Naylor and Repatriation Commission [1991] AATA 473 (1 May 1991)

Last Updated: 4 July 2008

DECISION AND REASONS FOR DECISION

VETERANS' AFFAIRS - RAAF - blacksmith - overseas service - injuries to neck and low back - ischaemic heart disease and anxiety state, accepted disabilities - business sold in 1980 - due to accepted disabilities - reasonable hypothesis that neck and back
condition war-caused - pension granted at special rate.

Veterans' Entitlements Act 1986 s.24, 120(1), (3)

Cavell v Repatriation Commission (1988) 9 AAR 534

Banovich v Repatriation Commission (1986) 69 ALR 395

Vaughan v Repatriation Commission (1989) 10 AAR 162

Repatriation Commission v Reid (1989) 10 AAR 544

AAT Decision No 6886

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. P89/7
VETERANS' APPEALS DIVISION )

Re: JOHN NAYLOR

Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal: Mr E.T. Perrignon (Senior Member)

Place: Sydney

Date: 1 May 1991

Decision: 1. The decisions under review are set aside.

2. There are substituted the following decisions:

(i) The applicant is entitled to a pension
under Part II of the Veterans'
Entitlements Act 1986 in respect of his
neck condition and his low back condition.

(ii) The applicant is also entitled to a pension
at the special rate as from 26 August 1984.

...............................................
Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. P89/7
VETERANS' APPEALS DIVISION )

Re: JOHN NAYLOR

Applicant

And: REPATRIATION COMMISSION

Respondent

REASONS FOR DECISION

1 May 1991 Mr E.T. Perrignon (Senior Member)

1. The applicant seeks the review of two decisions of the respondent. The first was a decision of 27 February 1970 rejecting his application for a pension for gouty arthritis and neck condition. The second was a decision of 17 September 1987 continuing the applicant's pension at 100 per cent of the general rate.

2. The applicant was born on 27 January 1918. He enlisted in the RAAF on 16 February 1942 and was mustered as a blacksmith, which was his trade before enlistment. He served in Australia and New Guinea. He was discharged on 18 September 1946 on demobilisation. On enlistment he was found to be "Fit A1".

3. Whilst serving in the RAAF he experienced three injuries. The first two occurred in 1943 at Lake Boga which is near Swan Hill. The first injury occurred when he and a number of others were standing on the rear tray of a truck which started suddenly and they were thrown off the truck on to the ground. The applicant landed on his back. His low back was stiff and painful. He says that he has had pain in his low back on and off since then.

4. The second incident also took place at Lake Boga when he was working in the blacksmith's shop, about a fortnight after the first incident. He climbed up on a rack and as he reached the top and was trying to pull out a piece of steel, a number of steel pieces fell on him, hitting him on the face and chest and legs. He fell to the floor and his neck and back came into contact with other steel pieces which were lying on the floor. A lump came up on his neck. No bones were broken and he was not sent for x-rays. Since then he has experienced dull aches in both his back and neck, at times worse than at other times.

5. The third incident was in New Guinea when he was travelling in the back of a truck which left the road and overturned. He sustained a few bruises and hurt his leg but he felt that this incident was a minor one compared with the other two.

6. In 1946 he bought a taxi in Wagga. He found that he could not drive for any length of time without his back and neck becoming stiff. He bought three other taxis which gave him enough money to live on without driving. He went to a local doctor about his back and was given a liniment.

7. He also engaged in the buying and selling of army disposal trucks but found that driving the trucks from Sydney to Wagga was too much for his back.

8. After three years he sold the taxis and trucks and moved to Sydney, where he constructed a service station and bought a taxi. He sold the service station after three years. The work was too heavy for him. He also bought hire cars. He did the administration or organising work but not the book work. He did not drive the cars, except for short periods, because of his back.

9. In conjunction with the hire cars he also started a business of buying, repairing and selling two-way car radios. He did the organising, employing people and seeing that they did their work.

10. In the early '70's he sold the hire cars because of staff worries and drivers not turning up, and his own inability to drive. He was having treatment from his local doctor. He was given needles in his shoulder and neck and liniment for rubbing into his back and pills called Zyloprim which he still takes.

11. In 1969 he had a heart attack. He did not work at all for about three months after that. He then gradually got back to work and organised the business until 1979 or 1980.

12. After a year he still did not do much work. He acted as an overseer. In 1975 he was knocked down by a motor cycle. He sustained a broken leg and was in hospital on and off for about nine months. After that accident he did not go back to the two-way radio business for a period of between one and two years. He would attend the business about once a week for a couple of hours. Prior to the accident he was working four or five hours a day.

13. In August 1978 he resumed work on a daily basis doing up to four or five hours a day until he got the staff to do it. He continued in that fashion until 1980 when he sold the business. He said that the reason why he sold the business was because he could not put in the time, and it was being neglected, and he was being taken down by an employee.

14. He said that his health was a reason why the business was going downhill. He could not get around by driving a car, because of his neck and back, and his heart condition was causing a lot of problems. He was getting chest pains and back pains and was losing interest in the business and losing interest generally. But for these problems he said he would have kept the business going. It was making good money while he was running it. He said he did not think he would ever knock off, but the tension was causing him a lot of pain in the chest and he could not drive because of his back.

15. After he sold the business he has not worked. In 1986 he had a complete coronary collapse. He had open heart surgery and seven by-passes. Three weeks after that surgery his heart was failing so a pacemaker was inserted.

16. At present he said that if he sits for any length of time he has difficulty in getting up. He has not been able to bend down for years. He cannot play bowls. He cannot walk for three hundred or four hundred metres without getting very bad chest pains and because of his back. He is being treated by a specialist for his back condition. He takes a number of medications for his heart, for fluid on his ankles, for his back and arthritis, and for cholesterol.

17. He said that he thought that but for his health problems he would have continued the business until he was 70. He also said that he had bad knees ever since he joined the Air Force, and that he got them mostly because of his work as a blacksmith in the RAAF. His knees never affected his work in his businesses.

18. The respondent does not dispute that the applicant's entitlement claim now under review should be regarded as a claim for his neck condition, being cervical ankylosing spondylitis, and his back condition, being degenerative disease of the lower back.

19. The applicant has the following disabilities which have been accepted as being war-caused, namely, coronary artery disease, dishydrotic eczema, dyspepsia and anxiety hysteria. The said decisions were effective from 26 August 1984.

20. Section 9(1)(e)(ii) of the Veterans' Entitlements Act 1986 provides:

"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
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."

21. By virtue of s.120(1) of the said Act the Tribunal is required to determine that the applicant's injury was a war-caused injury, or that the disease was a war-caused disease, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. However, by sub-section (3) of the same section the Tribunal is required to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the injury was war-caused or that the disease was war-caused if the Tribunal, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person.

22. There is medical evidence supporting the conclusion that the three separate incidents to which the applicant has deposed during his war service had the effect of aggravating pre-existing conditions of his neck and lumbar spine. The fall from the truck at Lake Boga made his back stiff and painful. The fall in the blacksmith's shop at Lake Boga injured his neck and his low back. Both Dr Benanzio and Dr Miller were of the opinion that the applicant had ankylosing spondylitis and also degenerative arthritis. They were also of the opinion that those conditions pre-existed the three accidents which occurred on service. Their evidence supports the view that the trauma suffered by the applicant in those accidents could have materially aggravated those pre-existing conditions. Dr A.L. Smith took the contrary view. He thought that the applicant did not have ankylosing spondylitis and that the condition of his neck and low back was due solely to the ageing process. I accept that the applicant had no trouble either with his neck or with his low back before those incidents occurred and that thereafter he had problems in both those regions and particularly in his low back. The evidence which he gave of problems with driving, from the time of his discharge onwards, indicates the extent of his back condition and its possible or probable origin in the incidents on service. I accept his evidence and I accept also the evidence of Dr Benanzio and Dr Miller. Support for their views is also found in the x-ray of 7 August 1989 which shows a minimal old compression of L-1. Without any disrespect to Dr Smith's undoubted expertise, I am of the opinion that there is a reasonable hypothesis connecting the applicant's neck and low back conditions with the circumstances of the particular service rendered by him. I am accordingly not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the diseases of ankylosing spondylotis and degenerative arthritis of the spine were contracted before the commencement of the applicant's eligible war service and were materially aggravated by that war service, being service rendered after the said diseases were contracted.

27. Section 24(1) and (2) of the Veterans' Entitlements Act 1986 provides:

"24. (1) This section applies to a veteran, other than a veteran to whom section 25 applies, if -

(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;

(b) the veteran is totally and permanently
incapacitated, that is to say, the veteran's incapacity from war-caused injury or war- caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours
per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease
or both, alone, prevented from continuing to undertake remunerative work that the veteran
was undertaking and is, by reason thereof,
suffering a loss of salary or wages, or of
earnings on his or her own account, that
the veteran would not be suffering if the
veteran were free of that incapacity.

(2) For the purpose of paragraph (1) (c) -

(a) a veteran who is incapacitated from war-
caused injury or war-caused disease, or
both, shall not be taken to be suffering a
loss of salary or wages, or of earnings on
his or her own account, by reason of that
incapacity if -

(i) the veteran has ceased to engage
in remunerative work for reasons
other than his or her incapacity
from that war-caused injury or
war-caused disease, or both; or

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

(b) where a veteran, not being a veteran who has
attained the ageo of 65 years, who has not
been engaged in remunerative work satisfies the
Commonwealth 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."

28. It was not in dispute that the issues which arise under this section are to be decided upon the balance of probabilities.

29. I am of the opinion that the applicant disposed of his business in 1980 because of his war-caused disabilities of ischaemic heart disease with anxiety state and his neck and back conditions. I think that he is and has been since 1980, totally and permanently incapacitated within the meaning of s.24(1)(b), that is to say, that his incapacity from war-caused diseases is of such a nature, as of itself alone, to render the applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.

30. In Cavell v Repatriation Commission (1988) 9 AAR 534 at p.539, Mr Justice Burchett described the true task of the Tribunal under s.24(1)(c) as being:

"to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."

31. On behalf of the respondent reference was made to the second reading speech introducing the Repatriation Legislation Amendment Bill 1985 which was set out, although not used as an aid to construction, in the decision in Banovich v Repatriation Commission (1986) 69 ALR 395 at pp.404-405.

32. It was submitted on behalf of the respondent that the applicant did not fulfil the requirements of s.24(1)(c) because at the relevant time, which the respondent placed at 22 October 1987, there were other reasons, apart from his war-caused disabilities, why he was not working. Those other reasons were his age, his incapacity in both knees, which was not an accepted war-caused disability, a service pension which he had had since 1978, an insurance settlement in 1978 from which he received some $36,000, his loss of interest in the business, and the length of time he had been out of the work force. I do not think that any or all of the matters relied on by the respondent would have prevented the applicant from continuing his radio business or from otherwise engaging in full-time employment. The loss of interest in his business was, I think, very much the result of his heart condition and in particular his anxiety state.
33. I am of the opinion that the applicant fulfilled all the requirements of s.24 at the time when he sold his business in 1980 and that he has also fulfilled those requirements at all times since then up to 22 October 1987. He was a person who over the years since his discharge had proved his business capacity. He had conducted a taxi business, a business of buying and selling trucks, a petrol station business, a hire car business and a two-way radio business. Had it not been for his war-caused disabilities, and particularly his heart condition, his anxiety state and his low back condition, he would in my opinion, probably have carried on his radio business until he was 70. That was the age when he said he would have liked to retire from the work force. I think that it was his war-caused disabilities, and those disabilities alone, which continuously over the years from 1980 to 1987 or 1988, prevented him from giving effect to his wishes in that regard. Dr Miller was of that opinion. Dr Perkins, formerly a Senior Medical Officer (Appeals) of the respondent, stated in evidence that if his back condition was accepted as being war-caused he would be completey unfit for work from his war-caused disabilities. In the result therefore the decisions under review will be set aside and there will be substituted decisions that the applicant is entitled to a pension under Part II of the Veterans' Entitlements Act 1986 in respect of his cervical ankylosing spondylitis and his degenerative disease of the low back, and that he is entitled to a pension at the special rate provided for by s.24 of the said Act. Having regard to the submissions which were made to me in relation to the date from which the pension at the special rate should take effect I am of the opinion that the appropriate date should be 26 August 1984, being the date from which he was granted a pension at 100 per cent of the general rate. If the decision in Repatriation Commission v Reid (1989) 10 AAR 544 is accepted as governing the situation, that would be the date to which the pension at the special rate should be backdated. If the decision in Vaughan v Repatriation Commission (1989) 10 AAR 162 applies I would, in the exercise of my discretion, fix the same day as being the commencing date of the said pension. The pension in respect of the cervical spondylitis and low back should date from the same day so that as from that day the special rate will apply to all accepted disabilities.