Robertson and Repatriation Commission

[2003] AATA 956

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 956

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/221

VETERANS' APPEALS DIVISION		)
Re		DENNIS ALAN ROBERTSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K L Beddoe

Date26 September 2003 

PlaceBrisbane

DecisionThe Tribunal decides:

(a)the decision under review is set aside;

(b)spasmodic torticollis is not a service related condition;

(c)paragraph 24(1)(c) of the Veterans’ Entitlements Act 1986 is not satisfied; and

(d)to remit the matter to the respondent Commission to give effect to the concessions made during the hearing.

(Sgd) Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – whether applicant’s spasmodic torticollis is war caused – assessment – rate of pension – whether pension is payable at the special rate – whether applicant ceased remunerative work due to his accepted service related conditions

Veterans’ Entitlements Act 1986 s 24

Brew v Repatriation Commission (1999) 56 ALD 403

REASONS FOR DECISION

26 September 2003  Senior Member K L Beddoe         

1.      The applicant, in effect, seeks review of decisions of the respondent Commission to refuse a claim for acceptance of the condition spasmodic torticollis and refuse a claim for increase in disability pension above the general rate.  The Veterans’ Review Board had affirmed decisions to refuse claims for spasmodic torticollis and cervical spondylosis.  Before this Tribunal the claim for cervical spondylosis was conceded and the respondent also conceded assessment at 100% of the general rate.

2. At the hearing the applicant was represented by Mr Hall and the respondent was represented by Mr Stoner. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.

3.      Oral evidence was given by the applicant. 

4.      I make the following findings of fact:

(a)the applicant was born on 1 December 1938, enlisted in the RAAF on 17 January 1955 with flying duties his predominant occupation and, after a break in service, was finally discharged on 1 February 1990;

(b)from 8 December 1986 the applicant held the rank of Air Commodore and had effectively ceased duties as a pilot in 1988;

(c)the applicant had operational service in 1960 to 1962 and eligible defence service from 7 December 1972 to date of discharge:

(d)the applicant’s RAAF service focussed on piloting fighter aircraft;

(e)outside the service he was employed in the following occupations:

§     1969-1970               Personnel Manager
§     1990-1992               Northern Territory Public Service

(Deputy Secretary)

§     1992-1993               Manager of holiday apartments
§     May/Aug 1996         Census Group Leader

§     July/Sept 1997        Air Show Director;

(f)the applicant ceased full time remunerative work in 1993 when he sold his interest in a unit management business (the Mango Tree Resort) “because of the stress of our business” (T4/49) and for family reasons (oral evidence);

(g)in 1975 the applicant first noticed symptoms which he subsequently learnt were symptoms of spasmodic torticollis.  The symptoms caused the applicant to seek treatment from a civilian medical practitioner because of his concern for his RAAF career.  A staff neurologist at Royal Canberra Hospital diagnosed the condition;

(h)the diagnosed condition was confirmed by a professor of neurology at the Prince of Wales Hospital where he received treatment and the applicant received further treatment from civilian specialists in 1985;

(i)the applicant did not disclose the diagnosed condition to the RAAF but a medical officer diagnosed the condition during the annual aircrew examination in 1986 which was the first notice of the condition to the Air Force – the medical officer did not require further investigation or prescribe treatment for the condition;

(j)the applicant said in evidence that he had not disclosed the previous history to the medical officer preferring that the medical officer give him an air-crew category as a result of the examination;

(k)I am satisfied that the applicant made a deliberate decision not to disclose the diagnosed condition of spasmodic torticollis, to the RAAF, so as to maintain aircrew ratings for as long as he could, and when it was diagnosed by the medical officer he did not disclose the history and was content to have the symptoms understated;

(l)I am also satisfied that the applicant did not seek treatment in 1986, and thereafter until discharge, because he had been posted to flying duties;

(m)the spasmodic torticollis did not affect the applicant in the performance of his duties with the Northern Territory Public Service and as Manager of the Mango Tree resort;

(n)the applicant intended to buy a new business in Noose during 1993 but his heart problems intervened requiring a triple by-pass operation which he had in March 1994.

(o)Exhibit B does not satisfy me that the applicant suffered a loss of income after the sale of the management rights business.  No loss of income was caused by the sale of the business because the profits of the business were not derived by the applicant.  The applicant’s loss of income was caused by resigning his employment with the Northern Territory Public Service (Exhibit K).  He lost that income because he decided to go into business managing the Mango Tree apartments through Caden Pty Ltd.  How that company distributed its profits has not been explained but it is clear they were not distributed to the applicant. 

The Medical Evidence

5.      The applicant’s accepted disabilities are:

(a)Sensori-neural Hearing Loss;

(b)Ischaemic Heart Disease;

(c)Hypertension;

(d)Lumbar Spondylosis; and

(e)Cervical Spondylosis (conceded at hearing by respondent).

6.      Exhibit G satisfied me that spasmodic torticollis is a movement disorder caused by a dysfunction of the brain.  The symptoms are limited to intermittent or sustained contractions of muscles around the neck which control the position of the head.

7.      While the applicant had an earlier history of symptoms and treatment for spasmodic torticollis the medical reports before the Tribunal commence in 1986.  Flt Lt Hill reported on 29 September 1986 (Exhibit J and T4) as follows:

“Torticollis.  GPCAPT ROBERTSON alleges that a RAAF MO in Darwin inferred that the canting of his neck was a permanent consequence of head inclination to compensate his hearing loss.  I can find no documentation to this effect, and since the hearing loss is not differential, this explanation seems a tenuous one.  It is possible that this pilot sustained a vertebral neck injury in a MVA in the 1960’s.  Neck radiology is pending.  Nevertheless the torticollis is mild, painless and functionally insignificant.”

8.      Document T4/63-5 is a copy of a report of Dr Lander, neurologist, dated 1 June 2001 and addressed to the applicant but at the request of his general practitioner, Dr Noakes.

9.      Dr Lander records a history of symptoms developing since 1975 which were diagnosed by Dr Danta at Royal Canberra Hospital as spasmodic torticollis in 1981.  The diagnosis is stated to have been confirmed by Professor Lance at Prince of Wales Hospital.  Dr Lander also records treatment by Dr Danta and later treatment in 1990 by Dr Lorentz at Westmead Hospital.

10.     Dr Lander diagnosed the condition as Idiopathic Cervical Dystonia which she says is sometimes called “spasmodic torticollis”.  Dr Lander was of the opinion that by the latter years of the 1980’s the appropriate treatment was botulinum toxin which is the treatment used by Dr Lorentz in 1990.  She recommended that the applicant seek that treatment from one of two named specialists. 

Consideration

11.     The applicant puts forward an hypothesis that the condition spasmodic torticollis is a service related condition because he was unable to obtain appropriate clinical management for the condition.  The “hypothesis” depends upon an assertion that the Air Force failed to diagnose and failed to treat the condition when it did diagnose it.

12.     To satisfy Instrument No 34 of 1997 the factor that must exist before it can be said that, on the balance of probabilities, the condition is connected with service is that there was an inability to obtain appropriate clinical management for spasmodic torticollis.

13.     The applicant’s assertion is contradicted by his own evidence.  It is clear on the evidence that he did obtain appropriate clinical management when he sought it from civilian medical practitioners.  That he decided not to seek clinical management from service medical practitioners is irrelevant.  “Inability” means there must be some service related impediment (such as service away from appropriate medical facilities) which prevented appropriate clinical management.

14.     In this case the applicant obtained appropriate clinical management when he sought it.  There is nothing to suggest such clinical management was not accessible at any particular time.  The applicant chose, for his own reasons, not to access appropriate medical services, whether service or civil.  That does not constitute an inability to obtain appropriate clinical management (Brew v Repatriation Commission (1999) 56 ALD 403).

15.     The statement of principles is not satisfied, on the balance of probabilities.  I am not satisfied that the diagnosed condition of spasmodic torticollis can be related to the relevant service.  I am satisfied beyond reasonable doubt that there is no sufficient ground for finding that the condition is service related.

16.     As to the question of whether the applicant is entitled to a pension at above general rate, section 23 and 24 of the Act are the relevant statutory provisions.

17. Given that the applicant was under 65 years of age at the relevant time and given that the respondent concedes that the disability pension should be assessed at 100% and given that the respondent concedes that paragraph 24(1)(b) has been satisfied, the issue is whether the applicant can satisfy paragraph 24(1)(c).

18.     I accept that since the applicant’s by-pass surgery he is prevented from undertaking remunerative work because of the accepted ischaemic heart disease.  The applicant’s two unsuccessful attempts at casual remunerative employment satisfy me that as at the date of claim the applicant was prevented from undertaking remunerative work by reason of his ischaemic heart disease.

19. The difficulty in this case is that I am satisfied, on the balance of probabilities, that the applicant resigned the last remunerative work that the applicant was undertaking because he decided to go into business, through the family company, at the Mango Tree Resort. I am satisfied he did not derive income from this business (Exhibit B) so that the last remunerative work was his employment with the Northern Territory Public Service, and he ceased that employment for reasons not relevant for the purposes of paragraph 24(1)(c). That remained the situation at the time of making the claim for increased pension.

20.     Because of the concessions made by the respondent the matter will be remitted to the Commission with directions that:

(a)spasmodic torticollis is not a service related condition; and

(b)paragraph 24(1)(c) does not apply to the circumstances of the applicant’s case.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  20 February 2003
Date of Decision  26 September 2003

For the Applicant  Mr Hall, Solicitor
For the Respondent                  Mr Stoner, Departmental Advocate