Picker and Repatriation Commission - [2002] AATA 815

DECISION AND REASONS FOR DECISION [2002] AATA 815

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2002/14

VETERANS' APPEALS   DIVISION     )
           Re      RAYMOND HOWARD PICKER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date19 September 2002
PlaceCanberra

Decision      The tribunal affirms the decision under review.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability Pension - osteoarthrosis of left shoulder, both wrists, both hands - whether war-caused disease - special rate Disability Pension - whether veteran prevented from continuing remuneration employment because of war-caused diseases alone - whether veteran satisfied statutory requirements for longevity of employment

Veterans' Entitlements Act 1986 ss 23, 24(2A)(f), (g), 120(1), (3), (4), 120A(3), 157(2)(a)(ii), 177(2)(b(i)

Statement of Principles 81/2001 concerning osteoarthrosis

Deledio, Repatriation Commission v (1998) 49 ALD 193
Gosewinckel, Repatriation Commission v (1999) 59 ALD 690
Picker and Repatriation Commission, Re (AAT 11663, 5 March 1997)
Picker and Repatriation Commission, Re [1999] AATA 111
Smith, Repatriation Commission v (1987) 74 ALR 537

REASONS FOR DECISION

19 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

This is an application to the Administrative Appeals tribunal ("the tribunal") by Raymond Howard Picker ("the applicant"), born 7 July 1922, for review of a decision of the Veterans' Review Board ("the VRB") dated 24 October 2001 (T21) which affirmed a decision of the Repatriation Commission ("the respondent") dated 21 November 2000 (T17) rejecting a claim for acceptance of osteoarthritis of the left shoulder and both wrists and hands as war-caused diseases for the purposes of Disability Pension and payment of the pension at the special rate.
THE HEARING
The tribunal convened a hearing in this matter in Canberra on 16 September 2002. Mr Picker represented himself and gave sworn oral evidence. Ms T McConnell of the DVA Advocacy Service represented the respondent. The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T25) provided by the respondent.
Exhibit R1 – Respondent's statement of facts and contentions, 5 September 2002.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal makes the following uncontroversial findings.

The applicant was born on 7 July 1922 and was aged 78 when he lodged his claim.
The applicant served in the army and rendered operational service from 5 January 1942 to 23 April 1945 (T2).
The applicant lodged a valid claim on 13 October 2000 (T9).
The date of effect of any decision favourable to the applicant would be 28 August 2000 (ss 157(2)(a)(ii) and 177(2)(b)(I) of the Veterans' Entitlements Act 1986 ["the Act"]).
The standard of proof in relation to whether Mr Picker's osteoarthritis is a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to eligibility for special rate is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The SoP relevant to the determination of this matter is SoP 81/2001 concerning osteoarthrosis.

Mr Picker has applied to the tribunal on a number of occasions over the years. Two recent applications dealt with the same issues as are pertinent in this application. On 5 March 1997 Senior Member M D Allen handed down, in Sydney, a decision in Re Picker and Repatriation Commission (AAT 11663) and, in Bathurst, on 16 February 1999 a decision in Re Picker and Repatriation Commission [1999] AATA 111. In each of those decisions the learned Senior Member came to the same conclusions as I must, on the legislation, do in this case.
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. In the present case the applicant cited the general conditions of service in New Guinea during the Second World War as the cause of his osteoarthritis in its various locations. He relied on an opinion by Dr A B Hogan (T7), a medical superintendent and staff specialist physician, dating from 1977 in which, amongst other things, Dr Hogan stated:
"I served as a Regimental Medical Officer on the Kokoda Trail during the period of the retreat in 1942.
"I saw first hand the conditions under which the 30th Brigade and particularly the 39th Bn. campaigned. From the health point of view this was a particularly arduous campaign.
"Because of the problems of supply and terrain, medical services were particularly strained. Apart from the glorified first aid treatment of gun shot wounds, medical services were virtually non existent. There was no treatment for the multitude of medical illnesses troops suffered. These included recurrent malaria, gastro-enteritis, and severe respiratory infections.
"The condition of the troops rapidly deteriorated. They suffered from chronic malnutrition, continual wetness, cold and inadequate clothing. Troops of the 39th Bn., because of the exigencies of the campaign, had to remain in action for long after they should have been relieved, as a result the [sic] suffered extremely severe physical and nervous exhaustion.
"Whilst it is agreed the cause of arthritis is unknown, if ever there was a situation which could have resulted in arthritis later in life, it was the conditions these troops endured in July, August and September of 1942. …
"Having seen, and experienced these conditions I have no doubt at all that they could have produced arthritis, …"
Dr D G Seaton, a surgeon, wrote a report on 6 December 1985 (T12/73) in which he noted that Mr Picker in New Guinea in 1942 had to carry heavy ammunition boxes up the trail which was very steep and very difficult to negotiate, in appalling conditions and suffering privations, exposure and starvation. He noted that there were no entries in Mr Picker' army records detailing physical injury to Mr Picker's hands. It was not until 1976 or 1977 that Mr Picker first complained to a doctor about his hands. Dr Seaton considered that Mr Picker, aged 63 when he saw Dr Seaton, "was worn out well before his time". A likely part of that wear and tear was said to be initiated when Mr Picker was an infantry man in the Owen Stanley Ranges in 1942. Dr Seaton said that in his opinion a good part of Mr Picker's present problems with arthritis of the hands could be directed to the wear and tear that they underwent on service in New Guinea. It was impossible, he said, to define the extent that war service had caused the disability.
The second step is to ascertain whether there is a relevant SoP in force. As already noted, the relevant SoP is SoP 81/2001.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service. In the present case none of the factors listed in clause 5 of the SoP relate to a cause that might be described as the experiencing of service with a nature and with the conditions such as those described by Dr Hogan. More particularly, in the earlier phases of this matter, and in the earlier tribunal decisions, decision-makers were looking for assertions that Mr Picker had suffered a trauma to the left shoulder and/or both wrists and hands so as to conform to the requirement in factor 5(j) of the SoP. However, even Mr Picker agreed in oral evidence that he was not asserting that.
The tribunal has no option other than to find that the hypothesis as raised is not consistent with the requirements in the relevant SoP. The tribunal therefore finds that step 3 of the Deledio (above) principles has not been satisfied. The hypothesis is, therefore, not a reasonable hypothesis within ss 120(3) and 120A(3) of the Act. The tribunal accordingly finds that Mr Picker's osteoarthritis of the left shoulder and both hands and wrists is not a war-caused disease.
Mr Picker might, however, nevertheless qualify for a special rate pension because he has a number of accepted disabilities, namely malaria, depressive state, lumbar spondylosis, essential hypertension, bronchial asthma and bilateral sensorineural hearing loss (ex R1). However, in earlier tribunal decisions it was held that Mr Picker could not qualify for special rate for at least one clear reason. Section 24(2A) and (2B) of the Act set out the qualification criteria for special rate. These include that:
…
(f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)       when the veteran stopped undertaking his or her last paid work, the veteran:
(i)        if he or she was then working as an employee of another person—had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling—had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
…
In oral evidence to the tribunal Mr Picker said that he finished work in late 1976 or in 1977, that is when he was aged 54. He said that he has not had paid employment since then. He cannot, therefore, satisfy s 24(2A)(f) or (g) of the Act which, taken together, require, where a claimant for special rate has turned 65, that the claimant was still undertaking paid work after turning 65 and had been working for the same employer or in the same employment for at least 10 years before he or she turned 65. Section 23 contains an equivalent provision precluding Mr Picker from qualifying for intermediate rate also.
The tribunal finds that Mr Picker does not qualify for a special rate Disability Pension.
The tribunal should make some comments on Mr Picker's evidence.

Mr Picker relied heavily on Dr Hogan's opinion. However, while it is true that Dr Hogan saw conditions in New Guinea first hand in 1942, s 120A(3) of the Act does not permit a claimant to substitute the opinion of another medical expert for that contained in a SoP. So much was held by the Federal Court of Australia in Repatriation Commission v Gosewinckel (1999) 59 ALD 690.
Mr Picker thinks that he probably had osteoarthritis during service but no doctor was informed of it because it was trivial compared to what was occurring at the time. While that might be so, the difficulty is the lack of any suggestion of a trauma to the affected joints rather than the date of onset.
Mr Picker argued that he deserved to be compensated by receiving special rate for what he had gone through in New Guinea. The difficulty with that argument is, of course, that decision-makers at all levels are bound by the provisions of the Act and cannot pay special rate unless a veteran satisfies the precise qualification criteria. It is also worth mentioning, of course, that Disability Pension, which Mr Picker receives with extreme disablement adjustment, is a form of compensation for just such matters.
Mr Picker did not regard the criteria in paragraphs (f) and (g) of s 24(2A) as appropriate in a case such as his where he was not physically able to work from the age of 54. Unfortunately, however, the statutory requirements are clear and allow no discretion.

CONCLUSION

The tribunal has found that Mr Picker's osteoarthritis of the left shoulder and both hands and wrists was not a war-caused condition. This was because the SoP concerning osteoarthrosis could not be satisfied on the basis of the hypothesis raised connecting Mr Picker's osteoarthitis with operational service.
The tribunal has found that Mr Picker cannot be paid Disability Pension at the special rate because he was aged 65 or over when he applied for it and he was not still working after turning 65. He had also not worked for the one employer for the 10 years leading up to his 65th birthday.
DECISION
The decision under review is affirmed.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  16 September 2002
Date of Decision  19 September 2002
Advocate for the applicant       Self
Advocate for the respondent    Ms T McConnell, DVA Advocacy Service