PTKY and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

PTKY and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2022] AATA 4932 (29 November 2022)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/5241
Re:PTKY
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

Decision
Tribunal:Deputy President Dr P McDermott RFD
Date:29 November 2022
Place:Brisbane

I affirm the decision under review.
...............................[SGD].........................................
Deputy President Dr P McDermott RFD
Catchwords
VETERAN’S APPEALS DIVISION – malignant neoplasm of the prostate – where the veteran has accepted condition – where compensation for permanent impairment paid – where the veteran seeks additional compensation – whether further assessment warranted – whether additional compensation payable – where decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
Veterans' Entitlements Act 1986
Cases
Canute v Comcare (2006) 226 CLR 535
Fellowes v Military Rehabilitation and Compensation Commission (2009) CLR 28
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 – Part 2 Defence related claim
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
29 November 2022
introduction

This application concerns the review of a decision of the Military Rehabilitation and Compensation Commission (‘the respondent’) which determined that PTKY (‘the veteran’), for the purposes of assessing his entitlement under sections 24 and 27 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (‘the DRC Act’) suffers from a combined whole person impairment (‘WPI’) of 56% from his accepted condition of malignant neoplasm of the prostate (the ‘accepted condition’).
background
The veteran served in the Royal Australian Air Force (‘RAAF’) from December 1977 until 21 January 2001. The veteran worked at 482, 6 and 1 Squadron and 32AD/501 Wing.[1]
[1] Exhibit B, Supplementary T-Documents, ST3; ST11.
Four formal F-111 deseal/reseal programs were conducted at the RAAF base at Amberley, there were also continual flight-line repairs referred to as ‘pick and patch’. The veteran’s service records do not confirm whether the veteran was involved in the formal deseal/reseal programs. In January 2000, the deseal/reseal programs were ceased by RAAF due to concerns about adverse health effects experienced by workers at the Amberley base.
The Study of the Health Outcomes in Aircraft Maintenance Personnel (‘SHOAMP’) Health Care Scheme was established in 2005 for workers who had worked on the programs or related activities.
The respondent, in response to the SHOAMP report, accepted 31 health conditions as being related to the F-111 fuel tank maintenance program, under s 7(2) of the Safety, Rehabilitation and Compensation Act 1988 (the ‘SRC Act’). The practical effect of this, is that tier 1, 2 and 3 participants are able to claim under s 7(2) of the DRC Act without being required to establish a link to their service, so long as the claimant has been diagnosed with one of the 31 health conditions.
The DRC Act applies to claims for compensation for injuries, diseases or deaths which are linked to most peace-time service for the period of 3 January 1949 and 30 June 2004. The DRC Act retains and replicates the provisions of the SRC Act which applied to veterans.
The eligibility for health care and compensation for F-111 workers was expanded by the respondent in May 2010. The respondent later agreed to make changes to the ‘additional information’ which accompanies the F-111 tier definitions and further expanded the tier status for some occupations.
The respondent accepted a statutory declaration of the veteran on 1 December 2010, which stated that although the veteran was not involved in the formal F-111 deseal/reseal programs, he was involved in the maintenance of the F-111 aircraft in his capacity as a supervisor of avionics.[2] The veteran was then classified under the tier scheme as a tier 3, category 1.
[2] Exhibit B, Supplementary T-Documents, ST3; ST11.
The veteran has a number of other conditions which have been accepted under the Veterans' Entitlements Act 1986 (the ‘VEA’) and under s7(2) of the SRC and DRC Acts, these are:[3]
[3] Exhibit A, T-Documents; Exhibit B, Supplementary T-Documents; Exhibit C, Respondent’s Statement of Facts, Issues and Contentions; Exhibits D-H, Applicant’s submissions.
·Bilateral pinguecula (accepted under the SRC Act on 4 April 1997).
·Facet joint degeneration L5/S1, disc degeneration L4/5 with sciatica (accepted under the Veteran’s Entitlements Act 1986 (the ‘VEA’)).
·Sprain or strain of the right ankle (accepted under the VEA on 30 April 2003).
·Medial deltoid ligament sprain of right foot/ankle (accepted under the SRC Act on 4 August 2004).
·Solar keratosis of the face and left leg (accepted under the VEA on 12 September 2005 and under the DRC Act on 5 April 2011).
·Right L5 sciatica (accepted under the SRC Act on 21 September 2005).
·L4/L5 disc degeneration (accepted under the SRC Act on 21 September 2005).
·Erectile dysfunction (accepted under the SRC Act on 15 March 2011).
·Seborrheic dermatitis (accepted under the SRC Act on 15 March 2011).
·Major depressive disorder (accepted under the SRC Act on 15 March 2011).
·Generalised anxiety disorder (accepted under the SRC Act on 15 March 2011).
·Bowel polyps (accepted under the SRC Act on 4 July 2011).
·Irritable bowel syndrome (accepted under the SRC Act on 4 July 2011).
·Panic disorder (accepted under the SRC Act on 4 July 2011).
·Vertigo (not otherwise specified) (accepted under the SRC Act on 9 March 2012).
·Bilateral chronic otitis externa (accepted under the SRC Act on 13 March 2012).
·Bilateral sensorineural hearing loss (accepted under the SRC Act on 30 July 2012 and accepted under the VEA on 31 October 2013).
·Lichen simplex chronicus (accepted under the SRC Act on 14 May 2012).
·Forced inversion injury resulting in talar avascular necrosis (bone death) affecting the veteran’s right ankle (accepted under the SRC Act on 2 November 2012).
·Tinnitus (accepted under the VEA on 31 October 2013).
·
Temporary aggravation of chronic bronchitis (accepted under the SRC Act on

24 February 2014).
·Right ankle osteonecrosis (accepted under the SRC Act on 23 May 2014).
·Aggravation of carpal tunnel syndrome – right wrist (accepted under the SRC Act on 23 May 2014).
·Chronic obstructive bronchitis (accepted under the SRC Act on 14 July 2015).
·Peripheral neuropathy (accepted under the SRC Act on 31 October 2015).
·Tension headaches (accepted under the SRC Act on 5 November 2015).
·Cognitive impairment (accepted under the SRC Act on 17 December 2015).
·Memory loss (accepted under the SRC Act on 17 December 2015).
·Lumbar spondylosis (accepted under the SRC Act on 7 January 2016).
·Agoraphobia (accepted under the SRC Act on 30 June 2016).
·Insertional triceps tendinosis (accepted under the SRC Act on 2 August 2016).
·Malignant neoplasm of prostate (accepted under the SRC Act on 21 October 2016).
·Diverticular disease with diverticulitis and diverticulosis (accepted under the SRC Act on 26 June 2018).
·Lateral epicondylitis - left elbow (accepted under the SRC Act on 9 July 2020).
·Insertional triceps tendinosis (accepted under the SRC Act on 9 July 2020).
·Olecranon bursitis – left elbow (accepted under the DRC Act on 23 July 2020).
In the present matter, liability for the veteran’s condition of malignant neoplasm of the prostate was accepted by the respondent in October 2016.[4] On 23 May 2017, the veteran’s condition was determined to be a combined Whole Person Impairment (‘WPI’) rating of 44%.[5] The veteran requested reconsideration of this decision on 30 May 2017. On

13 June 2017, the respondent issued a determination which was the subject of another, now finalised application to this Tribunal.[6]
[4] Exhibit A, T-Documents, T31.
[5] Exhibit A, T-Documents, T31.
[6] Exhibit C, Respondent’s Statement of Facts, Issues and Contentions.
The veteran lodged an application for additional compensation under sections 24 and 27 of the DRC Act with the respondent, in relation to the accepted condition of malignant neoplasm of the prostate in January 2019.[7]
[7] Exhibit C, Respondent’s Statement of Facts, Issues and Contentions.
Following a further medical assessment, the respondent made an offer for additional compensation totalling an amount of $38,061.76 to the veteran in July 2019. This offer comprised of $23,126.13 under s 24 of the SRC Act, based on a combined impairment of 56% (45% under Table 10.2, 20% under Table 11.1 and no additional impairment under 13.2).[8] An additional $14,935.63 was offered under s 27 of the SRC Act for non-economic loss.
[8] Exhibit A, T-Documents, T17.
On 23 September 2019, the respondent made a formal determination that additional compensation, in the amount of $38,061.76 was payable to the veteran for his malignant neoplasm of prostate under sections 24 and 27 of the DRC Act. This made the total compensation paid to veteran for this condition, $143,993.19.[9]
[9] Exhibit A, T-Documents, T18.
On 1 October 2019, the veteran requested a reconsideration of the determination dated

24 July 2019, contending that Table 13.2 should be applied, and therefore that additional compensation should be paid.[10]
[10] Exhibit A, T-Documents, T19.
A delegate of the respondent, on 10 June 2020, affirmed the determination dated 24 July 2019.[11] In doing so, the delegate remarked that they were satisfied that the veteran’s condition was correctly assessed. The delegate was further satisfied that Table 13.2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 – Part 2 Defence related claim (‘the Guide’) was not applicable in the veteran’s circumstances. This decision forms the basis of the reviewable decision.
[11] Exhibit A, T-Documents, T31.
On 21 August 2020, the veteran lodged an application for review with this Tribunal. In seeking review of the decision dated 10 June 2020, the veteran contends that Table 13.2 of the Guide should be applied.[12]
[12] Exhibit A, T-Documents, T1.
On 18 October 2021, a hearing was held in this matter. The veteran was self-represented and gave evidence under affirmation.
On 23 August 2022, a telephone directions hearing was held. The purpose of the directions hearing was to address the fact that on 20 July 2022, the veteran lodged what was thought to be further closing submissions with the Tribunal. Prior to the directions hearing, the veteran confirmed that these submissions had been lodged with the Tribunal via email in January of 2022. The respondent confirmed they had received these submissions; however, the Tribunal has no record of these submissions being received. At this directions hearing, the veteran understandably expressed frustration at this fact, as well as concerns that the process of merits review was unfair against applicants in a general sense. To ensure procedural fairness was afforded to the veteran, I offered him additional time to make any further submissions if he wished. The veteran declined this offer.
issues
The issue for my determination in this application is whether the veteran is entitled to additional compensation for permanent impairment and non-economic loss for his accepted condition, and in particular, whether an assessment under Table 13.2 of the Guide is applicable to the veteran’s accepted condition.
The veteran’s permanent impairment claim was accepted under the SRC Act with an actual date of injury of 12 September 2017. The provisions the condition of the veteran was accepted under are sections 24 and 27 of the SRC Act.[13]
[13] Exhibit A, T-Documents, T31.
The actual date of the injury of the veteran is 12 September 2016. The DRC Act is applicable as the employment of the veteran occurred within the period mentioned in s 4AA(2) of the DRC Act. The determination and reviewable decision have been made under the DRC Act.
Section 24 of the DRC Act provides:
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, the Commonwealth is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, the MRCC shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by the MRCC under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by the MRCC shall be an amount that is the same percentage of the maximum amount as the percentage determined by the MRCC under subsection (5).
(5) The MRCC shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
The Guide, mentioned above in subsection 24(5), is the approved guide for the purposes of s 25(4).[14] Part 2 of Edition 2.1 of the Guide applies when assessing claims received from 1 December 2011 onward.[15] The Guide is subordinate legislation and therefore has the force of law.[16]
[14] Pursuant to section 28 of the SRC Act.
[15] Page 220 of Edition 2.1 of the Guide.
[16] Canute v Comcare (2006) 226 CLR 535, 541.
Table 10.2 (under which the veteran has been assessed as 45% WPI) of the Guide, provides:
Table 10.2: Lower urinary tract
%        Description of the level of impairment
5         Occasional intermittent disorder without interval problems
10Uretheral stricture or other disorder requiring intermittent therapy (for example, passage of sounds at intervals of greater than eight weeks).
15       Disorder requires continuous treatment
or
no voluntary bladder control but good reflex activity.
25       Urinary diversion with or without removal of the bladder
or
Uretheral stricture or other disorder which cannot be effectively controlled, or recurs frequently, or requires more frequent passage of sounds (at intervals of less than four to eight weeks).
30       Intermittent dribbling incontinence
45       Continuous dribbling incontinence.
Table 11.1 (under which the veteran has been assessed as having a 20% WPI) of the Guide provides:
Table 11.1: Male – reproductive system
%        Description of the level of impairment
5         Any of the following:
• only one testis present
• symptoms and/or signs of scrotal loss or disease
• scrotal malposition
or
all of the following:
• symptoms and/or signs of testicular, epididymal and/or spermatic cord disease, WITH anatomical alteration
• continuous treatment not required
• no seminal or hormonal abnormalities
or
all of the following:
• symptoms and/or signs of prostatic and/or seminal vesicular dysfunction or disease
• anatomical alteration present
• continuous treatment not required
or
• impotence in a claimant aged 65 years or more with intact sexual organs.
10 Sexual function possible but varying degrees of difficulty with erection, ejaculation and/or sensation.
15       Any of the following:
• sexual function possible in that there is sufficient erection but no ejaculation or sensation
• testes implanted in other than scrotal position to preserve function and testicular pain or discomfort with activity
• total loss of scrotum
• impotence in a claimant aged between 40 and 64 years with intact sexual organs
or
all of the following:
• symptoms and/or signs of testicular, epididymal and/or spermatic cord disease, with anatomical alteration
• continuous or frequent treatment required
• detectable seminal or hormonal abnormalities
or
all of the following:
• frequent severe symptoms and/or signs of prostatic and/or seminal vesicular function or disease
• anatomical alteration present
continuous treatment required.
20       No sexual function possible because of any of the following:
• bilateral loss of testes
• no detectable seminal or hormonal function of the testes, epididymis or spermatic cords
• ablation of prostate and/or seminal vesicles
or
impotence in a claimant aged less than 40 years with intact sexual organs.
Relevantly, Table 13.2 of the Guide provides:
Table 13.2: Malignancies
% Description of level of impairment
0No symptoms or evidence of disease and able to undertake normal activities with no special care needed.
10-15Some signs or symptoms of disease and normal activities can be undertaken with moderate effort.
35Does not require institutional care but needs assistance with activities of daily living other than self care.
50Can still be maintained at home but with considerable assistance and frequent medical care.
65Requires institutional care and considerable assistance with activities of daily living other than self care.
75Requires institutional care and considerable assistance with activities of daily living including self care.
Intensive support and/or treatment needed (disease may be progressing rapidly).
Notes: Assessors should refer to the Principles of Assessment for guidance on awarding an impairment value within a range.
In order for WPI ratings to be assigned under Table 13.2 there would need to be, at the very least, symptoms or evidence of disease and able to undertake normal activities with no special care needed. Further, in relation to permanent impairment compensation, the Guide, at Part 1 – Principles of Assessment, states:
3. Permanent impairment
Compensation is only payable for impairments which are permanent. Under subsection 4(1) of the SRC Act ‘permanent’ means ‘likely to continue indefinitely’. Subsection 24(2) of the SRC Act provides that for the purposes of determining whether an impairment is permanent, the following matters shall be considered:
(a) the duration of the impairment
(b) the likelihood of improvement in the employee’s condition
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment
(d) any other relevant matters.
Thus, a loss, loss of the use, damage, or malfunction, will be permanent if it is likely, in some degree, to continue indefinitely. For this purpose, regard shall be had to any medical opinion concerning the nature and effect (including possible effect) of the impairment, and the extent, if any, to which it may reasonably be capable of being reduced or removed.
…
6. Malignancies and conditions resulting in major systemic failure
Conditions such as cancer, HIV infection, diabetes, asbestosis, mesothelioma and others, often with terminal consequences, may result in failure or impairment of multiple body parts or systems.
Assessments should be made of the impairment suffered in each of the affected body parts and systems and combined using the combined values chart in Part 1, Appendix 1.
[Tribunal Emphasis]
…
8. Comparing assessments under alternative tables
Unless there are instructions to the contrary, where two or more tables (or combinations of tables) are equally applicable to an impairment, the decision-maker must assess the degree of permanent impairment under the table or tables which yields or yield the most favourable result to the employee.
9. Combined values
Impairment is system or function based. A single injury may give rise to multiple losses of function and, therefore, multiple impairments. When more than one table applies in respect of that injury, separate scores should be allocated to each functional impairment. To obtain the whole person impairment in respect of that injury, those scores are then combined using the combined values chart (see Part 1, Appendix 1) unless the notes in the relevant section specifically stipulate that the scores are to be added. (For instance, see table 9.8.1).
Where there is an initial injury (or pre-existing condition) which results in impairment, and a second injury which results in impairment to the same bodily part, system or function the pre-existing impairment must be disregarded when assessing the degree of impairment of the second injury. The second injury should be assessed by reference to the functional capacities of a normal healthy person. The final scores are then added together. Where two or more injuries give rise to different whole person impairments, each injury is to be assessed separately and the final scores for each injury (including any combined score for a particular injury) added together. It is important to note that whenever the notes in the relevant section refer to combined ratings, the combined values chart must be used, even if no reference is made to the use of that chart.

Section 27 of the DRC Act provides:
27Compensation for non‑economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, the Commonwealth is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by the MRCC under the formula:
($15,000 x A) + ($15,000 x B)
where:
A        is the percentage finally determined by the MRCC under section 24 to be the degree of permanent impairment of the employee; and
B       is the percentage determined by the MRCC under the approved Guide to be the degree of non-economic loss suffered by the employee.
(3)   This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
The High Court of Australia, in Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28 (‘Fellowes’), confirmed that separate assessments of the degree of permanent impairment resulting from each separate condition of an applicant for compensation should be undertaken. Relevantly, the High Court of Australia stated:[17]
The percentages stated in the Guide describe “the extent of each impairment as a percentage value of the functional capacity of a normal healthy person”. The references to “whole person impairment” that are found in the Guide do not direct attention to the effect of an injury or disease on a particular individual. On the contrary, the effect to be assessed is by reference to the functional capacities of a normal healthy person.
[17] Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28.
At hearing, the issue of the veteran’s eligibility for participation in the deseal/reseal compensation scheme was discussed.[18] It is not my function in this matter to make a determination on that matter. The issue for my determination is the veteran’s eligibility for further compensation under sections 24 and 27 of the SRC Act and in particular, whether the veteran’s accepted condition should be assessed under Table 13.2, and if so, whether additional compensation is payable as a result of the further assessment.
[18] Transcript, pages 5-23.
Contentions and evidence of the veteran
The veteran has made a number of lengthy submissions, which I have found assistance from. I thank the veteran for his continued efforts to assist the Tribunal in this matter.
The veteran has raised several issues with his perceived treatment by and attitudes of the respondent and the Department of Veterans’ Affairs. It is not appropriate for me to engage in a commentary of these issues.
The veteran’s primary contention is that an assessment of his WPI should be conducted, with reference to Table 13.2 and that, if done, would result in further compensation being payable.[19] In support of this contention, the veteran relies upon the Department of Veterans’ Affairs Permanent Impairment Handbook, which states:[20]
All malignant cancer conditions are to be assessed under table 13.2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 - Part 2 Defence Related Claims (permanent impairment guide). This table provides an assessment on how the condition affects the client in relation to symptomology and activities of daily living etc. It does not take into account the functional impairment to individual body parts. For example, if the condition being assessed is lung cancer then it would be appropriate that the condition also be assessed using table 2.1 for the respiratory system and the two impairment results combined using the combined values chart.
[19] Exhibit D, Applicant’s Statement of Issues; Applicant’s closing submission.
[20] At [5.3.13]
The veteran has contended that the inclusion of Table 13.2 would not amount to a double assessment, and that he is eligible as he has a number of signs and symptoms which of the accepted condition, these are:[21]
[21] Exhibit A, T-Documents, T1, T27.
·Hot flushes.
·Sterile.
·Unable to ejaculate.
·Do not feel like a man anymore.
·Embarrassed.
·Feel inferior.
·Penis is too short for adequate intercourse.
·Orgasms are very weird and much different, more like pain not pleasure.
·Unable to procreate.
·Masturbation is pretty well the veteran’s only option.
·No erections whatsoever without the assistance of medication.
·The veteran needs assistance both at home and when out to clean up after a full bladder emptying.
·The veteran needs assistance both at home and when out to get a change of pants, buy new pants.
·Increased depression and anxiety as [he] [is] not coping very hell, a Mr Peter Perros, Consultant Psychiatrist opined that [the veteran] had Adjustment disorder with Anxiety and Depression, a sequelae injury, some three months after the prostate surgery.
·Everywhere [he] go[es] [he] have to carry wipes, incontinence pull-ups, face washers etc.
·He needs to be close to toilet and shower facilities when at home or out.
·He cannot use public transport if there are no toilet facilities.
·Increased anxiety.
·Agoraphobia much worse.
·The veteran was informed that he was suffering Adjustment Disorder some 3 months pot-surgery by Mr Perros.
·
The veteran’s penis has shrunk by at least an inch or more, which he states is

25-30% for him.
·Difficulty communicating to others as to the psychological affects of having the cancer.
·When he goes to stand up he urinates.
·When he coughs he urinates.
·When he dry-retches he urinates.
·When he rolls over in bed he urinates.
·Just walking around can make him urinate.
·Walking up stairs makes him urinate.
·Lifting something makes him urinate.
·There are severe restrictions on his mobility.
·Severe effect on the activities of daily living regarding sexual function.
·Now that he has had a cancer he is scared that he may get another type of cancer one day.
·Lost his “getup and go”.
·Having to undergo PSA tests for the next 20 years
·After the difficulties that were a concern for the surgery, he is scared of any further surgery.
·He feels lack lustre.
·No real drive anymore.
·The terrible smell causes him to completely shave his pubic hair as it holds the smell.
·Annual cancer blood screening.
·Monthly psychiatric appointments.
·Daily penile penis pump therapy.
·Nappy rash cream is required for skin irritation.
·Increased requirement to wash the groin area due to urine odour and irritation causing stinging.
The veteran has further contended that there was a failure by the respondent to detect certain pathology markers as being cancerous and that the approvals for treatment of his condition were too slow, resulting in an increase in the severity of his condition.[22]
[22] Transcript, page 11; Exhibit D, Applicant’s Statement of Issues.
The veteran relies upon the assessment of Dr Glen Wood, who assessed him as having a 35% WPI under Table 13.2, however, the veteran has not explained the reasoning for the awarding of this WPI.[23]
[23] Exhibit A, T-Documents, T15.
The veteran additionally contends that the decisions in Canute v Comcare (2006) 226 CLR 535 (‘Canute’) and in Fellowes apply to his matter, and that there should therefore be an additional assessment of his impairment undertaken with reference to Table 13.2 of the Guide.
Oral Evidence of the veteran
At hearing, the veteran gave oral evidence that:[24]
[24] Transcript, pages 5-29.
·He would not be in this situation if not for the ‘negligence’ of the respondent.
·He started as an instrument fitter and “along the way [he] got promoted”.
·He was involved in the deseal/reseal program directly.
·He was involved in the program and was required to be present the whole time as he was an inspector.
·He would inspect the planes after the airframe fitters had completed their work.
·Another officer would be able to verify his claims.
·If the respondent continued their line of questioning regarding the extent of his involvement in the deseal/reseal programs, that the Tribunal can:
… forget about this hearing continuing. [He] will stop it right now and then [he will] proceed to the High Court and sue [the respondent] to the best of [his] ability. So if [this line of questioning continues], to say I wasn’t inside the fuel tanks working, then [he will] stop this hearing right now.
·Confirmed his position and rank within the RAAF and where he was stationed throughout the years.
·He had defended a younger member of the RAAF that refused to enter the hangar while it was filled with the fumes from chemicals from the F-111 as he felt it was dangerous. The veteran stated that this person was discharged as a result.
·He has not maintained contact with his former colleagues and is not part of any support groups related to the SHOAMP compensation scheme.
·His condition and the impacts of the surgery were much greater due to the delay of the respondent.
·He did not get a biopsy which had been recommended by his doctor (and was refused by the MRCC) in 2015 due to not having the money to pay for it.
·When asked, confirmed that he went on an overseas trip to Japan in 2016.
·The report of Dr Cameron should be disregarded by the Tribunal as during the assessment, Dr Cameron told the veteran that nobody involved in the F-111 deseal/reseal programs were affected by the program.
·He would spend on average, an hour every day inside the F-111 hangar.
·When questioned about the effect of his exposure to the deseal/reseal programs, confirmed that his self-reporting is 100% correct.
·Confirmed that he had made contact with Dr Wood to make him available to give evidence at hearing, and that he did not receive a reply.
·The veteran further stated that when he requested this matter be adjourned on 12 October 2021, he emailed Dr Wood, effectively saying his services were not required at this time and he would discuss further in the new year.
·In relation to supporting evidence or documentation, such as affidavits, the veteran stated that he can’t remember because his memory difficulties are like so severe.
·When removing the veteran’s malignancy, a vasectomy had to be performed, which he believes is an additional procedure for which he has not been compensated.
·The veteran concluded their evidence by reiterating all he wants is compensation under Table 13.2 of the Guide.
contentions and evidence of the respondent
The contentions of the respondent are largely contained within their Statement of Facts, Issues and Contentions, at Exhibit C. I have also had regard to and found assistance from the closing submissions of the Respondent, dated 20 December 2021.
The respondent advanced an argument that the veteran is an unreliable historian and pointed to contradictions between documentary evidence and statements of the veteran. I do not consider this to be entirely relevant to the issue of whether Table 13.2 of the Guide applies to the veteran’s accepted condition.[25]
[25] Respondent’s Closing Submissions.
The respondent’s primary contention is that Table 13.2 of the Guide is not applicable to the veteran’s accepted condition. The respondent contends that as the malignancy has been removed, there cannot be ‘signs and symptoms’ of it, as required for an assessment under Table 13.2.[26]
[26] Exhibit C, Respondent’s Statement of Facts, Issues and Contentions.
The respondent further contends that of the 44 signs and symptoms listed by the veteran, that 34 of those have been compensated under Tables 10.2 and 11.1 of the Guide. Of the remaining 10, the respondent contends that these conditions/symptoms have already been accepted and the veteran has attributed the symptoms/conditions to other compensable conditions. The respondent additionally contends that there is no cogent evidence before this Tribunal which indicates the veteran requires assistance in activities of daily living, other than self-care.[27]
[27] Exhibit C, Respondent’s Statement of Facts, Issues and Contentions; Respondent’s Closing Submissions.
The respondent additionally contends:[28]
The [veteran’s] evidence and the assessments of impairment that rely on the [veteran’s] self-report should be treated with caution because:
Treating and reporting specialists have not had the benefit of a full history and understanding of the nature and effects of reported impairments in assessing the [veteran].
There is evidence that casts doubt on the nature and extent of the effects as reported by the [veteran] from time to time.
The [veteran] has attributed the same symptoms, impairments and restrictions on his activities of daily living to other conditions at various times in the context of other claims for compensation.
There is limited objective or other evidence that verifies the [veteran’s] reports, including evidence that would otherwise be readily available such as from the [veteran’s] family.
[28] Respondent’s Closing Submissions.
medical evidence
The key medical evidence before this Tribunal is the reports of Dr Wood, urologist, dated 18 April 2019[29] and 6 December 2018,[30] the report of the contracted medical advisor dated 20 May 2020,[31] and the report of Dr Ali, urologist, dated 6 August 2018.[32]
[29] Exhibit A, T-Documents, T15.
[30] Exhibit A, T-Documents, T26.1.
[31] Exhibit A, T-Documents, T30.
[32] Exhibit B, Supplementary T-Documents, ST30.
Reports of Dr Wood, Urologist dated 18 April 2019 and 6 December 2019
Dr Wood confirmed the diagnosis of a locally advanced prostate cancer, for which the veteran underwent a radical retropubic prostatectomy on 9 November 2016. As a result of the cancer spreading beyond the prostate capsule, the only option was a unilateral nerve spare.
Dr Wood opined that the consequences of the surgery would further reduce the veteran’s ability to have an erection. Dr Wood explained that this was a result of nerve injury and urinary incontinence due to sphincter weakness. Dr Wood, relying on the reports of the veteran, was of the opinion that the veteran struggles with injection therapy (which he had been using previously) and as a result was unable to perform penetrative intercourse and is unable to ejaculate. Dr Wood reported that the veteran is undertaking pelvic floor exercises to maximise his sphincter function, injection therapy, and vacuum pump therapy to try and maintain erectile length and to prevent further shortening.
Dr Wood awarded the veteran the following WPI ratings:[33]
·45% under Table 10.2 of the Guide.
·20% under Table 11.1 of the Guide.
·35% under Table 13.2 of the Guide.
[33] Exhibit A, T-Documents, T26.1.
In giving these ratings, Dr Wood had had regard to the veteran’s self-reports and in relation to the Activities of Daily Living (‘ADL’) questionnaire, Dr Wood opined the following:[34]
·Continence and toileting – severe
·Personal hygiene – major/significant (with a note of constant odour of urine)
·Sexual function – severe (with a note of penile shortening post-surgery and response to injection therapy had rendered the veteran unable to engage in penetrative intercourse.
[34] Exhibit A, T-Documents, T15; T26.1.
Medical Advisor’s Report dated 20 May 2020
The Medical Advisor had regard to the report of Dr Wood dated 6 December 2019 and noted the awarding of 35% WPI under Table 13.2 was not substantiated either by Dr Wood in his report, or by the objective medical evidence.[35]
[35] Exhibit A, T-Documents, T30.
The Medical Advisor stated their belief that the appropriate WPI rating was 45% under Table 10.2 and 20% under Table 11.1 of the Guide.[36]
[36] Exhibit A, T-Documents, T30.
Report of Dr Ali, Urologist, dated 6 August 2018
Dr Ali, in his report dated 6 August 2018, opined that the veteran had significant erectile dysfunction as well as urinary incontinence prior to the diagnosis and treatment related to his prostate cancer. Dr Ali further reported that the veteran had trialled a significant number of medications and trials with nil success.[37]
[37] Exhibit B, Supplementary T-Documents, ST30.
Dr Ali confirmed that in their view, Table 13.2 of the Guide should not apply. However,
[38] Exhibit B, Supplementary T-Documents, ST30.
Dr Ali continued to opine that the veteran’s condition would have likely resulted in incontinence and impotence in any event.[38]
Dr Ali assessed the veteran’s impairments at 30% WPI under Table 10.2 and 20% under Table 11.1 of the Guide.[39]
[39] Exhibit B, Supplementary T-Documents, ST30, pages 435-436.
Determination dated 24 July 2019
The respondent issued a determination 24 July 2019, after having had regard to the reports of Dr Wood. In relation to the veteran’s accepted condition the respondent stated:[40]
[40] Exhibit A, T-Documents, T17.
On the basis of all of the available medical evidence, including the report provided by Urologist Dr Glenn Wood dated 18 April 2019 it appears that you have a permanent impairment as a result of your accepted condition.
The degree of your permanent impairment has been assessed using Part 2 (Defence Related Claims) of the Guide to the Assessment of the Degree of Permanent Impairment—Edition 2.1 (the Guide) as 56%.
When assessing your accepted condition of malignant neoplasm of the prostate tables 10.2, 11.1 or 13.2 may be used. Dr Wood was provided with all tables and asked for an assessment under each to ensure all information was gathered allowing us to apply the most appropriate method in assessing your condition without the need for having to request further information and delay your claim unnecessarily. I am unable to compensate for the same impairment twice, or compensate for impairment no longer arising from the original accepted condition alone.
Dr Wood was able to identify impairment under tables 10.2 and 11.1, advising in his report 45% WPI under table 10.2 for urine incontinence and 20% WPI under table 11.1 for sexual function. He further identified 35% WPI under table 13.2. A 35% rating under table 13.2 states “Does not require institutional care BUT needs assistance with activities of daily living other than self-care.”
Dr Wood was provided with a list of activities of daily living (ADLs) and asked to comment on the effects your accepted condition has made on each activity. The ADLs Dr Wood has reported you need assistance with are continence and toileting, personal hygiene for the odour of urine, as well as sexual function.
The following extract is taken from The Principles of Assessment guidelines in the Permanent Impairment Guide.
“The possibility of a double assessment for a single loss of function must be guarded against.”
The ADLs Dr Wood has indicated you need assistance with have been considered in their own right under the respective tables (10.2 and 11.1). In order to avoid a double assessment and compensating twice for the same impairment, I am unable to consider the same ADLs again under table 13.2.
I have considered the other ratings available in table 13.2 however for a rating lower than 35% there must be signs and symptoms of the accepted condition/disease. As the malignancy has been removed this criteria has not been met therefore I am unable to determine any rating under table 13.2 is applicable for this assessment.
The ratings under tables 10.2 and 11.1 are combined using the Combined Values Chart at table 14.1 of the Guide. A rating of 45% combined with a further 20% results in an overall WPI rating of 56%. In May 2017 you were assessed for permanent impairment compensation for your malignant neoplasm of the prostate condition and subsequently received a compensation payment of $105,931.43 being for 44% WPI. This current determination represents an increase in 12% WPI since your last assessment.[41]
[41] Exhibit A, T-Documents, T17, page 131.
CONSIDERATION

The claim of the applicant for permanent impairment was received on 8 February 2019. I am required to apply Edition 2.1 of the Guide which applies to defence-related claims for permanent impairment received on and after 1 December 2011 for injuries related to defence service rendered before 1 July 2004.[42]
[42] Cf Canute v Comcare (2006) 226 CLR 535, 541; n17.
The claim of the veteran relates to compensation for the condition of malignant neoplasm of the prostate. I am certainly aware that what occurred to the veteran was quite a serious matter for him. It would appear from the submissions of the veteran that he is aggrieved by the decision of the respondent to refuse his request for a biopsy which he contends was contrary to both legislation and policy (SHOAMP Health Care Scheme). I do not have jurisdiction to review these concerns of the veteran. What I must determine in this application is whether the veteran has a rating of 35% whole person impairment under Table 13.2 of the Guide and, if so, whether the veteran is entitled to additional compensation.
The veteran has already received compensation for the condition of malignant neoplasm of the prostate in the amount of $143,993.19. This amount has been calculated by a 45% rating of whole person impairment under Table 14.2 of the Guide as well a 20% rating of whole person impairment under Table 11.1 of the Guide, these ratings were combined under Table 14.2 of the Guide to achieve a total rating of 56% whole person impairment. The applicant has been assigned the maximum ratings that can be assigned under Tables 11.1 and 14.2.
The veteran is seeking compensation under Table 13.2 of the Guide and an order to vary the reviewable decision to provide for the inclusion of a finding that the veteran has a rating of 35% whole person impairment under Table 13.2 of the Guide.
Table 13.2 (Malignancies) is contained in Part 2 of the Guide which relates to Defence-Related Claims for Permanent Impairment. Under this Table a person is to be assigned a 35% whole impairment where a person “Does not require institutional care but needs assistance with activities of daily living other than self-care’.
Dr Wood in his report dated 18 April 2019 has opined that the veteran should be assigned 3.5% whole person impairment for malignancy. In his report of 6 December 2019 Dr Wood opined that the veteran should be assigned 35% whole person impairment for malignancy. In neither of these reports has Dr Wood outlines his reasons for these opinions. The respondent had requested the attendance of Dr Wood at the hearing.
The veteran had sought an adjournment of the hearing of his application. On 4 October 2021 due to concerns around COVID-19 and the unavailability of his Medical Witnesses. The respondent indicated that if the hearing were required to continue in person, they would consent to an adjournment until such a time as the COVID-19 risk was lowered. I issued a direction to require the veteran to provide advice of the date when he notified Dr Wood that he would be called to give evidence in the hearing of his application on

18 October 2021 and the date on which Dr Wood provided a response of his availability to give evidence on 18 October 2021.
The veteran advised the Tribunal that he was unable to advise the date when he asked Dr Wood to give evidence on 18 October 2021. The veteran was unable to recall a date when Dr Wood informed him that he would give evidence. While the respondent would consent to an adjournment if remote hearing facilities were unavailable, I decided to refuse the application for an adjournment as such facilities were available. Certainly, there was no indication from the veteran that Dr Wood was available to give evidence on his behalf. In the absence of this information and given the veteran’s primary concern appeared to be around the COVID-19 risk, I determined the matter should proceed as listed, via telephone.
At the hearing I told the veteran that it was my decision not to grant an adjournment, he indicated that he was ‘happy with that’. I informed the veteran that the Tribunal has a statutory obligation to act quickly,[43] and that the Tribunal has limited resources for rescheduling matters. The veteran in a previous application in this Tribunal had sought additional compensation for the condition of malignant neoplasm of the prostate and the Tribunal was deemed to have dismissed the application under s 42A(1A) of the Administrative Appeals Act 1975 following the withdrawal of his application. In deciding not to grant an adjournment, I was mindful that the veteran had withdrawn his previous application for the condition of malignant neoplasm of the prostate. I was also conscious that the respondent would incur additional expense if the application of the applicant was listed for a later date.
[43] Administrative Appeals Tribunal Act 1975, s2A(b).
Table 13.2 of the Guide applies to ‘Malignancies’. I consider that the Table only applies where the veteran has a Malignancy. This can be seen in, for instance, the rating for 10-15% of whole person impairment refers to where there are ‘signs or symptoms of disease’. In this case where there is no longer any malignancy because of removal of the cancer, the veteran cannot be assigned a rating under Table 13.2.
Even if it was possible to assign a rating under Table 13.2, there is no cogent evidence before me to enable me to assign a rating of 35% whole person impairment under that Table. There is no cogent evidence before me to enable me to assign a rating of 35% whole person impairment under that Table.
The applicant has reported to Dr Wood that he has some functional impairments: these are urine incontinence for which an assessment has been made under Table 10.2. There is no evidence that contradicts the opinion of Dr Ali in his report of 6 August 2018 that an assessment under Table 10.2 is more appropriate as it deals with the affected body part. For sexual function an assessment has been made under Table 11.1.
The veteran has made certain assertions of functional impairment upon which Dr Wood may have based his opinion but without his evidence or a supplementary report I cannot determine that the veteran should be assigned 35% whole person impairment under the Table.
On 20 May 2010, the Departmental Contracted Medical Adviser commented that the Supplementary Information that was referred to in the report of Dr Wood is unsubstantiated being based on statements of the veteran. Some of the matters that the veteran has raised with Dr Wood may be matters of self-care that are not covered by Table 13.5, these would be the issues of continence and toileting as well as personal hygiene.
Before I could decide that the veteran should be assigned 35% for impairment for malignancy, I would have to be satisfied that there is cogent evidence about the activities of daily living that the veteran requires assistance.
Even if I were to decide that the applicant should be assigned 35% under Table 13.2, that may not necessarily result in an additional payment of compensation to him. Part 2 of the Guide contains the Principles of Assessment that apply to claims under the Act. It is clear from the Note that appears at the foot of Table 13.2 that those principles apply. Paragraph 9 of those Principles provides that the possibility of double assessment for a single loss of function must be guarded against.
DECISION
There is no cogent evidence before me that warrants the veteran be awarded an impairment rating under Table 13.2 of the Guide, accordingly, I affirm the decision under review.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

............................[SGD]............................................
Associate
Dated: 29 November 2022

Date(s) of hearing: 18 October 2021

Date final submissions received: 20 July 2022

Counsel for the Respondent: Ms S Wright

Advocate for the Respondent: Ms L Pendle

Solicitors for the Respondent: Australian Government Solicitor

[2022] AATA 4932

29 November 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	18 October 2021
Date final submissions received:	20 July 2022
Counsel for the Respondent:	Ms S Wright
Advocate for the Respondent:	Ms L Pendle
Solicitors for the Respondent:	Australian Government Solicitor