Ford and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 865

Ford and Repatriation Commission (Veterans’ entitlements) [2015] AATA 865 (11 November 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/0147
Re	Robert Ford
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	11 November 2015
Place	Brisbane

The decision under review is set aside and in substitution the Tribunal finds the applicant's pension should be increased to the special rate pursuant to s 24(1) of the Veterans' Entitlements Act 1986 (Cth).

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Senior Member McCabe

Catchwords

VETERAN ENTITLEMENT – whether veteran entitled to special rate pension – whether applicant satisfies the ‘alone’ test – whether Marfan syndrome exacerbates accepted conditions – Marfan syndrome does not contribute independently to an inability to work – decision set aside and substituted

Legislation

Veterans’ Entitlements Act 1986 (Cth) ss 23, 24(1)(c)

REASONS FOR DECISION

Senior Member McCabe

10 November 2015

1. Mr Robert Ford is currently in receipt of a service pension paid at the intermediate rate pursuant to s 23 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). He has applied for his pension to be increased to the special rate pursuant to s 24. The Repatriation Commission says Mr Ford is unable to satisfy s 24(1)(c) of the Act which incorporates the so-called ‘alone’ test. In essence, the Commission says Mr Ford’s inability to work is at least partly explained by a factor that is not linked to his service.

2. Mr Ford suffers from a number of health conditions. Not all of them have been accepted as service-related. The Commission initially believed a heart condition, a cervical spine condition, and a shoulder condition contributed to his inability to work, and they were all unrelated to service. By the time of the hearing, the Commission was satisfied the heart condition and the cervical spine condition were not an obstacle to Mr Ford continuing the work he used to do. Mr Crowe, who appeared for the Commission, properly conceded the shoulder condition could also be set to one side for the purposes of this exercise after hearing evidence from Mr Ford. That left only Marfan syndrome.

3. Marfan syndrome is a genetic condition that weakens the fibrous tissue in and around joints. The condition also commonly causes heart defects – in particular, an enlarged aorta. Individuals suffering from the condition might only become aware they have Marfan syndrome when they visit a cardiologist in relation to a heart problem. (Mr Ford had an enlarged aorta which prompted treatment at the hands of a cardiologist but he was first diagnosed with Marfan syndrome after a paediatrician identified the condition in one of his daughters and made the link.) A person suffering from Marfan syndrome is more vulnerable to damage in the joints as consequence of trauma or wear and tear. It is common ground that the applicant’s accepted conditions of lumbar spondylosis and osteoarthritic change in the knees are made worse and potentially more debilitating by Marfan syndrome.

4. Mr Crowe properly conceded the Commission must take an applicant as it finds him or her. If the person suffers from a constitutional predisposition that makes a service-related condition more likely or more serious, the applicant will still be entitled to succeed in a claim for the pension in respect of the service-related condition. But if Marfan syndrome – which is not service-related – also contributes independently to an inability to work, it may have a disentitling effect for the purposes of s 24(1)(c).

5. Mr Crowe framed the issue before for me as follows: he says the applicant’s difficulties with his knees and lumbar spine are the obstacle to him working in the sort of work he formerly undertook (namely, working as an instructor and compliance auditor in aircraft workshops and training facilities). If those difficulties are solely attributable to the applicant’s service–related conditions (namely localised osteoarthritis of the right knee, osteoarthritis of the left knee and lumbar spondylosis), then the applicant will satisfy the test in s 24(1)(c) even though the effect of those accepted conditions is more marked or more serious as a consequence of the Marfan syndrome. However, if the Marfan syndrome also makes a separate and direct contribution to the impairment of the joints (as opposed to simply making the joints more vulnerable to damage from the accepted conditions), then the applicant cannot satisfy the ‘alone’ test in s 24(1)(c).

6. I accept that is a fair way of summarising the issue before me.

   The evidence

7. The only witness at the hearing was Professor Malcolm West. He provided two reports and gave oral evidence. He is an eminent cardiologist who treated Mr Ford in relation to his heart condition. Professor West explained he was not an expert on Marfan syndrome as such, and he did not claim to possess expertise in orthopaedic surgery, but he said he was very familiar with patients who saw him with heart problems as a consequence of Marfan syndrome – and he was therefore well aware of the other problems, including orthopaedic issues, that those patients experienced.

8. I have some hesitation in relation to Professor West’s evidence. I mean no disrespect in making that observation: he did not pretend to possess specialist expertise he did not have, and he is clearly an eminent specialist in his field. I accept he did his best to assist the Tribunal in his capacity as a medical practitioner with relevant experience. After he concluded his oral evidence, I asked the parties to consider whether there was any other witness – most obviously an orthopaedic surgeon - who could give evidence of the precise effect of Marfan syndrome on joint conditions in the lower back and knees. Mr Crowe and Ms Baker, who represented the applicant, made some enquiries to determine whether an appropriately qualified expert with experience of Marfan syndrome was available. The consensus was that the opinion provided by Professor West was likely to be the best evidence available even though the effect of Marfan syndrome on joints (as opposed to the heart) was not directly within Professor West’s area of expertise. I agreed to make my decision on the assumption his evidence was the best available, although I warned I would come back to the parties and insist on further evidence if I was uncomfortable after reviewing the recording and transcript of Professor West’s evidence.

9. Ms Baker, for the applicant, said Professor West’s opinion about the role of Marfan syndrome was set out clearly in his two reports. In exhibit 7, he provided a helpful summary of how the condition impacted on Mr Ford (at p 2). He explained:

   Marfan syndrome affects the structure of the bones and and [sic] the supporting tissues of the joints reducing the ability of the joints to withstand physical activity that would otherwise have no debilitating effect. Marfan syndrome leads to the joints in the skeleton becoming more vulnerable to everyday trauma so that osteoarthritis develops more easily following trauma. This can particularly affect the joints supporting the body such as the back, hip and knees as well as the joints of the arms and shoulders which are used for common everyday activities. The presence of Marfan syndrome in Mr Ford has made a significant contribution to the difficulties in management of Mr Ford’s osteoarthritis and joint flexibility with tendency to dislocation.

10. I accept that evidence tends to suggest Marfan syndrome makes the joints vulnerable to damage and harder to treat but it does not independently impair joints, other than perhaps by triggering dislocation (which is not an issue here). Professor West went on to opine (at p 3) that Marfan syndrome did not impact directly on the applicant’s ability to undertake duties in the light skill work category. Professor West added: “Marfan syndrome has made every element of Mr Ford’s medical problems more difficult to undertake remunerative work.” Professor West made essentially the same point in his report dated 12 December 2014. I take his written evidence to mean that the Marfan syndrome does not make an independent contribution to the applicant’s incapacity for work – it merely engages with his service-related conditions to make them more disabling than they might otherwise be.

11. Professor West confirmed in his oral evidence that Marfan syndrome could ultimately lead to joint weakness, which may then lead to conditions like scoliosis that could not be attributed to any other factor – although there was no suggestion of scoliosis in this case. Mr Crowe questioned Professor West on whether the Marfan syndrome exacerbated or aggravated the operation of the service-related osteoarthritis and lumbar spondylosis conditions, or whether it made a separate contribution to the impairment of the joints that might have made it harder for him to do the work he had been doing.

12. Professor West agreed in cross-examination that the applicant’s joint problems were exacerbated by Marfan syndrome. Mr Crowe argued that evidence suggested the applicant’s back and knee conditions were made worse by something other than the accepted conditions.

13. Given the acknowledged limits of Professor West’s expertise, I am hesitant to parse his individual responses in cross-examination. Taken as a whole, his evidence suggests that Marfan syndrome creates a vulnerability to damage that is greater than one would expect in a person without Marfan syndrome. It makes other conditions harder to treat and ultimately more serious. But his evidence – especially the quote from the report I have reproduced above – makes it clear that Marfan syndrome makes the applicant’s (accepted) osteoarthritis (and, I infer, the spondylosis) more likely, and more serious. He does not clearly contend for the Marfan syndrome having any different or independent effect on Mr Ford.

    Conclusion

14. While the medical evidence is less clear than I would prefer, I am satisfied that evidence provides a sound basis for concluding the incapacity in the applicant’s knees and lower back which stops him from working is solely the product of the accepted conditions. While the applicant does have Marfan syndrome, the Marfan syndrome merely makes the applicant more vulnerable to damage leading to the accepted conditions. Marfan syndrome does not make an independent contribution to his inability to work. In those circumstances, I am satisfied the applicant is able to meet the requirements of s 24(1), so that his pension should be increased to the special rate.

15. There is some dispute in the statements of facts, issues and contentions as to the date of effect. If the parties are unable to agree on the date of effect, they may each make submissions to the Tribunal within 14 days of these reasons and a decision will be made.

16.      

17.     I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 11 November 2015

Date of hearing	6 November 2015
Advocate for the Applicant	Ms S Baker, RSL Redcliffe Sub-branch Inc
Advocate for the Respondent	Mr A Crowe, Department of Veterans’ Affairs