KIM THANH DIEP and REPATRIATION COMMISSION

[2009] AATA 291

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 291

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2605

VETERANS'      APPEALS       DIVISION		)
Re		KIM THANH DIEP

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member

Date28 April 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) B. H. Pascoe

Senior Member

VETERANS' AFFAIRS ‑ invalidity service pension ‑ permanently incapacitated for work ‑ whether unable to work for more than 8 hours per week ‑ satisfaction on evidence of inability to work ‑ decision affirmed.

Veterans’ Entitlements Act 1986 s 37

REASONS FOR DECISION

28 April 2009 Mr B.H. Pascoe, Senior Member

1.      This is an application to review a decision of the respondent dated 8 April 2008 that the applicant, Mr Kim Thanh Diep, was not eligible for an invalidity service pension (ISP).

2. As it appeared to the Tribunal that the issues for determination on the review of the decision can be adequately determined in the absence of the parties and both parties requested that the review be determined without a hearing, the Tribunal has reviewed the decision by considering the documents lodged with the Tribunal without holding a hearing pursuant to section 34J of the Administrative Appeals Tribunal Act 1975.

3. Section 37 of the Veterans’ Entitlements Act 1986 (the Act) provides:

(1)       Subject to subsection (6), a person is eligible for an invalidity service pension if the person:

(a)is a veteran; and

(b)has rendered qualifying service; and

(c)is permanently incapacitated for work in accordance with a determination under section 37AA.

Section 37AA of the Act provides:

(1)       The Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purposes of paragraph 37(1)(c).

Variation or revocation

(2)       The Commission may, by written determination, vary or revoke a determination under subsection (1).

Legislative instrument

(3)       A determination under this section is a legislative instrument.

The Repatriation Commission made a written Determination under section 37AA: Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999.  The Determination defines permanent incapacity as follows:

(1)       A person is permanently incapacitated for work for paragraph 37 (1) (c) of the Act if the person:

(a)is permanently blind in both eyes; or

(b)is a veteran to whom section 24 of the Act applies; or

(c)satisfies subsection (2).

(2)       A person satisfies this subsection if:

(a)the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide; and

(b)solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week; and

(c)the Commission is satisfied that the impairment is permanent.

Subsection (6) of s 37 is not relevant to the application being applicable only to veterans who cease to be an Australian resident after lodging a claim and before the claim is determined.

4.      In was not in dispute that the applicant is a veteran and has rendered qualifying service with the South Vietnamese army.  The sole issue in dispute is whether Mr Diep is permanently incapacitated for work.

5.      Mr Diep has been in receipt of a Disability Support Pension (DSP) pursuant to the Social Security Act 1991 since 1998.  He applied for the ISP by a claim form dated 2 January 2008 and received by the respondent on 22 January 2008.  In the invalidity section of the claim dated 31 December 2007 his general medical practitioner Dr Trang Hoang stated that Mr Diep had:

·Chronic right wrist pain from Keinbock’s disease (avascular necrosis of lunate bone) on which he had surgery on 13 October 1993

·Right index finger amputation

·Hypertension

·Hypercholesterolaemia

·Infer‑posterior AMI, VF arrest in 2003

On the same date Dr Hoang completed a Work Test Questionnaire and stated that difficulty in using right hand and arm would continue indefinitely but did not render Mr Diep permanently incapable of undertaking work for periods adding up to more than 8 hours per week as he might be able to work… if he was given a job that is suitable to his condition.

6.      For reasons which are not clear, a further Invalidity Details form and a Work Test Questionnaire were signed by Dr Hoang on 9 January 2008.  In the Invalidity part the only disability listed was Keinbock’s disease.  In relation to work, Dr Hoang said yes to the incapacity preventing work for more than 8 hours per week with the reasons of daily pain in right wrist for many years affecting his daily functioning and activities of daily living such as tooth brushing, gardening, etc.  These second set of forms were provided to the Tribunal by Mr Diep on 6 February 2009.

7.      An appointment was made by the respondent for Mr Diep to be examined by Dr Amanda Sillcock, an occupational physician, on 9 September 2008.  Mr Diep did not attend that appointment.  A further appointment was made on 20 October 2008 and, again, Mr Diep did not attend without any apparent reasonable excuse.

8.      It would appear that Mr Diep has the view that, as he has been granted DSP, he should be entitled to simply transfer to an ISP.  However, the requirements of the Social Security Act 1991 and the Veterans’ Entitlements Act 1986 are quite different in two major ways.  Firstly DSP only requires that a person’s inability to work will last for two years.  For ISP the inability must be permanent.  Secondly, for DSP the requirement is an inability to work for at least 30 hours per week.  For ISP the requirement is an inability to work for more than 8 hours per week.

9.      Given the conflicts between the two statements by Dr Hoang and the apparent refusal by Mr Diep to be examined by another specialist doctor, it is not possible to be satisfied that he is permanently unable to work for periods adding up to more than 8 hours per week.  The initial statement of Dr Hoang that a suitable job recognising his right arm limitations, which is said to be the reason for work incapacity, could allow Mr Diep to work for more than the 8 hours is most likely than not to be the correct position.  The definition of work allows for appropriate retraining.

10. On balance, I can not be satisfied that Mr Diep meets the requirements of section 37(1)(c) of the Act to be eligible for an ISP and the decision under review should be affirmed.

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

Signed:          Olympia Sarrinikolaou

Clerk

Date of Hearing  Nil – hearing on the papers

Date of Decision  28 April 2009