Johnston and Repatriation Commission

[2003] AATA 1272

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1272

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/71

VETERANS' APPEALS   DIVISION		)
Re		RONALD KEITH JOHNSTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date12 December 2003

PlaceHobart

Decision The decision under review is affirmed. 

..............................................

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - operational service - eligible service - general rate - special rate - achilles tendonitis - bursitis - SoP (Statements of Principles) - post-traumatic stress disorder (PTSD) - psychiatric condition - Veterans' Review Board.

Legislation

Veterans’ Entitlements Act 1986 – ss12A, 120B, 120(1), 120(3), 120(4), 23, 24

Guide to the Assessment of Rates of Veterans’ Pensions (GARP), 5^th Edition 1998.

Statement of Principles issued by the Repatriation Medical Authority, relating to specific medical conditions.

Authorities

Repatriation Commission v Deledio (1998) 391 FCA (22 April 1998)

REASONS FOR DECISION

12 December 2003 Associate Professor B W Davis AM (Part-time Member)   

1.      The applicant, Ronald Keith Johnston seeks review of that part of a decision made by a delegate of the Repatriation Commission on 26 March 2002, subsequently varied by the Veterans’ Review Board (VRB) on 27 February 2003, whereby a claim in respect of achilles tendonitis or bursitis of the left heel was refused as service caused and pension was assessed at 80 percent of the General Rate.

The Issue

2.      The issues are:

(a)whether achilles tendonitis or bursitis should be recognised as service related; and

(b)whether pension should be paid at more than 80 percent of the General Rate.

Legislation

3.      The relevant legislation is the Veterans’ Entitlements Act 1986 and Amendments – ss23 and 24.

Note also the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) and Statements of Principles (SoP) and authorised by the Repatriation Medical Authority, concerning particular medical conditions.

Standard of Proof

4.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Operational Service

5.      The applicant rendered operational service in the Australian Army during the following periods:

(a)17 April 1963 to 27 May 1963, involving service in the Far East Strategic Reserve;

(b)17 August 1964 to 20 October 1965 relating to service in Malaysia and Singapore; and

(c)8 October 1969 to 8 October 1970, relating to service in Vietnam.

The applicant also had eligible defence service from 7 December 1972 to 31 July 1980.

Disabilities

6.      As a consequence of his service the applicant has the following disabilities recognised as war-caused (service-related):

(a)      post-traumatic stress disorder;

(b)      osteoarthritis of the left ankle and foot;

(c)       osteoarthritis of the right ankle;

(d)      bilateral pesplanus; and

(e)      bilateral metatarsalgia.

The applicant is currently in receipt of pension at 80 percent of the General Rate.

7.      The applicant was born on 8 October 1941 and thus is under the age of 65 years.   As a result of his accepted disabilities he is unable to work for eight hours or more a week.

The Tribunal Hearing

8.      The Tribunal hearing was conducted in Hobart on 7 November 2003.  The applicant was in the United Kingdom and gave evidence by telephone, representing himself.    No witnesses were called.  The respondent was presented by Mr Michael Castle.

9.      Mr Johnston was affirmed and gave evidence that he sought review of three matters, namely the dates of operational service, because various government agencies had made errors about this; he wished to have his claim for achilles tendonitis or bursitis recognised as service related; and he considered pension should be paid at the Special Rate..

10.     Mr Johnson said he was pleased the AAT hearing was being conducted at this time, because he intended to contact the British Pension authority in early 2004 and needed to forward documentation in order to have his situation recognised.

11.     Mr Johnston drew attention to a letter from an adviser to the Minister for Veterans’ Affairs dated 11 November 2002, indicating length of service of his unit in Malaysia and Singapore during the Indonesian Confrontation.    He said this should help correct errors in dates in documents relating to his case.   Counsel for the respondent stated Mr Johnstone’s concerns had been noted, but in some cases he may have been mistaken, because a distinction is drawn between operational and eligible service and the latter did not include periods of secondment from his principal regiment to field ambulance duties.

12.     Mr Johnston stated he could not understand why his claim for achilles tendonitis or bursitis of the left heel had not been recognised when other kinds of foot problems had been accepted as service related.   Mr Castle suggested that detailed medical assessment of  his foot and ankle problems had probably been incorporated into recognition of bilateral metatarsalgia and bilateral pes planus as service related; but in any event the claimed tendonitis or bursitis could be tested against the relevant Statement of Principles.   The VRB had already considered this matter and had concluded that none of the factors in the SoP were met and thus a reasonable hypothesis could not be raised within the meaning of subsection 120(3) of the Act.

13.     Mr Johnston referred to an incident, which took place in October 1964 when he was involved in anti-guerilla operations near the border of Thailand and Malaysia.   He had injured his left ankle and foot and was admitted to the military hospital at Terendak on 23 October 1964, where his lower leg and foot were encased in plaster for about five or six weeks.

14.     Under cross-examination he said his recollections were not precise, but he though he had attempted to jump a monsoon drain as part of drill exercises; his ankle had collapsed so he was hospitalised.   Counsel for the respondent said that the incident may have contributed to the osteoarthritis condition being recognised as service-related, but it did not fit within the relevant Statement of Principles for achilles tendonitis (No 54 of 1996) and so could not be accepted by the Repatriation Commission.

15.     Mr Johnston then referred to his claim that he should be granted pension at the special rate.   He stated his psychiatric disorder was identifiable as early as 1972, having suffered trauma in Vietnam, but it was not until the 1980’s that post-traumatic stress disorder  (PTSD) became recognised as a medical condition.  He referred to a Combat Stress Report dated 19 October 2001, saying he had lived with psychiatric problems for three decades, but many people were either reluctant to recognise the malady or else used it against him when he sought employment.

16.     Mr Castle questioned the applicant about his post service employment record.  Mr Johnston said he had travelled to Britain but arrived there during a period of economic depression.   He had tried a number of short-term appointments after he gave up being self-employed as a debt collector.   He had worked as a countryside warden, helped establish a plastic window company until it failed, worked at a call centre as a salaried worker on probation for ten weeks, tried to establish a research consultancy in genealogy, but nothing succeeded.

17.     Under cross-examination he agreed these assignments were all short-term, with protracted periods of unemployment between, which he attributed to employer’s reluctance to engage anyone with psychiatric problems.   He would not accept the proposition that efforts to secure employment were random and episodic; but agreed he had vacated posts either by mutual consent or because the pay was low.    Mr Castle put it to him there was no evidence to suggest he had ever ceased employment because of service-related disabilities alone, the applicant did not provide a clear response to this assertion.

18.     Mr Castle then asked Mr Johnston whether he considered he could work up to eight hours per week or whether he could work longer hours if employment opportunities existed.    The applicant was reluctant to answer, saying it was the Repatriation Commission which had raised this issue, rather than him.   Mr Johnston said he had worked four hour shifts at the call centre, but would have preferred two or three hours per week for a limited period.   He did not consider he could handle 20 hours per week now.   Mr Johnston queried a statement in a departmental assessment report that he was unable to work more than 8 hours per week, but then said he accepted this judgment if the Repatriation Commission thought this was the case.

19.     In conclusion he thanked the Tribunal for the hearing and said formal documentation would aid him in putting a case to the British pension authority, which in the past had paid little attention, thinking he was drawing a substantial Australian pension.

Analysis

20.     In merits review the Tribunal is required to stand in the shoes of the original decision-maker considering all evidence anew while noting statutory provisions and any relevant case authorities.

21.     Mr Johnston’s primary contentions are recorded in a letter to the Tribunal dated 1 September 2003, and as earlier indicated, relate to three matters.   First he claims there are inconsistencies in the dates of operational service recorded various departmental documents; second, he claims that achilles tendonitis or bursitis should be recognised as service related; third he claims he is entitled to pension at the special rate.

22.     The respondent contends that:

(a)the applicant did not cease any form of employment because of his accepted disabilities;

(b)it is not the applicant’s accepted disabilities alone which prevent him continuing to undertake remunerative work; and

(c)although the applicant may have been genuinely seeking remunerative work, his accepted disabilities are not the substantial cause of his inability to obtain employment.

23.     Mr Johnston joined the Australian Army on 26 July 1960, serving until 31 July 1980.   The Tribunal has examined documentation relating to operational service and agrees with the applicant there are inconsistencies in some of the dates quoted.   The Tribunal has concluded that the following periods of operational service should be recognised:

(a)17 April 1963 to 27 May 1963, involving service in the Far East Strategic Reserve;

(b)17 August 1964 to 20 October 1965, relating to service in Malaysia and Singapore; and

(c)8 October 1969 to 8 October 1970, relating to service in Vietnam.

Mr Johnston also has eligible defence service from 7 December 1972 to 31 July 1980.

24.     With respect to the claim for achilles tendonitis or bursitis to be recognised as service-related, the Tribunal notes that neither the original decision-maker or the Veterans’ Review Board accepted this proposition, because in their view the available medical evidence did not meet criteria specified in the relevant Statement of Principles, namely No 54 of 1996.

25.     The factors the SoP says must exist before it can be said that, on the balance of probabilities, achilles tendonitis or bursitis is connected with circumstances of a person’s relevant services are:

“Factor 5

(a)engaging in vigorous physical activity requiring movement of the ankle joint, for a total of at least 20 hours within the 14 days immediately before the clinical onset of Achilles tendonitis or bursitis; or

(b)suffering from a systematic arthritic disease at the time of the clinical onset of Achilles tendonitis or bursitis; or

(c)undergoing a renal transplant within the five years immediately before the clinical onset of Achilles tendonitis or bursitis; or

(d)engaging in vigorous physical activity requiring movement of the ankle joint, for a total of at least 20 hours within the 14 days immediately before the clinical worsening of Achilles tendonitis or bursitis; or

(e)suffering from a systemic arthritic disease at the time of the clinical worsening of Achilles tendonitis or bursitis; or

(f)undergoing a renal transplant within the five years immediately before the clinical worsening of Achilles tendonitis or bursitis; or

(g)inability to obtain appropriate clinical management for Achilles tendonitis or bursitis.”

26.     Paragraphs 5(d) to 5(g) apply only to material contribution to, or aggravation of, achilles tendonitis or bursitis suffered or contracted before or during (but not arising out of) the person’s relevant service.   Various sections of the Act then apply.

27.     Mr Johnston claims it was an accident incurred while on duty near the border of Thailand and Malaysia, which induced his achilles tendonitis or bursitis, through ankle and foot injury.   However, in order for his claim to succeed he has to demonstrate that he engaged in vigorous physical activity requiring movement of the joint for a total of 20 hours within the 14 days immediately before the onset of the condition.   He claims it was vigorous drill and jumping a monsoon ditch which caused him to be hospitalised in October 1964, but under cross-examination stated his memory of the event was not precise.

28.     While it is clear an accident to his left ankle did occur, there is no medical evidence to prove that achilles tendonitis or bursitis directly resulted from this incident, even though medical practitioners subsequently evaluated his feet and ankle problems.

29.     As there is no alternative evidence of him suffering from any of the systemic diseases identified in the Statement of Principles, the Tribunal has concluded the material does not raise a reasonable hypothesis within the meaning of s120(3) of the Act.    It follows that the Tribunal is satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining the veteran’s achilles tendonitis or bursitis were caused through operational service.

30.     The Tribunal notes that other disabilities relating to the ankle and foot, including osteoarthritis, bilateral pes planus and bilateral metatarsalgia have been accepted as service-related.

31.     The final matter to be considered is whether Mr Johnston should be paid disability pension at more than 80 percent of the general rate.   The applicant contends that he is entitled to be paid at the special rate.

32.     Criteria for payment at the intermediate rate includes a provision that the person concerned has inability to work more than 20 hours per week.   But it is already conceded that Mr Johnston has a degree of incapacity of at least 70 percent, is under the age of 65 years and is unable to engage in remunerative work for more than 8 hours per week, thus it is the special rate which must be considered.    The fundamental question here is whether it is his disabilities alone which prevent him undertaking remunerative work, or if he has been seeking remunerative work, his disabilities are the substantial cause of inability to obtain work.

33.     The Tribunal notes that the Veterans’ Review Board examined this matter closely and came to the conclusion that it was not Mr Johnston’s post-traumatic stress disorder and other service-related disabilities which alone prevented him undertaking remunerative work for which he possessed appropriate skills, but his age and poor work history.    There was a record of short term appointments with substantial periods of unemployment intervening, with Mr Johnston himself terminating job arrangements on one ground or another.

34.     In merits review the Tribunal is required to examine the evidence anew, but having done so, the conclusion reached is the same as the Veterans’ Review Board; Mr Johnston has been unsuccessful in gaining and holding employment opportunities due to a variety of factors, including age and his PTSD disorder, but largely by the piecemeal, intermittent manner in which he has sought appointments and then withdrawn on grounds of poor remuneration or other dissatisfactions.

35.     Although age, time out of the workforce and condition of the labour market may be contributing factors, there is no evidence of active and persistent job search or willingness to continue in any appointment secured.    Nor is there evidence he has considered retraining or the acquisition of particular skills.   In these circumstances it cannot be argued his medical conditions are the sole or substantial cause of inability to obtain employment.   The Tribunal therefore finds that on the balance of probabilities and the evidence before it, there are no sufficient grounds to justify payment of disability pension at the special rate.

Decision

36.     For the reasons stated above the decision under review is afirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  7 November 2003
Date of Decision  12 December 2003

Counsel for the Applicant         Hearing conducted by telephone - applicant in UK represented himself.

Solicitor for the Applicant           
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Veterans' Affairs Department