Perro and Repatriation Commission
[2005] AATA 205
•11 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 205
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1111,Q2003/474
VETERANS' APPEALS DIVISION )
Re WILLIAM HENRY PERRO Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott Date11 March 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd].............................
P McDermott
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – war-caused injury – applicant currently receiving disability pension - application for pension at the special rate – applicant capable of working 8 hours per week – not entitled to pension at special rate – Decision under review affirmed.
VETERANS’ AFFAIRS – Veterans’ Entitlements – Disability pension – War caused injury during operational service – Claim that osteochrondrosis of the spine is war caused – no reasonable hypothesis to connect injury to relevant service – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 24, 120
REASONS FOR DECISION
11 March 2005 Senior Member P McDermott INTRODUCTION
1. The applicant in this matter has operational service in Vietnam from 4 June 1966 until 5 October 1966. He also worked for 17 years as a civilian barman in the Army until he was made redundant on 1 March 2000. He has been unsuccessful in his numerous attempts to obtain work. It is quite clear that the applicant has been diligent in search of suitable employment.
2. The applicant has accepted war-caused conditions: candidiasis groin and armpits; peptic ulcer disease; alcohol dependence or alcohol abuse; post traumatic stress disorder; diabetes mellitus; gastro-oesophageal reflux disease (with effect from 12 January 2002); and bilateral sensorineural hearing loss with tinnitus (with effect from 12 January 2002).
CLAIMS LODGED BY THE APPLICANT
§ Q2001/1111
3. This application is appealing a decision of the Veterans’ Review Board which assessed his claim as 90% of the general rate. Since then his pension has been increased to 100% as from 12 January 2002. The applicant seeks a pension at the special rate.
§ Q03/474
4. This application is appealing a decision of the Veterans’ Review Board which determined that the applicant’s osteochondrosis of the spine was not war-caused.
CLAIM FOR PENSION AT THE SPECIAL RATE (Q01/1111)
5. The applicant appealed against a decision of the Veterans’ Review Board which assessed his claim as 90% of the general rate. Since then his pension has been increased to 100% as from 12 January 2002.
6. The applicant seeks a pension at the special rate.
7. The Veterans’ Entitlement Act 1986 provides that the applicant must be unable to work more than 8 hours per week: s 24(1)(b).
8. In addition to the war-caused conditions which I have earlier mentioned the applicant has osteochondrosis of the spine as well as osteoarthritis of the right ankle.
9. The applicant has been examined by Dr Ian Hadwen who gave evidence before the Tribunal. On 1 August 2002 Dr Hadwen spent considerable time with the applicant. The conditions of the applicant are in reports of Dr Hadwen dated 2 August 2002 and 7 October 2002 which have been collectively admitted in evidence as exhibit G. At the conclusion of that examination the applicant indicated a willingness to work. The applicant informed Dr Hadwen that he would like to go back to work as a wood machinist “tomorrow”, “but who would give me a job at my age”.
10. Dr Hadwen concluded in his report that, in his opinion, the applicant was fit to work at least 20 hours per week as a wood machinist, or 30 or more hours as a barman. In giving evidence to the Tribunal he recognised that the applicant’s skills as a wood machinist were out-of-date and that the applicant might benefit from a refresher course in this line of work. He gave the opinion that the applicant was suited for some limited work as a barman, a gate keeper, a parking attendant, and a salesman in a hardware store.
11. The applicant took issue with the suggestion that he do work as a parking attendant in view of his candidiasis condition which is aggravated by the heat. There was also some discussion on the availability of an air conditioned hut for parking attendants.
12. During the hearing I mentioned that one matter of concern to me was the fact that there was no report before the Tribunal from Dr Hourigan even though the material indicated that the applicant had seen Dr Hourigan. The applicant tendered after the hearing a report dated 27 February 2005 from Dr Hourigan who stated that the applicant’s haemoglobin levels have remained quite stable after he has been placed on iron supplementation.
13. The applicant gave evidence of his drinking problems since his service in Vietnam. The wife of the applicant also gave evidence of his excessive drinking patterns. The applicant took issue with Dr Hadwen on whether his reported drinking consumption was a weekly or daily consumption rate. Despite this dispute it would seem that the treatment of Dr Carter has some degree of success in reducing his alcohol consumption.
14. Since Dr Hadwen examined the applicant on 1 August 2002 the applicant’s diabetes condition appears to have worsened. Dr Hadwen did not seem to consider that the condition precluded the applicant from having employment. He, however, considered that it would be unwise for the applicant to be a train driver.
15. The applicant has not placed before the Tribunal any evidence to contradict the assessment of Dr Hadwen concerning the hours of work that the applicant can undertake each week. I have taken into the account the evidence of Mr Budd. I accept that the applicant cannot undertake heavy work.
16. In view of the evidence of the Dr Hadwen I find that the applicant is capable of working for more than 8 hours per week. The applicant accordingly cannot be awarded the special rate of pension: see Veterans’ Entitlement Act 1986, s24(1)(b).
17. I also find that the conditions specified in s 24(1)(c) and s 24(2)(b) of the Veterans’ Entitlement Act 1986 have not been established by the applicant.
18. In making these findings I have had regard to s 120(4) of the Veterans’ Entitlement Act 1986 which requires this matter to be decided to the reasonable satisfaction of the respondent. I have taken the view that this standard relates to proof on the balance of probabilities.
CLAIM FOR OSTEOCHONDROSIS OF THE SPINE (Q03/474)
19. The Veterans’ Review Board in a decision on 30 June 2002 determined that the applicant’s osteochondrosis of the spine was not war-caused.
20. The Board was required under the Veterans’ Entitlement Act 1986 to find that the applicant’s osteochondrosis of the spine was war-caused unless it was satisfied beyond a reasonable doubt that there is no sufficient ground for making that claim: see s 120(1) and (3).
21. The Board considered that the material before it did not raise a reasonable hypothesis to connect that material with the circumstances of the particular service that was rendered.
22. The Board accepted as evidence the report of Mr V Hadlow FRCS FRACS. Mr Hadlow is an orthopaedic surgeon. In his report dated 28 May 2002 he stated that the condition of the spine was caused during childhood by Scheuermann’s disease or osteochondrosis deformans. Mr Hadlow did not consider that this condition is affecting the applicant as a result of his Army service in the 1960s but it would have been aggravated by his employment as a civilian for the Australian Defence Force in the 1990s, however this would only have been a partial contributor.
23. Although the report of Mr Hadlow was admitted in evidence before the Tribunal, the applicant did not place any medical evidence before the Tribunal to contradict this report.
24. The Repatriation Medical Authority has not published a statement of principles applicable to osteochondrosis of the spine. Where the applicant claims his condition arose out of his war service, the decision-maker must accept there is a causal connection unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination: s 120(2) Veterans' Entitlements Act 1986. Section 120(3) goes on to say the decision-maker shall be satisfied beyond reasonable doubt that there is no connection if it is unable to divine a reasonable hypothesis connecting the injury and the service in question. Having regard to the evidence of Mr Hadlow, I find beyond a reasonable doubt that the applicant’s osteochondrosis of the spine was not war-caused.
Decision
25. The Tribunal affirms the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott
Signed: Camille Banks
AssociateDate/s of Hearing 24 January 2005
Date of Decision 11 March 2005
The Applicant appeared in person
For the Respondent Mr M Smith, Departmental Advocate
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