Noyes and Repatriation Commission
[2007] AATA 1493
•29 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1493
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/722
VETERANS' APPEALS DIVISION ) Re LENARD EDWARD NOYES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott, RFD Date29 June 2007
PlaceBrisbane
Decision The decision of the Veterans’ Review Board of 12 October 2005 and the decision of the Repatriation Commission of 18 November 2005 is set aside and substituted by the following decision that Mr Noyes is entitled to be paid a pension at 100% of the general rate with effect from 22 November 2005. ...................[Sgd]...........................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – appropriate rate pension – whether applicant entitled to receive pension at 100% of the general rate
Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Kelly and Repatriation Commission (1987) 13 ALD 343
REASONS FOR DECISION
29 June 2007 Senior Member P McDermott, RFD Introduction
1. In determining this application I have to decide upon the appropriate rate of pension which is payable to Mr Lenard Edward Noyes. In 2002 he was assessed as being eligible for a pension at 100% of the general rate.
2. On 12 October 2005 the Veterans’ Review Board decided that Mr Noyes was entitled to receive a pension at 80% of the general rate. The Board also remitted the matter to the Repatriation Commission for determination of the date from which the decision would take effect. The Board had understandably taken that approach to ensure that Mr Noyes would not have to be in a position to repay any overpayment of pension.
3. On 18 November 2005 the Repatriation Commission made a decision that the decision of the Veterans’ Review Board would have effect from 22 November 2005. Mr Noyes has now made an application to this Tribunal to review the decision of the Board.
Issues before the Tribunal
4. At the hearing of the application it was common ground that the sole issue that I had to decide was whether the pension of Mr Noyes is now correctly assessed at 80% of the general rate. In particular both parties had focused attention on the resting joint pain impairment ratings in table 3.4.1 in the Guide to the Assessment of Rates of Veterans’ Pensions (GARP, 5th edition). It was accepted by the parties that if Mr Noyes was allocated 15 points for resting joint pain that he would be entitled to receive pension at 100% of the general rate. It was also accepted that my decision should focus on the current level of pain that Mr Noyes experiences.
5. It was also clarified at the hearing that Mr Noyes did not wish to proceed with his claim that major depressive disorder and panic disorder be accepted conditions.
6. At the hearing the respondent had contended that Mr Noyes should not be paid the special rate. It was also accepted at the hearing that there was no material before me which would justify payment of pension at the special rate.
Evidence Before the Tribunal
·Evidence of the Applicant
7. Mr Noyes gave evidence before me. He mentioned that his back condition was chronic and sore all of the time. He mentioned that he takes a number of medications for relief including morphine and cortisone.
8. Mr Noyes confirmed that he has been advised to have surgery on his lower spine but he has not decided on that course of action having regard to the risk of such surgery. The severity of the pain of his spine was such that Mr Noyes stated that he recently had what he described as a “nerve root block” on his spine at L3. That was when anaesthetic was injected into his spine.
9. It is evident that Mr Noyes has had difficulty sleeping. He mentioned in cross-examination that he is satisfied with the sleeping tablets that he is now prescribed.
10. It is fair to say that Mr Noyes has taken issue with Associate Professor McPhee who examined him. He denied having faking his symptoms.
11. Mr Noyes mentioned that he had to pause when walking and that he could not walk for 100 metres without two stops.
12. Mr Noyes remarked that he had an arthroscopy operation on his left knee in November 2005. He stated that the arthroscopy operation gave him some temporary improvement but that his left knee was “not really O.K.”. Mr Noyes mentioned that his right knee was “O.K.”
13. Mr Noyes had served with the Royal Australian Air Force from 12 November 1965 to 5 March 1986, his eligible defence service being from 7 December 1972 to 5 March 1986.
·Medical Evidence
14. Dr Peter Grant, Senior Medical Officer Compensation, Department of Veterans’ Affairs gave evidence on behalf of the respondent. Dr Grant confirmed that the medical reports concerning the spine of Mr Noyes did not, in his opinion, raise intervertebral disc prolapse as a credible diagnosis. He stated that the changes affecting the L5 nerve roots and the spinal cord are shown on imaging to be most likely due to widespread and advanced degeneration including facet joint hypertrophy which is causing asymmetry narrowing of the exit foramina around the L5 nerve root on both sides. This is pointed out in his report of 14 September 2006. Dr Grant noted that there is no significant compression of the S1 nerve roots.
15. Dr Grant also commented upon the conditions of Mr Noyes’ knees. Dr Grant in his report of 14 September 2006 had noted that there were grounds for revisiting the left knee condition by having a magnetic resonance scan if Mr Noyes was agreeable. However, this recommendation does not appear to have been acted upon. Dr Grant pointed out that the changes in the right knee would appear to be minimal with the right knee having a full range of movement.
16. The various reports of Dr Grant had considered the appropriate rating for the conditions of Mr Noyes. In cross-examination, Dr Grant was asked whether a rating of 15 was appropriate if Mr Noyes was on regular morphine and had difficulty sleeping. Dr Grant had answered that for such a condition “15 points would seem to be appropriate”.
17. Associate Professor McPhee, a spinal surgeon, gave evidence on behalf of the respondent. Dr McPhee had examined Mr Noyes on 8 March 2005. This examination was the subject of a report dated 15 March 2005 which incorporated a medical impairment assessment of the thoraco-lumbar spine [folio 119-125] as well as a report of 22 April 2005 [folio 126-127]. Dr McPhee clarified that a reference in his initial report to a pain in the right knee of Mr Noyes was meant to refer to a pain in his left knee. In his report Dr McPhee considered that Mr Noyes suffered from lumbar spondylosis and had rejected any such diagnosis as the lumbar disc lesion.
18. Dr McPhee in his evidence had stated that he was of the opinion that Mr Noyes had greatly exaggerated the tenderness in his spine. He mentioned that most people would localise pain to one or two levels in the spine. Dr McPhee mentioned that Mr Noyes complained of widespread tenderness. Dr McPhee was of the opinion that Mr Noyes was exaggerating the severity of his spinal condition.
19. Dr McPhee also stated that there was a considerable variation in the movements of the lumbar spine of Mr Noyes. In his report of 15 March 2005 Dr McPhee stated (at fol. 120):
“Movements of the lumbar spine are virtually non existent being less than 10 degrees in any plane. He could flex only 10 degrees to reach mid thigh. When seated he could extend both knees equivalent to 60 degrees of full flexion. Formal testing of straight leg raising was to 10 degrees bilaterally. With distraction straight leg raising was to 60 degrees bilaterally causing low back pain.”
20. In his evidence Dr McPhee stated that it was difficult to be objective about the range of movements that Mr Noyes could make.
21. Dr W E Wilson, general practitioner, gave evidence. Dr Wilson stated that Mr Noyes has been a patient of his for more than 10 years. A report of Dr Wilson dated 13 September 2006 that was admitted into evidence contains the statement that Dr Wilson has “treated Mr Noyes over a period of 20 plus years” [exhibit A6].
22. Dr Wilson in his various reports has highlighted the continual deterioration of Mr Noyes’ accepted condition. In his report of 13 September 2006 he stated: “From my continual treatment and observations of Mr Noyes, it is quite obvious that his condition has deteriorated markedly over the last 12 months”.
23. In his oral evidence Dr Wilson stated that Mr Noyes was in a “desperate” situation. Dr Wilson stated that Mr Noyes was reluctant to have surgery but he “had to do something to kill pain”. Dr Wilson stated that on 7 December 2005 he had prescribed an increase in the level of medication to manage his pain. In a later submission it was clarified that on 7 December 2005 Mr Noyes was placed on a prescription of MS Contin. The level of this medication was increased on 8 February 2006.
24. A report dated 24 October 2006 of Dr A J Splatt, Queensland Diagostic Imaging, was tendered in evidence [ex A1]. That report confirmed that a left L3 nerve root block was performed on that date. The report also confirmed that 1ml of Celestone Chronodose and 2 ml of 0.5% Marcain were injected into and around the left L3 nerve root within the left L3/4 neural foramen, using aseptic technique.
25. Dr G Nielsen, consultant orthopaedic surgeon, gave evidence on behalf of the applicant. Dr Nielsen in his report of 18 May 2006 stated that Mr Noyes “has significant lower back discomfort with radiation of pain down his left lower limb to his knee” Dr Nielsen also reported that Mr Noyes “has significant lumbar spondylosis with evidence of moderate canal stenosis at the L4-5 and L5-S1 level. He also has some increased activity on a Bone Scan related to his L2-3 level and his left knee”. The report of Dr Nielsen was tendered with a report from Queensland X-Ray dated 10 May 2006. The report from Queensland X-Ray mentioned the bulging at the L4-5 and L5-S1 level.
26. Dr Nielsen also reported that the condition of Mr Noyes had significantly deteriorated since he was last examined in 2005. Dr Nielsen said: “I do think that he is significantly incapacitated by his underlying back problem and that he has gotten significantly worse since he was seen last year”.
27. The report of Dr Nielsen contained a recommendation that Mr Noyes should be reviewed by a spinal surgeon such as Dr Peter McCombe for further investigation and subsequent treatment.
28. In his oral evidence Dr Nielsen discussed the nerve root block procedure that was undertaken on the spine of Mr Noyes. Dr Nielsen stated that the treatment was made in a diagnostic endeavour to ascertain whether Mr Noyes would benefit from future surgery on his lumbar area.
29. A number of reports of Dr Peter McCombe, an orthopaedic surgeon, were admitted into evidence. In a report of 11 September 2002 Dr McCombe had considered that Mr Noyes should be offered surgical treatment in the form of an L4/5 decompression. Dr McCombe then noted that Mr Noyes was considering whether or not to undertake this procedure.
Consideration
30. I consider that there is much force in the submission of the advocate for the Commission that Mr Noyes has been exaggerating his symptoms. This was certainly the opinion of Dr McPhee who examined Mr Noyes on 8 March 2005. Dr Grant was, in my opinion, quite justified in commenting in his report of 12 May 2005 of the “noticeable variance between ranges of movement during direct versus indirect observation” [T21, folio 118]. This exaggeration makes it difficult to evaluate the condition of Mr Noyes.
31. However, it is clear that there has been a noticeable decline in the condition of Mr Noyes since he was examined by Dr McPhee on 8 March 2005. This is the considered view of medical practitioners. I have already mentioned that Dr Nielsen on 18 May 2006 had reported that Mr Noyes “is significantly incapacitated by his underlying back problem and that he has gotten significantly worse since he was seen last year”. Dr Wilson in his report of 13 September 2006 has referred to the fact that the condition of Mr Noyes “has deteriorated markedly over the last 12 months” [exhibit A6’].
32. I have given weight to the opinion of the specialist (Dr Nielsen) and general practitioner (Dr Wilson) who have more recently examined Mr Noyes. I have also referred to the fact that on 7 December 2005 Dr Wilson has prescribed for Mr Noyes to take MS Contin which contains morphine sulphate. The fact that on 24 October 2006 a left L3 nerve root block was also administered on Mr Noyes is consistent with the opinion that Mr Noyes experiences a high level of pain.
33. After the hearing submissions have been made as to the level of medication that Mr Noyes has been prescribed. He is now prescribed MS Contin (which contains morphine sulphate). He has also had an injection of pethidine because of his back spasms. At a telephone directions hearing it was clarified that Mr Noyes does not have a gold card as indicated in a submission from the Commission: see submission, 28 March 2007.
34. Having regard to the medical evidence that is before me I assess Mr Noyes 15 points for resting joint pain in table 3.4.1 in GARP. I consider that his pain level is such that 15 points would be the appropriate rating as Mr Noyes has long had difficulty in sleeping. A report that was prepared by Dr Norman Rose, a consultant psychiatrist, in 2003 for the Department of Veterans’ Affairs confirmed the fact that he has for some time required medication to sleep [T8, folio 44].
35. I consider that the fact that in cross-examination Mr Noyes has commented that he experiences satisfaction with the newly prescribed sleeping tablets does not have the consequence that he should be rated as 10 points rather than 15 points for resting joint pain. This is evidence that there has been a recent change in the prescribed sleep medication because his existing medication was inadequate.
36. In forming this view I have taken into account the fact that Mr Noyes has given evidence before me that he has chronic pain all of the time. His evidence in this regard was not challenged in cross-examination.
37. It would be unjust and not in accordance with the accepted practice of this Tribunal to assess him at the lower level, cf Kelly and the Repatriation Commission (1987) 13 ALD 343. In reaching a decision I am required to be “fair” and “just”: see Administrative Appeals Tribunal Act 1975, s 2A. I also consider that as I am administering beneficial legislation, any doubt about the appropriate level of impairment should be resolved in favour of the applicant: see R Creyke, P Sutherland, Veterans’ Entitlement Law (2000), 248.
38. In these circumstances I consider that it would be appropriate to decide that Mr Noyes should be paid a pension at 100% of the general rate with effect from 22 November 2005. This date would be appropriate because on 7 December 2005 he was prescribed MS Contin.
39. It is for these reasons that I consider that Mr Noyes is entitled to receive pension at 100% of the general rate.
Decision
40. I set aside the decision of the Veterans’ Review Board of 12 October 2005 and the decision of the Repatriation Commission of 18 November 2005 and substitute the following decision that Mr Noyes is entitled to be paid a pension at 100% of the general rate with effect from 22 November 2005.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD
Signed: .....................................................................................
Legal Research officerDate/s of Hearing 14 March 2007
Date of final submissions: 4 May 2007
Date of Decision 29 June 2007
For the Applicant Mr B Richards & Mr P Jones, Advocacy for VeteransFor the Respondent Mr M Smith, Departmental Advocate
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