PATRICK MCMAHON and REPATRIATION COMMISSION
[2009] AATA 253
•20 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 253
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1657
VETERANS' APPEALS DIVISION ) Re PATRICK MCMAHON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member
Dr John Campbell, MemberDate20 April 2009
PlaceSydney
Decision We set aside the reviewable decision and determine that Mr McMahon is entitled to the special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1987.
...................[sgd]........................
Presiding Member
Mrs Josephine Kelly Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Application for increase to special rate – Interim decision found applicant’s war-caused hearing loss alone renders incapable of working – Whether any adjustment should be made for presbyacusis – Whether war-caused hearing loss alone has effect that applicant cannot work – Whether GARP applies to assessments under s 24 -– Decision set aside and remitted
Veterans' Entitlements Act 1986, ss 21A, 24, 29
Re McMahon and Repatriation Commission [2008] AATA 622
Repatriation Commission v Hayes (1982) FLR 423
Starcevich v Repatriation Commission (1987) FCR 221
Guide to the Assessment of Rates of Veterans’ Pensions, Part 7.1, Scale 7.1.9
R Creyke and P Sutherland, Veterans' Entitlements Law (2009, 2nd edition), [2.02]
REASONS FOR DECISION
20 April 2009 Mrs Josephine Kelly, Senior Member
Dr John Campbell, Member1. The question in these proceedings is whether Mr Patrick McMahon is entitled to the special rate of pension pursuant to s 24 of the Veterans' Entitlements Act 1986 (the Act).
2. In an interim decision published on 16 July 2008 (Re McMahon and Repatriation Commission [2008] AATA 622), the Tribunal made findings that Mr Patrick McMahon's hearing loss alone renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. However, the matter was adjourned for further evidence to be provided, and submissions to be made, addressing the following questions:
a) What, if any, adjustment should be made for presbyacusis (age-related hearing loss); and
b) If some adjustment for presbyacusis is appropriate, does Mr McMahon's war-caused hearing loss alone have the effect that he cannot undertake remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b) and s 24(2A)(c)), and is prevented from continuing to undertake his last paid work (s 24(2A)(d))?
Should any adjustment be made for presbyacusis?
3. An issue arose as to whether the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) applies to assessments made under s 24 of the Act.
4. Ms Wood, counsel who appeared for Mr McMahon, argued that s 29(4) of the Act has been complied with in the assessment of Mr McMahon's incapacity under s 21A of the Act because the maximum deduction for presbyacusis of 12.5% pursuant to the GARP was applied to determine the degree of incapacity arising from the accepted condition, bilateral sensorineural hearing loss. According to Ms Wood, it followed that to apply the GARP deduction to the assessment of Mr McMahon's entitlement to the special rate of pension pursuant to s 24 would amount to a "double" application of those principles.
5. Mr O'Reilly, who appeared for the Repatriation Commission (the Commission), argued that s 29(4) of the Act has the effect that the GARP is binding on the Tribunal regarding assessment matters and therefore applies to a determination pursuant to s 24 of the Act. It follows that the applicable GARP scale 7.1.9 requires in Mr McMahon's case, because he is over 85 years of age, that 12.5% of the assessed total hearing loss is to be deducted from the total.
6. Having reflected on the question of whether the GARP applies to the application of s 24, contrary to our finding at paragraph 35 of our interim decision, we have decided that s 29(4) does have the effect contended for by Mr O'Reilly. The matter for consideration under s 24 is the assessment or re-assessment, or review of the assessment or re-assessment, of the extent of the incapacity of the veteran.
7. We do not consider that the application of the GARP in respect of s 24 is "double-dipping" as Ms Wood contended. One of the criteria in s 24 is incapacity of at least 70% determined under s 21A of the Act (s 24(1)(a)(i)). The Commission conceded that Mr McMahon satisfied that criterion. Other criteria in s 24 are the alone tests in s 24(1)(b) and 24(2A)(d). The GARP deduction for presbyacusis is relevant to determine whether Mr McMahon satisfies the "alone" tests.
8. That being so, is that the end of Mr McMahon's case? We understood Mr O'Reilly to submit that if Mr McMahon's hearing loss included any deduction for presbyacusis, Mr McMahon could not satisfy the "alone test". That is, the age-related component of hearing loss is part of Mr McMahon's total hearing loss which cannot be considered separately, and is a relevant factor preventing him from continuing to undertake his last paid work (s 24(2A)(d)) and renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b)).
9. We do not accept Mr O'Reilly's submission. In our opinion, it is possible, and the legislation requires, that the war-caused component of hearing loss be determined. That requires that the deduction for presbyacusis be made according to the GARP. Once that is done, then it is possible to consider whether the war-caused hearing loss alone, or the hearing loss including the presbyacusis component, prevented Mr McMahon from continuing to undertake his last paid work and renders him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b)).
10. To construe the legislation in the way Mr O'Reilly contends would not be consistent with beneficial nature of the Act. In Starcevich v Repatriation Commission at 225 Fox J (Jenkinson J agreeing) said:
It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen. The reasons need not be explored here. It can however be pointed out that the combined operation of pars (a) and (b) of s 24(1) is itself already very restrictive of a right to a pension…
11. In Repatriation Commission v Hayes at 426 Keely J said:
… the [precursor to the current Act] is a remedial Act and "should be construed so as to give the fullest relief which the fair meaning of its language will allow" -- per Isaacs J. in Bull v Attorney-General (NSW) (1913) 17 CLR 370, at p 384. However, that judgment made it clear in the preceding words that it did not mean "that the true signification of the provision should be strained or exceeded"… the statute "must be so construed as to give the most complete remedy which the phraseology will permit.
(See also Creyke and Sutherland, Veterans' Entitlements Law 2nd Edition, paragraph [2.02])
12. We note that the deduction for presbycusis according to the GARP is roughly half that set out in the National Acoustic Laboratory (NAL) tables, which as Mr O'Reilly pointed out, is consistent with the beneficial nature of the legislation.
The "alone" tests
13. In addition to the evidence referred to in our interim decision, we had the assistance of two reports obtained on behalf of Mr McMahon, from Dr Scoppa, ear, nose and throat physician, who examined Mr McMahon on 2 September 2008.
14. In his first report dated 5 September 2008, Dr Scoppa commented on a number of audiograms carried out on Mr McMahon from 2003 to 2008.
15. Dr Scoppa took a history of Mr McMahon's tinnitus, which he has suffered for 12 or more years. Tinnitus is not one of Mr McMahon’s accepted conditions under the Act. Mr McMahon reported that frequency varied from monthly, or two or three episodes in a month and lasts for a few minutes to an hour, generally lasting for about 25 minutes. The tinnitus also varies in intensity from an irregular low frequency rumbling noise like an aircraft in the distance to the worst which is a scary noise like a model aircraft flying close to the ear varying in pitch and loudness.
16. In Dr Scoppa’s opinion, an adjustment should be made for presbyacusis. Dr Scoppa stated his understanding that presbyacusis correction always applied to:
hearing loss of gradual process caused by occupational noise exposure such as described by Mr McMahon during war service.
This is not the meaning of presbyacusis in medical dictionaries we consulted or in the GARP, where it is defined in Part 7.1 as: “the normal loss of hearing which accompanies ageing”.
17. Dr Scoppa stated that the generally accepted method of calculating and applying such a correction is that described in the most recent 1988 NAL Tables. He set out the results of each audiogram before and after appropriate correction for presbyacusis. He noted that the percentage correction for presbyacusis increased from 20.9% in 2003 to 27.3% in 2008, and will continue to increase with the years. We accept that his calculations are correct. They were not challenged.
18. As we have decided that the GARP deduction for presybacusis must be applied in this case, it is unnecessary to set out in detail the doctor's opinion in relation to the larger deduction made in accordance with the NAL tables.
19. Dr Scoppa's second report of 19 October 2008 was prepared in response to a request to apply the 12.5% GARP correction for presbyacusis to the audiogram dated 24 February 2006, that is about the time of Mr McMahon's retirement. Dr Scoppa stated that the application of the GARP correction caused him to change two of his answers to the questions he had answered in his first report. Dr Scoppa stated:
Thus in summary in my opinion Mr McMahon would have been able to continue working as a field interviewer after 24 February 2006 if he did not suffer from service-related hearing loss of 64.5% because but for this war-caused hearing loss he would have suffered from a BHI (binaural hearing impairment) of 12.5% due to presbyacusis and my experience is that a person with a BHI of 12.5 would usually be able to cope with the type of duties that Mr McMahon was performing without the use of hearing aids, and definitely would be able to cope with these duties with the use of hearing aids.
CONCLUSION
20. We are satisfied, on the evidence of Mr McMahon, Dr Harvey-Sutton, and Dr Scoppa, that Mr McMahon' war-caused hearing loss alone caused him to cease engaging in remunerative work and prevents him from engaging in remunerative work. We come to this view because Mr McMahon was able to work until the beginning of 2006. In some cases, it may be that the presbyacusis factor contributes to incapacity such that a person ceases work and cannot work as a result of the hearing loss including the presbyacusis factor. However, we do not consider that is the case here. We note that the 12.5% deduction applies throughout the period under consideration.
21. We have taken into account that Mr McMahon suffers from tinnitus, which is not an accepted condition, and take account of Dr Scoppa's evidence on that matter. However, we point out that Mr McMahon has had that condition for at least 12 years and continued to work for at least 9 years of that period.
22. We therefore find that Mr McMahon's war-caused hearing loss alone prevents him from undertaking remunerative work for periods aggregating more than 8 hours per week (s 24(1)(b) and s 24(2A)(c)), and prevents him from undertaking his "last paid work", which was an interviewer carrying out surveys (s 24(2A)(d) of the Act).
23. For completeness we repeat the concession, properly made by Mr O'Reilly in our view, that, if we found Mr McMahon succeeded in respect of s 24(2A)(d) of the Act, it was accepted that he had suffered loss of salary or wages as required by s 24(2A)(e). That is, he is suffering a loss of salary or wages, or earnings, of his own account, that he would not be suffering if he were free from his war-caused incapacity.
DECISION
24. For the reasons set out above, we set aside the reviewable decision and determine that Mr McMahon is entitled to the special rate of pension pursuant to s 24 of the Act.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member and Dr John Campbell, Member.
Signed: ….…[sgd]..……….
Steven Mulipola, Associate
Date of hearing: 13 March 2008 & 3 December 2008
Date of final submissions: 3 December 2008
Date of interim decision: 16 July 2008
Date of decision: 20 April 2009
Counsel for the Applicant: Ms E Wood
Solicitors for the Applicant: Legal Aid Commission of NSW
Representative for the Respondent: Advocacy Section, Department of Veterans’ Affairs
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