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 399Secondary Materials
Guide to Assessment of Rates of Veterans’ Pensions, 5th 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. 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.
On 24 September 2007, Mr Kawicki applied for a disability pension under the Veterans’ Entitlements Act1986 (the VE Act). This claim was the subject of earlier proceedings before the Tribunal which were settled by agreement between the parties. Pursuant to this agreement, on 19 March 2010, the Tribunal made a decision under s 42C of the Administrative Appeals Tribunal Act 1975 that Mr Kawicki suffers from osteoarthritis of the left wrist and the left ankle which are defence-caused, and also suffers from osteoarthritis of the right wrist which is not defence-caused. The Tribunal found that the date of effect in relation to the left wrist and left ankle is 24 June 2007 and remitted the matter to the Repatriation Commission to calculate Mr Kawicki’s entitlement to a pension.
In addition to osteoarthritis of the left wrist and osteoarthritis of the left ankle, Mr Kawicki also has the following accepted conditions: cutaneous larva migrans, bilateral sensorineural hearing loss, bilateral tinnitus and solar keratosis.
On 22 June 2010, a delegate of the Commission decided to increase the rate of disability pension payable to Mr Kawicki to 60% of the General Rate from 24 June 2007 and to 90% with effect from 19 March 2010. Mr Kawicki applied to the Veterans’ Review Board (VRB) for a review of this decision. On 9 May 2012, the VRB affirmed the decision and, on 19 July 2012, Mr Kawicki applied to the Tribunal for a further review.
Mr Kawicki lives alone in a one bedroom Housing Commission unit. He continues to receive a DSP but also receives a service-related disability pension.
LEGISLATION AND ISSUES
The first issue for the Tribunal is whether Mr Kawicki qualifies for the Special Rate of pension under the VE Act. The requirements of eligibility for the Special Rate of pension are set out in s 24:
Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity
Mr Kawicki applied for the pension prior to turning 65 (s 24(1)(aab)). The criteria for eligibility in section 24(1) therefore apply rather than the more onerous requirements for those over the age of 65. The Respondent concedes, and the medical reports filed with the Tribunal reflect, that Mr Kawicki suffers from a degree of incapacity of greater than 70%. Section 24(1)(a) is therefore satisfied.
The principal issues are whether Mr Kawicki satisfies s 24(1)(b) and s 24(1)(c) of the VE Act. Section 24(1)(b) requires the Tribunal to determine whether Mr Kawicki’s incapacity is of such a nature as, ‘of itself alone’, to render Mr Kawicki incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In making its decision, the Tribunal must, in accordance with s 28, have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
The effect of s 28 is to exclude all other factors from consideration in determining eligibility under s 24(1)(b): Chambers v Repatriation Commission (1995) 55 FCR 9 at [39].
If Mr Kawicki satisfies s 24(1)(b), the Tribunal must consider the application of s 24(1)(c). In the Full Federal Court decision in Flentjar v Repatriation Commission (1997) 48 ALD 1, at 4-5, Branson J stated that proper consideration of the section requires the Tribunal to consider four questions:
1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?
A significant issue in this matter is whether Mr Kawicki is prevented from undertaking work as a result of his war-caused disabilities “alone”. In Cavell v Repatriation Commission [1988] FCA 464 at [12], Burchett J stated that ‘alone’ requires that a decision-maker make a practical decision, using common sense as a guide, as to whether the veteran’s loss of remunerative work is attributable to service-related incapacities and not to something else as well.
The nature of the alone test was elaborated on by Bromberg J in Willis v Repatriation Commission [2012] FCA 399, at [23-24]:
The question raised by the “alone test” is not whether, on its own, the war-caused incapacity prevents the veteran’s continued employment. The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment. The existence of other factors which prevent the veteran from working has a disqualifying result for an application for a pension at the special rate. The war-related incapacity must be the lone factor which prevents continued employment. That is what is meant by “alone”.
Another way of re-stating that proposition, which more closely focuses upon the language of s 24(1)(c), is that the alone test requires that the war-caused incapacity is the reason, rather than merely a reason, for the veteran’s inability to engage in the remunerative work which the veteran had previously done. If there is another reason which, independently of the war-caused reason, is preventing the veteran from working, the inability of the veteran to engage in remunerative work is not “by reason” of the war-caused incapacity “alone”.
Section 24(1)(c) mandates a broader inquiry than that required by s 24(1)(b). In Repatriation Commission v Hendy [2002] FCAFC 424, Whitlam Emmett and Stone JJ stated in their joint judgement, at [37]:
… The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran's being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. …
If the Tribunal determines that Mr Kawicki is not qualified for the Special Rate of disability pension, the Tribunal must turn to consider what percentage of the General Rate of pension Mr Kawicki should receive. Section 22 of the VE Act states that the rate at which pension is payable is the same percentage of the General Rate as the percentage determined (in accordance with s 21A) to be the degree of the applicant’s incapacity from service-related conditions.
The concept of incapacity under s 22 differs from that when considering the Special Rate. This is highlighted by the decision of the Full Court of the Federal Court in Apthorpe v Repatriation Commission (1987) 77 ALR 42, at 49:
In brief, the criteria for the intermediate rate and for the special rate look to incapacity for work, that is to say, incapacity to earn, whereas incapacity for the purposes of the general rate is not concerned primarily with incapacity for work but looks to incapacity which takes into account the effect of the relevant disability upon the whole of the veteran's life, not only his working life, but also his social and family life.
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.
Mr Kawicki was also referred to a statement he made in connection with the previous Tribunal proceedings dated 19 September 2009. In this statement at [16] he said:
I stopped working in 1998 due to my leg, wrist and memory problems caused by the electric shocks I had sustained during my working life. I have been in receipt of the Disability Support pension ever since.
Mr Kawicki said this statement is misleading. The Blip Syndrome only stopped him from working in the Airport tunnels.
Mr Kawicki said he gets up at 5.00 am every morning. His left wrist freezes and the pain in his wrist wakes him several times in the night, preventing him from getting a good night’s sleep. He has pain in his wrist every day but has to live with it. At 5.00 am, Mr Kawicki has to urinate in a bucket because he is unable to walk at first and it takes 5 to 10 minutes to get moving and sometimes a lot longer. A couple of weeks ago, he was unable to go out at all. Sometimes the pain in his leg is so bad he can hardly walk and, on occasion, he has been hospitalised because of this, confined to a wheelchair or needed crutches. He said what “hits me” is a sudden sharp pain in his leg which can last minutes, hours or days. He experiences this about a dozen times during the day at varying degrees of seriousness. As a result, he feels he is walking on egg shells. Generally, he can walk for 5 or 10 minutes without pain. He believes that “if you don’t use it, you lose it” and intends to keep active as long as he can. He does not like taking medication and avoids this if possible.
After getting up, Mr Kawicki catches a bus to the gym, which takes about 15 minutes. At the gym he has a coffee and does 10 minutes of exercises. He also has a 30 minute sauna there. On about two days a week, and previously almost every day, he visits his mates in hospital, nursing homes or hospices. Currently, he is looking after three mates. He takes them out to lunch or to the shops or, in the case of his mate in Sutherland, they go and get takeaway fish and chips and salad and eat this back at his mate’s place.
Mr Kawicki said he used to go to meet friends at the RSL Club at Bondi Junction but now goes to the Eastlakes Bowling Club which is closer. He goes on a couple of days a week between about 4.00 pm and 8.00 pm. He drinks light beer. Mr Kawicki said he uses the buggy supplied by the Department of Veterans’ Affairs (DVA) to go to the shops or the Bowling Club. He still owns an old Toyota Hiace van but drives it very rarely – probably only about 200 kms last year. He keeps it so that he can visit his family in Maitland and friends. Until two years ago, while his mother was still alive, he used to travel to Maitland to see her every week. However, it is probably a year since he drove to Maitland and he now usually only drives to Bondi Junction. The last time he travelled to Maitland, about three weeks ago, he went by train. He travelled to the Tribunal hearing by catching a train to Martin Place Station and then walking from the station, which he did with difficulty.
Mr Kawicki lives alone in a one bedroom Housing Commission ground floor flat. The Housing Commission have provided him with “easy to use” taps and a seated shower to cater for his wrist and leg conditions. DVA have also provided him with a bed frame for getting in and out of bed, a bed pan, long and short ‘moon boots’, and full and half crutches. Mr Kawicki said he can cope with his housework although he finds vacuuming difficult – he does this in “bits and pieces”.
MEDICAL EVIDENCE
Dr Stephen Carran
Dr Stephen Carran, Mr Kawicki’s GP for the past two years, prepared a report filed on 7 November 2013 at the request of Mr Kawicki and a letter dated 18 March 2014. Dr Carran gave evidence by telephone at the hearing. He said part of his training was towards specialising as an orthopaedic surgeon and in New Zealand he worked as a GP undertaking assessments for the Accidents Compensation Corporation. He is therefore familiar with making impairment assessments. However, he acknowledged that he had not previously undertaken a GARP V assessment and that he had made mistakes in the way in which he applied the Tables, having made an age adjustment (under Table 3.6.1) to the rating under Table 3.2.2 where this was not permitted, and separate assessments for resting joint pain under Table 3.4.1 where the Table may only be applied once for pain in any joint or combination of joints in both the upper and lower limbs and intervertebral joints. Dr Carran was also not familiar with how the impairment ratings for all accepted conditions must be combined pursuant to Chapter 18 of GARP V.
In his report, Dr Carran focused on the assessment of Mr Kawicki’s left ankle according to GARP V. Dr Carran assessed Mr Kawicki as having a functional loss due to restricted range of movement of his lower limb of “around one quarter of the normal range of movement” of the left ankle under Table 3.2.1 giving rise to an impairment rating of 5. In relation to Table 3.2.2, the functional impairment for the lower limb as a whole, Dr Carran found “Pain restricts walking (4 km/h) to 250 m or less at a time. Can walk further after resting.” He therefore assessed Mr Kawicki as having an impairment rating of 20 under this Table. According to Step 5, the higher of these two impairment ratings must be taken to be the final functional impairment for the limb, in this case 20. Dr Carran then made an age adjustment to 18 under Table 3.6.1, which is not permitted. Dr Carran made an additional impairment rating of 15 under Table 3.4.1 for ‘resting joint pain’ in respect of “Severe pain in any joint, or combination of joints, that is always present at rest but which does not respond adequately to medication or to therapeutic measures and which regularly interferes with sleep.”
In his report, Dr Carran did not review the other impairment ratings or the assessment of lifestyle effects. However in oral evidence, he assessed Mr Kawicki’s left wrist under Table 3.1.2 as attracting an impairment rating of 15, which he age adjusted to 14, and then mistakenly made a separate impairment rating for resting joint pain for the left wrist of 5. Dr Carran acknowledged that he had not looked at any specialist reports in assessing Mr Kawicki’s left wrist.
Assuming Dr Chase’s other assessments are accepted (see below), the effect of Dr Carran’s rating of Mr Kawicki’s left ankle, left wrist and resting joint pain (disregarding the mistakes made) will be an overall impairment rating of 63, which is rounded to 65. An impairment rating of 65 and a lifestyle rating of 3 converts to a degree of incapacity of 100.
In a letter dated 18 March 2014, Dr Carran said it is Mr Kawicki’s left wrist and left ankle conditions “that mostly contribute to his inability to work”. He said the Blip Syndrome from which Mr Kawicki suffers “is of no consequence in his inability to work on the whole, which is predominantly due to his recognised disabilities of his left wrist and left ankle”.
In telephone evidence at the hearing, Dr Carran said the fact that Mr Kawaiki suffers from the Blip Syndrome would not affect the vast majority of work for which the Blip Syndrome would be of no consequence.
Dr Robin Chase
Dr Robin Chase, Occupational Physician, prepared a report dated 13 May 2013 at the request of the Commission. Dr Chase gave evidence by telephone at the hearing. He said he has been undertaking GARP assessments for the past 15 years and, having done hundreds and possibly thousands of assessments, is very familiar with the philosophy of such assessments. He described ‘resting joint pain’ as the overall impact of pain from a joint or combination of joints in an attempt to provide a measure of the additional impairment affecting a person as a result of pain.
Dr Chase made an impairment assessment for all Mr Kawicki’s accepted conditions under GARP V:
·Bilateral Sensorineural Hearing Loss: impairment rating of 27 under Table 7.
·Tinnitus: impairment rating of 10 under Table 7.
·Cutaneous Lava Migrans: was successfully treated and, there having been no recurrence, there is no impairment.
·Solar Keratosis: impairment rating of 2 under Table 11.
·Osteoarthritis Left Wrist: Mr Kawaiki was assessed under Table 3.1.2 as being able to “use limb efficiently for normal tasks without excessive fatigue for no more than ten minutes”, attracting an impairment rating of 10 points which, after age adjustment, gives an impairment rating of 9.
·Osteoarthritis Left Ankle: Mr Kawicki was assessed under Table 3.2.1 as having a loss of about one quarter normal range of movement attracting an impairment rating of 5; assessed under Table 3.2.2 as having pain which restricts his walking to 500 m or less at a slow to moderate pace though he can walk further after resting, attracting an impairment rating of 10.
·Resting Joint Pain: Mr Kawicki was assessed under Table 3.4.1 as having an impairment rating of 5.
The combined impairment rating, scaled in accordance with Chapter 18, is 49 which is rounded to the nearest 5 points giving 50.
Dr Chase made the following Lifestyle Effects assessment:
·Table 22.1 – Personal Relationships: 2
·Table 22.2 – Mobility: 3
·Table 22.3 – Recreational and Community Activities: 4
·Table 22.4 – Domestic Activities: 3
·Table 22.4 – Employment Activities: 4
The lifestyle rating is calculated by taking the higher of the two ratings from Table 22.4 and 22.5, in this case 4, and adding this to the ratings from Tables 22.1 to 22.3, which total 9, giving a figure of 13 which is then divided by 4 and rounded to the nearest integer (whole number) giving a lifestyle rating of 3.
The combination of Dr Chase’s impairment rating of 50 and lifestyle rating of 3 under Table 23.1 converts to a degree of incapacity for Mr Kawicki of 80.
Dr Chase said that Mr Kawaki failed to mention his having been diagnosed with the Blip Syndrome during the course of their interview.
Dr Chase said that, in making a GARP assessment, one has to consider the overall picture - a combination of subjective evidence, for example the person’s description of how the condition affects them, and objective evidence, for example the results of the physical examination or of investigative reports.
Dr Chase noted Mr Kawaki’s statement that he can walk about 500 m but only with pain. Dr Chase acknowledged that medical conditions vary from time to time and symptoms wax and wane. He also noted that Mr Kawicki only uses analgesia every few weeks although simple analgesia is an effective way to manage osteoarthritic pain. In his report, Dr Chase said “There are clear discrepancies between the degree of disability that Mr Kawicki reports and objective assessment.” Dr Chase said Mr Kawicki “appears to have very minimal impairment in his left wrist” and “Similarly in the left ankle he is reporting high levels of pain, has minimal impairment and reports a great deal of disability, at least with regards to his ability to work. Conversely he remains reasonably active.” Dr Chase said that, in his opinion, Mr Kawicki has a residual work capacity to undertake sedentary or semi-sedentary duties.
SUBMISSIONS
Mr Kawicki said he does not contest the assessment of his other medical conditions at this stage – just his left wrist and left ankle. He reiterated that the Blip Syndrome never prevented him working either before or after the airport accident and should therefore be ignored for the purpose of assessing his eligibility for Special Rate. It was for this reason that he did not mention the Blip Syndrome to Dr Chase: he considered it irrelevant. Mr Kawicki said he stopped work because of his left wrist and left ankle. At the time, he could not divulge why he left his airport job because nobody would ever employ him again.
Mr Kawicki was critical of Dr Chase for failing to ask him any questions about sitting down. He finds this difficult and needs to keep flexing his left leg. Mr Kawicki asked, rhetorically, who would employ him given his accepted medical conditions. He submitted that the opinions of treating doctors should be given greater weight in making impairment assessments. Dr Chase should not be allowed to reject his treating doctor’s opinion, nor to dismiss his needs for aids at various times such as wheelchairs, crutches, a motorised buggy, moon boots etc. Mr Kawicki said ex-servicemen are often trivialised by specialist reports and it is well-known that some specialists are “insurance hacks” whose conduct is unconscionable.
Mr Kawicki contended that an impairment rating of 20 points would be appropriate for his left ankle. With regard to his left wrist, he said that not even Dr Carran’s assessment adequately reflects the true nature of the condition. After using his left wrist for 10 minutes, he cannot even pick up a pencil. Mr Kawicki said Dr Chase appears to be oblivious to his pain; it is not just mild discomfort at the end of the day – at night it is “grim” – he cannot move his hand and he cannot sleep.
Mr O’Reilly, representing Comcare, pointed to various contradictions in Mr Kawicki’s evidence, for example, his statement dated 19 September 2009 in which he stated “I stopped working in 1998 due to my leg, wrist and memory problems caused by electric shocks I had sustained during my working life.” In a report dated 31 October 2012, Dr Mark Burns, Occupational Physician, who assessed Mr Kawicki at the request of his Legal Aid solicitor, answered the question “’Why did Mr Kawicki cease work?’ as follows:
I note that he ceased his last full time work in about 1998 with Qantas. At the time he was having short periods of cognitive loss or loss of consciousness. He believed it was a major safety issue, as he was working on live electrical boards. This was the reason he ceased work in 1998.
Moreover, Mr Kawicki has been in receipt of a DSP since 1999 on the basis of his having the Blip Syndrome. Mr O’Reilly submitted that Mr Kawicki is not prevented from undertaking remunerative work on account of his accepted disabilities alone and, thereby, does not satisfy s 24(1)(b) of the VE Act. This means that Mr Kawicki is not qualified for payment of disability pension at the Special Rate. Mr O’Reilly also submitted that Mr Kawicki does not satisfy s 24(1)(c).
Mr O’Reilly submitted that Dr Chase’s evidence should be preferred to that of Dr Carran because of his expertise as an Occupational Physician and his long experience of making GARP assessments. It became apparent that Dr Carran had never made a GARP assessment before and made various mistakes in the course of doing so. Mr O’Reilly submitted that given Dr Chase’s assessment of Mr Kawicki’s pension at 80% of the General Rate, the decision under review, which assessed Mr Kawicki’s pension at 90% of the General Rate, should be affirmed.
DISCUSSION
Special Rate
As stated above, the primary issue is whether Mr Kawicki is qualified to receive a disability pension at the Special Rate. Section 24(1)(b) of the VE Act requires the Tribunal to determine whether Mr Kawicki’s incapacity is of such a nature as, ‘of itself alone’, to render Mr Kawicki incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. In making this decision, the Tribunal must only have regard to the matters identified in s 28, set out above. Mr Kawicki is an electrician, having qualified during his defence service. Since being discharged from the RAAF, he has had a broad range of professional experience both in the mining, construction and elevator industry, and as an electrical contractor. Most of this work requires manual labour. I am satisfied, given the evidence of Mr Kawicki and the medical experts, that the incapacity resulting from his accepted disabilities alone renders him incapable of working more 8 hours a week. Section 24(1)(b) is therefore satisfied.
As noted above, s 24(1)(c) requires a broader inquiry than that mandated by s 24(1)(b). As stated by Bromberg J in Willis and Repatriation Commission [2012] FCA 399, at [23], “The question is whether apart from the war-caused incapacity, there is another factor or factors which prevent employment”. Mr Kawicki’s evidence is that he stopped work at the Airport because of the Blip Syndrome, but he claims that this was specialist electrical work where there was a risk that he might suffer an electrical shock because of a loss of concentration. He said that the Blip Syndrome would not have prevented him from doing 98% of other electrical work. He stated that he would have been able to continue working for another couple of years in other suitable work. However, he was unable to find a job. Between 1999 and 2001, he did small electrical jobs, often for friends on an unpaid basis. He did not declare this for tax purposes because his earnings were minimal and below the threshold for the payment of income tax. Mr Kawicki said he stopped work in 2001 because of his left foot and left ankle and not because of the Blip Syndrome.
As Mr O’Reilly pointed out, Mr Kawicki’s evidence about his stopping work is contradicted by other evidence. In 1999, Mr Kawicki applied for the DSP. He was examined by a Health Services Australia Medical Adviser, Dr Fogg, on 8 June 1999, who, in her assessment report, made no mention of any condition other than the Blip Syndrome. Dr Fogg said: “It is hard to imagine any employment compatible with transient alterations of consciousness occurring several times daily.” Dr Fogg said Mr Kawicki’s medical condition was permanent and stable and “appears incompatible with open market employment”. In a claim form signed on 9 August 1999, Mr Kawicki only referred to the Blip Syndrome and made no reference to other conditions. However, on his own evidence, by 1999 his left wrist and left ankle were significantly restricting his capacity for work. In the Treating Doctor’s Report completed by Mr Kawicki’s then GP, Dr David Bennett on 9 August 1999, Dr Bennett also only referred to Mr Kawicki’s Blip Syndrome, noting that there was “no job he could do”. Mr Kawicki was granted a DSP from 1999 on the basis of his inability to work because of the Blip Syndrome and appears to have continued to receive a DSP on this basis ever since.
In the previous Tribunal proceedings, Mr Kawicki provided a statement dated 19 September 2009. In the final paragraph he stated: “I stopped working in 1998 due to my leg, wrist and memory problems caused by the electrical shocks I had sustained during my working life. I have been in receipt of the Disability Support pension ever since.”
Mr Kawicki has been assessed by a significant number of specialists over the period since about 2007. He is very critical of a number of those specialists and of their assessments, referring to their conduct as “unconscionable” and calling them “insurance hacks”. In these proceedings I have relied on the medical evidence filed, being reports by Dr Chase, Occupational Physician, and Dr Carran, Mr Kawicki’s GP, and their oral evidence at the hearing. I have also relied on a report dated 31 October 2012, prepared at the request of Mr Kawicki’s Legal Aid solicitor, by Dr Mark Burns, Occupational Physician, and referred to by Dr Carran in his report.
Dr Burns concluded that he was unable to state that Mr Kawicki ceased work as a result of his accepted disabilities alone. He said “I believe the osteoarthritis in his right wrist and the carpal tunnel syndrome in his left hand would also impact on his capacity to work”. I note that the previous Tribunal proceedings were settled by agreement between the parties and on 19 March 2010, pursuant to that agreement, the Tribunal made a decision in which it stated that the carpal tunnel syndrome in his left wrist and the osteoarthritis in his right wrist were not defence-caused.
Dr Chase, who prepared a report dated 13 May 2013 for the Respondent, stated that Mr Kawicki’s work capacity “is affected by his accepted disabilities alone”. However, in oral evidence, Dr Chase said that Mr Kawicki had failed to mention in their interview that he had been diagnosed with the Blip Syndrome. Mr Kawicki explained that he did not mention this to Dr Chase because the Blip Syndrome did not prevent him from working, and could therefore be ignored for the purpose of assessing his eligibility for Special Rate.
In his letter dated 18 March 2014, Dr Carran said it is Mr Kawicki’s left wrist and left ankle conditions that “mostly contribute to his inability to work” [my emphasis]. He said the Blip Syndrome, which made it unsafe for Mr Kawicki to repair live switchboards at the Airport, “is of no consequence in his inability to work on the whole, which is predominantly due to his recognised disabilities of his left wrist and ankle” [my emphasis]. In oral evidence, Dr Carran said the Blip Syndrome would not affect the “vast majority” of work that Mr Kawicki might undertake.
Having reviewed the above evidence, I am not satisfied that the incapacity from Mr Kawicki’s accepted conditions, alone, prevented him from continuing to undertake, the remunerative work that he was undertaking. I have paid particular attention to the contemporaneous medical evidence from 1999 which indicates that it was the Blip Syndrome that was the basis of his claim for the DSP being granted, and his statement in September 2009 which recognises that the Blip Syndrome was, at least, a factor in his being incapacitated for work. It may well be that Mr Kawicki’s left wrist and left ankle were the main reason for his stopping work in 2001, but I am not satisfied that it was those conditions alone. Thus, s 24(1)(c) of the VE Act is not satisfied and Mr Kawicki is not qualified for payment of the disability pension at the Special Rate.
General Rate
The Tribunal must also consider the percentage of the General Rate at which Mr Kawicki’s disability pension should be paid. Dr Carran’s evidence at the hearing indicated that he is not familiar with making GARP assessments. Indeed, he acknowledged that this was the first such assessment he had made, notwithstanding that he has other relevant experience while working as a GP and making assessments for the New Zealand Accidents Compensation Corporation.
Dr Chase, on the other hand, is an Occupational Physician with significant experience in making GARP assessments. Nevertheless, I found Dr Carran’s evidence informative in terms of the level of functional impairment of Mr Kawicki’s left wrist and left ankle when considered in conjunction with Mr Kawicki’s evidence.
Osteoarthritis of the Left Wrist
Mr Kawicki stated that he has pain in his left wrist every day and that his wrist “freezes” at night, waking him several times and preventing him from getting a good night’s sleep. He said that after using his left wrist for 10 minutes, he cannot even pick up a pencil. The Housing Commission has provided him with “easy to use” taps in his flat.
Dr Carran assessed Mr Kawicki’s left wrist as attracting an impairment rating of 15 under Table 3.1.2, age adjusted to 14 under Table 3.6.1. Dr Chase assessed Mr Kawicki’s wrist as attracting an impairment rating of 10, age adjusted to 9 under Table 3.6.1. I note Dr Burns also made an assessment of 14 points. In my view, having heard Mr Kawicki’s evidence as to his loss of digital dexterity and loss of grip strength, an impairment rating of 15, age adjusted to 14 is appropriate. The criteria for an impairment rating of 15 are as follows:
Can use limb reasonably well in most circumstances, but frequent difficulties are manifested by:
· minor loss of digital dexterity causing handwriting changes, or difficulty in manipulation of small or fine objects, and
· minor loss of grip strength causing difficulty in gripping moderately heavy to heavy objects.
Osteoarthritis of Left Ankle
Mr Kawicki’s evidence is that when he gets up at 5.00 am every morning he has to urinate in a bucket because he is unable to walk at first, and it takes at least 5 to 10 minutes, and sometimes much longer, for him to get going. He also experiences sudden sharp pain in his leg during the day which can cause him to stumble. He said he can walk for 5 or 10 minutes without pain. He has been provided with an electric buggy by the DVA which he uses to go to the shops or to the Bowling Club.
Dr Carran assessed Mr Kawicki’s left ankle as attracting an impairment rating of 20 under Table 3.2.2. The criteria for such an impairment rating are as follows:
·Walks at moderately reduced pace in comparison with peers on flat ground; and is unable to
-manage stairs or ramps without rails; or
-rise from the sitting position without the assistance of one hand.
·Pain restricts walking (4 km/h) to 250 m or less at a time. Can walk further after resting.
Dr Burns made the same assessment. Dr Chase assessed Mr Kawicki’s left ankle as attracting an impairment rating of 10 under Table 3.2.2, the criteria for which are:
·Walks at normal pace on level ground, but has constant difficulty up and down steps and over uneven ground. Need for a walking stick may be manifested:
-Pain and/or slowness; or
-constant pain from weight-bearing.
·Pain restricts walking to 500 m or less, at a slow to moderate pace (4 km/h). Can walk further after resting.
·Sciatic pain daily - present most of the time during walking.
In my view, having heard Mr Kawicki’s evidence, an impairment rating of 20 most closely reflects the level of his functional ability.
Other Accepted Conditions
Mr Kawicki said he does not, at this stage, contest the assessment of his other medical conditions. Dr Chase’s assessment of Mr Kawicki’s other accepted conditions is as follows:
·Bilateral Sensorineural Hearing Loss 27
·Tinnitus 10
·Cutaneous Lava Migrans 0
·Solar Keratosis 2
·Resting Joint Pain 5
Combining these ratings with an impairment rating of 14 for Mr Kawicki’s left wrist and of 20 for his left ankle, and using the Combined Values Chart in Chapter 18 of GARP V, gives a value of 58. In accordance with GARP, this is then rounded to the nearest multiple of 5, meaning Mr Kawicki has a combined impairment rating of 60.
With regard to the ‘Lifestyle Effects’ of Mr Kawicki’s accepted conditions, which are assessed in accordance with the steps set out in Chapter 22, the ratings attributed by Dr Chase for personal relationships, mobility, recreational and community activities, and domestic activities are, in my view, appropriate. However, in relation to employment activities, the rating for which is stated to be “based on the effects of the accepted conditions on the ability to work for remuneration”, I do not agree with Dr Chase that a rating of 4 is appropriate. The criteria for a rating of 4 are as follows:
Either unable to work full time in normal occupation, or has had to change occupation or number of hours worked, or both, because of the accepted conditions.
In my view, a rating of 5 is appropriate, the criteria for which is “Unable to work”. While, as indicated above, the Blip Syndrome is a factor in Mr Kawicki’s inability to work, nevertheless, his other accepted conditions, in particular his left wrist and left ankle, would of themselves prevent him from working.
Following the steps set out in Chapter 22, the final lifestyle rating to be used in assessing Mr Kawicki’s incapacity is 4 rather than the 3 attributed by Dr Chase. Following the steps set out in Chapter 23, a combined impairment rating of 60 and a lifestyle rating of 4 give a degree of incapacity of 100. On this basis, Mr Kawicki should be paid 100% of the General Rate of pension.
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.
I certify that the preceding 71 (seventy - one) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley .......................[sgd].................................................
Associate
Dated 10 April 2014
Date(s) of hearing 26-27 March 2014 Date final submissions received 27 March 2014 Applicant In person Advocate for the Respondent Mr T O'Reilly, Department of Veterans’ Affairs
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