Davies and Repatriation Commission
[2000] AATA 787
•28 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 787
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/728
VETERANS' APPEALS DIVISION )
Re ALUN GORDON DAVIES
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date28 August 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/728
)
veterans' appeals DIVISION )
Re: ALUN GORDON DAVIES
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 28 August 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that:
1.The Applicant, ALUN GORDON DAVIES, is entitled to pension for the defence-caused disease of Tinnitus as and from 10 June 1997; and
2.The Applicant is entitled to pension for incapacity occasioned by all defence-caused injuries and diseases at the rate of 50% of the General Rate.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Sensorineural loss and tinnitus. Affirmed re hearing loss but tinnitus accepted.
Veterans' Entitlements Act 1986 - subs120(4), subs120B(3)
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant through his Advocate and pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 28 August 2000
Date of Decision 28 August 2000Advocate for Applicant Mr T McCombe,
Vietnam Veterans' Association of Australia
Advocate for Respondent Ms M Doggett, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/728
By MR M.D. ALLEN, Senior Member
DAVIES v REPATRIATION COMMISSION
SYDNEY, MONDAY, 28 AUGUST 2000MR ALLEN: My ruling in this matter is this that in this matter, pursuant to application lodged with the Tribunal on 17 May 1999, the applicant seeks review of a decision by the respondent, affirmed by Veterans' Review Board that his condition of bi-lateral sensory neural hearing loss with tinnitus is not a disease caused or contributed to by his defence service. There is no dispute in this matter that the applicant rendered eligible defence service between 7 December 1972 to 1 January 1991. There is also no dispute that the correct diagnosis for the claimed conditions are bi-lateral sensory neural hearing loss with tinnitus.
At page 44, being document T6 of the documents prepared for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, is an audio-metric report upon the applicant, which report is dated 1 October 1997 or rather that date appears not to be on the particular document but it appears to have been received by the Department of Veterans' Affairs on 22 October 1997. That certainly shows a bi-lateral sensory neural hearing loss and the comment by the audiometrists is as follows:
Mr Davies complains of constant high pitched whine in both ears, predominant in left ear. Tolerates same. He has been advised to make application to HAS(NAL) for the provision of hearing aids.
Document T7 which is a medical impairment assessment conducted by a medical practitioner for the Department of Veterans' Affairs states that the applicant has permanent tinnitus and exhibit R3 in these proceedings is a report from Dr Chen, Consultant in Occupational Medicine. At page 8 of her report, Dr Chen states:
Using the audiogram reading of 15 October 1997, the hearing loss is 16.3 per cent.
As I have stated earlier, there has been no material put before me to suggest that the applicant doesn't have bilateral sensorial neural hearing loss and indeed it is accepted by the respondent's amended statement to facts and contentions which became exhibit R1 in these proceedings that the condition does exist. However, subsection 4 of section 120 of the Veterans' Entitlements Act 1986 reads inter alia:
davrepJ 28.8.00 P-1
©Auscript Pty Ltd 2000Except in making a determination to which subsection 1 or 2 applies, the Commission shall in making any determination or decision in respect of the matter arising under this Act or the regulations including the assessment or reassessment of the rate of pension granted under part 2 or part 4, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B. That note of course is part of the subsection.
Section 120B is headed, Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles. And subsection 3 of section 120B reads inter alia:
In applying subsection 4 of section 120 to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person or a disease contracted by a person was defence caused only if (a) the material before the Commission raises a connection between the injury or disease of the person and some particular service rendered by the person, an (b) there is in force (i) a Statement of Principles determined under subsection 196B subsection 3 or 12 or (ii) a determination of the Commission under subsection 180A subsection 3 that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
In this matter the relevant Statement of Principles is Instrument Number 46 of 1996 headed Sensory Neural Hearing Loss. Paragraph 1 of that document reads:
The Repatriation Medical Authority under subsection 196B(3) of the Veterans Entitlements Act 1986 determines the following Statement of Principles.
Paragraph 2 then reads:
(a)This Statement of Principles is about sensorineural hearing loss and death from sensorineural hearing loss.
(b)For the purposes of this Statement of Principles, "sensorineural hearing loss" means a permanent hearing threshold shift of 25 decibels or more, at 500, 1000, 2000 or 4000 hertz due to a defect in the cochlea or the auditory nerve whereby nervous impulses from the cochlea to the brain are attenuated, attracting ICD code 389.1.
davrepJ 28.8.00 P-2
©Auscript Pty Ltd 2000Exhibit R2 in these proceedings is a table of audiogram results conducted on the applicant. What that table reveals is that at no stage has the applicant had a permanent hearing threshold shift of 25 decibels or more. For example, on 18 March 1971 at 500 hertz the reading was 15, and at 15 October 1997 the reading was 25, which of course is only 10. And then other readings are the same. The maximum it seems on those readings of a permanent hearing threshold shift is 15. For completeness sake, I would mention certainly at 4000 hertz the reading on 18 March 1971 was 70. The reading on 4 December 1986 was 120, which of course is a shift of some 50 decibels, but then on 15 October 1997 the reading is 85 which is only 15, so it seems that the shift between 70 and 120 could not be held to be permanent.
The difficulty in this whole matter is simply this. That it is recognised by the respondent and by all the medical evidence before me, that the applicant does have a sensory neural hearing loss. However, the Repatriation Medical Authority has in effect, legislated in this matter, and the effect of Instrument 46 of 1996 is that a veteran suffering a sensory neural hearing loss cannot have that condition recognised as attributable to his or her service, unless there has been this permanent threshold shift of 25 decibels. It matters nothing that the experts in the field state that he does have the condition.
It may well be that the way the Statement of Principles has been framed it is ultra vires. It seems to me that what the Repatriation Medical Authority has done is in fact to legislate and provide a minimum standard of impairment before a condition can be recognised as attributable to service. To me that seems contrary to the whole intendment of the Veterans' Entitlements Act but that is not a matter which can be raised in this Tribunal. I am bound by the legislation which is section 120 subsection 4 as constrained by section 120B.
My ruling there is, that so far as relates to sensory neural hearing loss, the decision under review must be affirmed as the applicant cannot meet the Statement of Principles.
On the material before me and using the material before the Veterans' Review Board, the Veterans' Review Board had regard to the applicant's tinnitus in some detail and I read and adopt as my own the following:
The Statement of Principles, that is to say, Instrument Number 44 of 1996 lists 9 factors, one or more of which must as a minimum exist before it can be said that on the balance of probabilities the condition can be related to relevant service. Of those factors 6 relate to the clinical of tinnitus and one to the aggravation of a pre-existing condition. Aggravation is 5J, inability to obtain appropriate clinical management for tinnitus.
davrepJ 28.8.00 P-3
©AuscriptThe applicant gave evidence before the VRB that he was employed by naval police including duties with dogs where he was exposed to noise trauma without being able to use adequate ear protection. My understanding from other material also that the applicant was doing some guard duty on gates at HMAS Albatross, the naval air station, and was there exposed to aircraft noise as well but unable to wear ear protection. The section 37 documents reveal as follows. That at a medical examination by Dr Wilcock, an ENT consultant on 21 April 1972 the applicant had tinnitus in his left ear.
There is also a further medical report, dated 17 August 1978, where the applicant complains of tinnitus in his left ear. At his discharge medical which was on 26 February 1990, he was found to have tinnitus in both ears. At document T6, an audiogram, 1997, refers to tinnitus in both ears, document T7 refers to permanent tinnitus which is severe but intermittent. So it seems to me, from the material before me, that there has been an aggravation of his tinnitus, that is has become permanent in both ears as opposed to the left at the commencement of the period of service and the reason for it has been accepted in the material that his noise exposure was to naval policeman. It's then a matter of assessment of the condition from what I understand and that referring to Dr Chen's report and the combined impairments there results in an impairment sufficient to give pension at 50 per cent of the general rate.
The decision under review is set aside, the Tribunal substitutes its decision that the applicant is entitled to pension for the defence caused disease of tinnitus as and from 10 June 1997, and that the applicant is entitled to pension for incapacity occasioned by all defence caused injuries and diseases at the rate of 50 per cent of the general rate.
davrepJ 28.8.00 P-4
©Auscript
0
0
0