Gamble and Repatriation Commission (Veterans’ entitlements)
[2006] AATA 427
•17 May 2006
Gamble and Repatriation Commission (Veterans’ entitlements) [2016] AATA 952 (29 November 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/5856
Re
Neil Gamble
APPLICANT
And
Repatriation Commission
RESPONDENT
File Number(s)
2014/5898
Re
Neil Gamble
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms J C Kelly, Senior Member
Date 29 November 2016 Place Sydney
The application with file number 2014/5856, regarding a claim for medical treatment and pension for incapacity from hypertension, is dismissed pursuant to section 42A(1) of the Administrative Appeals Tribunal Act 1975.
The decision under review in the application with file number 2014/5898, regarding the assessment of the rate at which the pension is paid, is affirmed.
...................................[sgd].....................................
Ms J C Kelly, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – applicant did not pursue an application at the hearing – dismissed pursuant to section 42A(1)
VETERANS’ ENTITLEMENTS – assessment of rate of pension – special rate – capacity to undertake remunerative work – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(1), 43(1)
Veterans’ Entitlements Act 1986 (Cth) ss 19(9), 24, 28
CASES
Collins v Repatriation Commission (1994) 33 ALD 557
Philip and Repatriation Commission [2006] AATA 427
Redden and Repatriation Commission [2015] AATA 273Repatriation Commission v Richmond (2014) 226 FCR 21
SECONDARY MATERIALS
Guide to the Assessment of Rates of Veterans’ Pensions (No. 2) 2016
Statement of Principles concerning diabetes mellitus No. 90 of 2011
Statement of Principles concerning incisional hernia (Balance of Probabilities) No. 74 of 2016
REASONS FOR DECISION
Ms J C Kelly, Senior Member
29 November 2016
INTRODUCTION
In the application with file number 2014/5898, the applicant, Mr Gamble, is seeking to be paid the special rate of pension under section 24 of the Veterans’ Entitlements Act1986 (the Act) rather than 100% of the general rate of pension. He worked as an air-framer in the Royal Australian Air Force (the RAAF).
In the application with file number 2014/5856, the applicant is claiming medical treatment and pension for incapacity from hypertension.
The decision under review is the decision of the Repatriation Commission dated 23 April 2014 that assessed disability pension at 100% of the general rate and refused the claim for hypertension, as affirmed by the Veterans’ Review Board on 22 October 2014.
The applicant’s counsel said at the hearing that the applicant was not pursuing the hypertension claim and would file a notice of discontinuance on the day of the hearing. The issue was not further addressed in evidence or submissions at the hearing. No document has been filed. Absent a notice in writing discontinuing or withdrawing the hypertension claim, the Tribunal accepts the statement of the applicant’s counsel at the hearing as giving consent to the Tribunal to dismiss the application pursuant to section 42A(1) of the Administrative Appeals Tribunal Act 1975. The applicant did not press a claim for extreme disablement benefit.
The applicant has to satisfy the criteria in section 24(1) of the Act.
The applicant was born on 12 February 1950. He was 64 years of age on the application day, 24 March 2014, and therefore satisfies the requirement to be under the age of 65 (section 24(1)(aab)). He was receiving a pension at 100% of the general rate and therefore satisfied the requirement of at least 70% degree of incapacity (section 24(1)(a)((i)).
The issues before the Tribunal are whether he satisfies the criteria in sections 24(1)(b) and 24(1)(c) of the Act.
The assessment period commenced on the application day. Any payment of the pension at the special rate could only take place after the applicant ceased work for Alcoa on 31 August 2014. He accepted a redundancy package.
THE RELEVANT STATUTORY PROVISIONS
The relevant provisions of the Act are:
Section 24 Special rate of pension
(1):
…
(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;
…
Section 28 Capacity to undertake remunerative work
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).
THE EVIDENCE BEFORE THE TRIBUNAL
In addition to the documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), the following evidence was before the Tribunal:
·Oral evidence from the applicant;
·Oral evidence by telephone and a report dated 22 June 2016 from Dr Thompson, the applicant’s general practitioner from about August 2014, located at Berry;
·Report dated 17 June 2016 of Dr Chan, the applicant’s general practitioner from 1993 until July 2014, located at Guildford;
·A letter from Alcoa, confirming that the applicant accepted a redundancy package on 31 August 2014;
·A short letter dated 5 June 2015 from Professor Henry Pleass, transplant, hepatobiliary and pancreatic surgeon, to the applicant’s legal representative;
·A report dated 6 November 2015 from Dr Roberts, psychiatrist; and
·Oral evidence and a report dated 2 October 2015 from Dr Chase, occupational physician.
THE APPLICANT’S ACCEPTED CONDITIONS
The applicant has the following accepted conditions:
·Bilateral sensori neural deafness from 2 June 1992;
·Bilateral tinnitus from 7 May 2006;
·Lumbar spondylosis from 7 May 2006;
·Chronic simple bronchitis from 16 May 2012;
·Adenocarcinoma of the left kidney (resulting in its removal in 2008 and six months off work) from 16 May 2012; and
·Adjustment disorder with depressed mood from 16 May 2012.
The respondent “does not dispute that the applicant’s cancer, including metastases, is an accepted condition”. This concession refers to the recurrent renal cell tumour which required a partial pancreatectomy and splenectomy on 6 March 2014, which Dr Thomson described as “significant abdominal surgery” and Dr Chan described as “extensive abdominal surgery”. The applicant was diagnosed with that disease and took time off work from 9 February 2014, according to Dr Chan’s report. Professor Pleass’s letter confirmed that the pathology of the applicant’s pancreas and spleen “confirmed multiple nodules of metastatic clear cell renal carcinoma consistent with metastasis from his original kidney cancer”. Professor Pleass conducted the surgery.
REJECTED CONDITIONS
The following conditions have been rejected:
·chronic sinusitis;
·asthma; and
·hypertension.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
Uncontentious matters
The Tribunal has been assisted in this case by the amended statements of facts and contentions filed by each party and the oral submissions made by the legal representatives.
The respondent accepted that the applicant is not capable of undertaking the work he did in the RAAF as an air-frame fitter or the work he did for Alcoa at Yennora where scrap aluminium was remelted in a smelter and rolled into 11 tonne blocks which were scalped and then milled and rolled. That accords with the opinion of Dr Chase.
The applicant said that at Alcoa, he drove forklifts and was a crew leader. He could cast aluminium and organise the specifications for the aluminium required. There was no hands-on lifting apart from eight kilogram bars of manganese and bags of magnesium, copper and iron. Once the aluminium was made, it was lifted with forks or cranes.
The letter from Alcoa made the following points:
·The applicant was an employee of Alcoa Australia Rolled Products (Alcoa) when the decision was made in February 2014 to close the business permanently;
·In February 2014, the applicant was suffering from a medical condition which prevented him from working and was placed on long term sick leave from February 2014;
·Due to his ongoing condition and likelihood of not returning to work in any condition, Alcoa brought forward his redundancy from 18 December to 31 August 2014; and
·On 18 December 2014, the business ceased operating and all remaining employees were made redundant.
The applicant lives near Nowra.
Apart from the accepted and rejected conditions, there was evidence before the Tribunal that the applicant also suffers from the following:
·obstructive sleep apnoea;
·insulin dependent diabetes consequent to the pancreatectomy;
·incisional hernia;
·a risk of severe infection consequent to the splenectomy; and
·loss of abdominal strength caused by the March 2014 surgery.
The applicant’s evidence
Following is a summary of the applicant’s evidence.
The applicant and his wife gained parental control of her great grandson (the young fellow) at Easter 2016. He was born in February 2009. They looked after him in 2010. In 2015, he returned to them. He has been living with them for almost two years. The applicant said that the young fellow had been abused physically and mentally.
The applicant wears hearing aids and uses a radio to mask his tinnitus. He goes to a chiropractor once a month for his low back pain and undertakes a supervised well-being gym program. He began that program a month before his March 2014 surgery for his back. He was reassessed after the operation and had been doing it for about 12 months. It helps his back and stomach. They do not want him to overuse his stomach muscles because of his hernia.
The applicant attends the gym program for half an hour twice a week. He does light exercises. He is on a walker for 10 minutes and does arm exercises and particular exercises for his abdominal muscles. He holds three kilogram weights in each hand, mostly sitting on a chair and standing holding the weights. He sits on another machine and pushes back using his legs.
The applicant still suffers from the adjustment disorder with depressed mood. He gets depressed at times. He just goes to the shed to be on his own if he cannot handle it.
The applicant said that he had the following time-off when working for Alcoa from January 2009, when he resumed work after the removal of his kidney in 2008, and August/September 2013. He had a day off here and there in a year because his back was sore. One year he took off about three or four days and the next year 10 days. It was not consistent. His back interfered with his work because he could not bend, the pelvic bone moved and he could not work. He was put on light duties. He could not drive a forklift if it jarred his back.
His bronchitis caused him to get short of breath. The day before the hearing he had walked to the station and was puffing. At work, if he had to walk up stairs to change an air filter, he would stop halfway up to catch his breath. He used to get a lot of colds and infections and have a lot of time off but since taking seretide and having flu injections, it was less.
His deafness interfered with his work. He could not wear his hearing aids at work because he had to wear ear plugs due to the noise and so could not hear people. If he was in a meeting room or training, he had to use his hearing aids. They made allowances. Every 12 months he did a hearing test for driving vehicles. A couple of years ago he did not get through it and they put him on forklifts. “They” would stand and yell out and he just passed the test.
When asked whether his depression affected his work, the applicant said that workmates, not management, used to put “shit” on him about his hearing and back pain and lifting and would complain about having to do his work. Some of them meant it and others were joking. It was depressing and he felt like walking out the gate. Management and supervisors joked about his hearing but it had an effect on him.
The applicant sees Professor Pleass at Westmead every 12 months and an oncologist at Berry every three months in relation to the renal cancer. The local oncologist takes a CT scan and blood test. The applicant has been told that renal cancer is unpredictable, which worries him. Since the March 2014 surgery, the applicant has been reviewed four times in respect of a mark on the liver apparent on a CT scan, and the adrenal gland.
The applicant said that since the removal of his spleen, he picks up respiratory infections more easily. He had a head cold six months before and had to get antibiotics. He has to be careful and wash his hands constantly.
He takes medication for his hypertension. When he worked at Alcoa, hypertension did not affect his work. He sometimes got dizzy or giddy. His medication has been changed to a stronger one.
The applicant said that he was forced to take the redundancy in August 2014 because he was not fit to return to work at that time. He could not lift, his stomach was numb and he had developed insulin dependent diabetes for which he had injections and took tablets. He had a big hernia but he has a numb stomach and cannot feel if anything is wrong. He gets pain at the base of his sternum and above the groin. He does not know the cause. He takes panadol. He said that the doctor does not want to cut him open again.
Post-operation, the applicant cannot lift. His back is sorer.
The applicant gave the following evidence about his current activities.
He instructs cadets, which the applicant says is a supervisory role making sure the younger cadets 13 to 18, do not abuse each other and are not abused by anyone else. He has a working with children clearance and a first aid qualification. He gets a cadet allowance for up to 48 days a year. He goes to HMAS Albatross for two hours on a Tuesday night and supervises a camp for seven days. The last camp was at Albatross in April 2016. He holds the rank of flight sergeant.
The applicant said that by the end of the week’s camp, he could have slept for a week. They know he has problems and give him time out, to sit down and have a rest. The cadets have to have instructors but the cadets do the activities. The older ones, 18 to 20, teach the younger ones. Cadets have ranks and undertake promotion courses.
The applicant rides his pushbike with the young fellow. The applicant said that when the young fellow returned to him and his wife, his trauma had been so bad that he had no sense of road rules or of danger. The applicant had to go with him. He goes around the block a couple of times, maybe once every three weeks. The roads are flat.
The applicant’s hobby is putting together and flying model aircraft, of which he has 20.
When asked if any of his disabilities affected his ability to look after the young fellow, the applicant said that he gets angry and the young fellow comes and apologises. His wife does not think that his tolerance has changed since the operation, but he thinks he is less tolerant. He thinks about why he has had cancer and none of his living seven siblings do. The applicant said that he feels better when he takes a plane out or rides the bike. He does not think about it and slows down.
One day a week the applicant takes the young fellow to school when his wife attends a meeting of grandparents who look after children. He looks after the young fellow when she goes shopping or gets her hair cut.
When asked by his representative if he had been fit to resume employment at any time since the March 2014 operation, the applicant said that he would not cope with people putting “shit” on him. Even if he had an employer as understanding as Alcoa, he would have a problem because of his tolerance levels. The Tribunal understood the applicant to say that he was not short tempered before the operation.
In cross-examination, the applicant listed the following as reasons he could not resume work after the 2014 operation when he had done so after the 2008 operation: removing a kidney is different from removing the pancreas and spleen and he is older; his hearing; his back pain and difficulty lifting; he had developed diabetes and he requires injections and has to watch his sugar levels closely. He said his sugar levels are alright in the morning but if he goes to the gym the level goes down to three, below the limit when you are allowed to drive a vehicle, and he starts to feel giddy or dizzy and could not drive a forklift. He uses insulin. He has to provide medical reports to the RTA to get his licence. He also has sleep apnoea for which he uses a CPAP machine.
When asked about the hernia, the applicant says that it sticks out, pops out. He wears a stomach brace at the gym but does not wear it all the time because that weakens the muscles.
Dr Thomson’s evidence
In his written report dated 22 June 2016, Dr Thomson said that he considered the applicant totally incapacitated for employment at the time of his redundancy in August 2014 and referred to the 2014 surgery, the consequent development of diabetes, obstructive sleep apnoea, lumbar spondylosis, asthma, and hypertension. He considered the applicant permanently incapacitated for all employment at that time. He then referred to the sequelae from his surgery including “now” insulin dependent diabetes, loss of abdominal muscle strength and an increased risk of severe infection.
Based on that report, the Tribunal finds that Dr Thomson has not reviewed the applicant since 16 December 2014, eighteen months before he wrote his report. Another doctor saw the applicant on 19 January 2015 when he was suffering from a respiratory tract infection. Dr Johnson wrote that he did not consider that the applicant had capacity to work at “that time”, which the Tribunal understands refers to 19 January 2015. That assessment of the applicant’s capacity for work does not assist the Tribunal in June 2016.
Following is a summary of Dr Thomson’s oral evidence. He first saw the applicant in May 2014 when the applicant was looking for a local medical practitioner to take over his care.
The hernia is in the abdominal wall. He assumed it was from the 2014 operation. He treats the applicant’s diabetes in conjunction with an endocrinologist. He had not considered the applicant fit for employment at any time because of the accepted cancer and subsequent diabetes, sleep apnoea, hernia and back problems. “It would be difficult to get any work in any position”.
When asked to consider only the accepted conditions and diabetes and hernia, Dr Thompson said that the applicant is not employable in any physical work at all.
When asked about anxiety and depression, Dr Thomson said that he had not been directly consulted. The applicant and his wife have significant stress from the young fellow. It puts a lot of pressure on them. He agreed that the additional stress and anxiety make it more difficult for the applicant in relation to his adjustment disorder with depressed mood and his pre-existing condition due to chronic pain. He also suffers stress and anxiety as a result of the recurring renal cancer, which is a poorly understood cancer in some ways. The Tribunal gives little weight to Dr Thomson’s evidence about the anxiety and depression as he had not been “directly consulted” about it. If the condition were of concern to him, the Tribunal would have expected that the doctor would have taken some initiative to investigate it, or at least question the applicant about it.
When asked to comment on Dr Chase’s report, Dr Thomson accepted that an occupational physician can assess work capacity but said that Dr Chase had not reviewed diabetes and sleep apnoea in that report. He said that those conditions and the hernia significantly contributed to the applicant’s inability to work. The applicant had become insulin dependent this year which made it more significant. Control of the diabetes is improved but not great. The applicant’s HBA1C result is 7 to 8. Above 8 is poor control. Ideally it should be less than 7. If sugar levels are too high, that affects the ability to work. That tends to make a person more lethargic, fatigued and prone to infection. Removal of the spleen puts the applicant at risk of severe infection.
Dr Thomson also said that the CPAP machine has ameliorated the effects of the obstructive sleep apnoea which was well-controlled.
Dr Thompson was not asked when he last saw the applicant.
Dr Chan’s evidence
Dr Chan expressed the following opinions in his report. When the applicant last consulted Dr Chan on 11 July 2014, he was totally incapacitated for employment and he predicted that “he could still have been total (sic) incapacitated in August 2014”. He disagreed with Dr Chase’s opinion that the applicant would have been fit and had the capacity to work in January 2015. He “would not predict that he could have resumed work yet in January 2015”. The Tribunal finds that Dr Chan’s evidence does not support a finding that the applicant is totally and permanently incapacitated for work. It only supports findings that he had no capacity to work in August 2014 and January 2015.
Dr Keshava’s evidence
On 16 April 2014 Dr Keshava, consultant psychiatrist, wrote a report in which he said that the applicant suffers from chronic depressive illness as a result of a back injury he suffered during his RAAF service and that “[h]is depression is getting worse”. He set out the history of diagnosis of metastatic tumour in the pancreas and consequent surgery and said that the applicant “has been told that they cannot treat his renal cancer and it is terminal.” In his opinion the applicant was not fit to continue in his job and was not fit for “any gainful employment”. He stated that the applicant “is Totally and Permanently incapacitated and his Prognosis is poor”. The Tribunal notes that this report was prepared about a month after the surgery.
In relation to the applicant’s depression and anxiety, it is relevant to note that his 2012 claim for depression/anxiety/moodiness was “due to my back pain which is chronic”. He was seeing Dr Keshava at that time.
Dr Roberts’s evidence
Dr Roberts, psychiatrist, assessed the applicant on 8 October 2015 at the request of the respondent. Dr Roberts records that the applicant told him that Vietnam Veterans suggested he get a referral to Dr Keshava due to him being in the Air Force. He described an incident where he and others were made to remove fuel tanks to get ammunition out of the aircraft after the aircraft caught fire on landing and went off the runway due to a burst tyre. The applicant did not think it was fair and commented that he could not touch the live bombs because they were so hot. The applicant told Dr Roberts that he had no treatment from Dr Keshava “since he had already been taking tablets for other things and that he was not a tablet taker” and that he had seen Dr Keshava “a few months ago for purposes of a discussion”.
In summary, Dr Roberts:
·Did not consider that there was currently sufficient symptomatology to diagnose an adjustment disorder, although he noted that the applicant asserted certain psychiatric symptoms and “one is largely reliant on his statements in this regard”;
·Considered that the clinical manifestations to support the applicant’s assertions are minimal and relate to the presence of mild depression and certain avoidance behaviour;
·Considered that the applicant’s level of depression was not marked and would not be obvious to a prospective employer; and
·Did not consider that the applicant’s psychiatric status would prevent work and, assuming an adjustment disorder, his wellbeing would be improved by gainful activity.
Dr Chase’s evidence
Dr Chase took a medical history from the applicant that included that his hypertension was under good control, he developed type 2 diabetes after the 2014 surgery, and he suffered from sleep apnoea and used a CPAP machine. Dr Chase took a detailed history in relation to the accepted conditions, including that the cancer was in remission. On examination, he found “two areas of small incisional herniae in the [large abdominal] scar”. Dr Chase did not specifically address any impact on the applicant’s capacity to work as a consequence of the herniae or the diabetes in his report. He was asked about those conditions during his oral evidence. He was also cross-examined about aspects of the social history he took which differed from the applicant’s account to the Tribunal.
In relation to his adjustment disorder with depressed mood, the applicant told Dr Chase about issues at work at Alcoa, as he described to the Tribunal. Dr Chase commented in his report that there “seems to have been a substantial impact as a result of the diagnosis of the renal cancer. Regardless he reports improvement in recent years”. Dr Chase did not consider that that condition would be evident to an employer.
After referring to the applicant’s activities of daily living, his demonstrated physical capacity and his report of substantial psychological improvement since ceasing work, Dr Chase expressed the opinion that the applicant’s major issue is the abdominal weakness and low back pain. He accepted that the abdominal weakness followed the 2014 surgery and was therefore due to the applicant’s accepted disabilities. He stated that there were no other current major physical problems as a result of the renal adenocarcinoma which was in remission.
Dr Chase took into account all the applicant’s accepted conditions. He considered that the applicant was capable of returning to work but would require a permanent lifting restriction of 10 kilograms, to sit or stand according to pain tolerance and to restrict bending, pushing and pulling. “From first principles if such work is found within these restrictions he would be able to theoretically work full-time.”
When asked at the hearing whether sleep apnoea, the herniae or diabetes altered his opinion, Dr Chase said no. He said that the sleep apnoea was well controlled, the applicant wore an abdominal brace for his herniae and lifting restrictions of 10 kilograms would cover that and the back condition, and diabetes did not preclude work, depending on how well the diabetes was controlled. That could be done with proper education and insulin. Dr Chase suggested appropriate work would include driving a school bus, small parcel delivery, sorting plastic, sales work with some training, but acknowledged that the applicant’s age would make it hard for him to find a job.
Findings
The applicant’s representative emphasised that sleep apnoea and hypertension, neither of which is an accepted condition, did not impact upon the applicant’s ability to work. The Tribunal accepts that is so. He argued that lumbar spondylosis, diabetes, a risk of severe infection, loss of abdominal strength and a hernia were all contributing to the applicant’s permanent incapacity for all work at the time of his redundancy. The applicant’s adjustment disorder with depressed mood was not specifically relied upon. However, the Tribunal has considered all of the applicant’s accepted conditions, in fairness to him.
Of the conditions specifically relied upon, only lumbar spondylosis is an accepted condition. The applicant’s representative argued that the other conditions relied on were sequelae of an accepted condition, adenocarcinoma of the left kidney, because they were a consequence of the March 2014 surgery, and could be considered as such.
The Tribunal does not accept that general proposition. A similar proposition was considered by this Tribunal in Philip and Repatriation Commission [2006] AATA 427. In that case, the Tribunal referred to the following, which is in the same terms in the current Guide to the Assessment of Rates of Veterans’ Pensions (No. 2) 2016 (the GARP):
Conditions and their sequelae
Only the clinical features of an accepted condition may be taken into account in making an assessment. If the accepted condition causes some other distinct and diagnosable condition (sequela), the symptoms of the sequela cannot be taken into account when assessing the original accepted condition. Sequelae can only be assessed when they have themselves been separately determined to be war-caused or defence-caused.
As a general guide, a condition that is the subject of a Statement of Principles in force on 18 April 1998 should be taken as a separate disease entity. For the purposes of the preceding sentence, “Statement of Principles” has the meaning given to it on page 2 of this Guide
In Philip, the Tribunal referred to the following quote from Collins v Repatriation Commission (1994) 33 ALD 557 at 566, where Olney J said, in relation to the legal status of the GARP:
The Guide is part of the law of Australia. It is authorised by the Act and has binding effect according to its terms. To apply the Guide to the facts of a case is not to be bound by a legal form or technicality, but rather, is simply to apply the law.
The applicant’s representative then argued that diabetes and the hernia were not relevant factors at the time of application which is the relevant date of assessment. The Tribunal accepts that diabetes may not have developed when the claim was made. The development of the hernia is unclear and is discussed below.
The Tribunal does not accept the submission that the relevant date of assessment is when the claim was made or when the applicant ceased work, in this case the date of his redundancy. The assessment period begins on the date the claim is made and continues until the date the claim or application is determined, in this case, the date of the Tribunal’s decision or a decision on appeal. That conclusion follows from the definition of “assessment period” in section 19(9) of the Act and the review scheme set out in the Act in respect of the Veterans Review Board and the Tribunal in Parts IX and X respectively. See Repatriation Commission v Richmond (2014) 226 FCR 21 at [18] and Redden and Repatriation Commission [2015] AATA 273 at [7].
Because the applicant’s representative asserted that section 24(1)(b) was satisfied at the time of application “simply by operative intervention for accepted renal cancer” he did not address that section in detail and concentrated on section 24(1)(c). However, for the reasons that follow, the Tribunal does not accept that the applicant satisfies section 24(1)(b).
The applicant’s representative said that Dr Chase’s opinion was that neither diabetes nor the hernia interfered with the applicant’s capacity to work, if a 10 kilogram lifting restriction were imposed in respect of the back and the hernia. However, the applicant’s representative then pointed out that there is a Statement of Principles concerning diabetes mellitus No. 90 of 2011 and the surgery meets factor 6(d), surgery to the pancreas. It therefore followed, he said, that this Tribunal can consider a claim in respect of diabetes.
The Tribunal does not accept that submission. The legislative scheme under Part II of the Act in respect of such claims is specific and complex. While section 43(1) of the Administrative Appeals Tribunal Act 1975 provides that this Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision” which it is reviewing, there was no claim in respect of diabetes before the primary decision maker. Therefore, the claim is not before this Tribunal and cannot be considered.
The applicant’s representative also argued that because there was no Statement of Principles for incisional hernia, that is not a matter covered by the decision in Philip or the GARP passage quoted above and can be dealt with as a direct sequela of the surgery on basic causation principles. It is unclear to the Tribunal whether by the end of the hearing the applicant’s representative was claiming that either diabetes or the hernia impacted on the applicant’s ability to work. Having said that neither condition affected the applicant’s ability to work, the Tribunal understood the applicant’s representative to restate at the end of the hearing, that this Tribunal could assess the diabetes condition and hernia. For the reasons set out above, it does not accept that it can consider a claim for diabetes.
At the time of the hearing, there was no Statement of Principles for incisional hernia. On 26 September 2016 the Statement of Principles concerning incisional hernia (Balance of Probabilities) No. 74 of 2016 commenced.
Section 6(2) of that Statement of Principles defines incisional hernia as follows:
For the purposes of this Statement of Principles, incisional hernia means:
(a) a protrusion of intra-abdominal tissue through a fascial defect in the abdominal wall at the site of a previous surgical incision; and
(b) includes incisional hernia that recurs following surgical repair of an incisional hernia.
Dr Chan stated in his report that the March 2014 surgery included “repair of incisional hernia and division of adhesions”. The Tribunal finds that the applicant had an incisional hernia as a result of the 2008 surgery to remove the kidney which was repaired during the March 2014 surgery. It infers that the repair was not entirely successful or further herniae developed after that surgery.
The Tribunal cannot consider a claim for incisional herniae because there is a Statement of Principles in force and no claim has been made or assessed in accordance with the requirements of the Act as described earlier in this decision. Even if it were open to consider the condition as a sequela of an accepted condition, the Tribunal accepts Dr Chase’s opinion that the restrictions he proposed could address that condition and the low back pain and lack of abdominal strength. The applicant’s low back pain, lack of abdominal strength and/or hernia do not prevent him from working.
The Tribunal does not accept that the evidence supports a finding that the applicant’s risk of infection because of the removal of the spleen has impacted on his capacity to work, assuming it can deal with that condition. The applicant said that he picks up respiratory infections more easily and had to get antibiotics for a head cold six months before the hearing. That may be so, but that does not demonstrate an incapacity to work. The Tribunal accepts Dr Chase’s evidence that spleens are routinely removed and it has only been in recent years that their function in relation to immunity has been recognised. Some people have no effects at all.
The Tribunal does not accept that the applicant’s adjustment disorder with depressed mood impacts on his capacity to work. He continued to work at Alcoa despite the claimed impact of comments from his work mates and denied that he wanted to retire or stop work. Since his retirement, he thinks his tolerance has reduced and he gets angry with the young fellow who apologises. His wife does not agree that his tolerance has reduced. From the evidence of the applicant and Dr Thomson and his representative’s comment that the child care the young fellow attends is for troubled children, the Tribunal finds that caring for the young fellow is demanding. The Tribunal accepts that the applicant is concerned about the recurrence of cancer. Dr Chase talked about the uncertainty hovering over cancer sufferers which inevitably had a psychological impact. The applicant leads an active life with interests outside his immediate family, including cadets and model planes. The Tribunal prefers the opinions of Dr Chase and Dr Roberts to that of Dr Keshava for the reasons given above.
The Tribunal does not accept that the applicant’s evidence supports a finding that he is relevantly totally and permanently incapacitated. It prefers the opinion of Dr Chase about the applicant’s capacity to work to the other medical opinions before it. His evidence was based on the comprehensive history he took. The applicant’s evidence was not significantly different from that history. The Tribunal does not accept that the applicant is totally and permanently incapacitated for work at all or because of his accepted conditions.
For the above reasons, the Tribunal is not satisfied that the applicant is totally and permanently incapacitated, that is to say, his incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The applicant does not satisfy section 24(1)(b) of the Act. It is therefore unnecessary to consider section 24(1)(c) of the Act.
DECISION
The application with file number 2014/5856, regarding a claim for medical treatment and pension for incapacity from hypertension, is dismissed pursuant to section 42A(1) of the Administrative Appeals Tribunal Act 1975.
The decision under review in the application with file number 2014/5898, regarding the assessment of the rate at which the pension is paid, is affirmed.
I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of Ms J C Kelly, Senior Member .................................[sgd].......................................
Dated 29 November 2016
Date(s) of hearing 23 and 24 June 2016 Counsel for the Applicant G Barter Solicitors for the Applicant KCI Lawyers Respondent Self-represented
1
2
0