New AAT cases – July 2020

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24 August 2020

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Macdonald and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 2643 (3 August 2020)

MRCA – Liability - achilles tendinopathy - weight bearing exercises – peacetime service – decision under review affirmed

Mr Macdonald made a claim for liability for achilles tendinopathy on the ground he met factor 9(2) of the relevant SOP as he was involved in undertaking weight bearing exercises at a minimum intensity of five METs for six hours per week for four weeks in the lead up to the clinical onset of Achilles tendinopathy.

At the hearing in November 2018, the Commission did not dispute the diagnosis of the claimed condition or the date of onset. However, the Commission submitted that the medical evidence before the Tribunal supported a conclusion that the claimed condition only came about as a result of the left Achilles tendon rupture. As the rupture occurred in non-service related circumstances (i.e. the applicant’s home), it occurred in non-compensable circumstances, and the claim could not succeed. Further, the Commission submitted that Mr Macdonald was unable to establish that he was engaged in weight bearing exercise of the nature required by factor 9(2) because during cross-examination he conceded that the tendered Schedule of Activity was inaccurate.

The Tribunal noted Mr Macdonald was quite honest in stating that the Schedule may not be accurate. The Schedule of Activity was not provided to the Commission before the hearing and after the hearing the Commission identified inaccuracies which were not contested by Mr Macdonald.  The Tribunal went on to note that even if it were to accept that the Schedule of Activity was accurate it did not disclose that Mr Macdonald was undertaking weight bearing exercise involving repeated activity of the ankle joint of the affected leg, at a minimum intensity of five METs, for at least six hours per week for the four weeks before the clinical onset of the Achilles tendinopathy condition as required by factor 9(2) of the SoP. The Tribunal affirmed the decision under review.

 

Spies and Repatriation Commission (Veterans' entitlements) [2020] AATA 2580 (31 July 2020)

VEA – war widow’s claim – hypertension – alcohol consumption – operational service WW2 – decision under review affirmed

The late Mr Spies rendered operational service in the Royal Australian Air Force, enlisting in November 1942 and serving until 9 January 1946. In 2016, Mr Spies passed away at the age of 91 years and the cause of death as stated in his Death Certificate was (1) Metastatic prostate cancer and (2) Chronic renal failure. Counsel for Ms Spies contended the late veteran’s hypertension was a contributing factor to his death and that his hypertension was in turn contributed to by alcohol consumption that was attributable to his operational service.

The Commission did not dispute that hypertension contributed to the late Mr Spies’ kind of death. However, the Commission contended there was insufficient evidence for the Tribunal to be satisfied in respect of Mr Spies consumption of alcohol. In particular, the Tribunal noted that Ms Spies met her late husband in 1977. Her evidence regarding Mr Spies alcohol consumption between 1946 and 1977 was based on her recollection of what Mr Spies told her about his alcohol consumption during that time. Additionally, the Commission also noted that there was very little information before the Tribunal about the Veteran’s service. Specifically, the Commission noted that the veteran’s service outside Australia was temporary duty on 18 February 1944 and returned on 23 February 1944 and on 23 February 1944 and returned on 28 February 1944. Outside of these dates the Veteran was posted in New South Wales, Northern Territory and Queensland for the duration of his service.

In reaching a finding, the Tribunal noted that Mr Spies suffered from long-standing hypertension, however the medical evidence before the Tribunal was limited and it was difficult to pin point a date of clinical onset. The Tribunal stated:

“… the medical evidence leaves open the hypothesis because it is entirely unclear at what time the Veteran began suffering from elevated blood pressure of the type that meets the requirements of clause 3 of the Hypertension SoP… If the Tribunal was to accept the Applicant’s contention in this regard it would be inferring or assuming essential elements of the Hypertension SoP were met as there is no contemporaneous medical evidence before it as to when the Veteran first started experiencing hypertension before 2004, there are no blood pressure readings before that time. There is no evidence of whether or when the Veteran’s elevated blood pressure readings met the requirements of the definition of hypertension for the purposes of the Hypertension SoP as set out in clause 3.

The Tribunal went onto to note that as it was unable to determine the date of clinical onset of the Veteran’s hypertension it was unnecessary to engage with the task of determining whether the factor set out in clause 6(b) of the Hypertension SoP had been established. However, the Tribunal did note that the evidence in relation to the Veteran’s alcohol consumption was limited. The Tribunal affirmed the decision under review.

 

Toyer and Repatriation Commission (Veterans' entitlements) [2020] AATA 2640 (28 July 2020)

VEA – entitlement claim - adjustment disorder with depressed mood - serious physical disability – accepted condition of pleural plaques – operational and defence service - decision under review set aside

Mr Toyer served in the Royal Australian Navy and rendered operational service in Vietnam from 20 September 1971 to 17 December 1971 and defence service from 7 December 1972 to 16 January 1973. Mr Toyer made a claim that his adjustment disorder with depressed mood was caused by his service-related pleural plaques condition. Specifically, Mr Toyer contended that he met the following factor in the relevant SOP:

(7) having, or being diagnosed with, a medical illness or injury which is life- threatening or which results in serious physical or cognitive disability, within the three months before the clinical onset of adjustment disorder;

The Commission contended that the evidence before the Tribunal did not support Mr Toyer having a a serious physical or cognitive disability within the three months before November 2016 (the onset of his adjustment disorder).

The Tribunal considered  the expert opinion evidence before it and found that Mr Toyer’s pleural plaques resulted in serious physical disability (loss of lung function) and this occurred within three months before the clinical onset of adjustment disorder. The Tribunal noted that the loss of lung function was a serious physical disability as that phrase was used in the relevant Statements of Principle. The decision under review was set aside.

 

Boys and Repatriation Commission (Veterans' entitlements) [2020] AATA 2116 (7 July 2020)

VEA – entitlement claim – cervical spondylosis - dispositional joint disease – motor vehicle accidents – defence service – decision under review affirmed

Mr Boys served in the Australian Army from 16 June 1979 until 30 June 1986. Mr Boys claimed that his cervical spondylosis was caused by his defence service and that he should be assessed at the Special Rate of pension. Specifically, Mr Boys gave evidence of four motor accidents; two of which he said occurred while he was travelling to Puckapunyal in 1980 and 1982; an incident where he was giving one of the members of his troop a lift home and was then returning to camp and finally an incident where he had been drinking alcohol at the Canungra Land Warfare Training Centre prior to the accident. Mr Boys contended that he met the following factor in the SOP:

(f) having a dispositional joint disease in the cervical spine before the clinical onset of cervical spondylosis ... ”.

Two medical specialists gave oral evidence at the hearing. One medical expert, Professor Brazenor considered clinical notes from 1980 and a medical board examination from 1984 established a diagnosis and presence of cervical spondylosis. The other medical specialist, Associate Professor Steadman opined that a physiotherapist report of 18 March 1980 did not establish a diagnosis of cervical spondylosis. The specialist stated further

“that an x-ray will identify cervical spondylosis, in that the radiological changes that are recognised as ‘being part of that story’ and will always manifest on the plain x-ray, otherwise there can’t be a diagnosis of cervical spondylosis.”

The Commission submitted that the Statement of Principles for cervical spondylosis required the presence of both manifestations of pain and symptomology consistent with such a diagnosis and radiological imaging confirming such a diagnosis. As such, the Commission submitted that the date of clinical onset was on 13 June 2014, based on the radiology confirming cervical spondylosis on that date.

The Tribunal found that the clinical onset of Mr Boys’ cervical spondylosis was on 13 June 2014 and that he did, based on the evidence of Professor Brazenor have a dispositional joint disease in the cervical spine before the clinical onset of cervical spondylosis. In considering whether the relevant factor was related to Mr Boys’ period of defence service, the Tribunal found the motor vehicle accidents had only a temporal connection with the veteran’s service.

In respect of the assessment of pension matter, the Commission submitted that from the commencement of the assessment period Mr Boys was suffering from and continued to suffer from a number of non-service related disabilities, including cervical spondylosis.  Mr Boys gave evidence to the Tribunal that with the exception of cervical spondylosis, he would still be operating his business.

The Tribunal found, having regard to the evidence of Mr Boys, that during the assessment period he was not, by reason of incapacity from the defence-caused injury or defence-caused disease, or both, alone, prevented from continuing to undertake the remunerative work that he was undertaking when he last worked as a builder. The Tribunal affirmed the decisions under review.

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