A'Bell and Repatriation Commission [1999] AATA 739 (7 October 1999)

Last Updated: 18 October 1999

DECISION AND REASONS FOR DECISION [1999] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/1834

GENERAL ADMINISTRATIVE DIVISION )

Re PIERRE ANDRE A'BELL

Applicant

And REPATRIATION COMMISSSION

Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date 7 October 1999

Place Sydney

Decision That part of the decision under review refusing a claim for congenital Hallux Valgus is affirmed. That part of the decision under review fixing a disability pension at the rate 50% of the general rate is varied to 60% of the general rate.

(Sgd) BJ McMahon

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

Deputy President

CATCHWORDS

VETERANS ENTITLEMENTS - pension - whether congenital Hallux Valgus was aggravated by service - clinical worsening - temporary or permanent - the general rate - generalised anxiety disorder - the attribution of impairment points - rate of pension payable

Veterans' Entitlement Act 1986 ss 70(5)(d), 196B(14)(d), 196B(2)

Statement of Principles concerning Congenital Hallux Valgus Instrument No. 30 of 1995

Commonwealth of Australia v Beattie (1981) 35 ALR 369

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533

Repatriation Commission v Yates (1985) 38 ALD 80

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

1. The applicant sought a pension under the Veterans' Entitlement Act 1986 in respect of certain conditions said to have been caused by his service in terms of the entitlement sections. Claims were accepted in respect of bilateral sensorineural hearing loss with tinnitus, tinea and generalised anxiety disorder. The rate of pension was fixed of 50% of the general rate. The applicant's claim for congenital Hallux Valgus was refused. The applicant seeks a review of that part of the decision relating to his claim for Hallux Valgus and a review of the appropriate percentage of the general rate.

2. The applicant served in the Australian Army from 18 July 1990 to 27 July 1994. During that time, he saw operational service in Somalia from 18 January 1993 to 21 May 1993. During the other periods of his service, he rendered eligible war service. The standard of proof for the period of operational service is that of the reasonable hypothesis as set out in section 120. The standard of proof for the remaining periods of Mr A'Bell's service is that of reasonable satisfaction.

3. The applicant was born with congenital Hallux Valgus. This condition is defined in the relevant Statement of Principles as follows:

"congenital hallux valgus" means a deformity of the foot present at or soon after birth, attracting ICD code 755.66, whereby the great toe is deflected laterally towards the other toes causing a bony prominence to develop over the medial aspect of the metatarsal head and neck, but does not include hallux varus and hammer toe;

"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9^th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1995, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 22235 5;"

4. The condition is commonly referred to as bunions. Mr A'Bell gave evidence that before he enlisted, his Hallux Valgus was asymptomatic. As a farm worker he wore elastic sided boots which caused no discomfort. For this reason, he did not make any particular reference to the condition when he enlisted in 1990. He soon found, however, that general-purpose boots issued by the army caused pain to occur under his big toe, usually on the left side. After some time he complained of this condition at a regimental aid post and was referred to the quartermaster's stores where he was issued with larger boots. These were no answer. His feet felt "sloppy" and moved about within the boots.

5. By 20 July 1992 he was again before another medical officer, Captain Keating, who reported:

"Has been in the Army just on 2yrs. For as long as he can remember, certainly before he enlisted he has complained of trouble with both big toe M.T.P. joints. This has been aggravated by marching. His feet are now causing a lot of problems when he marches in boots for kilometres. This has not been helped by wearing a larger size boot.

Clinically he has normal arches. Bilateral Hallux Valgus, the left side worse than the right. M.T.P. joints are quite mobile. Slight bunion on the left side with slight redening of the skin but he points to the regions of both medial sesamoids as the region of his pain and he is quite tender on palpation over the medial sesamoids.

To have AP standing films of both knees with two foot tube distance and 30 degree tilt to the heel plus views of both sesamoids in skyline views and review with these.

X-ray shows a multi-partite medial sesamoid in the left foot. There is bilateral hallux valgus. More so on the left side. Hallux valgus is not causing much of a problem. He should be referred to Jane Arylett so that some orthotics can be made to relieve the stress under his medial sesamoid bones of both feet."

6. The person referred to Jane Arylett was said to be a podiatrist. Mr A'Bell's evidence was, however, that he did not consult her. Instead, he was given inner soles back at the regimental aid post. These were ineffective as they "just squashed my feet in the boots" and so he disposed of them. Conditions of discomfort appear to have continued throughout his service.

7. As a soldier in the infantry he was required to run 15 kilometres every morning in addition to taking other physical exercise during the day. Occasionally, there was a 40-kilometre route march with pack and 20 kilometre assessment marches. These were to assess the progress of soldiers, who lost pay if they failed or were required to do the assessment marches again until such time as they passed. This routine continued during his basic training at Wagga and Singleton as well as at his permanent posting at Townsville. It was broken only when "we were out bush".

8. During his service in Somalia he experienced a number of incidents that affected him psychologically. These included seeing a close friend shot and killed nearby, seeing an old woman who was pushing a drum run over by a truck and seeing a bus overturn killing a number of passengers. These incidents and other related conditions during his Somalia service were to have an effect on his psychological condition, which was later accepted and described as a generalised anxiety disorder.

9. By July 1994 he had applied for discharge. At the medical examination prior to discharge he deliberately told the examining doctor that he was able to march and run without pain or other symptoms. He now says that this was untrue but he was anxious to leave the army and feared that if he had made complaints about his feet he would be kept on for another 6 months or so. His experiences in Somalia had made him anxious to leave service life.

10. He went back to farming and general country labouring after his discharge. He found that his feet were getting worse. He was unable to wear elastic sided boots again. He now wears runners or thongs. He now finds that his toe condition causes pain even when walking on a flat surface if he has unsuitable shoes. Of course without shoes, the condition continues to be asymptomatic. With shoes, he said that he could not walk more than 2 kilometres without stopping.

11. Section 70 deals with eligibility for pension. Paragraph (5)(d) provides that if the disease causing incapacity was contracted before the commencement of service, a pension is nevertheless payable if the disease was "contributed to in a material degree by, or was aggravated by any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease".

12. There was no question that the condition of Hallux Valgus was present prior to enlistment. The applicant sought to show that the condition was aggravated by his service. Subsection 196B(14) sets out the factors that are to be taken into account in determining whether or not disease is related to service. Paragraph (d), being the most appropriate paragraph in the present circumstances, again refers to the concept of aggravation.

13. Pursuant to section 196B(2) a Statement of Principles concerning congenital Hallux Valgus has been promulgated by the Repatriation Medical Authority. It sets out the objective factors that must, as a minimum, exist to establish the necessary relationship with service. Where the veteran has operational service, the relevant facts are:

"(a) wearing ill fitting footwear that causes lateral pressure on the great toe of the affected foot on a daily basis before the clinical worsening of congenital hallux valgus."

14. The relevant facts are similar in the case of eligible war service except that the conditions must exist for a period of at least 3 years.

15. The use of the phrase "clinical worsening" is to be regretted. By avoiding the concept of "aggravation" the authors of the Statement of Principles have left open the question whether any clinical worsening prescribed by the Statement may be temporary or must be permanent. Nevertheless, the Statement of Principles cannot go beyond the terms of the statute. Whatever is included in these Statements, the fact is that an applicant must show (relevantly) aggravation in order to succeed. That term has been widely considered in both workers compensation and veterans' legislation. In all cases, distinctions have been drawn between temporary worsening of symptoms and aggravation as a compensable concept. In Commonwealth of Australia v Beattie (1981) 35 ALR 369 at 378, the majority of a Full Court pointed out that it did not follow in every case that a worker with a pre-existing injury who carries out work and as a result suffers pain would have suffered an aggravation of his injury. Their Honours pointed to the obvious example of a worker whose fractured leg is encased in plaster and who would be unable to put it on the ground without suffering pain and other disability. They observed that this would not amount to an aggravation but would constitute an incapacity arising only by reason of the pre-existing injury.

16. Pain caused by an underlying condition may leave an "enhanced susceptibility" (Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533). No such after effects of service are alleged in the present circumstances. What the applicant seeks to show is an aggravation of the disease itself. As was pointed on in Repatriation Commission v Yates (1985) 38 ALD 80 at 88, this is not necessarily indicated by a temporary worsening of symptoms with consequential temporary incapacity. The question to be determined is whether the pre-existing condition itself has been worsened.

17. There is a good deal of agreement in the medical evidence. Clearly the condition of Hallux Valgus is now worse in Mr A'Bell's feet than it was prior to enlistment. It by no means follows, however, that service caused or even materially contributed to this worsening. The natural history of the condition of Hallux Valgus is reflected in the progression of the condition in Mr A'Bell's feet. Dr Benanzio, an orthopaedic specialist called on behalf of the applicant agreed that one could not stop the progress of this congenital condition. One could only deal with suppression of pain from time to time. Although Dr Benanzio thought that the unsuitable boots may have caused a thickening of tissues or bursitis at the time, the evidence on the whole indicates that these symptoms would have been temporary and that the conditions would have dissipated when the stressors were removed.

18. Professor Sambrook, a professor of rheumatology called by the respondent, conceded the difficulty of distinguishing between temporary increases in symptoms and permanent residues accruing to the development of the condition. He agreed that unsuitable footwear could, in certain circumstances, lead to a permanent worsening. In Mr A'Bell's case, however, he did not consider that this was a correct analysis, having regard to what he observed on examination. The radiology did not show the presence of any osteoarthritis. The condition of Mr A'Bell's feet was consistent with what one would have expected at his age, having regard to the natural progression of the condition.

19. Having regard to the radiological evidence, to the assessments of the results of physical examination and to the largely coincident evidence of both the orthopaedic surgeon and the rheumatologist, I have concluded that that the conditions of Mr A'Bell's service did not aggravate the pre-existing Hallux Valgus as that terms has come to be understood in the courts. That part of the decision under review, therefore, will be affirmed.

20. The Veterans' Review Board affirmed the decision of the Repatriation Commission to assess pension at 50% of the general rate. The applicant seeks to have that reviewed. I will now review it on the basis that pension is payable only in respect of the same conditions that were affirmatively dealt with by the Board.

21. The principal contention between the parties arises from different approaches to the attribution of points for impairment ratings for the applicant's generalised anxiety disorder. These different approaches arise principally because of a revised assessment made by Dr Baz, an occupational physician and a medical practitioner with wide experience in the application of the tables of Guide to the Assessment of Rates of Veterans Pensions. The differences between the parties arise from the two different approaches Dr Baz took to an analysis of the various items in chapter 4. When she saw Mr A'Bell in May 1998, she took a history and made a detailed analysis of the various relevant factors in that history in arriving at her assessment. All these relevant factors are set out in her report (document T15). She arrived at an impairment rating of 26 and a lifestyle rating of 3, which, when converted gave a degree of incapacity of 50% (omitting the Hallux Valgus). The respondent appears to have fixed on this as the appropriate rate notwithstanding later available evidence.

22. This later evidence included progress reports from Ms Good, a psychologist, who saw the applicant on a number of occasions in 1997 until he moved away from the Coffs Harbour district where she practiced. From these reports the respondent deduced that the applicant was progressing well and that his generalised anxiety disorder should not be reassessed. No other evidence, however, was called to support this assertion. Ms Good was not called for cross-examination. She probably could not have added much to her reports, which are now 2 years old. In the mean time, the applicant was examined by Dr Hordern, a consulting psychiatrist, who provided a lengthy and detailed report. Another psychiatrist, Dr Delaforce, had examined the applicant in August 1997 on behalf of the respondent. It was on the basis of his report that the condition of generalised anxiety disorder was accepted as compensable. Dr Delaforce reported:

"I diagnose the following mental disorders.

a) Agoraphobia Without History of Panic Disorder, Mild

b) Social Phobia, Mild, Generalised

c) Generalised Anxiety Disorder, Mild

d) Alcohol Dependence, With Physiological Dependence, Prior History

The Agoraphobia Without History of Panic Disorder began sometime prior to service in Somalia.

The Social Phobia began during service in Somalia.

The Generalised Anxiety Disorder began sometime during army service.

The Alcohol Dependence continued since onset sometime during army service and until 1995.

Probably he had a mental disorder, or otherwise he was very highly predisposed to a mental disorder, prior to army service. The indications are he struggled considerably with his army training and service, especially dealing with the necessary discipline. His being obviously distressed and tearful during the interview when talking about the accidental death of his 2IC indicates the continuing extent of the stressor in this psychologically vulnerable person. Probably service stress, particularly the death of the 2IC, significantly aggravated pre-existing mental disorders and/or significantly contributed to the onset of mental disorders in this highly psychologically vulnerable individual."

23. Dr Hordern did not "basically disagree with the diagnoses made by Robert Delaforce" but preferred a diagnosis of chronic severe post-traumatic stress disorder. In his evidence, Dr Hordern rejected the terms used by Dr Delaforce as "his labels were outworn". Nonetheless, both psychiatrists appear to agree that the applicant was substantially and adversely affected psychologically by service. The fact that Dr Hordern has preferred to described that effect in different terms does not, in my view, create any material difference in his approach to the application of the tables in the Guide. His report, however, was of assistance to Dr Baz who examined the applicant for the second time in April 1999. As a result of this second examination, she revised the impairment rating for generalised anxiety disorder to 25, which led to a combined impairment rating of 36 (excluding Hallux Valgus) and a consequent conversion to 60% degree of incapacity. Her evidence was that this increase from 50% to 60% did not indicate a worsening but reflected more information that was made available to her. The reasons why the ratings have been increased are set out in detail in her report (exhibit A).

24. There is no real evidence to the contrary. I have no reason to reject Dr Baz's assessment of the degree of affectation, which she perceived and the way in which those degrees should be applied to the various categories in chapter 4. Her approach largely coincides with that of Dr Hordern. The only basis upon which the respondent could rely for a lower incapacity percentage was through inferences sought to be drawn from out of date reports from a psychologist. In my view, the weight of evidence is clearly in favour of an incapacity rating of 60% rather than 50%.

25. That part of the decision under review refusing a claim for congenital Hallux Valgus is affirmed. That part of the decision under review fixing a disability pension at the rate 50% of the general rate is varied to 60% of the general rate.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed: J.Healy .....................................................................................

Jacqueline Healy, Associate

Date/s of Hearing 27 & 28 September 1999

Date of Decision 7 October 1999

Counsel for the Applicant Mr A Hill

Solicitor for Applicant Mr B Winship

Solicitor for the Respondent Ms S Breuer