Wodianicky and Repatriation Commission
[2006] AATA 495
•29 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 495
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2003/1725
VETERANS’ APPEALS DIVISION )
Re
LEGAL PERSONAL REPRESENTATIVE OF ANTHONY WODIANICKY
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, MemberDate29 May 2006
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2003/1725
)
VETERANS’ APPEALS DIVISION )
Re
LEGAL PERSONAL REPRESENTATIVE OF ANTHONY WODIANICKY
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, MemberDate 29 May 2006
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M D ALLEN
..........................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS – application for special rate of pension – deceased veteran suffered from epilepsy among other illnesses – whether his loss of remunerative work was attributable solely to his service related incapacities – the “alone test” – decision under review affirmed.
Veterans’ Entitlements Act 1986 – s 24(1), (2)
Cavell v Repatriation Commission (1988) 9 AAR 534
Re Ganchov & Comcare (1998) 19 ALD 541
Re Cotterell & Repatriation Commission (2000) 31 AAR 184
REASONS FOR DECISION
29 May 2006 Senior Member M D Allen;
Dr M E C Thorpe, Member
1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen;
Dr M E C Thorpe, Member
Signed: (Elspeth Pope)
..................................................................................……………………………….Associate
Date of Hearing 29 May 2006
Date of Decision 29 May 2006Counsel for Applicant Mr M Vincent
Solicitors for Applicant Dibbs Abbott StillmanAdvocate for Respondent Mr G Doube, Department of Veterans’ Affairs.
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/1725
By SENIOR MEMBER ALLEN and DR THORPE, MEMBER
LEGAL PERSONAL REPRESENTATIVE OF A. WODIANICKY and REPATRIATION COMMISSION
SYDNEY, 29 MAY 2006MR ALLEN: By the application made on the 29th day of October 2003, the applicant sought review of a decision by the Repatriation Commission made on the 20th day of August 2002, which accepted a claim for epilepsy and increased pension to 100 per cent of the general rate. The current applicant, who is the Legal Personal Representative of the deceased veteran, maintains the deceased veteran's claim that the pension following the acceptance of epilepsy as a war-caused disease should have been paid at the special rate at the rate prescribed by section 24 of the Veterans Entitlements Act 1986 as amended.
So far as is relevant, section 24 reads in subsection (1) that if the veteran is under 65 at the time the claim is made and is entitled to a pension at a rate of over 70 per cent of the general rate then the special rate is paid if :
“(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.”
Subsection (2) of section 24 provides inter alia that:
“(a) a veteran who is incapacitated from war-caused injury or disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason…”
With the exception of epilepsy, the applicant had the following diseases accepted as war-caused, namely, acute prostatitis, left inguinal lymphadenopathy, anxiety state, malaria, bronchitis, simple and chronic, bilateral sensorialneural hearing loss. So far as the condition of anxiety state is concerned, that was accepted almost immediately upon the deceased veteran’s discharge from the Australian Army national service component in 1968. The incapcity was then labelled anxiety state although more recent psychiatric opinion is that he in fact suffered from a post-traumatic stress disorder. We do not consider that it is material for these proceedings what particular label is put upon that disease, as either PTSD or anxiety state are both still anxiety conditions as per the DSM-IV.
The applicant had epilepsy accepted. We pause to state that the term epilepsy is a generic term of which there are many causes. The deceased's epilepsy was accepted on the basis of having suffered falciparum malaria whilst in South Vietnam but in reality it is clear from the medical evidence that the epileptic attack which he suffered on 11 April 2002 and led to the claim, was a symptom of a glioma.
The evidence is that on 11 April at or about 11.30am, the veteran returned home from work, he at that stage being employed as a garbage collector by the Fairfield City Council. His son heard some noises and went into the lounge room to find his father slumped in a chair drooling from the mouth with difficulty breathing. An ambulance was called and the deceased was taken to the Royal Prince Alfred Hospital. A CT scan showed a possible left anterior medial temporal lobe low attenuation abnormality. An MRI was arranged. The report of the MRI is at document T-14 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. It states inter alia:
“…the MRI scan carried out today… shows a probable low grade glioma in the anterior temporal lobe on the left hand side.”
The report by neurologist Dr Ell also states:
“I have explained this to him and to his wife and they were naturally distressed.”
A second opinion was sought from Dr Dorsch, a neurosurgeon. In a report dated
18 April 2002 he said:“He had one presumed grand mal fit a week ago and has felt washed out since, as is fairly common. He has been started on anti-convulsants by Dr Ell who will be following him further. We discussed glioma in general. They are essentially incurable but the prognosis does depend alot on the grading which can only be obtained histologically. If nothing else develops to have another MRI scan in several months after the first one.”
As stated previously, the consensus of the medical evidence is that the grand mal fit of 11 April 2002 was due to the glioma. Dr Corbett is a neurologist practising at Repatriation General Hospital, Concord. In his report dated 21 March 2005 he states:
“Cerebral malaria is well documented as causing epileptic convulsions but this usually occurs during the acute illness. Onset of epilepsy due to cerebral malaria is most unlikely more than 30 years after the acute cerebral illness. Gliomas either low or high grade are frequently associated with new onset of epilepsy and are one of the commonest causes of new onset epilepsy in a patient of the veteran's age. The astrocytoma is almost certainly the sole cause of the veteran's epilepsy.”
Professor McLeod, neurologist, gave a report on the papers to the respondent. In that report it is stated:
“On 11.04.02 he came home from work and had a major seizure. The CT scan had demonstrated an abnormality in the left temporal lobe with low attenuation and he subsequently had a cranial MRI on 15.04.02 which showed a diffuse mass effect and a T2 hyper intensity in the anterior left temporal lob, most likely representing an area of low-grade glioma. A repeat MRI scan on 11.09.02 showed that the probable left temporal glioma had expanded and had characteristics suggesting high-grade transformation.”
He notes that the veteran had died on 13 December 2003. He states further:
“In my opinion his epilepsy was caused by his malignant brain tumour which is not an accepted disability. The brain tumour and major epilepsy were first manifested on 11.04.02 with a generalised seizure. I am in full agreement with Dr Alastair Corbett that it is highly unlikely that malaria would have caused an epileptic seizure in 2002 which was undoubtedly caused by the glioblastoma multiforme. This seizure on 11.04.02 being caused by his malignant brain tumour prevented him from working eight hours or more per week.”
At document T-19 is a medical certificate which certifies that the deceased veteran was unable to work because of a low grade glioma in the left temporal lobe, his post-traumatic stress disorder and mild left ventricular hypertrophy. That last condition is not mentioned by any other medical practitioner and it certainly doesn't seem to have caused the veteran any distress during his lifetime.
In considering this matter one must have regard to the requirement that it is incapacity from war-caused injury, disease or both, alone which is the cause of a veteran ceasing work. The so-called alone test was addressed by His Honour Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539. There he pointed out that the task of the Tribunal was to make a practical decision whether the veteran's loss of remunerative work is attributable to his service related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality and is a matter of which common sense is the proper guide.
We would also point out that we are in accordance with what was said by Deputy President Todd in Re Ganchov & Comcare (1990) 19 ALD 541 at 542, as to the necessity of following the decisions of Presidential Members of this Tribunal. We are prepared to follow the decision of Deputy President Blow (as he then was, now His Honour Mr Justice Blow), in the matter of Re Cotterell & Repatriation Commission (2000) 31 AAR 184. The learned Deputy President in that matter pointed out that when a matter of assessment is before this Tribunal it is not open to the respondent to challenge any prior decision which has determined that a condition is war caused. That is not to say, however, that that takes away from this Tribunal the responsibility to make its own decision standing in the shoes of the decision maker having regard to such medical reports as have been put before it.
In this matter the applicant made his claim for pension on 29 April 2002 and that is the so-called application day which relates to considering this matter. The evidence which was available at that day clearly indicated that the applicant was suffering from a glioma which was having effect upon him. Up until that date he had been working quite well. In particular we refer to the report of Dr Burns, occupational physician, which occurs starting at page 129 of the section 37 documents. At page 4 of his report Dr Burns states:
“I note that he has suffered from psychological problems for a large number of years but was able to maintain himself in the work force. He reported that he enjoyed the job he was doing and liked the people he was working with. He had several opportunities in the past to leave work due to his psychological problems but had always declined treatment and had remained at work. He stated today that he had a good work history and that he rarely took any time off.”
That latter statement is corroborated by the records of the Fairfield City Council.
Dr Jayamohan is an oncologist at Westmead Hospital and his report of 13 August 2003 is at page 127 of the section 37 documents. At that date he said:
“Currently the brain tumour is under control, however it is likely that it will progress in future. It is extremely unlikely that he would ever be cured of this malignant brain tumour.”
When asked regarding the impact of the deceased's brain tumour on his capacity to work, he stated:
“Although there is radiological X-ray evidence of the tumour being controlled, the patient still continues on treatment. When I saw him in the clinic on
22 July he was very agitated and extremely depressed. Many of these symptoms could have been contributed by the tumour. However, I understand this patient has had this personality even before the diagnosis of tumour, possibly due to his stress disorder which existed prior to the diagnosis of brain tumour.”
He added:
“In my opinion many of his current symptoms, including depression and anxiety, are not totally attributable to the brain tumour.”
It is interesting that he uses the words "not totally attributable" and it indicates to us that as one might expect, there was obviously some degree of apprehension, the anxiety arising from the fact of the tumour itself and such treatment as was given. All we can say is that having regard to the material before us, standing in the shoes of the decision-maker, we are satisfied that the epilepsy suffered by the deceased was as a result of the glioma and that caused him to cease work as a truck driver. There may have been other jobs available to him but it is impossible to say that the glioma itself did not play a part in the applicant ceasing his remunerative work.
On those bases, however, we cannot be reasonably satisfied in terms of subsection (4) of section 120 of the Veterans Entitlement Act that the applicant's loss of earnings on his own account was due to war-caused incapacity alone and therefore the decision under review is affirmed.
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