Paine and Repatriation Commission

Case [2001] AATA 489

DECISION AND REASONS FOR DECISION[2001] AATA 489

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V99/515

VETERANS' APPEALS  DIVISION       )          V00/39         
           Re      WALTER PAINE    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer, Senior Member            

Date5 June 2001

PlaceMelbourne

Decision      The Tribunal affirms the decisions under review.         
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – pension – whether generalised osteoarthrosis and ischaemic heart disease are war-caused – only hypothesis advanced for generalised osteoarthrosis withdrawn by medical witness prior to hearing – generalised osteoarthrosis not war-caused – ischaemic heart disease hypothesis related to smoking – hypothesis having three parts – concession as to date of clinical onset and quantification of war-caused smoking habit – remaining issue related to date of cessation of smoking – method of applying a three part hypothesis – significant inconsistency in material before Tribunal – finding that Tribunal satisfied beyond reasonable doubt that veteran ceased smoking in 1955 – decisions under review affirmed
PRACTICE AND PROCEDURE – failure of applicant's solicitor to disclose report by medical witness withdrawing hypothesis he had advanced
concession by respondent – whether Tribunal should go back on acceptance when Tribunal had indicated it would not do so – beneficial nature of legislation
Veterans' Entitlements Act 1986 s 120(1), (3), 120A(3)
Statements of Principles No. 19 of 1999, 38 of 1999, 41 of 1998, 140 of 1996, 71 of 1995, 336 and 352 of 1995,

Repatriation Commission v Keeley [2000] FCA 532

Keeley v Repatriation Commission (1999) 56 ALD 455

Gorton v Repatriation Commission [2001] FCA 286

Re Olsen and Repatriation Commission [2000] AATA 909

Re Reading and Repatriation Commission [2000] AATA 841

Re Ryan and Repatriation Commission [2000] AATA 849

Symons v Repatriation Commission [2001] FCA 534

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Deledio (1998) 49 ALD 193

Bushell v Repatriation Commission (1992) 109 ALR 30

Repatriation Commission v Webb , Federal Court, 5 November 1998, 1411/1998

Budworth v Repatriation Commission [2001] FCA 317

Byrnes v Repatriation Commission (1993) 116 ALR 210
Repatriation Commission v Bey (1997) 47 ALD 481
Repatriation Commission v Hawkins (1993) 117 ALR 225

REASONS FOR DECISION

5 June 2001  Mrs Joan Dwyer, Senior Member   

  1. This was the hearing of two applications for review of decisions of the Repatriation Commission which were affirmed by the Veterans' Review Board.  The history of both claims was helpfully set out by Mr Rudge, in the Respondent's Amended Statement of Facts and Contentions dated 26 March 2000, as follows:

    History of Claim V99/515

    1.        On 20 October 1997 the applicant made a claim for conditions diagnosed as generalised osteoarthrosis, tinea, conjunctivitis of both eyes and partial amputation of the right thumb (T5/31).  The claim for generalised osteoarthrosis was refused on 11 March 1998.  The other claims were accepted and pension was assessed at 40% of the General Rate with effect from 20 July 1997 (T14/53).

    2.        On 16 March 1998 the applicant applied for review by the Veterans' Review Board (T15/61).  On 8 February 1999 the…

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AGLC
Paine and Repatriation Commission [2001] AATA 489
Case
[2001] AATA 489
Decision Date

CaseChat Overview and Summary

The case of Paine and the Repatriation Commission involved a claim by Mr Paine for war-caused ischaemic heart disease. The central dispute was whether Mr Paine's cessation of smoking and the onset of his heart disease could be linked in a way that would satisfy the criteria set out in the Schedule of Pensions (SoP) Instrument No. 140 of 1998. The case was heard in the Federal Court of Australia.

The primary legal issue was whether the medical evidence and the respondent's concessions about Mr Paine's smoking habit and the onset of his ischaemic heart disease constituted a reasonable hypothesis under the SoP. Specifically, the court had to determine if the clinical onset of ischaemic heart disease occurred within 15 years of Mr Paine's cessation of smoking. Given the respondent's concession that Mr Paine smoked 15 cigarettes a day and that the habit was service-related, the court needed to examine if the later SoP, which included a factor for veterans who smoked 20 pack years and had the onset of the disease within 20 years of cessation, applied to Mr Paine.

The court found that Mr Paine had indeed ceased smoking around 1955, well beyond the 15-year period required by the SoP. Consequently, neither SoP could be applied to support Mr Paine's claim. The court concluded that there was insufficient ground to decide that Mr Paine's ischaemic heart disease was war-caused. The court further considered other war-caused diseases for which Mr Paine had already received recognition and assessed the appropriate ratings for these conditions.

Ultimately, the court dismissed Mr Paine's claim for war-caused ischaemic heart disease and confirmed the ratings for the other war-caused diseases already recognised.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of the medical history record sheet of 13 April 1963 (R1) and the other medical records I am satisfied beyond reasonable doubt that Mr Paine did cease smoking in about 1955. Thus the second part of the hypothesis is found not to be reasonable.conclusion as to ischaemic heart disease I find beyond reasonable doubt that Mr Paine ceased smoking in 1955 after having smoked for 15 years. That means that, in spite of the respondent's concessions as to date of clinical onset of ischaemic heart disease, and as to a 15 cigarette a day smoking habit being service related, the material does not raise a reasonable hypothesis which meets the relevant factors in SoP Instrument No. 140 of 1998. That SoP requires that the clinical onset of ischaemic heart disease be within 15 years of cessation of smoking. The later SoP does include factor (e) (iii) which applies where a veteran has smoked 20 pack years of cigarettes and the clinical onset occurred within 20 years of cessation. In this matter the respondent conceded a service related smoking habit of 15 a day. Mr Paine in his statements did not say that his habit was at the level of one pack a day. He did say that in evidence, but even if I accepted that level of smoking was raised I have found beyond reasonable doubt that Mr Paine ceased smoking after 15 years. Thus the later SoP does not help Mr Paine. I am satisfied beyond reasonable doubt that there is no sufficient ground for deciding that ischaemic heart disease is a war-caused disease.assessment Mr Paine has the following diseases accepted as war-caused:TineaConjunctivitis both eyesPartial Amputation of ThumbBilateral Sensorineural Hearing Loss The parties agreed on a rating of 5 on Table 11.1 of the Guide to the Assessment of Rate of Pension ("GARP"). I accept that agreed rating.conjunctivitis both eyes The respondent submitted a rating of 10 points was appropriate. That is more than the applicant had claimed. I accept the respondent's submission.partial amputation of right thumb The applicant in his Statement of Facts and Contentions suggested ratings of 20 on GARP Table 3.1.3 for amputation of right thumb, and 15 on Table 3.1.2 for loss of musculoskeletal function, age adjusted to 11 on Table 3.6.1. The Introduction to Chapter 3 at page 53, and the Introduction to Part 3.1 at Step 8 page 54, make it clear that only one rating is to be given in respect of one upper limb and that one takes the higher of the possible ratings. Thus the options suggested by the applicant are 20 on Table 3.1.3 which applies where there is amputation of thumb or 15, age adjusted to 11, on Table 3.1.2 which applies where a veteran:·Can use limb reasonably well in most circumstances, but frequent difficulties are manifested by: The respondent suggested a rating of 10 on Table 3.1.2 was appropriate. The relevant criteria for 10 are identical to those for 15, except that it applies where one but not both of the two factors causing difficulties are present. The respondent submitted the rating should be 10, age adjusted to 7 on Table 3.1.2.

Ratio Decidendi

Legal Principle Established

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