material before the tribunal indicates that the hypotheses do not conform to the requirements in the templates in the SoPs under consideration. The same result follows from the failure of the hypotheses to suggest occurrences of trauma to the relevant disc or trauma to the lumbar spine during operational service of a similar magnitude as that occurring on 20 April 1958. The tribunal is confident that, had Mr Weir been engaged in operational service on 20 April 1958, the description he has given of the trauma experienced on that day would satisfy the relevant SoP factors. The SoPs, in the factors cited in relation to clinical worsening, require a similar trauma, and no such trauma in operational service has been suggested.

27. The tribunal has considered the report by Dr Maxwell (ex A6) on which the applicant placed considerable reliance. However, Dr Maxwell has tended to assume an aggravation occurring during operational service without identifying and commenting on any potential trauma that may then have occurred in a fashion sufficient to satisfy the SoP definitions of trauma.

28. The tribunal has considered the SoP concerning lumbar spondylosis in force at the time of the primary decision and reference to that SoP does not alter the above analysis.

29. The tribunal has considered the secondary factor advanced for lumbar spondylosis, ie factor 5(v) in SoP 46/2002:

(v) suffering a lumbar intervertebral disc prolapse before the clinical worsening of lumbar spondylosis at the level of the intervertebral disc prolapse; or

30. There are similar difficulties presented in relation to this factor. First, there has not, on the material before the tribunal, been a hypothesis suggesting a clinical worsening or aggravation of Mr Weir's lumbar spondylosis during operational service. Second, the material before the tribunal does not point to a hypothesis that fulfils the requirements for a trauma to the relevant disc during operational service in accordance with SoP 92/97.

31. The tribunal therefore finds that the hypotheses raised connecting Mr Weir's intervertebral disc prolapse and lumbar spondylosis with his operational service are not consistent with the relevant templates in the relevant SoPs. In accordance with s 120(3) of the Act, therefore, the hypotheses are not reasonable. This means that Mr Weir's spinal diseases are not war-caused diseases in accordance with the Act.

special rate

32. In considering Mr Weir's entitlement to a Disability Pension payable at intermediate or special rate, consideration is given first to special rate as it is the more advantageous rate. The tribunal must reach a state of reasonable satisfaction (s 120(4) of the Act) regarding the qualification criteria for special rate in s 24(1) and (2) of the Act. Mr Weir clearly satisfies several of the provisions in s 24.

(a) He has made a claim for a pension in accordance with s 14 of the Act (s 24(1)(aa) of the Act).

(b) He had not turned age 65 before he made that claim (s 24(1)(aab) of the Act).

(c) His degree of incapacity has been assessed as 100%, which is at least 70% as required by s 24(1)(a)(i) of the Act.

(d) He is not in receipt of temporary special rate under s 25 of the Act (s 24(1)(d) of the Act).

33. The remaining basic issues arise under s 24(1)(b) and (c) of the Act. Section 24(1)(b) reads:

(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

34. In considering whether s 24(1)(b) is satisfied, Mr Weir's capacity to undertake remunerative work must be assessed in accordance with s 28 of the Act:

In determining, for the purposes of paragraph 23 (1) (b) or 24 (1) (b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

35. Mr Weir left the navy in 1962 and worked until 1998 in largely clerical occupations (ex TD1/T4/15) with variable amounts of driving (ex TD2/ST5/26; ex A2/4) and management, notably of a TAB agency. He has a particular facility with business accounting (ex R3).

36. As for the degree to which Mr Weir's accepted disabilities, ischaemic heart disease, bilateral sensori-neural hearing loss with tinnitus, solar skin damage/malignant neoplasm of the skin and chronic bronchitis and emphysema, have reduced Mr Weir's capacity to engage in clerical/managerial work, there is considerable evidence available.

* Dr P L Harvey-Sutton, an occupational physician, wrote on 30 May 2002 that Mr Weir's accepted conditions prevent him from undertaking a remunerative appointment for more than eight hours a week (ex A4/6). She said, "His presentation and shortness of breath and associated agitation resulting in some confusion giving his history would preclude clerical/administrative-type work for which he has both experience and training."

* Dr M Baz, also an occupational physician, wrote on 1 May 2000 (ex A5) that Mr Weir could be expected to have difficulty understanding conversation when there is background noise present based on his audiometry results. The high frequency hearing loss predominantly on the right side would cause considerable difficulty with comprehension. She also considered that the cardiorespiratory condition was the major reason why Mr Weir had been unable to continue at work. The occurrence of episodes of tachycardia associated with dizziness would impact on both his cognition and accuracy and would be likely to be more prevalent in a stressful work environment. In Dr Baz's opinion Mr Weir was unable to continue at work, other than for the two hours he does each week, solely because of his accepted disabilities and particularly due to the hearing loss and cardiorespiratory conditions. However, she added that he has continued to be unfit for work due to a combination of conditions including his cardiorespiratory disease, his hearing loss, his lumbar spondylosis and alcohol dependence. The reference to lumbar spondylosis suggests that Dr Baz was of the view that it was necessary to factor in the lumbar spondylosis in order to find the applicant to unable to engage in remunerative employment for at least eight hours a week.

* Dr J Chen, another occupational physician, wrote on 20 May 2002 (ex R2) that, given Mr Weir's skills, qualifications and experience, his accepted disabilities would probably not have prevented him from continuing to undertake remunerative work that he was undertaking for more than eight hours a week but would have prevented him from continuing to work for more than 20 hours a week as at 3 July 1998 and continuing to the present. She said that his accepted disabilities would not have prevented him from continuing to undertake clerical and administrative work. However, his hearing impairment would probably have prevented him from continuing to service customers in the TAB agency.

* Dr T Anderson, another occupational physician, wrote on 26 April 2000 (ex R3) that Mr Weir has "a lot of office skills and already uses these on a voluntary basis for the RSL. He would, therefore, be fit (very easily fit indeed) to formalise this type of occupation, easily for 20 hours a week."

37. The tribunal finds that Mr Weir does not satisfy s 24(1)(b). The tribunal relies in the main on the opinion of Dr Chen in this assessment. The tribunal has given little weight to Dr Anderson's report because Dr Anderson adopted in that report an unnecessarily judgmental and idiosyncratic style that reflected to an extent on its seriousness of purpose for the task in question. The tribunal had some difficulty with Dr Harvey-Sutton's report in that it seemed to run together the s 24(1)(b) and s 24(1)(c) issues and they were not easy to disentangle. The questions put to her by those requesting the report were not well constructed. She spoke in terms of the accepted disabilities being the "substantial" cause rather than actual cause of Mr Weir's inability to engage in remunerative employment. This problem was not, in the tribunal's view, resolved in her oral evidence. Dr Baz, as noted above, also seemed to factor in the non-accepted disability of lumbar spondylosis in opining on s 24(1)(b).

38. Dr Chen, on the other hand, produced a comprehensive report that clearly addressed the relevant issues. As a good expert witness should, she adopted a disinterested approach in finding that, although Mr Weir did not meet the test in s 24(1)(b), he probably met the equivalent test for intermediate rate in s 23(1)(b) and s 23(2)(b) of the Act in that Mr Weir's accepted disabilities would prevent him, during the assessment period, from working more than 20 hours a week. The test requires that he be unable to work for 20 or more hours a week. The tribunal takes Dr Chen to be addressing that criterion and finding that Mr Weir met it. Section 19(6) of the Act has the effect that, if the veteran meets these criteria at any time during the assessment period, intermediate rate becomes payable and remains payable even if the situation alters and the veteran could take on additional work. The tribunal found Dr Chen's report and opinion wholly persuasive and adopts it.

39. The tribunal finds that Mr Weir does not qualify for special rate Disability Pension as his case has not met the requirements of s 24(1)(b) of the Act, a provision that must be met for payment at special rate.

40. However, as Mr Weir has been found to satisfy s 23(1)(b) and s 23(2)(b) of the Act, he may qualify for intermediate rate. The findings in Mr Weir's favour in paragraph 32 above apply equally in relation to s 23 of the Act as there are identical requirements in s 23. The only provisions in s 23 of the Act still to be tested in Mr Weir's case are:

(c) the veteran is, by reason of incapacity from 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 from that incapacity; and

...

(3) For the purpose of paragraph (1) (c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1) (b) 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:

(i) if 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;

(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; 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.

41. In relation to s 23(1)(c) the difficulty for Mr Weir is that he has given inconsistent information over time. On 5 June 1997 Mr Weir said (ex TD1/T4/15) that his disabilities were affecting his employment. He cited "back problems" and said that extra staffing had been required to allow him rest time.

42. On 29 October 1997 Mr Weir said (ex TD1/T6/24) that there were things he could not do at work that he used to do. These were standing for long periods without rest (he was confined to standing for 20 minutes at a time) and lifting associated with stowage of stores. He said he could not do these things "due to back pain". As this is a restriction associated with a non-accepted disability, lumbar spondylosis, it could prevent Mr Weir from satisfying s 23(1)(c). However, at that time Mr Weir was still working. He worked on for eight more months.

43. On 6 July 1999 Mr Weir wrote (ex TD1/T21/82-83), in relation to his back problems, that throughout the previous 40 years he had managed to work continuously by changing his work habits and accommodating the pain caused by the lumbar spine injury. He said, "What I have not been able to do is control the distress, anxiety and mental anguish the pain has caused".

44. In ex A2 Mr Weir addressed the reasons he cannot work. He said that he decided to cease work because of the negative impact of his accepted disabilities on his ability to work. The symptoms of his accepted disabilities were aggravated when he was at work and he did not feel that he would be able to work more than eight hours a week because of the symptoms. He said that his duties as a self-employed TAB agent involved a considerable amount of stress. Customers would approach him in a great rush and there would often be a surge of customers at one particular time, rather than a constant flow throughout the day. This aggravated the symptoms of his disabilities.

45. Mr Weir said that his hearing loss and tinnitus affected his ability to work. He could not hear customers on the other side of the teller and was constantly worried that he was getting things wrong. Errors in that line of business cost a lot of money and that placed considerable pressure upon him. His accepted disability of ischaemic heart disease was said to also have a negative impact on his ability to work and was a factor in his decision to cease work. Because of the stressful conditions of the employment he would often experience symptoms such as a racing pulse, a feeling of light-headedness, dizziness and severe panic. He said that during customer rushes his heart condition would be severely aggravated, causing him pain, stress and serious discomfort.

46. Mr Weir said that his accepted disability of chronic bronchitis and emphysema also negatively impacted on his ability to work and was a factor considered by him in his decision to cease work. The nature and conditions of his employment often caused aggravation of his symptoms, including shortness of breath.

47. Mr Weir said that as a self-employed TAB agent his employment was flexible in that he did not have to walk long distances and he could coordinate at his own discretion when he would stand or sit. He could also take a day of when required and arrange for a relief agent to replace him. He considered that he would still be working as a TAB agent but for the existence of his accepted disabilities and their impact on his ability to continue working. He said that over the years he was able to employ measures to alleviate the effect that his back symptoms had on his ability to work. Mrs Weir corroborated Mr Weir's evidence in ex A2. Her evidence was in ex A3.

48. Dr T J Rankin, a general practitioner, wrote on 17 June 1999 (ex TD1/T21/88) that Mr Weir retired from running his TAB agency on 2 July 1998 on Dr Rankin's advice due to his ischaemic heart disease, complicated by his chronic airways disease. The doctor added in handwriting, "This advice was not influenced by his age or back condition". On 19 October 1999 Dr Rankin wrote (ex TD1/T22/97) that his reasons for advising Mr Weir to retire included the deleterious effect, in Dr Rankin's opinion, of the stress of dealing with customers. The applicant was said to have found the pressure on race days to cause him to rush and become stressed, resulting in an increase in his breathlessness. In view of Mr Weir's cardiovascular and respiratory disease Dr Rankin formed the opinion that the applicant's interests and health would be best served by him retiring from his TAB agency. His "understanding [was] that Mr Weir's back condition was not a problem in his then occupation".

49. Dr Harvey-Sutton (ex A4) provided qualified support for Mr Weir. She said that the veteran's "accepted disabilities are the substantial cause of his inability to undertake remunerative work". To satisfy s 23(1)(c) she would have had to opine that they alone, not just substantially, were the cause of the inability. Dr Harvey-Sutton gave oral evidence in which she was invited to reconsider this. She said then that the accepted disabilities alone would prevent Mr Weir from undertaking remunerative work.

50. Dr Baz was of the view that Mr Weir was unable to continue at work for other than the two hours of work he did bookkeeping after he retired (ex A5/7). This was "solely because of his accepted disabilities, and particularly due to the hearing loss and cardiorespiratory conditions". She modified this view later on 6 December 2000 (ex A7). She wrote:

"He has a significant cardiac history and a clear history of symptoms occurring at 2-3 mets. Recurrent tachycardias impacted on his work ability, and I consider led to his decision to retire.

"However, there is a history of back pain, and a history of changing work duties due to back pain.

"While this is a mild condition, I do not consider the back pain can be excluded as a contributory factor in his decision to leave work.

"Thus while his accepted conditions cause him to be unfit for work, I do not consider they 'alone' prevented him from continuing at work."

51. Dr Chen (ex R2/11) accepts Mr Weir's assessment that his hearing problem would probably have prevented him from continuing to service customers in the TAB agency.

52. Madgwick J in Hendy v Repatriation Commission [2002] FCA 602 had the following remarks to make, based on earlier Federal Court authorities, about the method to be used in applying s 24(1)(c) of the Act which, for present purposes, equates to s 23(1)(c) in relation to intermediate rate:

"35 It seems to me that if:

(1) the veteran satisfies s 24(1)(b), that is, the veteran is, as it were, intrinsically totally and permanently incapacitated for significant amounts of work;

(2) the veteran can fairly be said to have been actually undertaking remunerative work;

(3) the veteran is prevented from continuing to undertake that work by incapacity from war-caused injury and/or disease; and

(4) there is no other factor preventing the veteran from continuing to undertake that work;

then, subject to proof of a loss of earnings thereby (proof affected by s 24(2)(a)), the veteran has satisfied s 24(1)(c) and established a right to the Special Rate of pension. In such a case, the Flentjar questions (see [23] above) are capable of ready and appropriate answers.

...

"49 In my opinion, Burchett J's general observations in Cavell are in point here. A practical approach is needed, and one that recognises the underlying beneficial nature of the legislation. The conclusion appears inescapable that the applicant had performed remunerative work in no trivial degree for several months as his last effort to work. There was ample material to suggest that it was his war-caused incapacity alone which had prevented him from continuing to undertake that work. Whether other factors prevented him from re-engaging in more onerous kinds of work that he had previously undertaken was beside the point. In any case here, the particular other factors may, in part, have been no more than necessary consequences of his accepted disability or factors that it might be unjust, having regard to the statute's evident purposes, and therefore unintended by the statute, to be taken into account.

"50 In my view, the Tribunal fell into legal error in relation to this matter. It was at least free to consider only the last employment. Indeed, in my opinion, there was no reason for it to do more. ...

53. In the present case it appears that Mr Weir may be capable of performing lower level clerical work than he was performing when he gave up as a TAB manager. However, if Dr Baz is wrong, and if Drs Rankin, Chen and Harvey-Sutton are correct, and Mr Weir ceased because of accepted disabilities alone his last remunerative employment as a TAB manager, which he had been doing since 1979, then that, according to the Federal court in Hendy (above), is decisive. Mr Weir would satisfy s 23(1)(c).

54. The tribunal accepts the preponderance of the evidence and finds, subject to proof of loss of earnings, that Mr Weir did satisfy s 23(1)(c) of the Act. The tribunal has decided that it prefers Dr Chen's opinion on the reasons why Mr Weir retired and the connection of those reasons with Mr Weir's accepted disabilities, supported as Dr Chen's opinion is by Drs Rankin and Harvey-Sutton. The tribunal rejects Dr Anderson's evidence for the reasons stated earlier. The tribunal also rejects Dr Baz's evidence in ex A7. It is insufficiently explanatory, especially as it is inconsistent with her statements in ex A5.

55. The issue of whether Mr Weir lost earnings or income when he gave up his job as a TAB manager was not addressed by the representatives. Dr Chen took a very full history in ex R2. She ascertained that after Mr Weir retired his wife continued running the TAB full-time. They employed a relief agent to work a full day on Monday or Tuesday, when Mrs Weir had the day off, and then for five hours on Wednesdays and six hours on Fridays. The TAB agency then closed on 27 July 2000. This suggests that there was quite a hole left in the profitable operation of the TAB agency after Mr Weir's withdrawal. The tribunal finds that the applicant suffered a loss of earnings on own account as a result of the cessation of remunerative employment brought about by the accepted disabilities alone, in accordance with s 23(1)(c) of the Act.

CONCLUSION

56. The result of the tribunal's findings is that Mr Weir has qualified for payment of his pension at the intermediate rate since 3 July 1998, however that is not because his lumbar spinal conditions have been accepted as war-caused. They have not been so accepted.

DECISION

57. The tribunal affirms the decision of the respondent dated 20 June 2000 as affirmed by the VRB on 25 July 2001 to refuse Mr Weir's claims in respect of lumbar spondylosis and intervertebral disc prolapse at L5-S1.

58. The tribunal sets aside the decision of the respondent dated 3 December 1998 as affirmed by the VRB on 20 October 1999 and decides instead that the applicant has qualified for payment at the intermediate rate with effect from 3 July 1998.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, Dr J D Campbell, Member and Mr S Webb, Member

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

Associate

Date of hearing 2 August 2002

Date of decision 7 November 2002

Counsel for the applicant Mr M Vincent

Solicitor for the applicant Dibbs Barker Gosling Lawyers

Advocate for the respondent Ms P Hook, DVA Advocacy Service