Sterling and Repatriation Commission [1999] AATA 979 (20 December 1999)

Last Updated: 21 December 1999

DECISION AND REASONS FOR DECISION [1999] AATA 979

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/218

VETERANS' APPEALS DIVISION )

Re FREDERICK STERLING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

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

Date 20 December 1999

Place Sydney

Decision The Tribunal: (a) Varies the decision under review so as to provide that the applicant's degree of incapacity from war-caused disabilities is assessed at 20 per cent for the purposes of payment of pension at the General Rate, from 1 May 1995; (b) In all other respects affirms the decision under review.

(Sgd.) B.G. GIBBS

Senior Member

CATCHWORDS

VETERANS' APPEALS - Entitlement - whether ischaemic heart disease (with myocardial infarction), atherosclerotic peripheral vascular disease war caused - assessment - whether qualified for Special Rate pension.

Words and Phrases: "Appropriate Clinical Management"

Veterans' Entitlements Act 1986, ss. 9, 24, 120, 120B

Statements of Principles, Instruments No. 81 of 1998; No. 88 of 1995

Smith v Repatriation Commission (1987) 74 ALD 537

Re Gibson and Repatriation Commission (AAT : Unreported Decision No. 157 : 12 February 1999)

REASONS FOR DECISION

20 December 1999 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Introduction

1. On 1 August 1995 Mr Frederick Sterling, the applicant in these proceedings, lodged a claim for left sensorineural hearing loss; hypertension; ischaemic heart disease (with myocardial infarction); atherosclerotic PVD (with leg claudication and left common iliac TEA); chronic solar skin damage to an unspecified site or sites; and stress.

2. On 15 July 1996 the respondent:

(a) accepted left sensorineural hearing loss; chronic solar skin damage to an unspecified site or sites; tinea, osteoarthrosis of the left knee and osteoarthrosis of the right shoulder, as defence caused;

(b) rejected the claim in respect of hypertension; ischaemic heart disease (with myocardial infarction); atherosclerotic PVD (with leg claudication and left comm. iliac TEA); refractive error and benign prostatic hypertrophy, as being defence caused;

(c) deferred a decision on the claim for stress; and

(d) granted pension at 10% of the General Rate, with effect from 1 May 1995.

3. Mr Sterling then lodged an application for review with the Veterans' Review Board ("VRB") dated 16 August 1996, on the grounds that he believed the rejected disabilities are defence caused and that he was entitled to pension at more than 10%.

4. Upon appeal to the VRB Mr Sterling did not rely on hypertension; refractive error; benign prostatic hypertrophy or stress.

5. On 1 December 1997 the VRB affirmed the decision of the respondent dated 15 July 1996, but did not make any specific findings about hypertension; refractive error; benign prostatic hypertrophy or stress.

6. On 25 February 1998 Mr Sterling lodged an application with this Tribunal for review of the decision of the respondent dated 15 July 1996, but only in respect of:

* Ischaemic heart disease ("IHD");

* Atherosclerotic PVD; and

* Assessment of rate of pension

Representation

7. At the hearing before this Tribunal Mr Sterling was represented by Ms Toliopoulos, an advocate with the Veterans' Advocacy Service, Legal Aid. Ms Henderson, of Counsel, appeared for the respondent.

Material

8. 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 material, to some of which it shall be necessary to refer, was also tendered and received in evidence during the hearing.

Witnesses

9. During the hearing evidence was given by:

* Mr Sterling, the applicant;

* Dr J.B. Gray, a retired General Practitioner;

* Dr M.G. Miller, a Consultant Physician;

* Professor M.F. O'Rourke, AM, Professor of Medicine, University of New South Wales; and

* Dr M. Burns, an Occupational Physician.

Matters Not In Dispute

10. It is common ground that should the disabilities in question be found to be defence caused, the effective date is 1 May 1995, being a date three months prior to the date on which Mr Sterling lodged his claim.

11. Other matters not in dispute are that Mr Sterling was born on 24 February 1937 and is therefore presently 62 years of age. He enlisted in the RAAF on 22 February 1972 and was age discharged on 23 February 1992. He rendered eligible defence service from 7 December 1972 to 23 February 1992 (section 69(1)(c)) of the Act.

Standard of Proof

12. Because of the type of service rendered by Mr Sterling the Tribunal shall, in making any determination or decision in respect of a matter arising under the Act, including assessment or re-assessment of the rate of pension, decide the matter to its reasonable satisfaction (section 120(4) of the Act). A standard of proof on the balance of probabilities is therefore applicable (Smith v Repatriation Commission (1987) 74 ALR 537).

13. Section 120B of the Act, to which reference is made in the Note to section 120(4), provides that it applies to claims made on or after 1 June 1994. As Mr Sterling's claim was made on 1 August 1995, section 120B applies to his claim. Section 120B(3) provides as follows:

"(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b) there is in force:

(i) a Statement of Principles determined under subsection 196B(3) or (12); or

(ii) a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

Issue

14. The issue for determination by the Tribunal in this matter is whether IHD and atherosclerotic PVD are defence caused within the meaning of section 9 of the Act and, in the event that those disabilities are determined to be thus caused, to what degree is Mr Sterling incapacitated from war-caused disabilities for the purposes of payment of pension and whether he is eligible for pension at the Special Rate.

Statements of Principles

15. Mr Sterling contends that the relevant Statement of Principles ("SoP's") concerning his claim for IHD is Instrument No. 81 of 1998. The respondent, on the other hand, contends that Instrument No. 39 of 1997 is the relevant instrument. While it is accepted that, given the Federal Court decision in Keerley v Repatriation Commission (1999) FCA 1103 : 13 August 1999 (which has since been appealed to the Full Federal Court) the question of which instrument should be applied is not clear, the Tribunal accepts that in this particular matter the question does not arise. The reason why this is so is explained later.

16. As to the claim in respect of atherosclerotic PVD, the Tribunal accepts that the relevant SoP is Instrument No. 88 of 1995.

Factors Relied Upon

17. The SoP's relevant to this matter state that on the sound medical-scientific evidence available, the Repatriation Medical Authority ("RMA") is of the view that it is more probable than not that IHD and atherosclerotic PVD can be related to relevant service rendered by veterans.

18. The SoP's further state, however, that at least one of a number of factors listed in the SoP must be related to any relevant service rendered by the veteran.

19. The particular factor relied upon by Mr Sterling in respect of IHD is the factor set out in clause 5(2g) of SoP No. 81 of 1998:

"inability to obtain appropriate clinical management for ischaemic heart disease."

As I have indicated, the respondent contends that the relevant SoP is not No. 81 of 1988, but No. 39 of 1999. However, the issue is not material, observing that the factor relating to inability to obtain appropriate clinical management for IHD is the same in both instruments.

20. The particular factor relied upon by Mr Sterling in respect of atherosclerotic PVD is the factor set out in clause 1(m) of SoP No. 88 of 1995:

"inability to obtain appropriate clinical management for atherosclerotic peripheral vascular disease."

Evidence - Claimed Disabilities

21. As has been indicated, Mr Sterling served in the Royal Australian Air Force for a period of 20 years, as a Draftsman Engineer. He was discharged from the Air Force at the age of 55 years.

22. In December 1979, while playing golf, he experienced an ache in his left leg. Contrary to his expectations the pain persisted to the point where, some two months later he reported to the Medical Section at the RAAF Base Richmond. He was informed that the pain was due to a "lower back problem".

23. Physiotherapy was prescribed, the nature of which Mr Sterling described as follows:

"I was treated by a very radical type of traction in that I was suspended from the ceiling by my left leg, the right leg was tied on to my left leg and I was suspended by a pulley and block onto the ceiling and was rotated through 90 degrees for about 20 minutes twice a week and when I landed back on my feet again I got the impression I felt like a fairy, basically I felt very light and I thought there was improvement but after a very brief period of time walking the symptoms just returned. So in actual fact there was no improvement."

24. Mr Sterling stated that after about a year, during which time he saw several doctors, he was referred to an orthopaedic surgeon, Dr Tooth, who suggested that he continue with physiotherapy and that he be fitted with a surgical lumbar support.

25. It was Mr Sterling's evidence that because of its cumbersome nature and weight, the lumbar support "exacerbated the problem".

26. Mr Sterling wore the support for about six weeks, however his symptoms remained unchanged. He therefore went back to Dr Tooth who suggested that he discontinue with the lumbar support but continue with physiotherapy, which he did.

27. The physiotherapy by this time was confined to heat treatment and massage which, at Mr Sterling's request, concentrated more on his left leg and hip, rather than his back.

28. Mr Sterling stated that, over the three year period, he attended for physiotherapy twice per week and saw an Air Force doctor every two months or so. The only time he saw a doctor other than the Air Force medical officers on base, was when he was referred to the orthopaedic surgeon Dr Tooth, in Sydney.

29. In January 1982 Mr Sterling was posted to RAAF Base Amberley, where he again saw Air Force medical officers and a physiotherapist, whom he attended once per week.

30. Mr Sterling explained that although the traction type of physiotherapy that he was given while stationed at RAAF Base Amberley differed from the treatment he received while at Richmond, he again failed to experience relief.

31. Eleven months after his arrival at RAAF Base Amberley, Mr Sterling experienced mild chest pains while at home. He was immediately admitted to hospital where he remained for about five days.

32. Mr Sterling stated that during the course of being examined by a visiting physician, Dr McKelvie, he was asked whether he had experienced problems with his left leg. Mr Sterling stated that when he confirmed that this was so he was referred to a Senior Medical Officer at RAAF Base Amberley, so that he could be referred to a vascular surgeon.

33. Mr Sterling stated that upon referral to a vascular surgeon (Dr Forster), he was diagnosed with a total blockage of the left coronary artery.

34. Although scheduled for surgery in April 1983, Mr Sterling explained that the operation did not occur, the reason being that while at home he experienced severe chest pains. He was again admitted to hospital and diagnosed with a myocardial infarct.

35. Mr Sterling said that he remained in hospital for about two weeks.

36. In January 1984 Mr Sterling underwent heart surgery, subsequently making an uneventful recovery.

37. During his evidence Mr Sterling was asked whether he had been a smoker. He explained that he had started smoking at the age of about 20 or 23, but ceased as from 7 December 1982 the date on which he had first experienced chest pains.

38. Mr Sterling stated that after his heart surgery he experienced no further chest pain, although occasionally he did have what he described as "little flutters in my chest". He also stated that after the surgery "the lumbar spondylosis disappeared mysteriously".

39. In January 1987 Mr Sterling was posted to Canberra. It was his evidence that after his posting he started to experience occasional angina pain as well as "little flutters".

40. Mr Sterling stated that because of his heart condition he was required to see doctors on a regular basis from 1982. When asked whether they were RAAF doctors Mr Sterling said that:

"They were a mixture. In Canberra it's very much a mixture, some days it's a bloke in uniform and some days it's a civilian and actually it was much the same in Richmond and Amberley but I think the Department of Defence in Canberra it's very much a mixture it can be any one of the three service doctors or a civilian."

41. When asked what the prognosis was as far as his heart is concerned, and what was he being told, Mr Sterling replied:

"Well, one doctor did mention the possibility of bypass surgery and then it was never - it never re-emerged again. I was given the sub-lingual anginine type things to cope with the angina pain and one doctor - I always used the rear staircase up to the, I think it was the 4t^h floor I was on in the Department of Defence, and the doctor says, "Well, listen don't - don't use the staircase use the elevator" so that wasn't really a cure for the problem but it was supposedly to eliminate the possibility of the chest pain. So I used the elevator."

42. In August 1989 Mr Sterling was examined by a Cardiologist, Dr M. Coles, who conducted a stress test. It was Mr Sterling's evidence that Dr Coles recommended a further test be conducted 12 months later, but that the test, which was to have been a thallium test, was not conducted until 27 months later.

43. Mr Sterling stated that at the time of his discharge from the Air Force in February 1992 he had no particular problems with his health. He and his wife then travelled overseas, returning to Australia in June 1992.

44. It was Mr Sterling's evidence that following his discharge from the Air Force it was his intention to obtain work. He was then 55 years of age and it was his hope that he could secure employment as a civil engineering draftsman. However, because his "symptoms" persisted this proved not to be possible. When asked to explain what symptoms he was referring to he stated:

"The chest pains, the flutterings, my knee was aching quite a bit and it got to the stage where I decided to confront my general practitioner and put it to him that I thought I needed investigation in terms of my chest pains. I had the impression there was something in here waiting to explode and I wasn't quite happy about just waiting until it did."

This was in 1992. He explained that he had registered with the Commonwealth Employment Service ("CES") and had been granted an unemployment benefit. He continued to try and find work and complied with CES requirements. He stated that finding work in his particular field "didn't seem to be very promising" and consequently he applied for various types of jobs, including sales and as an assistant engineer. Eventually, he obtained employment as a general handyman at a Motel run by the RSL in Nelson Bay.

45. Mr Sterling said that although he thought he was working satisfactorily despite having chest pains, the manager considered that he was not working quickly enough and consequently he was dismissed.

46. Mr Sterling said that at this stage he was endeavouring to get his local doctor to "have something positive done with regard to my heart problem". He said that an angiogram showed that he had several blockages and accordingly he was placed on a waiting list for surgery.

47. On 27 June 1995 Mr Sterling underwent double by-pass heart surgery.

48. Following a fairly lengthy period of convalescence, Mr Sterling resumed looking for employment, but with no success.

49. Mr Sterling said that since February 1997 he has been on disability support pension because of his inability to work due to health reasons.

50. Asked as to his present state of health, Mr Sterling said he occasionally has "little flutters" and some angina. He has also experienced atherosclerotic PVD, for which he was referred to Professor O'Rourke by the Department of Veterans' Affairs. He said that as a result of this he was found to have considerably elevated blood pressure for which he was referred back to his local doctor.

51. It was Mr Sterling's evidence that he is not able to have surgery in respect of his atherosclerotic PVD and that he was advised to walk as much as possible, even though this does cause him some pain.

52. On 26 February 1998 Mr Sterling had a left hip replacement. Because of problems associated with the prothesis the operation was performed again seven days later, with successful results.

53. Mr Sterling explained that he first began to experience pain and discomfort in his left hip between six and twelve months after leaving the Air Force. The symptoms became gradually worse with local aching in left hip and buttock regions.

54. In cross-examination Mr Sterling said that he first experienced problems with his left leg during the 1979 Christmas/New Year period. By this he meant general aching and some numbness in the left foot. The symptoms were not localised but general throughout the leg.

55. Mr Sterling said that at the time he started having problems with his leg he was "quite a fitness fanatic", but when he tried to jog the ache in his leg increased as his exercise level increased, the pain becoming excruciating.

56. Mr Sterling agreed that during 1980, 1981 and 1982 he played golf on a regular basis, spending about four to four and a half hours on the golf course. He said that while playing caused pain in his leg, this was preferable to not playing golf at all. Indeed, he did not allow the problem with his leg to reduce the number of occasions on which he played.

57. When questioned about his Air Force duties, Mr Sterling stated that the nature of his work was sedentary about 90 per cent of the time. There were, however, occasions when he had to do some climbing when measuring was involved.

58. Mr Sterling confirmed that at some time after his posting to Canberra he was prescribed Anginine for use as required and that this was the only medication prescribed for his angina pain. He was also prescribed Isodol following his myocardial infarct, up to the time of his discharge from the Air Force. This tended to offset the need for Anginine.

59. Mr Sterling explained in cross-examination that while serving in the Air Force in Canberra during 1988 he purchased a house in Port Stephens. The intention was that he and his wife would retire there after his discharge.

60. When asked whether he expected to find employment as a civil engineering draftsman in Port Stephens, Mr Sterling said that he applied for "a couple of jobs" in that field of employment in Newcastle, which would have involved only about 35 minutes travelling time. However, he was not successful in his application, nor was he successful in respect of similar applications for the same type of work in Maitland and Raymond Terrace.

61. Mr Sterling stated that although he endeavoured to meet the CES requirements in respect of unemployment benefits, he did, however, become despondent:

"I certainly became despondent many, many times. I was obliged to do it on a very regular basis when I was in receipt of unemployment benefit, but I think it's only fair to say that one does get despondent and one doesn't apply for jobs as frequently as was the case when I was obliged to do so."

Mr Sterling explained that in addition to applying for employment in the engineering draftsman field, he also applied for many other jobs, stating:

"All sorts of things, yeah. All sorts of weird and wonderful things. Quite frankly, the system was such that you were obliged to play the game and it was a game. The people in the Commonwealth Employment Service realised it was a game. It's been discontinued but it was a game. One had to give evidence of applying for employment to receive unemployment benefit."

62. When asked whether his attempts to find employment were aimed at preserving his entitlement to unemployment benefit, his response was that while he wanted to continue receiving the benefit, this was not to suggest that he was not genuinely trying to gain employment. He added that he made no apology for wanting to live in Port Stephens:

"One likes to retire ultimately in the place where one likes to live, in your twilight years. That's not to suggest I didn't want to work at the same time."

63. As indicated earlier, Mr Sterling eventually obtained employment as a general handyman at a Motel. This was in 1994. However, again as indicated earlier he was dismissed from that employment, after a period of ten weeks.

64. Dr Gray, a retired General Practitioner, gave evidence on behalf of Mr Sterling.

65. Dr Gray explained that he is a former member of the Federal Medical Services Committee and past Chairman of the Medical Advisory Committee to the Repatriation Commission. He was also Chairman of the NSW Board of the Royal Australian College of General Practitioners for two or three years.

66. In addition to giving oral evidence, Dr Gray also provided a written report dated 1 July 1999 for the purposes of these proceedings (Exhibit A2).

67. Dr Gray did not himself examine Mr Sterling, his report being based entirely on the material made available to him by Legal Aid.

68. In his report Dr Gray commented as follows:

"I believe that Frederick Sterling was not treated properly by the doctors he attended at Richmond & Amberley up to the time of his first heart attack.

The symptoms he first presented to them were very suggestive of intermittent claudication and almost classical.

W.O. Sterling states that he wasn't sure about his examination by the first couple of doctors he saw but most of them didn't examine his leg and confirmed the diagnosis of the previous doctor.

It took two and a half years to diagnose the fact that he had quite severe arterial obstruction in his left leg and this was only achieved by going to a doctor outside the R.A.A.F. when he had his attack of acute cardiac ischaemia and Dr McKelvie examined his leg and felt for the pulses - all of which were absent. This of course was followed up by angiography and the obstruction located. His operation could not be done until January 1984 because of his heart condition.

This means that Frederick Sterling was suffering from severe pains in his left leg for four years and during that time he suffered:-

1. Continual intermittent severe pain.

2. Stress to the extent that his family almost collapsed due to his depressive subsequent behaviour.

3. The delay in diagnosis was almost certainly the cause of his first heart attack he had not had any treatment for lipid reduction, Hypertension, or ateriosclerosis, and laid the foundation for his subsequent cardiac condition.

I find it difficult to believe that a patient could see several different doctors with a history of severe cramping pain in his thigh and calf which stopped him from walking more than 50 metres and was relieved by rest, surely the "penny" should have dropped when all the treatments, physiotherapy etc. were not working.

In my opinion the condition should have been diagnosed at his first or second consultation and been investigated by ultrasound and/or arteriography together with a complete cardiac examination, ECG and Lipid tests and blood pressure taken. Also he should have been told to stop smoking which he did as soon as he was diagnosed by Dr McKelvie. Correct treatment could have been started when the results of tests were known.

As far as his cardiac condition is concerned I believe it is parallel with his Peripheral Vascular Disease and both can be treated together with the same drugs.

In short I believe the doctors concerned with treating W.O. Frederick Sterling were negligent and did not treat him as I would have expected a properly trained general practitioner to do."

69. In oral evidence Dr Gray stated that:

"Well, the point is you don't get peripheral vascular disease of that nature without there being some other vascular disease, or something of that nature as well, because it is part of a generalised atheromatous disease and what you would do would be with him you'd get your ultrasound done and if that came back positive, which it would have, then you'd whip him out straight away to have all of these things like cholesterol, triglycerides, have his ECGs done and possibly the first thing you would ask him on the thing would be does he smoke and that would, you know, sort of put the lid on it but you would follow all of those things up, they would have to be done, and it would be part of a thing like this because this poor bloke had a very, very advanced stage when he got there when they first saw him."

70. In his report Dr Gray stated in part concerning Mr Sterling's left leg:

"In January 1982 he was transferred to Amberley in Queensland and by this time the pain was much worse and almost unbearable. His mobility was affected and he was unable to walk quickly, pain being worse on hills and sometimes during the night. The pain always stopped if he stopped walking i.e. relieved by rest.

He had further visits to various doctors on 2.3.82, 18.10.82 and 23.11.82 without any pain relief."

During cross-examination Dr Gray's attention was directed to a number of entries in Mr Sterling's Service medical records concerning the condition of his left leg, from January 1980 through to November 1982, including his capacity to walk and play golf. When it was put to him that the entries did not support his written report, Dr Gray said that this could be due to the doctors who examined Mr Sterling having made up their minds that the problem was with his back. He accepted that the entries in question would, however, relate to what Mr Sterling had reported.

71. As indicated earlier Dr Miller, who is a Consultant Physician, gave evidence at the hearing. He also provided two reports, one dated 3 July 1997 (Exhibit A5), the other 3 November 1998 (Exhibit A6).

72. It was Dr Miller's view that when Mr Sterling presented with left leg and lower back pains in the late 1970's, he should have had a clinical examination involving his back and the vessels in his legs. He pointed out that what happened was that an examination of the back was made and that, as a result, a diagnosis of lumbar spondylosis with sciatica was made.

73. Dr Miller stated that there was no evidence of sciatica in the 1980's. There was, however, evidence of lumbar spondylosis but not nerve root pressure, and Mr Sterling had good movement of his back.

74. Dr Miller stated that, based upon the documents he had studied, Mr Sterling was presenting with symptoms that were typical of peripheral vascular disease with intermittent claudication. He explained that:

"Claudication is pain in the legs and the calves on walking a certain amount and this is because you have an impairment of the circulation to the legs and when you walk more than a certain amount the legs don't get enough blood supply, they don't get enough oxygen and they give you pain. That is rather like angina of the legs."

It was his view that had the diagnosis peripheral vascular disease been made, then the doctors concerned should have done what they finally did, that is further x-rays of the arteries followed by by-pass surgery and endarterectomy, that is to open up the artery and clear the clot. Physiotherapy was not the appropriate treatment.

75. Dr Miller was of the view that had a correct diagnosis been made much earlier than 1983 and had he received the appropriate treatment, Mr Sterling would not have experienced so much pain and distress and would not have been so limited in terms of physical activity.

76. In the first of his reports Dr Miller stated as follows:

"His myocardial infarction in 1983 was an antero-septal infarction and therefore there was evidence that he had atherosclerosis involving his left anterior descending artery. Even though he had no significant symptoms, it would have been good medical practice to have performed a coronary angiogram in order to assess the damage to the left anterior descending artery. This was not carried out and Mr. Sterling was treated expectantly."

When asked what difference a coronary angiogram would have made, Dr Miller responded by stating:

"Well, the anterior descending artery is the major artery to the front of the heart, you've got three main arteries, you've got an anterior descending artery, you've got the right coronary artery which supplies the back of the heart and you've got the circumflex artery which goes round the side. The major artery to the heart is the left anterior descending. If he'd evidence of an inferior infarction it would suggest right coronary artery and it wouldn't have been so critical but having evidence of the anterior part of the heart suggests strongly that the left anterior descending artery which is a very important artery, your heart can't function without it, it's an artery which often causes sudden death if it's obstructed. This particular artery means that if you did have a heart attack it would be infinitely more serious than for instance the right coronary artery obstruction or a circumflex obstruction and in view of that and in view of the fact that it is such an important artery, I would not have treated the patient expectantly in the event he was shown to have significant damage of his left anterior descending artery."

He explained that significant damage to the left anterior descending artery was not discovered until after Mr Sterling had left the Air Force.

77. It was Dr Miller's evidence that in July 1989 Mr Sterling was referred to Dr B. Smith for a stress ECG. Dr Miller explained that the results of the test were not normal and Mr Sterling should have been given an angiogram.

78. In the first of his reports Dr Miller states of Mr Sterling:

"He began to develop angina pectoris in 1987 or 1988 and was correctly referred to see Dr. Coles, cardiologist. Dr. Coles performed an exercise stress test which had to be ceased within two minutes because of fatigue and atypical chest pain. In my opinion a symptomatic patient aged 51 with a history of previous myocardial infarction and an exercise stress test that had to be terminated at two minutes should be investigated further by an immediate thallium stress test or preferably by coronary angiography. Dr. Coles recommended a thallium stress test in a year's time but in the event this was not carried out until 28^th November, 1991. Dr. Limaye in his reports of 5^th December, 1991 and 13^th December, 1991 was of the opinion that no further action was necessary.

Unfortunately Mr. Sterling's symptoms persisted and coronary angiogram was carried out after his discharge from the Air Force and resulted in coronary artery bypass surgery in 1995. In my opinion the delay in carrying out the thallium stress test and the decision to take no action despite the presence of a significant silent ischaemic zone surrounding a small infarct in the territory of the left anterior descending artery (page 215) prevented Mr. Sterling from having coronary arteriography whilst in the service. Eventually the angina contributed to the loss of Mr. Sterling's job and he was not treated by coronary artery bypass surgery until 1995."

79. It was Dr Miller's opinion that at the time he left the Air Force, Mr Sterling had angina, stating that:

"I believe at the time of discharge from the service he was not apparently well from the cardio vascular viewpoint, he had angina, he had an abnormal thallium stress test which showed a significant area of reversible ischaemia."

80. Professor O'Rourke, who as indicated earlier is a Professor of Medicine attached to the University of New South Wales, examined Mr Sterling on 3 July 1998, and later provided a report dated 7 July 1998 (Exhibit R1).

81. When it was put to him that one of the doctors who examined Mr Sterling (Dr Smith) considered that the most likely aetiological factor for the vascular problems was his heavy smoking (20 cigarettes per day up to 1982), Professor O'Rourke said he agreed with this and explained the process.

82. In discussing the delay in respect of Mr Sterling's thrombo endarterectomy, Professor O'Rourke explained that it is rare for an operation of that type to be put off for a year on account of coronary disease. When asked what the delay suggested to him, Professor O'Rourke said:

"That it wasn't considered that the obstruction of the artery was bad enough to warrant treatment earlier than that and perhaps that expectant measures such as I mentioned including the cessation of smoking which I think he had done by that time may have led the symptoms to pass. Another thing which happens with the passage of time too is that new blood vessels grow, collateral vessels can grow and re-route the blood past an obstruction."

83. Professor O'Rourke disagreed with the suggestion, made by Dr Gray and Dr Miller, that Mr Sterling should have had a coronary angiogram. In doing so he said:

"That is not usual practice, the usual practice even now is to treat modifiable risk factors in the expectation that that will be sufficient to prevent a further infarct from occurring. Even if an obstruction is shown, a high grade obstruction, often the new myocardial infarction occurs not where there is a major obstruction but where there's a minor obstruction somewhere else. So just dealing with a major obstruction in one artery does not necessarily prevent the development of acute myocardial infarction."

Material Contribution or Aggravation

84. It is noted that SoP No. 81 of 1998 concerning Ischaemic Heart Disease states at clause 6 that the factor relied upon by Mr Sterling in these proceedings applies only to material contribution to, or aggravation of, ischaemic heart disease where the person's ischaemic heart disease was suffered or contracted before or during (but not arising out of), the person's relevant service; sections 8(1), 9(1)(e) or 70(5)(d) of the Act refers.

85. It is further noted that SoP No. 88 of 1995 concerning Atherosclerotic PVD states that the factor relied upon by Mr Sterling in these proceedings applies only where the person's atherosclerotic PVD was contracted prior to a period, or part of a period, of service to which the factor related. Further, the factor also applies only where the relationship suggested between the atherosclerotic PVD is a relationship set out in sections 8(1)(e), 9(1)(e), or 70(5)(d) of the Act.

The Term: "Appropriate Clinical Management"

86. While SoP's No. 88 of 1995 and No. 81 of 1998 employ the term "appropriate clinical management" in respect of the particular factors relied upon in this matter, neither SoP defines that term.

87. However, in Re Gibson and Repatriation Commission (AAT : Unreported decision No. 157 of 12 February 1999), the Tribunal stated at paragraph 81:

"The phrase "appropriate clinical management" is not defined in the SoP and should be interpreted according to its commonly understood meaning having regard to standard prudent medical practice. Clinical management is an ongoing and dynamic process and "appropriate clinical management" of a disease, in the Tribunal's opinion, involves the timely diagnosis, and the preparation and execution of a plan of action and treatment, of that disease by a suitably qualified and competent medical practitioner exercising due care, skill and diligence."

Findings in Respect of Claimed Disabilities

88. It is my view, and on the balance of probabilities I find, that it cannot, on the material before me, be said that there was an inability on the part of Mr Sterling to obtain appropriate clinical management for his IHD and for his atherosclerotic PVD.

89. In reaching my finding I have accepted:

* that Mr Sterling's Service medical records reveal that from January 1980 through to November 1982 he presented with, and was tested for, generalised left leg pain;

* that the various Air Force doctors during that period took fresh histories, including in 1982 a history of "pins and needles" in the left foot, being an indication of a lumbar problem;

* that during the period 1980 to 1982 Mr Sterling continued to play golf on a regular basis;

* that this is contrary to the assertion that he could not manage to walk 50 yards;

* that the course of Mr Sterling's atherosclerotic PVD was not altered by the fact that the disease was not diagnosed until December 1982;

* that there was no reason to regard the need for surgery on Mr Sterling's left leg as being a matter of particular urgency;

* that angiograms are not performed unless the patient is being seriously considered for by-pass surgery. Mr Sterling did not require a by-pass until 1994;

* that in November 1991 a Cardiologist, Dr Limaye, arranged a thallium scan to see the extent, if any, of Mr Sterling's myocardial ischaemia;

* that in 1984 Mr Sterling was being monitored (by Dr Jackson) in order to check that he had no ongoing cardiac symptoms;

* that during his Air Force service Mr Sterling remained well in respect of his cardiac condition with no evidence that a by-pass was a serious possibility during that service.

90. It follows that, because the factors relied upon in respect of the relevant SoP's do not exist, it cannot be said that, on the balance of probabilities, IHD and atherosclerotic PVD are connected with the circumstances of Mr Sterling's relevant service.

Assessment

91. Mr Sterling has the following war-caused disabilities:

* Osteoarthrosis Right Shoulder

* Osteoarthrosis of Left Knee

* Tinea

* Chronic Solar Skin Damage

* Left Sensori-Neural Hearing Loss, Tinnitus

* Malignant Neoplasia-Melanoma

His degree of incapacity in respect of these disabilities is presently assessed under the Guide to the Assessment of Rates of Veterans' Pensions (Fifth Edition) ("the Guide"), as being 10 per cent for the purposes of payment of pension.

92. Based upon opinions expressed by Dr Miller, Ms Toliopolous conceded that, except in respect of osteoarthrosis of left knee, each of Mr Sterling's war-caused disabilities is properly assessed as having a nil impairment rating under the Guide.

93. This means that the only impairment rating in contention is in respect of osteoarthrosis of the left knee.

94. In his report dated 3 November 1998, Dr Miller states in respect of osteoarthrosis left knee that:

"Mr Sterling has now had a successful left hip replacement in March 1998 and this is no longer a factor affecting his walking. According to table 3.2.2 he walks at a significantly reduced pace in comparison with his peers and his leg gives way frequently, resulting in falls. I consider he attracts a 30 impairment rating."

95. Dr Burns, who as earlier indicated is an Occupational Physician, stated in his report dated 14 June 1998, that:

"His inability to walk more than 400 metres due to pain would give him 20 impairment points. Only about 50% of this, though, is associated with his left knee, the rest being associated with his left hip which is not accepted."

Dr Burns' opinion was that, under table 3.2.2 of the Guide, an impairment rating of 10 was appropriate.

96. In his report Dr Burns detailed the history of Mr Sterling's osteoarthrosis of left knee, stating:

"Mr Sterling cannot remember ever having injured or damaged his left knee. He reports that his knee became painful when he was working in Canberra in the late 1980s. He had a number of steroid injections performed. Eventually an arthroscopy was performed in South Australia in 1991. A mild synovitis was found at arthroscopy. Following the arthroscopy the pain in his knee improved significantly. Since then he has noted mainly nocturnal pain beneath his left kneecap. His knee has not collapsed or given way on him. Recently he had a total hip replacement in February 1998 and the pain in his knee has again improved. He stated that his mobility has increased since the total hip replacement and he can currently walk approximately 400 metres."

97. In cross-examination Dr Burns was questioned further concerning Mr Sterling's left hip replacement and the effect on his mobility. In his response he stated:

"My opinion was from information obtained from him as to his walking capacity before the hip replacement. In fact, if he's now, at the time that he was seeing me he wasn't walking 400 metres, there's no question of that because, in fact, his hip had only been recently been, had further surgery on it. In reality, if his hip has now reached a stage where it has improved back to better than it was before the hip replacement procedure, then, I would say that 400 metres would probably have to stand as far as walking distance is concerned, I couldn't say it should be less than he was before he had the hip replacement."

98. From the material before me I consider that the appropriate impairment rating in respect of Mr Sterling's osteoarthrosis of left knee is 10, and I find accordingly.

99. For his accepted disabilities, alone, an impairment rating of 10 and a lifestyle rating of 1 from the "shaded area" of Scale 23.1 of the Guide, would give Mr Sterling a degree of incapacity of 20 per cent. I believe this to be appropriate and I find accordingly.

100. Because his degree of incapacity has not been determined to be at least 70 per cent, it follows that Mr Sterling does not meet the qualification expressed in section 24(1)(a) of the Act, in respect of the Special Rate of pension.

Decision

101. The decision under review will be varied so as to provide that Mr Sterling's degree of incapacity is 20 per cent for the purposes of payment of pension at the General Rate, from 1 May 1995.

102. In all other respects the decision under review will be affirmed.

I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of:

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

Signed:..............(C. HINRICHS)...............................................

Personal Assistant

Date/s of Hearing 1/11/99 & 2/11/99

Date of Decision 20/12/99

Counsel for the Applicant Ms A. Toliopoulos

Solicitor for the Applicant Legal Aid Commission

Counsel for the Respondent Ms R. Henderson

Solicitor for the Respondent Department of Veterans' Affairs