Pepper and Repatriation Commission - [2002] AATA 476

DECISION AND REASONS FOR DECISION [2002] AATA 476

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N 2000/1651

VETERANS' APPEALS DIVISION          )
           Re        Mervyn Lionel Pepper
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr J D Campbell, Member
Date 19 June 2002

PlaceSydney

Decision      The decision under review is affirmed pursuant to section 43 of the Administrative Appeals Tribunal Act 1975.
  ..............................................
  Ms SM Bullock
  Presiding Member

CATCHWORDS
VETERANS' AFFAIRS – Entitlement – Disability Pension – Hypertension – Reasonable Satisfaction – Inability To Obtain Appropriate Clinical Management

LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 9, 120(4), 120B

AUTHORITIES

Brew v Repatriation Commission (1999) 94 FCR 80
Brew v Repatriation Commission (1999) 56 ALD 403
Repatriation Commission v Wellington (1999) 57 ALD 507
Johnston v The Commonwealth (1982) 150 CLR 331
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Repatriation Commission v Yates (1995) 38 ALD 80
Repatriation Commission v Wedekind [2000] FCA 649
Gorton and Repatriation Commission (2001) 63 ALD 723
Re Robson and Repatriation Commission (2000) 61 ALD 722
Re Crowe and Repatriation Commission (1999) 28 AAR 548
Re Husband and Repatriation Commission [2002] AATA 390
Re Millen and Repatriation Commission [2000] AATA 508

REASONS FOR DECISION

19 June 2002 Ms S M Bullock, Senior Member
Dr J D Campbell, Member

This is an application for review to the Tribunal by the Applicant, Mr Mervyn Lionel Pepper, of a decision made by the Veterans' Review Board ("the Board") dated 6 July 2000 (T13) which affirmed a decision of the Repatriation Commission ("the Commission") dated 9 October 1998 (T2). These decisions refused Mr Pepper's claims for hypertension, generalised anxiety disorder and Alzheimer's disease. The conditions of bilateral sensorineural hearing loss and non-melanotic malignant neoplasm of the skin were accepted and pension was assessed at 30 per cent of the General Rate with effect from 9 March 1998. At the hearing of this matter, Mr Pepper withdrew his application for review to the Administrative Appeals Tribunal ("the Tribunal") in relation to the conditions of generalised anxiety disorder and Alzheimer's disease. Mr Pepper also withdrew his application for review in relation to the assessment of his rate of Disability Pension.
A hearing was held in Sydney on 7 November 2001. The hearing was adjourned part heard on that day in order to ascertain whether or not further medical evidence could be obtained from the Mr Pepper's General Practitioner, Dr S Delaney. Dr Delaney's clinical notes were received on 13 December 2001 and final written submissions were lodged on 6 February 2002. Mr Pepper provided evidence by video conference link and was accompanied by his wife. Mr Pepper was represented by Mr P Jones, Solicitor with Rockcliffs Solicitors & Attorneys. The Respondent, the Repatriation Commission, was represented by Ms P Hook, Departmental Advocate. Documents were lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act, 1975 ("T Documents", T1–T20). The following documents were taken into evidence:
Exhibit No. Description Date
R1 Report…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pepper and Repatriation Commission

Details

AGLC: Pepper and Repatriation Commission [2002] AATA 476
Case: [2002] AATA 476
Decision Date: 19 June 2002

CaseChat Overview and Summary

The case of Pepper and Repatriation Commission involves Mr. Pepper, a former serviceman, who sought a disability pension on the grounds of hypertension, which he claims was exacerbated by his military service. The dispute was adjudicated by the Administrative Appeals Tribunal (AAT). The central legal issues the AAT needed to address were whether Mr. Pepper's hypertension was caused or aggravated by his service and whether the treatment provided during his service was appropriate and sufficient.

In addressing the first issue, the AAT considered the medical evidence provided by Dr. S. Delaney and Professor M. F. O'Rourke. Dr. Delaney's assessment confirmed that Mr. Pepper's hypertension was well-controlled with medication, and no severe complications such as hypertensive retinopathy or cardiac disease had developed. Professor O'Rourke's report provided a detailed analysis of Mr. Pepper's blood pressure readings during and after his service, concluding that while his blood pressure was elevated upon enlistment, it did not worsen during his service. Professor O'Rourke also highlighted that the clinical management provided during the war was appropriate given the standards of the time.

Regarding the adequacy of the treatment, Professor O'Rourke noted that Mr. Pepper was extensively investigated for hypertension and related conditions, which was likely more comprehensive than what was available to civilians at the time. The AAT found that the treatment provided during Mr. Pepper's service was appropriate, and there was no evidence suggesting it was inadequate or that his condition worsened due to his service.

The AAT concluded that Mr. Pepper's hypertension was not caused or materially aggravated by his military service. Furthermore, the treatment provided during his service was deemed appropriate, and there was no evidence of unreasonable dissatisfaction with the clinical management received. Based on this reasoning, the AAT dismissed Mr. Pepper's claim for a disability pension on the grounds of hypertension.

Orders

Orders of the court

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Background

Background to the litigation

The relevant Statement of Principles is Instrument Number 32 of 2001 concerning Hypertension. This Statement of Principles was in force at the time of the primary decision. Noting the decision in Gorton v Repatriation Commission (2001) 63 ALD 723, the Tribunal considers that earlier Statements of Principles provide no different or more beneficial factors in relation to the factor relied upon and considered by the Tribunal to be relevant.Background Following information is provided by way of background and is not disputed. Mr Pepper told the Tribunal that in September 1940, he volunteered to join the services to go to war. He recalled that he was rejected on medical grounds and that a doctor told him his blood pressure was too high. In 1942, Mr Pepper tried again to join the services and was successful, enlisting in Lismore. Mr Pepper believed he had a medical examination in Sydney but stated that his blood pressure was not tested. Mr Pepper informed the Tribunal that he served wholly within Australia, starting out at Cooma, then Greta and next to Geraldton in Western Australia. In Geraldton, Mr Pepper recalled that he had training on how to fire twenty-five pound guns. While in Geraldton, he was hospitalised and had an appendectomy. He believed that he was in hospital for approximately two weeks. Mr Pepper was further hospitalised in Gingin, Western Australia (T3, p22). He told the Tribunal that he was also hospitalised for hypertension in Tenterfield over approximately a two week period. He stated that he was provided with salty water to drink. He was suffering from dizzy turns when undertaking his military training. Mr Pepper also recalled being hospitalised in Warwick in Queensland because his blood pressure was high. Next, Mr Pepper was sent to Sydney and subsequently discharged, he believed, because his blood pressure was too high. Mrs Pepper noted that during this period her husband had high blood pressure readings over 110 up to 170/108. Mr Pepper takes medication now which keeps his hypertension controlled. There was no medication during his service. Mr Pepper was unable to recall many details about his service and hypertension. He could not remember when he first took medication for hypertension or was first treated for hypertension after his service in the Army. MedicalEvidenceDr S Delaney, General Practitioner Dr Delaney provided a Medical Impairment Assessment for hypertension dated 7 July 1998 (T7, p64). Dr Delaney noted that Mr Pepper takes the medication "Agon" 5 mg at night, "Duralox" 20 mg in the morning and 40mg at night. This medication provides Mr Pepper with good control of his blood pressure. Mr Pepper has not developed any hypertensive retinopathy, hypertensive cardiac disease, hypertensive nephropathy or hypertensive cerebral haemorrhage (T7, p64). In Dr Delaney's clinical notes (Exhibit R3), which appeared to commence in June 1989, there is a record of hypertension extending back to 1979 where blood pressure is recorded as 140/80 (Exhibit R3, p19).Professor M F O'Rourke AM, Professor of Medicine, University Of Sydney, St. Vincent's Clinic, Cardiovascular Medicine – Hypertension

Evidence

Evidence Before The Court

Mr Pepper was unable to recall many details about his service and hypertension. He could not remember when he first took medication for hypertension or was first treated for hypertension after his service in the Army. MedicalEvidenceDr S Delaney, General Practitioner Dr Delaney provided a Medical Impairment Assessment for hypertension dated 7 July 1998 (T7, p64). Dr Delaney noted that Mr Pepper takes the medication "Agon" 5 mg at night, "Duralox" 20 mg in the morning and 40mg at night. This medication provides Mr Pepper with good control of his blood pressure. Mr Pepper has not developed any hypertensive retinopathy, hypertensive cardiac disease, hypertensive nephropathy or hypertensive cerebral haemorrhage (T7, p64). In Dr Delaney's clinical notes (Exhibit R3), which appeared to commence in June 1989, there is a record of hypertension extending back to 1979 where blood pressure is recorded as 140/80 (Exhibit R3, p19).Professor M F O'Rourke AM, Professor of Medicine, University Of Sydney, St. Vincent's Clinic, Cardiovascular Medicine – Hypertension Professor O'Rourke provided a report dated 24 July 2001 (Exhibit R1). Professor O'Rourke noted that Mr Pepper's blood pressure on enlistment was 158/98 and that he had his highest reading as 200/130 immediately after exercise but at rest the diastolic pressure was 100mm. Professor O'Rourke opined that it is quite possible for a soldier to be at the highest level of fitness with such a level of blood pressure. Having considered the Service Medical Documents, Professor O'Rourke noted that Mr Pepper was investigated quite extensively for hypertension and renal disease and for any secondary problems arising out of hypertension. There was also investigation and comment at the time of Mr Pepper's service as to whether or not his symptoms were due to elevated blood pressure or to anxiety. Professor O'Rourke noted that following service, Mr Pepper's blood pressure readings remained elevated but were controlled by "Felodipine" and "Propanalol" with readings in 1998 of 140/80 which in Professor O'Rourke's view is acceptable. Professor O'Rourke believes that Mr Pepper's blood pressure was elevated when he entered the service. He indicated that the clinical management of this condition was entirely appropriate according to the standards of treatment at the time. In this regard, Professor O'Rourke noted that Mr Pepper was extensively investigated and probably to a degree not available to civilians during the time of war. Mr Pepper's elevated blood pressure readings did not, in Professor O'Rourke's opinion, worsen during service. His blood pressure reading on discharge was in fact similar to that of his entry medical. Professor O'Rourke referred to "A Textbook of Medicine" edited by Dr R L Cecil, Seventh Edition, 1947 which noted in relation to hypertension, at pages 1156-1157:"Treatment. Many patients with benign essential hypertension require no treatment. When treatment is indicated, it is directed toward protecting the patient, as far as this is possible, from the consequences of the disorder rather than toward lowering the blood pressure. The latter may be accomplished in the obese by weight reduction; in the apprehensive, nervous, overworked individual by reassurance and measures conducive to rest and relaxation. However, the reduction in pressure which follows correction of these secondary factors is usually temporary. The patient should develop "a way of life" compatible with the handicap which exists. Careful consideration should be given by the physician to the personal problem involved. Sedatives (phenobarbital 0.03 Gm three times a day, bromide 1 Gm twice daily) are useful especially to reduce nervous tension and allay apprehension. Estrogenic preparations may be useful in "climaeteric hypertension". Drugs which are prescribed specifically for blood pressure reduction are of little value. This statement applies to the continuous administration of potassium thiocyanate, the nitrates, extracts of mistletoe, garlic or watermelon seed, veratrum viride, acetylcholine and nicotinic acid. Two forms of treatment which are under investigation at present are the drastic reduction of sodium practised by Grollman and his associates and the use of rice diet introduced by Kemper…Except for the temporary effects obtainable from hypnotics, narcotics, anesthetics and vasodilators during critical elevation or crises of hypertension which are due to psychic disturbances or pain, little can be accomplished with drugs…Physical activity is ordered in such a way as to avoid periods of sudden physical strain, thus conserving cardiac reserve.…"

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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