Re Repatriation Commission and Roy Vincent Conway [1988] AATA 93 (21 March 1988)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: REPATRIATION COMMISSION

And: ROY VINCENT CONWAY

No. V86/310

AAT No. 4224

Veterans' Affairs

COURT

ADMINISTRATION APPEALS TRIBUNAL
VETERANS' AFFAIRS DIVISION
I.R. Thompson (Deputy President)

CATCHWORDS

Veterans' Affairs - disability pension - s. 24 Veterans' Entitlements Act 1986 - application to increase to Special (TPI) Rate pension - pulmonary tuberculosis, hernias and lumbar spine degeneration - incapacity for work at time of application due to both war-caused disease and injury and non war-caused disease and injury - incapacity for work at time of application must be solely referrable to war-caused injury or war-caused disease - Lucas followed

Veterans' Affairs - disability pension - s. 24 Veterans' Entitlements Act 1986 - applicant ceased employment in 1975 because of both war-caused and non war-caused disease and injury - application in 1984 for increase of pension to Special (TPI) Rate - whether in 1982 applicant was unable to continue to undertake remunerative work due solely to war-caused disease or injury

Veterans' Entitlements Act 1986 s. 24

Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 s. 70(9)

Re Lucas and Repatriation Commission (1986) 9 ALD 417

Lucas v Repatriation Commission (1986) 69 ALR 415

Starcevich v Repatriation Commission (No. WAG 94 of 1986: 6 October 1987)

HEARING

CANBERRA
21:3:1988

ORDER

The decision under review is set aside and in substitution for it, it is decided that pension is to be paid to the applicant at the rate of 100% of the General Rate with effect from 30 May 1984.

DECISION

The respondent, who was born in February 1922, is a veteran, as defined in section 5(1) of the Veterans' Entitlements Act 1986 ("the Veterans' Entitlements Act"). A number of decisions were made under the provisions of the Repatriation Act 1920 ("the Repatriation Act") between 1951 and 1963 that the Commonwealth was liable to pay him a pension under Division 6 of Part III of that Act for incapacity resulting from four service-related conditions; only two of those conditions are now of any significance. So far as these proceedings are concerned they are pulmonary tuberculosis and right inguinal hernia with operation and painful scar. In 1964 a decision was made under the Repatriation Act that the Commonwealth was not liable to pay pension for incapacity resulting from degeneration of the lumbar spine on the ground that it was not a service-related condition.

2. On 17 August 1979 the Repatriation Commission assessed the rate of the respondent's pension at 60% of the General Rate, which was increased to 70% by the Repatriation Review Tribunal on 5 June 1980. On 30 May 1984 the respondent applied for the rate of his pension to be further increased. In June 1985 the Repatriation Commission assessed the rate as 90% of the General Rate; the respondent sought review of that decision. In February 1986 the Veterans' Review Board set aside the Repatriation Commission's decision and decided that the rate of the respondent's pension should be the Special Rate provided for at that time in Schedule 2 of the Repatriation Act. There was some delay in the Veterans' Review Board furnishing the Repatriation Commission with a copy of the decision and of its reasons for the decision. Before the time had expired for the Repatriation Commission to apply to the Administrative Appeals Tribunal under the provisions of the Repatriation Act for review of the Veterans' Review Board's decision, the Repatriation Act was repealed and replaced by the Veterans' Entitlements Act. By virtue of section 20(9) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 the right to make that application was continued by that Act and in due course the Repatriation Commission applied under section 175 of the Veterans' Entitlements Act for such review.

3. At the hearing of the application the applicant, that is to say the Commission, was represented by Mr J. Johannes, a departmental officer, and the respondent, Mr Conway, by Mr C. Macaulay, of Counsel. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were received in evidence. Also received were a letter written by Dr R. C. Oliphant on 26 October 1987 to the respondent's solicitors. Dr Oliphant was the respondent's general practitioner from about 1960 until about 1979. The documents lodged pursuant to section 37 included a report made by a Commonwealth Medical Officer in February 1976 of a medical examination of the respondent made because he had applied for an invalid pension. At the hearing a copy of the notes which the Commonwealth Medical Officer made when he actually examined the respondent on 20 January 1976 were tendered in evidence. The documents lodged pursuant to section 37 included a large number of other medical reports made between 1960 and 1987 by other doctors who had examined the respondent. They also included a number of documents written wholly or in part by the respondent on various dates.

4. Mr Johannes and Mr Macaulay agreed, correctly I am satisfied, that for the respondent to be entitled to be paid pension at the Special Rate, now provided for by section 24 of the Veterans' Entitlements Act, it was necessary that he should have met on 30 May 1984 the criteria set by that section. Mr Johannes conceded that there was ample evidence before the Tribunal which established that the respondent met on that date the criteria set by the paragraphs (a) and (b) of section 24(1). In Re Lucas and Repatriation Commission (1986) 9 ALD 417 the Tribunal said at 425, in respect of a provision in the Second Schedule to the Repatriation Act which was in similar terms to paragraph (b) of section 24(1):-

"Although, as earlier noted, the extent of the

consequential incapacity for work that must be found
to be related to accepted disabilities varies, the
basic requirement for each rate of pension is
identical, namely that the member's incapacity from
(the accepted) injury or disease must be of such a
nature as, of itself alone, to render the member
incapable of undertaking remunerative work for more
than the specified period. In our view, for the
purposes of this qualifying requirement, it matters
not that the member may be incapacitated for work by
reason of both accepted and non-accepted
disabilities: cf Re Delkou. The question is whether
the incapacity from accepted war disabilities, of
itself alone, is of such a kind as to render the
member incapable of undertaking remunerative work to
the specified extent. The answer to that question
depends upon a consideration of the nature and
severity of the accepted disabilities and whether,
having regard to the veteran's skills, qualifications
and experience and the kinds of work that a person so
qualified might reasonably undertake, the incapacity
from the accepted disabilities has, of itself alone,
reduced the veteran's capacity to undertake such
remunerative work below the specified limits: see
Sch 2 para (3); cf Sch 1 para 9(b)."

5. In Lucas v Repatriation Commission (1986) 69 ALR 415 the Federal Court affirmed the Tribunal's decision without commenting on what it had said in para. (16). The Tribunal has, I believe, consistently construed the provision in that manner ever since. The comments of Fox J. in the passage cited at para. 16 below from Starcevich v Repatriation Commission (No. WAG 94 of 1986: 6 October 1987) possibly cast some doubt upon the matter. However, as it is not critical to the process of reaching the correct decision in the present proceeding, I shall not discuss it further here. Assuming that the construction previously adopted by the Tribunal is correct and having examined the evidence and being satisfied that on 30 May 1984 the respondent was very seriously disabled by chest problems which were the result of his having suffered the pulmonary tuberculosis, I accept that Mr Johannes made those concessions correctly.

6. What is in dispute in these proceedings is whether on that date the respondent was, by reason of incapacity from his war-caused conditions alone, prevented from continuing to undertake remunerative work that he had previously undertaken and whether he was, by reason of that, suffering a loss of salary or wages that he would not have been suffering if he had been free of that incapacity. That is to say, the only issue is whether he met the criterion set by paragraph (c) of section 24(1). By virtue of the provisions of section 120(4), it has to be decided on the balance of probabilities.

7. Mr Johannes placed reliance on the provisions of paragraph (a) of section 24(2); that reads:-

"24. (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;"

8. The evidence disclosed, and Mr Johannes and Mr Macaulay agreed, that the only remunerative work that the respondent had undertaken, apart from an uncompleted apprenticeship as a baker immediately before and immediately after his eligible service, was work as a labourer and work as a van driver and delivery man taking orders from customers to whom he was making deliveries. He obtained his experience as a driver and delivery man during the period from 1961 to December 1975 when he worked for Tarax, a company manufacturing and distributing bottled and canned non-alcoholic beverages. His work involved preparing crates of bottles at the employer's factory for dispatch to customers, loading them on to a lorry, driving the lorry to the customers' places of business, unloading the crates there and taking fresh orders from the customers. It was quite heavy work. He ceased working for Tarax on 13 December 1975 and has not engaged in remunerative work at any time since then. He was then 53 years old. He was 62 when he applied for an increase in the rate of his pension on 30 May 1984.

9. In 1959 it was discovered that the respondent was suffering from pulmonary tuberculosis; he was in hospital and subsequently a sanitorium for about 2 years after that. In 1960 he suffered a right inguinal hernia; it was accepted as being service-related on the basis that it had resulted from persistent coughing caused by the tuberculosis. The evidence establishes that in 1960 surgery was performed to remedy the hernia but it recurred within a matter of months. More surgery was performed but the hernia recurred again. It was again repaired by surgery, which involved the implantation of materials to provide reinforcement; after that the hernia did not recur. However, the site of the surgery remained tender and the respondent suffered pain there upon performing certain movements. Those pains have persisted ever since. By December 1975 Dr Oliphant was concerned that the heavy lifting he was required to undertake could cause the hernia to recur.

10. By 1973 the respondent was suffering problems with his lumbo-sacral spine; in May of that year he lodged a claim for pension for incapacity resulting from that condition. The claim was rejected by a Repatriation Board and then on appeal by the Repatriation Commission.

11. Late in 1975 he noticed a swelling in his left groin; it caused a dull ache which was not constant. There were no other symptoms. It was a left femoral hernia. On 17 December 1975 surgery was successfully performed to repair it; it did not recur until 1987. It is apparent that Dr Oliphant considered that the lifting of heavy crates which the respondent had had to undertake in the course of his work for Tarax was responsible for his suffering that hernia and that he feared that, if the respondent were to continue to do that work, he would suffer recurrence of that hernia, as well as of the right inguinal hernia.

12. In January 1976 the respondent applied for an invalid pension to be granted to him under the Social Security Act 1947. The Commonwealth Medical Officer who examined him considered that he was fit to do work; he told the respondent so. However, before completing his report of the examination, he spoke on the telephone to Dr Oliphant, who apparently convinced him that the respondent was not fit to do work involving the sort of heavy lifting required in the job which he had been doing for Tarax. The Commonwealth Medical Officer spoke to someone at Tarax and received confirmation that the job necessarily involved lifting crates of bottles. Meanwhile the respondent, having been told by the Commonwealth Medical Officer that he was fit to work, had gone to Tarax to resume his employment. He had been informed by Tarax that he could not do so until Dr Oliphant had given him a certificate that he was fit for that work. Dr Oliphant refused to give that certificate; he considered that the respondent was unfit to do such heavy work because it was likely to cause recurrence of the hernias. It must be stressed that at that time the right inguinal hernia had not recurred since 1961 and the left inguinal hernia had occurred for the first time only late in 1975. However, I have no doubt that the fact that he had suffered both right and left inguinal hernias meant that he ought not to continue to do heavy work of the type which had been required by his employment, that in consequence he was unfit to do such work and that for the same reason he has remained unfit to do it ever since.

13. The Commonwealth Medical Officer completed his report in February 1976 and stated that the major cause of the respondent's incapacity for work was recurrent hernias and that a contributing cause was spondylitis and, significantly, early ageing. The respondent gave evidence at the hearing that because of his chest condition by 1975 he was suffering from shortness of breath and that that was interfering with his doing his work. However, there is much evidence in the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 that up to 1976 his chest had not caused him any problem since his treatment for pulmonary tuberculosis had been completed in 1961. I have no doubt that his chest condition played no part in his unfitness for work in 1975 or 1976. However, since then, and particularly since 1980, it has become extremely disabling; there is ample evidence among the documents to corroborate the respondent's evidence that on 30 May 1984 he was prevented by it from undertaking remunerative work of any sort.

14. The respondent gave evidence that the problem which he had experienced with his lumbo-sacral spine before he ceased work in December 1975 was that on two occasions it had "locked". That had necessitated his entering hospital as an in-patient on both occasions. On the first occasion he had been treated by traction; on the second his back had been manipulated under anaesthetic. He said that, apart from those two short periods, he was not incapacitated for work by the condition of his back; he had suffered some pain but he had been determined to carry on with his work in spite of it. Medical reports included in the documents lodged under section 37 support his evidence that, apart from those two brief periods, he was suffering only relatively minor pain in the back at that time. A report by Mr Billett, an orthopaedic surgeon, who examined the respondent recently on behalf of the applicant, is evidence that his back problem is still not severe.

15. However, in April 1974 when he applied to the War Pensions Assessment Appeal Tribunal he referred to his spinal trouble, saying: "On medical grounds I have been told to look for lighter work, if not my back will deteriorate. It has been giving me trouble over the last 12 months". As already noted, the Commonwealth Medical Officer in his report in February 1976 in respect of the respondent's claim for an invalid pension expressed the opinion that spondylitis was a contributing cause of the respondent's incapacity for work. I am unable, therefore, to accept the respondent's evidence that his back problems played no part in causing him to give up his employment at that time. Dr Oliphant has stated in a recent letter that the clinical and radiological evidence of degenerative spinal disease was minimal then. Nevertheless, it is clear that the respondent believed that he needed to give up heavy work because of his back. I find that he ceased employment mainly because Dr Oliphant told him that he ran a serious risk of either or both of his hernias recurring if he did not do so, but also because he was concerned that his continuing to do such heavy work would cause his back condition to deteriorate further. As neither the left inguinal hernia nor the degeneration of his lumbo sacral spine was or is a war-caused injury or war-caused disease, I find that he ceased to engage in remunerative work not only because of his incapacity from his war-caused right inguinal hernia but also for other reasons.

16. In Starcevich v Repatriation Commission (supra) Fox J., who was one of the majority of the Court, said at page 6 in respect of section 24(1)(c):-

"It is clear that the words 'by reason thereof' link
the limbs together and that para. (c), read with
sub-s. (2), imposes a test which so far as here
relevant requires three conditions to be satisfied:-

(i) the veteran being prevented from continuing
to undertake remunerative work that he was
undertaking;

(ii) condition (i) (above) being by reason alone
of the incapacity, from war-caused injury
or war-caused disease (to which
para. 24(1)(b) relates);

(iii) by reason of condition (i) above, the
veteran suffering a loss of salary or wages
or earnings on his or her own account."

17. At page 7 His Honour discussed the effect of the provision that the veteran is required to be "prevented from continuing to undertake remunerative work". He said that:-

". . . (it) does suggest the last remunerative work
undertaken, but this is not necessarily so. The use
of the indefinite 'remunerative work' simpliciter,
rather than 'the remunerative work', tends against
this construction, and 'continuing' can also mean
resuming after a suspension or interruption."

18. He and Jenkinson J. then held that upon the facts of that case Mr Starcevich was prevented from continuing to undertake farming work on the date on which he applied for the increase in his rate of pension, notwithstanding the fact that he had ceased farming some years before and had subsequently worked in the Postmaster-General's Department. I am satisfied, therefore, that in the present case the respondent might properly be held to have been prevented on 30 May 1984 from continuing to undertake remunerative work that he was undertaking, that is to say his work with Tarax, notwithstanding that he had ceased that work at the end of 1975, and I so find.

19. I have no doubt that on 24 May 1984 the only condition preventing the respondent from undertaking driving work was his chest condition but that on that date he was prevented from undertaking labouring work or work combining driving with labouring work not only by that condition but also by his left and right inguinal hernias.

20. I am satisfied from a written statement which he made in April 1974 when he appealed to the War Pensions Assessment Appeal Tribunal that he had then been looking for lighter work, presumably including working simply as a driver, but that he had been unable to find other employment. He said in the statement that that was "on account of my age and health". Giving oral evidence, he said that after he had left the sanitorium in 1961, it had taken him six months to obtain work, employers being unwilling to employ him because he had been suffering from pulmonary tuberculosis. However, by 1975, as I have found, his chest was not causing him trouble; he had been in continuous employment as a driver/delivery man/labourer for 14 years. The risk of recurrence of hernia was then related to heavy lifting, not to driving or to the condition of his chest. I find, therefore, that in 1976, immediately after he had ceased work, he was prevented by the left and right inguinal hernias from continuing to do the work which he had been doing for Tarax but that he was not prevented from doing driving work and that his inability to obtain employment simply as a driver was not the result of any medical condition but because of his age.

21. Mr Macaulay drew the Tribunal's attention to the fact that "has ceased" in section 24(2)(a)(i) is the perfect tense of the verb. That tense, in contrast to the aorist and imperfect tenses, is used where something has been done which is continuing to have an effect. He submitted that, because of the use of the perfect tense, paragraph (i) was to be construed as referring to the situation where the veteran not only ceased to engage in remunerative work for reasons other than his incapacity from war-caused injury or disease but has remained unable to engage in it for those reasons. In my view it undoubtedly requires that the cessation of engagement in remunerative work of any type to which regard is to be had must be the most recent cessation of it before the date upon which the criteria in section 24(1) are required to be met; but I am unable to accept that regard is to be had only to his reason for not engaging in remunerative work of that type at that date. Paragraph (i) directs attention to the reasons for the cessation of his engaging in such work.

22. In view of the findings of fact which I have made I am satisfied that the respondent ceased to engage in the particular remunerative work which he was last doing partly because of the risk of a deterioration of the degeneration of his spine and recurrence of his left inguinal hernia if he had continued to engage in it. If regard may be had only to the driving element of his work, I am satisfied also that at the time he ceased that work he had found that employment simply as a driver was not available to him on account of his age. I have come to the conclusion, therefore, that he is not to be taken to have been suffering on 30 May 1984 a loss of salary or wages by reason of his incapacity from war-caused injury or war-caused disease. Consequently, on that date he did not meet the third of the criteria set by section 24(1) as necessary to qualify him for the Special Rate of pension.

23. Accordingly the decision under review must be set aside and in substitution for it it must be decided that pension is to be paid to the respondent at the rate of 100% of the General Rate with effect from 30 May 1984.