Le Juge De Segrais and Repatriation Commission - [2001] AATA 925

DECISION AND REASONS FOR DECISION [2001] AATA 925

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/376

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Christian Le Juge De Segrais (deceased)
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr David Weerasooriya

Date8 November 2001
PlacePerth

Decision      Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision of the Veterans' Review Board is affirmed.
  ...........(sgd R D Fayle)..........
  Senior Member
CATCHWORDS
VETERAN'S PENSION – whether correctly assessed at General Rate – application of GARP to facts – whether entitled to Intermediate or Special Rate.
Veterans' Entitlements Act 1986
Guide to the Assessment of Rates of Veterans Pensions (GARP)

REASONS FOR DECISION

8 November 2001 Mr R D Fayle, Senior Member & Dr David Weerasooriya

Mr Christian Le Juge Segrais ("the applicant") applied for a review of the decision of the Repatriation Commission ("the respondent") on 21 March 2000 in which the respondent assessed the applicant's pension at sixty percent of the General Rate.
That decision was independently reviewed in the first instance by the Veterans' Review Board, which, on 26 September 2000 affirmed it. The applicant then applied to this Tribunal for a further review. In the meantime, in August 2001 the applicant passed away.
The relevant history, issues and facts are set out conveniently in the respondent's statement of Facts and Contentions filed with the Tribunal on 11 September 2001. None of these are in dispute.
The issue before the Tribunal is whether, on the facts and more particularly, having regard to the medical assessment of Dr Ker (mentioned below), the applicant's pension ought to have been assessed at greater than sixty percent of the General Rate. If so, and it is assessed at least at seventy percent, whether the applicant was entitled to either the Intermediate Rate or Special Rate of pension.
The Tribunal had before it documents filed pursuant to s43 of the Administrative Appeals Tribunal Act 1975 ("the T documents") which included a medical report by Dr John Ker, consultant physician in rehabilitation medicine, dated 9 August 2000 (T14). In the circumstances of the applicant's death and at the request of both parties (that is, as the Tribunal understands it, for the applicant, his representative), the matter was decided on the papers. The Tribunal is satisfied that no prejudice was suffered to either party as a result, the matter being essentially a determination of the correct level of pension having regard to the medical and life style assessments contained in the papers.
The Tribunal reviewed the Combined Impairment Report made by Dr Johan Yin for the respondent (T10). It did this by reference to the assessment of the applicant's cervical spine condition (T9) by Dr John Radunovich, the applicant's then treating general practitioner. The Tribunal then considered the medical report of Dr Ker (T14) to ascertain whether any of the information contained in that subsequent report resulted in changes to the former assessment. The assessment by Dr Yin was arrived at by reference to the Guide to the Assessment of Rates of Veterans' Pensions, 5th Edition ("GARP"). Similarly, the Tribunal applied GARP to verify the assessment. The Tribunal found that the respondent does not appear to have applied the most appropriate points assessment to the rating attributed to "impairment due to Resting Joint Pain" (T10, p.37). Using GARP, the respondent rated that impairment at 2 points whereas, in the Tribunal's opinion, it should be 5 points. In arriving at its 5 points assessment the Tribunal used the same Table, Table 3.4.1. However, it considers that the appropriate descriptor is "Pain in any joint or combination of joints that is often present at rest but which improves after several hours rest or responds to medication or therapeutic measures", (see T9, p.29, Q.3 where that more accurately reflects the descriptor ticked by Dr Radunovich). That descriptor attracts a 5 points rating.
In addition, the respondent does not appear to have assessed question 4 (T9, p.29) which relates to sensory loss to the right hand and lower arm. In the opinion of the Tribunal the appropriate GARP assessment in this instance derives from Table 5.4, Functional Loss – Loss of Neurological Function: Sensory Loss. In particular the Tribunal adopts the Impairment Rating for "Dermatome, C6&7 (together) - being "Partial" because it is unilateral, attracting a 5 points rating, with no Age Adjustment. As the condition described by Dr Radunovich in answer to question 4 (T9, p.29) includes the applicant having regular "pins and needles", then on that basis the Tribunal concludes that this is not a condition previously rated under Table 3 above. That is, it is a different condition (albeit probably having the same origin).
Without taking into consideration the report of Dr Ker (supra), the Tribunal re-assessed the disability impairment rating, adjusting the assessment under Table 3.4.1 from 2 to 5 points and adding 5 points from Table 5.4. This resulted in a total of 39 points as compared with the previous 31.
The Tribunal then considered the report of Dr Ker. As best it could in the circumstances, it decided that the Table 3.3.1 assessment for "Loss of Function in the Cervical Spine", being a loss exceeding 50 percent of normal movement, should have been assessed at 10 points rather than 5 points.
Further, the Tribunal reviewed the assessment of the Life Style questionnaire completed by the applicant (T11) and concluded that the overall average rating of 3 was appropriate.
When the Tribunal applied the Combined Values Charts in Chapter 18 of GARP, it arrived at an amended combined impairment rating of 35 as compared with the original of 28 rounded to 30. This amended combined value impairment rating when taken with the Life Style Rating of 3 results in a "degree of incapacity" rating of 60 (see back page of GARP). That is exactly the same as the previous rating arrived at by the respondent using the ratings of 30 for impairment and 3 for life style.
Since therefore, the applicant's entitlement to pension was assessed at the 60 percent of the General Rate, it is not open for the Tribunal to consider his entitlement pursuant to the Intermediate Rate or Special Rate pursuant to either sections 23 or 24 of the Veterans' Entitlements Act 1986.
Decision
For the above reasons, pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision of the Veterans' Review Board is affirmed.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member & Dr David Weerasooriya
Signed:
................................(sgd S Railton)...............................
Associate
Date of Hearing 1 November 2001
Date of Decision 8 November 2001
The matter was decided on the papers. A submission in the form of a Statement of Fact and Contentions was filed by the respondent's advocate, Mr Carl Ponnuthurai on 11 September 2001.