Flentjar and Repatriation Commission

Unreported 20 July 1995 AAT

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(Decision by: Commodore B.G. Gibbs, AM, RAN Senior Member, Brigadier C. Ermert (Retd), Member, Miss E.A. Shanahan, Member)

Flentjar and Repatriation Commission, Re

Tribunal:

Commodore B.G. Gibbs, AM, RAN Senior Member
Brigadier C. Ermert (Retd), Member
Miss E.A. Shanahan, Member

Decision date: 20 September 1995

Melbourne

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Decision by:
Commodore B.G. Gibbs, AM, RAN Senior Member
Brigadier C. Ermert (Retd), Member
Miss E.A. Shanahan, Member

DECISION

(a)

That the decision of the respondent made on 28 April 1992 be set aside and in substitution therefor the Tribunal decides that adenocarcinoma of the colon is war- caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act");

(b)

that the applicant is incapacitated from adenocarcinoma of the colon for which the Commonwealth is liable to pay pension in accordance with Division 2 of Part II of the Act from 15 September 1992; and

(c)

that pursuant to section 24 of the Act the applicant is eligible to be paid pension at the Special Rate from 15 September 1992.

REASONS FOR DECISION

1. This is an application by Mr. John Joseph Flentjar for review of a decision of the respondent made on 28 April 1992, affirmed by the Veterans' Review Board ("the VRB") on 27 September 1993, that adenocarcinoma of the colon is not war- caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").

2. At the hearing the applicant was represented by his solicitor, Mr. D. De Marchi, and Mr. K. Rudge, a Departmental Advocate, appeared for the respondent.

3. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act. Other documents were also received into evidence during the hearing.

4. Evidence was given by the applicant and evidence on behalf of the respondent was given by Dr. W.E. Stone, who is a Rehabilitation and Occupational Physician.

5. Prior to the commencement of the proceedings the respondent conceded that the claimed disability, adenocarcinoma of the colon, is war-caused, and we find accordingly.

6. Given the acceptance of that claimed disability, Mr. Flentjar has the following disabilities accepted as war-caused:

Deviated Nasal Septum Dislocated Columella and enlarged right Inferior Turbinate

Anxiety State with Irritable Bowel

Antral Sinusitis

Chronic Bronchitis

Ischaemic Heart Disease

Adenocarcinoma of the Colon

7. He also has the following disabilities which have been rejected as war-caused:

Hypermetropia

Presbyopia

Cervical Spondylosis

Trigeminal Neuralgia

Lumbar Spondylosis

Cyst on the Brain - (N.I.F.)

8. In view of the acceptance of adenocarcinoma of colon as war- caused it was Mr. Flentjar's contention that pursuant to section 24 of the Act he satisfies the criteria for payment of pension at the Special Rate. It was his further contention that pursuant to section 22 of the Act he is eligible for the Extreme Disablement Adjustment ("EDA"), to his General Rate pension. In this connection we note that he is presently in receipt of pension at 100% of the General Rate.

9. In assessing pension the Tribunal has an obligation to conduct its assessment over the period commencing on the application day, in this case 7 August 1991, and ending on the date of the Tribunal's determination. Because Mr. Flentjar's application to the VRB for review was more than 3 months after service of the respondent's primary decision, the date of effect for pension purposes should Mr. Flentjar be successful in these proceedings, would be a date not earlier than 15 September 1992.

10. In assessing rate of pension the relevant standard of proof is that which is set out in section 120(4) of the Act, that is to say a standard of proof on the balance of probabilities is applicable (Repatriation Commission v Smith (1987) 74 ALR 537 ).

11. In so far as is relevant to these proceedings, section 24 of the Act states as follows:

"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)

...

(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 ..."

12. Section 28 of the Act is relevant in determining a veteran's ability to undertake remunerative work in terms of the Special Rate of pension. That section reads as follows:

28. 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)."

13. Mr. Flentjar was born on 4 September 1916 and was therefore aged 74 years and 11 months at the application day.

14. Mr. Flentjar served in the Royal Australian Navy from 3 September 1939 to 7 October 1946. During his service he developed abdominal symptoms with diarrhoea and nausea. He said that the diarrhoea persisted post service.

15. After his discharge from the Navy Mr. Flentjar worked as a sign writer. While his bowel symptoms persisted he was nevertheless able to cope with his job.

16. Sometime between 1950 and 1959 Mr. Flentjar purchased a licence to operate a taxi which he himself drove.

17. In 1960 rectal bleeding was found to be associated with a carcinomatous polyp and on 20 September that year some 20 cm of bowel was resected. He made a satisfactory recovery but a year or two later he underwent a further operation for internal haemorrhoids.

18. Mr. Flentjar said that his bowel actions became so frequent that they began to restrict his capacity to drive his taxi. He said that as a result of this he sold his taxi and taxi licence in about 1970. In a letter dated 13 August 1994 (Exhibit R8) he stated in part as follows:

"My reason for selling my Silver Top Taxi, are as follows -

Having a Pre-Carcimona (sic) Problem which lasted a year or more I was unable to fill a full Shift Driving - because of continueing (sic) Bowel Problems I still managed with Tips to earn $200 per Week in 1968.

After the operation I was convalesence (sic) for a long Period, Employing a Driver, which was most unsatisfactory, as I was unable to Monitor the Business because I was then left with a Short Bowel, and nervous Colitis or Repatriation Description. Nervous - Colitis with irritable Bowel.

In 1969 I tried again and still managed $200 - to $300 per Week Profit, despite being Heavily Sedated with Largactol - Triptonol - and Valium.

In 1970 Dr McAuley (Deceased) of Murray Rd Clinic Preston suggested I was no longer suitable to be driving transport for My own, and Public Safety Reasons.

I then put the Cab up for Sale and took a job with Courage Breweries - Checking Staff cars and also Washing them. The Salary $80 per Week.

The sale of the Taxi was held up for some months, becaus (sic) the Transport Board had found some flaw in the Record, of the Potential Buyer.

All this time the Taxi was off the Road until the Sale finally cleared."

19. At the time he sold his licence and taxi Mr. Flentjar was 54 years of age. As indicated in his statement, after selling his taxi licence Mr. Flentjar worked for Courage Breweries. While working for Courage Breweries he continued to have trouble with his bowels. Because of this, coupled with his anxiety state and spondylosis, he decided after about two years to seek alternative employment.

20. Mr. Flentjar's next job was at the Preston Tramways Workshops, as a coach painter. The workshops were close to home, the job entailed only very light work and the sick leave was very generous. He remained in that employment for ten years, retiring in 1980 because of what he described as "constant spondylosis". He was then 68 years of age. On 6 November 1994 Mr. Flentjar made a written statement (Exhibit R7), in which he stated as follows:

"6/11/94 Spondylosis & Lumbar De-Generation

First noticed 4.4.77

Repatriation Test 5.4.77

Repatriation Hospital sent letter to Mr. Kent 466 Murray Rd West Preston 3072 - Phone 470.3155 suggesting I be fitted with a Hard Collar. This was supplied by Orthopedic (sic) Appliances Collingwood, as well as a Soft Surgical Collar for Sleeping. On the 10.11.77 at 7-30 am I arrived at Work - Tramway Workshops Miller St Preston where I was employed as a Coach Painter. I then walked along the Designated and marked-Footpaths inside the Paint Shop when the vibration from my footsteps on the timber floors caused a stack of illegally positioned Water Pipes to fall on me. The fall caused the Collar to snap as I was unable to look down - Collar was repaired by O.A.P.L. CollingwoodI was carried to the First Aid Room and Heat Treatment Massage and Naprosin was applied from the 10-11-77 until 18-1-1980. I was then referred back to Dr Hollaway who referred me to Repat Heidelberg for Stretch and Heat Treatment which started on 10-11-77.

Treatment by Physiotherapy was later continued by David Worth Bruce St Preston 3072 about 18th Jan 1980.

Treatment again for some months was started 2nd July 1980."

21. Mr. Flentjar said that he had in fact experienced problems with both his neck and back while serving in the Navy and that he has continued to have problems since that time. Indeed, we note from the T documents that he consulted a doctor over the period 1965 to 1993 for neck and back pain. We further note that in a Lifestyle Questionnaire dated 24 September 1991 (T6) Mr. Flentjar recorded that he had restrictions in respect of his ability to sit in or drive a car due to "Restricted back movement. Unable to reverse. Trouble with neuralgia and lower back". The reference to neuralgia is a reference to his accepted disability Trigeminal Neuralgia. That condition appears to have been diagnosed in 1984. Medication was prescribed which made him drowsy, however, removal of a tooth in 1994 appears to have resolved the problem.

22. In addition to his war-caused disabilities and those which have been rejected as being war-caused, Mr. Flentjar has recently been successfully treated for epididymo-orchitis, a condition which began several months ago. He also suffers from prostatomegaly, however, he has no symptoms other than nocturia and he has not undergone surgery. Some three to four years ago he underwent surgery to each hand for bilateral Dupuytren's Contracture.

23. As indicated, Mr. Flentjar sold his taxi licence in about 1970 because of his bowel problems. When asked why he did not lease the licence instead, he stated that the licencing authority was concerned that there were insufficient taxis operating at that particular time and pressure was brought upon him to either get his taxi on the road or surrender his taxi licence. While this in itself would not have precluded him from leasing the taxi licence, Mr. Flentjar said that the length of time that it would have taken him to do so was not acceptable to the licencing authority.

24. As stated earlier, at the application day relevant to these proceedings, 7 August 1991, Mr. Flentjar was aged 74 years and 11 months. It was his assertion that neither his back nor neck conditions would in any way affect his capacity to operate a taxi today in a situation where he himself did not have to drive.

25. We note from the material before us that Mr. Flentjar developed chronic bronchitis about thirty years ago and that this troubles him virtually all the time. We also note that he has suffered three myocardial infarcts during the past five years. It appears that he experiences angina about once per month.

26. Dr. William Stone, a Rehabilitation and Occupational Physician, prepared a report dated 2 March 1995, for the purpose of these proceedings (Exhibit R5).

27. In his report Dr. Stone provided a detailed review of Mr. Flentjar's medical condition having regard for the publication "Medical Examination of Commercial Drivers", prepared by the National Road Transport Commission and Federal Office of Road Safety by the Australasian Faculty of Occupational Medicine dated November 1994 (ISBN 0242 212090). Dr. Stone examined Mr. Flentjar on 2 March 1995 and his review took into account all of Mr. Flentjar's war-caused and rejected disabilities, as well as certain conditions for which he has made no claim. Having conducted his review Dr. Stone stated in his report as follows:

"For the reasons outlined above, particularly those relating to the "medical fitness to drive commercial vehicles", would mean as of the application date (15th September 1992) he would have been prevented from working eight hours per week as a taxi driver. The main reason for this would be ischaemic heart disease, but also his bowel symptoms (anxiety state with irritable bowel, adenocarcinoma of the colon). Chronic bronchitis would have been a lesser concern. Cervical spondylosis and lumbar spondylosis would have both played a part in inconveniencing him as a taxi driver, though they would not have prevented him from driving 20 hours per week. Thus, from a medical perspective, leaving aside such issues as age, Mr Flentjar could mount a reasonable case that his War caused disabilities, without influence from other factors, prevent him from working 8 hours per week. However, cervical spondylosis and lumbar spondylosis would contribute to inability to work in the manner that he might otherwise. For instance, he would be unlikely to work long shifts, such as 12 hour shifts, because of the increased neck pain and low back pain that this work practise would cause."

28. In a letter dated 18 July 1995 (Exhibit R6) the Victorian Taxi Directorate stated as follows:

"I refer to your letter of 14 July concerning taxi operator Mr J Flentjar, who is 74 years of age.

The Directorate has no upper limit on the age of any person being the owner of a taxi-cab licence. The owner of a taxi-cab licence does not have to hold a driver's certificate and could either manage the daily operation of the taxi with lessee drivers or assign (lease) the licence to another person to operate. The Directorate is prepared to consider applications for re-issue of a driver's certificate to taxi drivers beyond 70 years of age, subject to a satisfactory medical report. However, at the time Mr Flentjar reached 70 years of age, it was a firm policy of the previous Authority (Roads Corporation) that no driver of a taxi, or other commercial passenger vehicle, could hold a driver's certificate beyond the driver's seventieth birthday. The Roads Corporation did allow persons over 70 years of age to own taxi licences." During his evidence Dr. Stone was made aware of this situation and it was pointed out to him that when the policy on age changed (in February 1994), Mr. Flentjar was aged 77 years and 5 months. He was then asked whether, putting the heart condition and the other accepted disabilities to one side, Mr. Flentjar would in February 1994 have qualified from a medical point of view for a taxi driver's certificate. His response was that because there were no other medical conditions which would preclude Mr. Flentjar from having a driver's licence, he would be medically eligible for one. It was his view that but for his war-caused disabilities, alone, Mr. Flentjar could drive a taxi on the basis of an eight hour shift.

29. Mr. Flentjar said that because he was not able to continue to operate his taxi, he suffered a loss of earnings within the meaning of section 24(1)(c) of the Act.

30. In Cavell v Repatriation Commission (1988) 9 AAR 534 , Burchett J said at page 539 that the true task of the Tribunal was 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 on nice philosophical distinctions, but with an eye to reality, and as a matter in which common sense is the proper guide."

31. In Starcevich v Repatriation Commission (1987) 76 ALR 449 , Fox J said at pages 454 and 455 as follows:

"It seems to me that the intention of s 24(1)(c) is that the applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in s 24(1)(a) and (b). The loss must be real, in the sense that the applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under s 24 may be based on his being prevented from continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type before the veteran ceased work altogether. In such circumstances, the passage of time from the cessation of the work upon which reliance is placed to the veteran's complete retirement may mean that the other requirement of s 24(1)(c), namely that the veteran's war-caused injury or disease alone prevents him from undertaking the remunerative work upon which his claim is based, is not satisfied, but this is a different matter, and one which does not arise here."

32. In Repatriation Commission v Smith (M.J.) (1987) 74 ALR 537 , Beaumont J said at page 548 as follows:

"As has been said, the question posed by s 24(1)(c) is one of hypothetical fact. The tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities."

33. In Repatriation Commission v Strickland (1990) 22 ALD 10 the Full Court of the Federal Court (Davies and Ryan JJ) at page 17 said as follows:

"Age 65 was not an irrelevant matter. It is a common retiring age for employees and can be taken to reflect somewhat arbitrarily the community's general understanding of the effect of age upon ability to undertake gainful employment. Thus, as the Tribunal said, 65 years is the age at which a male person qualifies for the grant of an age pension. It follows that, if nothing more were known of an applicant for a pension than that he was over the age of 65 years when the application was lodged, a tribunal would not be likely to be satisfied that the veteran was then suffering a loss of earnings by reason only of his war- caused incapacity. Of course, that is only a hypothetical case and, invariably, more is known about the matter than that, as it was in the present case. But the point is that a tribunal, especially a tribunal which deals with issues of this nature regularly, might reasonably proceed from the premise that applications for pension made after that age would fail, unless facts were disclosed which tended to the conclusion that the veteran would then still be continuing to undertake remunerative work, but for his war-caused incapacity."

34. Applying Starcevich, it is our view that Mr. Flentjar's taxi business may properly be treated as the relevant remunerative work for the purposes of section 24(1)(c). We are of the further view that the reason he sold his taxi licence in about 1970 was because he was incapacitated within the terms of section 24(1)(b) of the Act. We acknowledge that in February 1994, Mr. Flentjar was almost 77 years of age. However, while over the assessment period he has suffered from several disabilities that are not war-caused, the evidence of Dr. Stone was clearly that, notwithstanding Mr. Flentjar's age, none of these would act as a bar to the issuing of a taxi driving licence to him. After giving careful consideration to Mr. Flentjar's evidence and other material relevant to his non war- caused disabilities, we accept the evidence of Dr. Stone.

35. During the hearing it was submitted by Mr. Rudge that because Mr. Flentjar elected to sell his licence, rather than to lease it to another person, meant that the "alone" qualification in section 24(1)(c) was not met. We do not agree with that proposition. It is clear from Mr. Flentjar's evidence, which has not been contradicted, that while given sufficient time the leasing of his licence would have been an option, he elected instead to sell the licence and that he did so because of incapacity from his war-caused disabilities, alone.

36. Mr. Flentjar gave evidence that through being prevented from continuing to operate his taxi he is suffering a loss of earnings that he would not be suffering if he was free of incapacity from his war caused disabilities alone. Although taxation returns over the relevant period are apparently no longer in existence we accept Mr. Flentjar's evidence and find accordingly.

37. For the reasons given the decision under review will be set aside and in substitution therefor the Tribunal will decide that adenocarcinoma of the colon is war-caused with effect from 15 September 1992. The Tribunal will further decide that Mr. Flentjar is incapacitated from that disease and that, pursuant to section 24 of the Act he is eligible for payment of pension at the Special Rate with effect from 15 September 1992.

I certify that this and the twelve (12) preceding pages are a true copy of the decision and reasons for decision herein of

Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Brigadier C. Ermert (Retd), Member

Miss E.A. Shanahan, Member

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

Personal Assistant