Andersen and Australian Community Pharmacy Authority and Cole; Elliott, Department of Health and Aged Services (parties joined) [1999] AATA 83 (15 February 1999)

Last Updated: 16 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 28

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/225

VETERANS' APPEALS DIVISION

)

Re

KEITH ALBERT SUTHERLAND

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr C.G. Woodard, Member Brigadier C. Ermert, Member

Date 20 January 1999

Place Melbourne

Decision

The Tribunal varies the decision under review to provide that the applicant's degree of incapacity is assessed at 80 per cent for the purposes of payment of pension at the General Rate, from 24 October 1996.

(Sgd.) B.G. GIBBS

Senior Member

VETERANS' AFFAIRS - assessment - whether asthma contributed to degree of incapacity - decision varied

Veterans' Entitlements Act 1986 ss.9, 19, 120

Guide to the Assessment of Rates of Veterans' Pensions, Fifth Edition

REASONS FOR DECISION

20 January 1999

Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr C.G. Woodard, Member Brigadier C. Ermert, Member

1. This is an application by Mr Keith Albert Sutherland for review of the decision of the respondent made on 22 May 1997, affirmed by the Veterans' Review Board ("VRB") on 8 December 1997, to assess his degree of disability for the purposes of payment of pension, at 70 per cent of the General Rate.

REPRESENTATION

2. At the hearing before the Tribunal Mr Sutherland was represented by Mr C.H. Francis, QC. Mr D. Phillips of the Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.

DOCUMENTATION

3. At the hearing the Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 . Other documents, to which it shall be necessary to refer, were received in evidence during the hearing.

WITNESSES

4. Mr Sutherland gave oral evidence at the hearing. Evidence was also given by:

* Dr W.E. Stone, who is a Rehabilitation and Occupational Physician; and

* Dr J.G.W. Burdon, who is a Consultant Respiratory Physician and presently Director, Department of Respiratory Medicine, St Vincent's Hospital

5. Both Dr Stone and Dr Burdon provided written reports for the purposes of these proceedings.

DATE OF EFFECT

6. Mr Sutherland's application for review is properly before this Tribunal. As he has complied with all of the time limits under the Veterans' Entitlements Act 1986 ("the Act"), should he be successful the earliest date of effect is 24 October 1996.

STANDARD OF PROOF

7. As Mr Sutherland's application is for review of assessment of his degree of disability for the purposes of payment of pension, the standard of proof is that which is contained in section 120(4) of the Act, namely "reasonable satisfaction" or "balance of probabilities".

ASSESSMENT PERIOD

8. By virtue of section 9(5) of the Act the Tribunal, when conducting a review of assessment, has an obligation to assess the rate or rates at which pension would have been payable from time to time during the assessment period and the rate at which pension is payable from the date of the Tribunal's determination. Section 19(9) of the Act provides that the "assessment period" in relation to a claim or application relating to a pension, means the pension starting on the "application day" and ending when the claim or application is determined. In the case of Mr Sutherland, the application day is 24 January 1997.

FACTS NOT IN DISPUTE

9. Mr Sutherland was born on 17 March 1921 and is therefore 77 years of age. He served in the Royal Australian Navy from 28 January 1942 to 11 June 1946. He is a "veteran" within the meaning of the Act.

WAR-CAUSED DISABILITIES

10. Mr Sutherland has the following disabilities determined to be war-caused within the meaning of section 9 of the Act:

* Pulmonary Fibrosis

* Bilateral Sensori-Neural Hearing Loss

* Gastro-Oesophageal Reflux Disease with Hiatus Hernia

* Dyspepsia

NON-ACCEPTED DISABILITIES

11. Mr Sutherland has the following disabilities determined to be not war-caused:

* Left Rotator Cuff Syndrome (Subsided)

* Chronic Sprain Right Wrist

* Malignant Neoplasm of the Prostate

AGREED ASSESSMENT - BILATERAL SENSORI-NEURAL HEARING LOSS

12. It is convenient at this point to record the parties' agreement that Mr Sutherland is properly assessed as having an impairment rating of 9 under Table 7.1.11 and Formula 7.1 of the Guide to the Assessment of Rates of Veterans' Pensions, Fifth Edition ("the Guide"). See also the Combined Impairment Assessment prepared by Dr F.T. Morgan and dated 22 June 1998 (with attachments) and the audiogram performed by Prescription Hearing on 1 June 1998 (Exhibit R3).

EVIDENCE - PULMONARY FIBROSIS AND ASTHMA

13. The Tribunal notes that in terms of assessment of Mr Sutherland's degree of disability, the main area of dispute between the parties is in relation to his pulmonary fibrosis.

14. The respondent's contention was that Mr Sutherland's pulmonary fibrosis is contributed to by asthma, a contention which Mr Sutherland maintained is not correct. Indeed, he stated in evidence that it was his understanding that he has never been diagnosed with asthma, nor was there a family history of such a disease except for two of his eight grandchildren. He explained that he had, however, been diagnosed with a bronchial condition.

15. Dr Stone examined Mr Sutherland on 18 June 1998 and later provided a report dated 20 July 1998 (Exhibit A1).

16. It was Dr Stone's evidence that although the history given to him by Mr Sutherland indicated that he did have asthma, his examination of Mr Sutherland did not support the presence of that disease.

17. Mr Sutherland stated that upon physical exertion he regularly becomes breathless. In this connection it was Dr Stone's evidence that exercised-induced asthma is a well-known phenomenon which, if it had been present in Mr Sutherland, he would have expected it to have responded to the various puffers which Mr Sutherland had used from time to time and that, so far as he could determine from the history given to him by Mr Sutherland, the latter did not respond to bronchiolitis. In this connection we note that while he confirmed that at some stage he had been given an asthma puffer, Mr Sutherland said that it had not provided him with any benefit.

18. When asked whether, in determining if a patient with bronchitis may have asthma, a doctor may prescribe a puffer, Dr Stone responded by firstly pointing out that asthma will often accompany bronchitis. He then stated that where a patient suffers moderate or severe shortness of breath, this would be investigated but that it would seem reasonable to give the patient "an empirical trial of a bronchodilator to see whether they benefited or not".

19. When asked whether, in the event of no benefit occurring, this indicated that the patient did not have asthma, Dr Stone responded by stating that it would indicate that the patient does not have bronchial sensitivity and that the patient is therefore unlikely to have a significant episode of asthma.

20. Dr Burdon examined Mr Sutherland on 2 October 1998, later providing reports which are dated 5 October 1998 (Exhibit R4), 26 October 1998 (Exhibit R5), and 6 November 1998 (Exhibit R6).

21. Dr Burdon said that the history given to him by Mr Sutherland, which included chest tightness, casual bronchitis and shortness of breath on exertion, suggested that the most likely diagnosis was bronchial asthma. He added that the symptoms of breathlessness and chest tightness could, however, also be symptoms of cardiac disease.

22. When asked what symptoms he would expect to be demonstrated in a patient with pulmonary fibrosis, Dr Burdon replied as follows:

"They would be short of breath, they might have a cough, they might have a small amount of sputum production usually, a tiny little bit of white spit. Depending on the severity of the pulmonary fibrosis, there would be varying degrees of breathlessness in severe disease. Then they'd be breathless on minimal exertion in early disease. They might be breathless only marked exertion. Usually the physical examination would show a reduction in chest expansion and normally you hear a lot of little crackly noises when you listen to the lung. Sometimes patients are clubbed, which means at the ends of the fingers and sometimes the toes are a little bulbous, but that's not terribly common but that does occur, and sometimes their own - there's clinical evidence of other conditions which have pulmonary fibrosis as a complicating issue. And then, of course, there's history, whether he'd been involved in any industry or exposed to any substance or medicine etcetera that might predispose him towards pulmonary fibrosis." (trans, pp.35, 36)

The Doctor stated that when he examined Mr Sutherland he found no clubbing of the fingers; no fibrotic crackles and his chest expansion was normal.

23. When it was put to him that the (Ventolin) puffer prescribed for Mr Sutherland did not assist him in his breathlessness and that this indicated he did not have asthma, Dr Burdon stated that the issue was a difficult one. He explained that he sees many patients with asthma who are not assisted with the use of Ventolin.

24. Dr Burdon gave it as his view that while asthma may come and go depending on circumstances, nevertheless the disease is a permanent one.

25. In cross-examination Dr Burdon accepted that the fact that Mr Sutherland received no benefit from the use of puffers raises the question of whether he had asthma. He said that in about 90 per cent of cases puffers provide some relief. Thus, in cases where a puffer provides no relief, the probability was that a diagnosis of asthma would be wrong.

26. Dr Burdon explained that the problem with asthma is that there are no standard rules with respect to symptomatology, in that while there will be patients who will always be breathless with exercise, there will also be some patients who are not breathless with exercise. Thus exercise-induced breathlessness cannot be used to say that a patient does, or does not, have asthma.

27. When he examined Mr Sutherland, Dr Burdon performed spirometry on him, the result of which was normal and did not indicate asthma.

28. Dr Burdon stated that Mr Sutherland may possibly have well-controlled asthma, which he agreed is very similar to the condition of a person with no asthma. The Doctor went on to state that were he responsible for the management of Mr Sutherland he would have required detailed lung function tests, including a histamine provocation test which, he said, is the gold standard for diagnosing asthma. He would also have investigated Mr Sutherland's cardiac and thyroid condition, looking for other causes of his breathlessness.

FINDING - PULMONARY FIBROSIS/ASTHMA

29. Given the evidence to which we have referred, the Tribunal is of the view that it would be unsafe to find, on the balance of probabilities, that Mr Sutherland suffers from asthma.

30. In arriving at this finding the Tribunal is of course mindful of the statement of Dr Burdon that, were Mr Sutherland his patient, he would have a histamine provocation test undertaken so as to establish conclusively whether Mr Sutherland has asthma. However, be that as it may the Tribunal accepts the submission of the respondent that the issue of whether Mr Sutherland has asthma should be determined on the material which is presently before it. That is the usual practice of the Tribunal and one which accords with the Tribunal's General Practice Direction.

IMPAIRMENT - PULMONARY FIBROSIS

31. As indicated earlier, the evidence of Mr Sutherland was that upon exertion he regularly becomes breathless and that, over the last year there has been a marked increase in his degree of breathlessness. About one year ago he could walk a kilometre on flat ground without too much difficulty, but any attempt to do so now results in breathlessness after about three ordinary house blocks. Because of this he is forced to slow down and then stop walking for five to ten minutes. He finds walking up an incline very distressing.

32. It appears that this evidence by Mr Sutherland was essentially the same as the history he gave to Dr Stone when the latter examined him in June 1998.

33. Dr Stone stated that he rated Mr Sutherland as having a symptomatic activity level of 2-3 METS under Tables 1.1 of the Guide ("Cardio-respiratory Impairment: Activity Level"). Given that activity level and having regard for his age (77 years), this resulted in a functional loss in terms of his exercise tolerance of 54 under Table 1.2. Dr Stone then explained that upon application of Table 1.5 (Procedural), an impairment rating of 27 was applicable. The Tribunal agrees with this assessment and finds accordingly.

GASTRO-OESOPHAGEAL REFLUX DISEASE WITH HIATUS HERNIA

34. Dr Stone explained that Mr Sutherland's gastro-oesophageal reflux disease is secondary to his hiatus hernia. He further stated that upon application of Table 6.1.4 of the Guide ("Oral Cavity and Oesophagus"), an impairment rating of 10 was merited. In this connection we note that the evidence of Mr Sutherland and Dr Stone is consistent with the criteria relevant to such a rating. The stated criteria in Table 6.1.4 is as follows:

"Oesophagilis: active disease with moderate symptoms on most days, despite regular use of H2 receptor antagonist medication."

The Tribunal agrees that a rating of 10 is merited and finds accordingly.

35. It was Dr Stone's view that under Table 6.1.5 ("Non-Ulcer Dyspepsia, Nausea and Vomiting"), an impairment rating of 5 is merited in respect of Mr Sutherland's dyspepsia. The Doctor explained that this is because the J2 antagonist which he takes does, to a large extent, control the symptoms of dyspepsia. We accept that this is so, and agree an impairment rating of 5 is appropriate.

36. As was correctly stated by Dr Stone, upon application of the Guide's Combined Values Chart, impairment ratings of 10 (gastro-oesophageal reflux disease and hiatus hernia) and 5 (dyspepsia), combine to give a single impairment rating of 15.

COMBINED VALUE - WAR-CAUSED DISABILITIES

37. As we have indicated, the parties agree that an impairment rating of 9 under Table 7.1.11 and Formula 7.1 of the Guide is appropriate in respect of bilateral sensori-neural hearing loss (with limitations).

38. That being so, upon application of the Combined Values Chart, the impairment rating in respect of Mr Sutherland's war-caused disabilities combine to provide a single impairment rating of 44.

LIFESTYLE

39. It was the respondent's submission that, upon application of the Lifestyle Tables which are provided in Chapter 22 of the Guide, the effects of his war-caused disabilities on his lifestyle merited an averaged rating of 3. While Mr Francis submitted that an averaged lifestyle rating of 4 was appropriate, an impairment rating of 44 and an averaged lifestyle rating of 3 would, upon conversion under Scale 23.1 of the Guide, result in the same degree of incapacity (i.e. 80 per cent) for the purposes of payment of pension.

40. Given the material before us, we accept that an averaged lifestyle rating of 3 is appropriate and we find accordingly.

DECISION

41. The decision of the Tribunal will be that the decision under review is varied to provide that Mr Sutherland's degree of incapacity from his war-caused disabilities is assessed at 80 per cent for the purposes of payment of pension at the General Rate, from 24 October 1996.

I certify that this and the 9 preceding pages are a true copy of the decision and reasons for decision herein of:

Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Mr C.G. Woodard, Member

Brigadier C. Ermert, Member

Signed: (sgd) Catherine Thomas

Secretary

Date of Hearing 21/12/98

Date of Decision 20/1/99

Counsel for the Applicant Mr C.H. Francis, QC

Solicitor for Applicant De Marchi & Associates

Solicitor for the Respondent Mr D. Phillips, Departmental Advocate