Tadeusz Kawicki and Repatriation Commission - [2014] AATA 207

[2014] AATA 207

Division VETERANS' APPEALS DIVISION

File Number(s)

2012/3083

Re

Tadeusz Kawicki

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President RP Handley

Date 10 April 2014

Place Sydney
The decision under review is varied so that the rate at which Mr Kawicki is paid the disability pension is increased to 100% of the General Rate from 19 March 2010.

......................[sgd]..................................................
Deputy President RP Handley
Catchwords
VETERANS’ AFFAIRS – Special Rate of pension – whether accepted conditions alone render incapable of continuing to undertake remunerative work – non-accepted condition of Blip Syndrome a factor in incapacity to work – not qualified for the Special Rate of pension
VETERANS’ AFFAIRS – General Rate of pension – level of incapacity - GARP assessment – combined impairment rating of 60 – lifestyle rating of 4 – entitled to 100% of the General Rate of pension – decision varied
Legislation
Veterans’ Entitlements Act1986 (Cth) ss 24, 28
Cases
Apthorpe v Repatriation Commission (1987) 77 ALR 42
Cavell v Repatriation Commission [1988] FCA 464
Chambers v Repatriation Commission (1995) 55 FCR 9
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424
Willis v Repatriation Commission [2012] FCA 399
Secondary Materials
Guide to Assessment of Rates of Veterans’ Pensions, 5^th Edition
REASONS FOR DECISION
Deputy President RP Handley

Mr Kawicki has applied to the Tribunal for the review of a decision of the Repatriation Commission (the Commission) to increase his rate of pension to 60 % of the General Rate from 24 June 2007 and to 90 % from 19 March 2010.
BACKGROUND
Mr Kawicki was born in 1950 and is aged 63. He left school at the age of 16, after which he worked as a labourer and apprentice electrician. Mr Kawicki served in the Royal Australian Air Force (RAAF) from 5 August 1969 to 27 June 1975. During his service, he qualified as an electrician.
Mr Kawicki suffered a number of injuries during his service in the RAAF. Most significantly for this matter, he damaged his left ankle while performing safety training exercises in 1971: he jumped in the shallow end of a pool twisting his left ankle. Mr Kawicki reported that although his ankle improved subsequently, it was never the same again. He said that in the late 1990s the pain grew worse. He was diagnosed with osteoarthritis to the left ankle for which he had physiotherapy on at least two occasions.
In 1973, whilst playing rugby union, he fell backwards onto both hands. As a result, he sustained a fracture to his left hand. He did not report experiencing problems with his left wrist until the 1980s, when he experienced substantial pain in both wrists whilst riding a pushbike.
After his discharge in 1975, Mr Kawicki worked as an electrician. He worked for a number of companies in the mining, construction and elevator industries and, from 1995, was self-employed. In about 1998, he started working as an electrician at Sydney Airport.…

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.

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Details

Case: [2014] AATA 207
Decision Date

CaseChat Overview and Summary

Mr Kawicki has applied to the Tribunal for the review of a decision of the Repatriation Commission (the Commission) to increase his rate of pension to 60 % of the General Rate from 24 June 2007 and to 90 % from 19 March 2010. Mr Kawicki served in the Royal Australian Air Force (RAAF) from 5 August 1969 to 27 June 1975, during which time he qualified as an electrician and suffered a number of injuries, including to his left ankle and wrist. After his discharge, Mr Kawicki worked as an electrician, but in 1998, he was diagnosed with Blip Syndrome, which led to his resignation from his job at Sydney Airport. Mr Kawicki subsequently applied for and was granted the disability support pension (DSP). The Tribunal must determine the appropriate percentage of the General Rate that Mr Kawicki is entitled to be paid based on the impairment and lifestyle points assigned for his service-related conditions.

The legal issues before the court are whether the Tribunal should vary the decision of the Repatriation Commission to increase Mr Kawicki's rate of pension to 100 % of the General Rate from 19 March 2010, and whether the Tribunal should take into account the progressive nature of Mr Kawicki's osteoarthritis in determining the date from which the increase should take effect. The court must also consider whether Mr Kawicki's Blip Syndrome and other service-related conditions are relevant to the assessment of his incapacity and the appropriate percentage of the General Rate to be paid.

The court found that Mr Kawicki's Blip Syndrome, while not preventing him from working in general, did prevent him from doing the specialist work which he was doing at the Airport where, because of a loss of concentration, he might suffer an electric shock. However, the court found that the Blip Syndrome would not stop him from doing 98% of other electrical work and would not stop him from doing other jobs. The court also found that Mr Kawicki's left wrist and left ankle were so bad that he stopped working in 2001. Given that osteoarthritis is a progressive condition, the court found that it was reasonable to take 19 March 2010 as the date from which the General Rate of pension should be increased. The court varied the decision under review so that the rate at which Mr Kawicki is paid the disability pension is increased to 100% of the General Rate from 19 March 2010.

Orders

Orders of the court

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Background

Background to the litigation

Mr Kawicki has applied to the Tribunal for the review of a decision of the Repatriation Commission (the Commission) to increase his rate of pension to 60 % of the General Rate from 24 June 2007 and to 90 % from 19 March 2010.BACKGROUND Mr Kawicki was born in 1950 and is aged 63. He left school at the age of 16, after which he worked as a labourer and apprentice electrician. Mr Kawicki served in the Royal Australian Air Force (RAAF) from 5 August 1969 to 27 June 1975. During his service, he qualified as an electrician. Mr Kawicki suffered a number of injuries during his service in the RAAF. Most significantly for this matter, he damaged his left ankle while performing safety training exercises in 1971: he jumped in the shallow end of a pool twisting his left ankle. Mr Kawicki reported that although his ankle improved subsequently, it was never the same again. He said that in the late 1990s the pain grew worse. He was diagnosed with osteoarthritis to the left ankle for which he had physiotherapy on at least two occasions. In 1973, whilst playing rugby union, he fell backwards onto both hands. As a result, he sustained a fracture to his left hand. He did not report experiencing problems with his left wrist until the 1980s, when he experienced substantial pain in both wrists whilst riding a pushbike. After his discharge in 1975, Mr Kawicki worked as an electrician. He worked for a number of companies in the mining, construction and elevator industries and, from 1995, was self-employed. In about 1998, he started working as an electrician at Sydney Airport. As part of his employment, he was required to work in the tunnels underneath the airport. Around this time, Mr Kawicki reported experiencing temporary losses of consciousness. On one occasion, whilst working alone in one of the tunnels, he gave himself two severe electric shocks as a result of such a loss of consciousness. This led Mr Kawicki to conclude that it was too dangerous for him to continue working at the Airport. He therefore resigned although without revealing the reason for doing so because he was worried about this affecting his future employment prospects. Mr Kawicki was referred to a Neurologist at the Prince of Wales Hospital who diagnosed Mr Kawicki as suffering from Blip Syndrome. A ‘Blip’ has been described as a very brief sensation of impending loss of consciousness which is momentary and can, when it first occurs, be frightening. It is not apparently associated with any physical impairment and the causes of the syndrome and mechanism for the transitory attack is uncertain: James W Lance, “Transient sensations of impending loss of consciousness: the ‘Blip’ syndrome”, (1996) 60 Journal of Neurology, Neurosurgery, and Psychiatry 437-438. After leaving his job at the airport, Mr Kawicki was unable to find alternative employment. In August 1999, he applied for, and was granted, the disability support pension (DSP) although he continued doing minor casual work until 2001. He has not worked since. The DSP appears to have been granted by Centrelink based on Mr Kawicki having been diagnosed with the Blip Syndrome. This was the condition referred to in Treating Doctors’ Reports provided to Centrelink in 1999, and was the focus of the written report dated 8 June 1999 prepared by Dr Kerri Fogg of Health Services Australia who assessed Mr Kawicki as having an impairment rating of 30 on the Intermittent Table. Dr Fogg stated:Although the customer appears very keen to work it is very hard to imagine any occupation compatible with recurrent, transient periods of altered consciousness. Mr Kawicki states that he discussed his other conditions, in particular his left wrist and left ankle conditions, with the doctor but she ignored these in her report. He acknowledged that these were not mentioned in the Treating Doctors’ Reports but said that his treating doctors completed these reports in a very short time without proper consideration being given to any conditions other than the Blip Syndrome.

Evidence

Evidence Before The Court

In assessing Mr Kawicki’s incapacity, the Tribunal must to turn to the tables in the Guide to Assessment of Rates of Veterans’ Pensions, 5th Edition (GARP V). GARP V provides for the assignment of impairment and lifestyle points for incapacity caused by service-related conditions. The Tribunal’s assessment of the number of impairment points Mr Kawicki receives for his accepted service-related conditions, as well as the number of lifestyle points, will determine the percentage of the General Rate that Mr Kawicki is entitled be paid pursuant to s 22.MR KAWICKI’S EVIDENCE Mr Kawicki said the electrical work in the tunnels underneath Sydney Airport was technical work which he took on because he could no longer work in the construction industry as a result of problems with his legs. He was emphatic that the Blip Syndrome does not prevent him working – it only prevents him from doing the specialist work which he was doing at the Airport where, because of a loss of concentration, he might suffer an electric shock. The Blip Syndrome would not stop him from doing 98% of other electrical work and would not stop him from doing other jobs. Mr Kawicki said he resigned from his job with Sydney Airport and did not divulge the reason for doing so because he feared that if he did, nobody would ever employ him again. Mr Kawicki said that after leaving the Airport job, he was unable to find another position and initially did small electrical jobs, mostly for friends, for some of which he did not charge. He earned so little that he was below the threshold for tax purposes and did not declare these earnings. However, in 2001, his left wrist and left ankle were so bad that he stopped working. Mr Kawicki said that in 1999, he had also applied for and been granted the DSP. Centrelink documents produced in response to a summons show that in Part A of a ‘Medical Review and Treating Doctor’s Report’ form signed by Mr Kawicki on 28 March 1999, he stated that the condition stopping him working was his neurological condition. There was no reference to any other medical conditions stopping him from working. The Treating Doctor’s Reports completed by Mr Kawicki’s general practitioners (GPs) also only refer to his neurological condition, as does a report from Health Services Australia Doctor K Fogg dated 8 June 1999. It is apparent that Mr Kawicki was granted DSP on the basis of his being diagnosed with the BLIP Syndrome. Mr Kawicki was asked in cross-examination about the basis on which he was granted the DSP. He said that his treating doctor, Dr David Bennett spent about 5 minutes completing the form and did not write a comprehensive report. Mr Kawicki said this has caused him all sorts of problems. He said he does not agree with a comment made by Dr Fogg that “It is hard to imagine any employment compatible with transient alterations in consciousness occurring several times daily.” Mr Kawicki said he canvassed a whole range of conditions with Dr Fogg but she ignored this. He acknowledged that he did think the Blip Syndrome was affecting him at the time because he was having difficulty with forgetting parts of telephone numbers and, at times, not being able to think of words when doing crosswords. However, he denied that the condition would have prevented him from working. As to how the Blip Syndrome affects him now, he said he loses his train of thought – he loses concentration – but is unaware of it happening and does not remember when it occurs because there is no consequence.

Decision

Reasons for decision

I have decided to vary the decision with effect from 19 March 2010, and not 24 June 2007 because of insufficient medical evidence pertaining to the earlier period. Given that osteoarthritis is a progressive condition, in my view, in the absence of other persuasive evidence which would inform when an increase should take effect, it is reasonable to take 19 March 2010 as the date from which the General Rate of pension should be increased. DECISION The decision under review is varied so that the rate at which Mr Kawicki is paid the disability pension is increased to 100% of the General Rate from 19 March 2010.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2012/3083
Re	Tadeusz Kawicki
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President RP Handley
Date	10 April 2014
Place	Sydney