Morris and Repatriation Commission - [2000] AATA 1004

DECISION AND REASONS FOR DECISION [2000] AATA 1004

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/528

VETERANS APPEALS DIVISION           )
           Re      CLEMENT MORRIS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Dr C. Re, Member & Mr C. Ermert, Member

Date6 November 2000
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED the condition of ischaemic heart disease is war-caused.
  .......... Sgd. Mr J. Handley........
  Senior Member
CATCHWORDS
Veteran's Entitlements – Veteran claimed EDA – circumstances unique – assessment complicates – oral reasons given – written reasons to clarify – concession by respondent of IHD.

REASONS FOR DECISION

6 November 2000 Mr J. Handley, Senior Member Dr C. Re, Member & Mr C. Ermert, Member

This application was heard on 24 October. At the conclusion of the hearing we gave oral reasons for decision affirming the decision under review.
We have subsequently decided that the parties – particularly the applicant – should be given brief written reasons for our decision. We were moved by the obstacles faced by the applicant in these proceedings and his personal circumstances. It is hoped that these reasons may explain the process for reaching our decision.
At the hearing Mr Morris was represented by Mr Chancellor. The respondent was represented by Ms McCulloch.
Mr Morris is presently 82 years of age having been born on 3 March 1918. He was engaged in service in New Guinea and the whole of his service constitutes operational service.
Mr Morris has the conditions of generalised anxiety disorder and carcinoma of rectum with resection accepted as service related. Conditions of osteoarthritis of the left and right shoulder and osteoarthritis of the left knee had been rejected as service related. Shortly prior to the commencement of the hearing the respondent conceded the condition of ischaemic heart disease as related to service.
Mr Morris claims Extreme Disablement Adjustment. The qualification for this benefit is found at s.22 of the Veteran's Entitlements Act 1986. A number of qualifying criteria apply which have either been satisfied by the applicant or have been conceded by the respondent.
The applicant has attained the age of 65 years, he has been determined as having a degree of incapacity of 100% and he is not receiving a pension under s.23, s.24 or s.25. Despite the respondent conceding that the applicant does have a lifestyle rating of at least 6 points pursuant to the Guide to the Assessment of Rates of Veteran's Pension ('the Guide') the only issue remaining in dispute in this application was whether Mr Morris achieved an impairment rating of at least 70 points.
We thought it unlikely that a veteran could achieve 6 lifestyle points without an impairment rating of at least 70 points, however in this application the principle issue with respect to whether Mr Morris achieved the requisite number of impairment points was the contribution to his injuries by other injuries which have not been accepted as service related. Another complicating issue is the age related adjustment under Table 1.2 of the Guide, which we will deal with in due course.
Prior to the hearing commencing the parties also agreed on the level of impairment for the accepted disability of anxiety namely 23 points. The respondent also conceded an additional impairment of 2 points for a condition described as "constipation" being a consequence of the consumption by the applicant of prescribed medication.
Having regard to the conceded disability of ischaemic heart disease, enquiry was made of the cardio-respiratory impairment, pursuant to table 1.1 of the Guide. Mr Chancellor told us at the commencement of the hearing that it would be asserted that the applicant achieved 1-2 MET's. Ms McCulloch submitted that the applicant achieved 2-3 MET's. A rating of 1-2 MET's produces a greater degree of impairment than a rating of 2-3 MET's.
We were satisfied having heard the applicant and heard evidence also from Dr Harper and Dr Farmer that the appropriate rating was 1-2 MET's. We advised of this finding when we gave our oral reasons for decision.
Table 1.2 is then applied and account is taken of a Veteran's age. An examination of the table reveals that the number of impairment points applicable reduces, as veterans become older. For example, a 60 year old veteran who has achieved a cardio respiratory impairment of 1-2 MET's achieves 80 impairment points under Table 1.2. An 82 year old veteran (as is the case with Mr Morris) who has achieved 1.2 MET's qualifies as having achieved 75 impairment points.
75 impairment points added to the agreed impairment points applicable for constipation and generalised anxiety disorder would have resulted in an impairment rating of at least 70 points for the purposes of s.22. However, the medical evidence of both the applicant and the respondent suggested that a reduction was necessary in the cardio respiratory impairment because of non-service caused disabilities.
The predominant feature of the applicant's cardio respiratory impairment was his breathlessness. Professor Harper said that the applicant's breathlessness was contributed to in equal proportion by his ischaemic heart disease, hypertension, pulmonary fibrosis and anxiety. The hypertension and pulmonary fibrosis are not war-caused.
Doctor Farmer, a respiratory physician, said there was also a contribution to the breathlessness by these four conditions but assessed 25% by ischaemic heart disease, 25% by hypertension, 40% by anxiety and 10% by pulmonary fibrosis.
On either account only the effects upon the breathlessness by ischaemic heart disease can be considered. This is because hypertension and pulmonary fibrosis are not war-caused and the anxiety has already been separately rated.
When adjustment is made to the impairment by the partial contribution of other injuries, illnesses or diseases, chapter 19 of the Guide applies.
We found that the application of that chapter in the assessment of the cardio respiratory impairment produced a degree of impairment which was sufficiently below a level which would produce an aggregate of all accepted disabilities reaching a level of 70 impairment points for the purposes of s.22.
We indicated when delivering our oral reasons for decision that we approached the review adopting a beneficial construction to the legislation and to the Guide and sought to find a basis for Mr Morris to be compensated for extreme disablement adjustment. Another reason for this approach was the conceded lifestyle assessment of 6 impairment points. We considered assessing the applicant's impairment under Chapter 18, Chapter 19 and Chapter 20 however the relevant mathematics did not permit a finding of 70 impairment points. We considered whether to disregard the conceded impairment points for anxiety and find a greater degree of contribution to the breathlessness by anxiety however the assessment would have produced absurd mathematics which we could not justify. It would also be inconsistent with the contents of a report of Dr Rodgers, the applicant's treating psychiatrist, who said none of the breathlessness was caused by anxiety.
We suggest that Mr Morris give consideration to an application upon the respondent for acceptance of the condition of hypertension subject of course to that condition satisfying an applicable Statement of Principle. If that condition can be accepted as war-caused it is conceivable that he may achieve the requisite number of impairment points to permit a finding of entitlement to extreme disablement adjustment.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         .Carolyn Irons....................................................
  Secretary
Date/s of Hearing  24 October 2000
Date of Decision  6 November 2000
Counsel for the Applicant        Mr A. Chancellor
Solicitor for the Applicant
Counsel for the Respondent    Ms J. McCulloch, Departmental Representative
Solicitor for the Respondent