Henryon and Repatriation Commission [1999] AATA 619 (23 August 1999)

Last Updated: 25 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 619

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/229

VETERANS' APPEALS DIVISION )

Re FRANCIS LEONARD HENRYON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President T E Barnett Dr P A Staer, Member Brigadier R D F Lloyd, Member

Date 23 August 1999

Place Perth

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that: 1. The veteran's claim for acceptance of ischaemic heart disease, carotid arterial disease as war-caused is rejected. 2. The conditions of osteoarthrosis of both knees and asthma are accepted as war-caused with effect from 24 July 1996. 3. The veteran's disability pension is assessed at 100 per cent of the general rate with effect from 24 July 1996.

...................................

Deputy President

CATCHWORDS

Veterans' Affairs - Disability pension - operational service 1939-1945 - acceptance of war-caused conditions, asthma and osteoarthrosis both knees - application of Statements of Principle - pension at 100 per cent of general rate - whether entitled to extreme disability adjustment - assessment of lifestyle rating - application of s119 to take into account effect of passage of time on veteran's memory and the absence and deficiency of records.

Administrative Appeals Tribunal Act 1975

Veterans' Entitlements Act 1986 - ss119, 120, 120A.

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

July 1999 Deputy President T E Barnett Dr P A Staer, Member Brigadier R D F Lloyd, Member

1. The applicant seeks review of some aspects of a decision of the Veterans' Review Board ("VRB") dated 24 March 1998 which affirmed a decision of the Repatriation Commission of 3 April 1997, which had accepted several conditions of the applicant as war-caused and had assessed pension at 100% of the general rate, but had determined that the conditions of asthma and generalised osteoarthritis were not war-caused.

2. The applicant is now seeking review of that part of the VRB decision which rejected asthma and osteoarthritis of the knees. He also seeks review of the lifestyle rating as he claims entitlement to the extreme disability adjustment.

3. The applicant was represented by Mr H Christie of the Legal Aid Commission and the respondent was represented by its advocate, Mr C Ponnuthurai.

4. Evidence was received from the applicant, his daughter Mrs S A Swayn, Dr H R Elphick and Dr M P Daly for the applicant. Evidence was also received from Mr R K Piper, a war historian.

5. In addition to the documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975, the Tribunal also had before it the following:

Exhibit A1B Supplementary Statement of F L Henryon 2/03/99.

Exhibit A2 Supplementary Statement of S A Swayn 2/03/99.

Exhibit A1A Original Statement of F L Henryon 30/09/98.

Exhibit A3 Lifestyle Questionnaire 30/09/98.

Exhibit A4 Statutory Declaration of Mr H Sambell 25/08/98.

Exhibit A5A Report Dr D K Tandon 20/02/98.

Exhibit A5B Report Dr D K Tandon 16/10/98.

Exhibit A6A Report Professor Woods 16/09/98.

Exhibit A7 Report Dr Elphick 16/09/98 with Attached Summary of Medical History

Exhibit A8 Report Dr M Daly 2/10/98.

Exhibit R1A Report Mr R K Piper November 1998.

Exhibit R1B Supplementary Report Mr R K Piper 10/02/99.

Exhibit R1C Faxed Document Mr R K Piper

Exhibit R2 Clinical Notes

6. The following sections of Veterans' Entitlements Act 1986, ("the Act") are relevant to this application:

"119 Commission not bound by technicalities

In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application;

(b) a review, under Division 16 of Part IIIB, of a decision of the Commission with respect to a pension or qualifying service;

...

the Commission:

...

(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.

...

120 Standard of Proof

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational services rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be.

7. It is agreed that the applicant served with the Royal Australian Air Force (RAAF) from 14 November 1939 until 15 November 1945, which period included operational service. He was born on 13 February 1919 and is now 80 years of age. As the application was made after 1 June 1994 and as Statements of Principles ("SoPs") have been issued by the Repatriation Medical Authority ("the Authority") regarding asthma and osteoarthrosis, those SoPs must be applied in determining whether or not a reasonable hypothesis exists in this matter.

8. The method of applying the SoPs has recently been pronounced upon by the Full Federal Court in Repatriation Commission v Deledio [1998] 49 ALD 193 as follows:

"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the" template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does not contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

The Tribunal has applied those principles to the conditions under consideration as follows.

Asthma

9. (i) Having considered all the material before it the Tribunal finds that the material points to the following hypothesis connecting the asthma, from which all parties agree the applicant now suffers, with the circumstances of the applicant's war (operational) service:

Hypothesis: The clinical onset of asthma occurred within 24 hours immediately after the applicant was exposed to the occupational antigen of the straw palliasse on which he was sleeping.

(ii) There is an SoP in force relating to asthma.

(iii) The hypothesis is consistent with the "template" found in the SoP as it contains one of the factors which the Authority has determined must exist in relation to the person's service, namely:

"5(a) for the first episode of asthma only, being exposed to occupational antigens within the 24 hours immediately before the onset of asthma"

It is therefore a reasonable hypothesis.

(iv) The Tribunal then turns to the application of s120(1). Mr Christie submits that the onset of asthma occurred at the time that the applicant was hospitalised with influenza, with altered breathing sounds, in 1940, while stationed at the RAAF base at Para Field in South Australia. He had been subjected to extreme cold during night-time guard duties and in addition, was sleeping on a straw palliasse, which is an accepted antigen. Dr Elphick gave evidence that he was quite positive that that was the clinical onset of asthma and that it arrived within 24 hours of him being exposed to the occupational antigen of the straw palliasse.

10. On all the evidence the Tribunal is not satisfied beyond reasonable doubt that the applicant's incapacity caused by asthma did not arise from war caused injury. Accordingly, the applicant's claim that asthma be accepted as a war-caused condition must succeed, the effected date being 24 July 1996.

Osteoarthrosis of the knees

11. Applying the same process to this condition:

(i) Having considered all the material before it the Tribunal finds that the material points to the following hypothesis connecting the osteoarthrosis of both knees with the circumstances of the applicant's war service:

Hypothesis: The applicant was injured when a Liberator bomber crashed in his close vicinity in 1942 or 1943 at Ward Strip, Port Moresby, causing trauma and injury to both knees which caused the development within 24 hours of acute symptoms and signs of pain and tenderness with reduced range of movement in the knees. These symptoms and signs lasted for a period of at least 7 days.

(ii) There is an SoP in force relating to osteoarthrosis.

(iii) The hypothesis is consistent with the "template" found in the SoP as it contains one of the factors which the Authority has determined must exist in relation to the person's service, namely:

"5(j) suffering a trauma to a joint before the clinical onset of osteoarthrosis in that joint."

It is therefore a reasonable hypothesis.

(iv) Applying s120(1) the evidence is as follows. The applicant claims that he injured his knees in 1942 when a Liberator bomber crashed in his close vicinity while he was working in a store close to Ward Strip airfield in Papua New Guinea. He says he was knocked unconscious and suffered concussion. When he regained consciousness he found himself in hospital and discovered that he had been injured in his knees and other parts of the body. He was covered in bandages and wounds in both knees had been stitched. He was off duty for some 10 days, the stitches were removed after 5 days and the pain and swelling in his knees continued for at least 7 days. There is no note of this in the applicant's service medical records but there seem to be gaps in those records for the period when the applicant was in Papua New Guinea. The photocopies of the records were examined and the Tribunal found them to be most confusing for this period, to such an extent that it could not be satisfied that some records were not missing. Likewise, although the researches of Mr Piper, the RAAF Historian, failed to find records of a Liberator crash in this area in 1942, this does not seem to close the matter off. Firstly, Mr Piper's researches were limited to the records of Liberators crashing, as that was Mr Henryon's recollection of the type of aircraft involved. He therefore searched only in the records of the various Liberator squadrons. Although he found no record of a crash of the type described by the applicant having occurred in 1942, there was record of such a crash in 1943 which did injure Australian ground personnel in the vicinity of the airfield. In accordance with s119 the Tribunal is required to take into account any difficulties which lie in the way of ascertaining where, when and whether the bomber crash occurred, including the effects of the passage of time on the applicant's memory of events and any deficiency in the relevant records. Given that the incident was over 50 years ago and that the applicant is now 80 years of age, the crash in which he claims to have been injured could well have occurred in 1943, rather than 1942, or it could have involved some other type of aircraft. The Tribunal has no reason to doubt the applicant's honesty.

12. On all the evidence the Tribunal is not satisfied beyond reasonable doubt that the applicant's incapacity caused by osteoarthrosis of the knees did not arise from war-caused injury. Accordingly, the applicant's claim that osteoarthrosis of the knees be accepted as a war-caused condition must succeed, the effected date being 24 July 1996.

Extreme Disability Adjustment

12. The veteran has already been granted entitlements to pension at 100 per cent of the general rate. It must now be considered whether the acceptance of the two additional conditions as war-caused has entitled him to the extreme disability adjustment, as the applicant now claims. To qualify for this adjustment the applicant must not be in receipt of the Special or Intermediate rates of pension. The Tribunal finds that the applicant is not seeking, nor is he eligible for these rates. He has also attained the minimum age for eligibility of the extreme disability adjustment (65 years) - being now 81 years of age. Finally, it is necessary for the applicant to achieve a lifestyle rating of 6 under Table 22 Guide to the Assessment of Rates of Veterans' Pensions (GARP), 5^th Edition. It is the lifestyle rating which is in issue.

Lifestyle

Personal Relationships - Table 22.1

14. The Tribunal finds that a rating of 5 is appropriate as the wording of the criteria for that rating seems to the Tribunal to fit the applicant's case precisely.

5: "Severely affected relationships. Able to relate only to particular, or a few people, e.g. spouse or children. These remaining relationships are strained and of low quality."

A rating of 6 does not apply as the applicant is clearly relating with his daughters, his ex-wife, his sons-in-law and his grandchildren.

Mobility - Table 22.2

15. The Tribunal finds that a rating of 4 is appropriate:

4:" Markedly reduced mobility:

* assistance is needed to cope with public or private transport:

* there is considerable difficulty in travelling from home to destination

* restricted in the use of at least two forms of public transport."

The applicant gave evidence that he frequently walks a quarter of a mile to do shopping, to do his laundry and to walk to and from railway stations. He has difficulties in buses and trains, especially getting on and off and if there is not a seat. He uses them regularly and effectively however.

Recreational and Community Activities - Table 22.3

16. The Tribunal finds that a rating of 4 is appropriate.

"Unable to take part in formerly favoured recreational pursuits, leisure and community activities, but less physical activities are possible, for example:-

restricted to generally non-active interests (e.g. music, art, stamp or coin collecting, attending clubs, etc): and

* unable to participate in accustomed activities (e.g. camping, going for long walks, fishing, voluntary activities such as meals on wheels).

The evidence is that the applicant is unable to take part in fishing and ballroom dancing which were his previous favoured activities. He is however able to take part in less physical activities. He is regularly indulging his hobby of studying scientific advances by watching T.V documentaries and reading books which he gets from the library in Claremont.

Domestic Activities - Table 22.4

17. The Tribunal finds that a rating of 5 is appropriate:

5: "Limitation of household activity to a small range of light tasks, for example:

* watering the garden but difficulty in weeding or pruning:

* able to do some light household activities but has difficulty bending to make beds, or in putting out the rubbish bin:

* requires assistance with grocery shopping."

The evidence is that the applicant is able to do a limited amount of light cleaning and basic cooking. He does his own shopping much of the time. He requires some assistance for major clean ups or larger scale shopping.

18. These ratings total 18 and when divided by four it provides a lifestyle rating of 4.5 which must be rounded up to a final lifestyle rating of 5. This is insufficient to qualify him for the extreme disability adjustment, which would require a combined lifestyle rating of at least 5.5 which would then be averaged up to a final rating of 6. For this reason, the Tribunal must affirm the decision of the VRB which granted entitlement to pension at 100% of the General Rate with the date of effect remaining at 24 July 1996.

Decision

19. The decision of the VRB under review must therefore be varied by accepting the conditions of asthma and osteoarthritis of both knees as war-caused, whilst otherwise affirming it with regard to the rejection of ischaemic heart disease, carotid arterial disease and with regard to the rate of pension.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President T E Barnett;

Brigadier R D F Lloyd (Member); Dr P A Staer (Member)

Signed: .................(Sgd Ms C Osborn ).............................

Associate

Date/s of Hearing 2 March 1999

Date of Decision

Counsel for the Applicant Mr H Christie

Solicitor for Applicant Legal Aid Commission of WA

Counsel for the Respondent Mr C Ponnuthurai

Solicitor for the Respondent Department of Veteran Affairs