Pearson and Repatriation Commission [2003] AATA 97 (3 February 2003)

Last Updated: 4 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 97

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/919

VETERANS' APPEALS DIVISION

Re: RUSSELL FRANCIS PEARSON

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

Dr P. Fricker, Member

Date: 3 February 2003

Place: Melbourne

Decision: The Tribunal varies the decision under review to the extent of finding that the applicant has an impairment rating of 15 and remits the matter to the respondent to assess the rate of pension.

(sgd) B.H. Pascoe

Senior Member

VETERANS' AFFAIRS - assessment of impairment rating - osteomyelitis - bilateral sensorineural hearing loss - non-melanotic malignant neoplasm of the skin

Veterans' Entitlement Act 1986

REASONS FOR DECISION

3 January 2003 Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

Dr P. Fricker, Member

1. This is an application to review a decision of the Veterans' Review Board (VRB) of 28 May 2001 which affirmed a decision of the Repatriation Commission (the respondent) dated 12 September 2000. The veteran, Mr R.F. Pearson had accepted war-caused disabilities of osteomyelitis left tibia, bilateral sensorineural hearing loss and non-melanotic malignant neoplasm of the skin. Claims for mitral valve prolapse, gout, hypertension and conductive hearing loss in the left ear were determined not to be war-caused. Pension was granted at 20 per cent of the general rate. At the hearing before this Tribunal, Mr Pearson did not seek to pursue entitlement in relation to the non-accepted conditions and the only issue was the assessment of the rate of pension. This depended on the appropriate impairment ratings for the accepted conditions under the Guide to the Assessment of Rates of Veterans' Pensions (the GARP).

2. At the hearing, Mr Pearson was represented by Mr D. De Marchi, solicitor. Due to an industrial dispute at the Department of Veterans' Affairs the respondent was not represented. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1 - T20), the following documents were tendered:

Medical Report of Dr W. Stone, physician, dated 14 February 2002 Exhibit A1

Medical Report of Dr G. Hale, cardiologist, dated 3 December 2001 Exhibit A2

Clinical Notes of Dr S. Liberman, general practitioner Exhibit R1

3. The first question of impairment rating related to the osteomyelitis left tibia. Mr Pearson in his evidence, said that he does not take much notice of the condition but does have some pain on occasions when at rest but not when walking. He said that the pain was at the level of his left ankle. He showed the Tribunal the obvious scar on the lower left leg which had resulted from surgery. It is clear from his evidence that there is no functional loss in the left leg so that there is a nil rating under Table 3.2.2 of the GARP. It was submitted by Mr De Marchi that the pain at rest should attract a rating under Table 3.4.1 of the GARP. However, this Table relates to "Resting Joint Pain".. The pain which Mr Pearson has relates to the left tibia and, while it is proximate to the ankle, is not pain in the joint itself. It was submitted alternatively that the disfigurement of the lower leg could attract a rating under Table 11.1 of the GARP relating to skin disorders. A rating of five is provided under this Table for:

...

* Visible skin disorder, or combination of disorders, on a part of the body other than face and hands, of such degree as would cause embarrassment or considerable inconvenience to most people in domestic or intimate situations or as would cause them to curtail sporting or recreational activities.

...

While the scar on Mr Pearson's lower left leg is obvious we are satisfied that it is not of such degree as to satisfy the definition. Consequently we find that a nil rating applies to the osteomyelitis left tibia.

4. In relation to bilateral sensorineural hearing loss there is no dispute between the parties that an impairment rating of 11 is appropriate under Table 7.1 of the GARP. In his evidence at the hearing, Mr Pearson said that, at times, he does have ringing in the ears although it does not bother him unduly. In his report of 3 October 2001, Dr L. Langdon, audiometrist, who on an audiological examination of Mr Pearson on 2 October 2001, said that "...He does not notice any tinnitus." We are prepared to accept Mr Pearson's evidence after questions from the Tribunal that he does have mild tinnitus which would attract a rating of 2 under Table 7.1.11 of the GARP.

5. In relation to the non-melanotic skin neoplasm, it was submitted that the condition attracts a rating of 2 under Table 11.1. Such a rating is applicable to:

* Skin disorder that is symptomatic for less than four months of the year.

* Asymptomatic skin disorder but with need for medication.

* Solar skin lesions necessitating surgical removal (including cryotherapy and/or cautery) at least once in the year but less than four times a year.

The records of Dr Liberman show that Mr Pearson had lesions removed in 1976, 1987, 1988, 1990, 1996, 1999 and February 2000. In his assessment dated 15 November 2001, Dr Liberman noted that Mr Pearson had developed new lesions in the previous 12 months. In his assessment, dated 14 February 2002, Dr Stone gave an impairment rating of 2 under Table 11.1 for solar skin lesions necessitating surgical removal at least once per year. It is noted, also, that the respondent, in the determination of 12 September 2000 allowed a rating of 2 under Table 11.1. On balance and based on the medical evidence we find that a rating of 2 for this condition is appropriate.

6. It was suggested by Mr De Marchi that a rating under Table 14.2 of the GARP was possible in relation to a malignant melanoma removed from Mr Pearson's back some five years ago. This table relates to life expectancy with malignant conditions. Apart from the fact that the melanoma is not an accepted condition, the medical evidence is clear that there would be a nil rating under Table 14.2 of the GARP with Mr Pearson having a "Normal, or near normal, five year survival", predicted at the time of diagnosis or staging procedures.

7. The result of the following is that we find that Mr Pearson has the following impairment rating:

Osteomyelitis left tibia nil

Bilateral sensorineural hearing loss Table 7.1 11

Tinnitus Table 7.1.11 2

Non-melanotic skin neoplasm Table 11.1 2

Under the Combined Values Chart this would produce a rating of 14 points which is then rounded up to 15 points. Such a rating converts to a degree of incapacity of 30 per cent.

8. In view of the above, the decision under review should be varied to the extent of finding that Mr Pearson has an impairment rating of 15. The matter should be remitted to the respondent to assess the rate of pension and date of commencement.

I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

Dr P. Fricker

(sgd) Olympia Sarrinikolaou

Clerk

Date of Hearing: 17 December 2002

Date of Decision: 3 February 2003

Solicitor for the applicant: Mr D. De Marchi, De Marchi & Associates

Advocate for the respondent: Ms J. McCulloch, Advocate with the Department of

Veterans' Affairs