Askew and the Repatriation Commission
[2005] AATA 1041
•20 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1041
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1052
VETERANS APPEALS DIVISION ) Re Bruce Askew Applicant
And
The Repatriation Commission
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr J D Campbell, Member
Date20 October 2005
PlaceSydney
Decision 1. The decision under review is varied as follows:
(i) Disability pension is increased to 50% of the general rate.
(ii) The new rate of pension determined by the Tribunal is to have effect from the date of this determination
..........................................
Ms N Bell,
Presiding Member
VETERANS’ AFFAIRS – Rate of Pension – Accepted Conditions – Bilateral Sensory Neural Hearing Loss – Bilateral Tinnitus – Chronic Solar Skin Damage – Non Melanotic Malignant Neoplasm of the Skin – Impotence – Generalised Anxiety Disorder – Effect of Generalised Anxiety Disorder on Rate of Pension Contested – Effects of Generalised Anxiety Disorder Found to be Minimal – GARP Rating 35 - Decision Under Review Set Aside and Rate of Pension Varied
Veterans’ Entitlement Act 1986
REASONS FOR DECISION
20 October 2005 Ms N Bell, Senior Member
Dr J D Campbell, Member2.Mr Askew, who is 71 years old, joined the Australian Army in 1953 and, as part of his service, served in Malaya from October 1957. He was discharged in November 1959. As a result of his service, Mr Askew suffers bilateral sensory neural hearing loss, bilateral tinnitus, chronic solar skin damage, non-melanotic malignant neoplasm of the skin, impotence and generalised anxiety disorder. The last of these conditions is the focus of this application.
3.Mr Askew has had a long and successful career outside of the Army, culminating in the establishment, in 1992, of his own accountancy firm. In 2002 he took on an employee of the firm, as a partner with a 40% share. Approximately 18 months ago, he reduced his hours of work from 5 or 6 days per week to approximately two days per week.
4.The Repatriation Commission accepted all of the above medical conditions as war caused and assessed his Disability Pension at 90% of the general rate of pension. Mr Askew considers that he should be paid at the higher intermediate rate of pension.
law and issues
5.Section 23 of the Veterans Entitlements Act 1986 (the Act) sets out the qualifications for payment of pension at the intermediate rate. The focus of the provision is on the role played by a veteran’s war caused disabilities in the veteran’s cessation or reduction of paid work.
6.In order to qualify for payment at the intermediate rate Mr Askew must show that he has a degree of incapacity from his war caused injuries or diseases of at least 70% under the GARP tables (section 23(1)(a)). He must also show that his war caused injuries or diseases alone prevent him from working 20 hours or more per week (section 23(1)(b) and 23(2)). In addition, because Mr Askew was over 65 years when he claimed a pension, he must show that his war caused injuries or diseases alone prevent him from continuing to undertake his last paid work and, if so, that he is suffering a loss of salary or earnings (section 23(3A)(d) and (e)).
7.There are other requirements in section 23 but these are not in contest in this application. Failure to meet just one of the requirements in the provision will render Mr Askew ineligible for payment at the intermediate rate.
8.We first considered whether Mr Askew had an impairment rating of 70% or more. The point of contention in this respect was the effect of Mr Askew’s generalised anxiety disorder. For the reasons that follow, we concluded that he does not have an impairment rating of 70% or more. That is sufficient to dispose of the matter.
the extent of mr askew’s impairment from his accepted conditions
9.The condition at the heart of this issue is Mr Askew’s generalised anxiety disorder.
10.Mr Askew gave evidence of tiredness, becoming aggravated and “cantankerous” with staff and family. He said that he did not reduce his hours of work on medical advice but reached the decision to do so on his own. He conceded that things had changed because he is getting older and said he felt overwhelmed by the changes in the legislation, referring to the introduction of the GST.
11.Mr Askew said he could not remember when he first sought help in relation to his anxiety disorder but said he did so because he had been drinking too much and had become angry with people.
12.Mrs Askew’s evidence was that Mr Askew becomes “a bit agitated” if he is interrupted. She said she formerly worked at her husband’s accountancy firm for about two days per week and noticed no difficulties with his behaviour and observed that he treated staff well. She said Mr Askew enjoys his work but was getting tired and wanted to spend more time with her.
13.Mrs Askew said that she and her husband go out together as a couple, have family over to visit them and have a circle of friends. She noted no problem with Mr Askew’s memory except for dates and suggested that if there was any problem in this respect she would expect Mr Askew’s business partner to inform her of it.
14.The evidence given by Mr & Mrs Askew was at significant variance with the answers provided by Mr Askew on his lifestyle questionnaire completed in December 2003. In answer to that questionnaire he described a “constant feeling of anxiety, mood swings and depression”, “frequent family conflict, arguments and outbursts of anger” and “limited social and recreational activities”. He also said in that questionnaire that he finds it “increasingly difficult to relate to people”. He said he had given up tennis, fishing and family outings and rarely or never visits or has visitors, goes out, plays a sport or engages in a hobby.
15.Dr Karl Koller, psychiatrist, in his report dated 4 September 2003, described Mr Askew as anxious, tense, worrisome, irritable and as having difficulty with sleeping and poor concentration. The Emotional and Behavioural Worksheet completed by Dr Koller assessed Mr Askew as having a GARP score of 36 points. That assessment included frequent irritability at home, a reduction in social interaction and reduced interest in leisure activities. Dr Koller described Mr Askew as requiring psychiatric attention.
16. Dr Anthony Hordern, psychiatrist, in his report of 1 December 2004, assessed Mr Askew’s physical state as reasonably good and his mental state as normal in respect of behaviour, talk, attention, memory and judgment.
17. Dr Hordern described symptoms of tension and undue irritability at work and at home with his wife, together with insomnia and social withdrawal. However, Dr Hordern reported Mr Askew’s description of himself as a good mixer who has a number of friends, takes his wife out to functions and for meals, sees films and pursues the hobby of genealogy on his computer. According to Dr Hordern, Mr Askew described himself as hiding his worries and as having high standards and being perfectionistic.
18. Dr Hordern also completed an Emotional and Behavioural Worksheet in which he assessed Mr Askew as having an impairment rating, in respect of his generalised anxiety disorder, of 27. In that assessment he described Mr Askew’s subjective distress as including chronic tension and irritability with flash backs of a traumatic experience in the Army in Malaysia. He also described him as tense, irritable and impatient in terms of his manifest distress. He also described impaired concentration and ability to assimilate and process information and difficulty with working more than 16 hours per week in relation to functional effects and effects on occupation. In relation to Mr Askew’s domestic situation Dr Hordern described irritability in recent years. He described, in terms of social interaction, social withdrawal of late and few friends and social activities. Leisure activities were, remarkably, said to have been reduced but to include tennis, genealogy studies on the computer and going out with his wife. Finally, Dr Hordern described Mr Askew as requiring outpatient psychiatric treatment.
19. Dr Hordern described the effect of Mr Askew’s anxiety disorders on his function as moderate but having worsened over the last few years to become severe. Dr Hordern’s oral evidence to the tribunal confirmed the contents of his report.
20. Dr John Champion, psychiatrist, in his report of 14 March 2005, concluded that Mr Askew does not suffer from any diagnosable psychiatric disorder. He said the history given to him by Mr Askew did not indicate any reactive psychiatric disorder. He noted that Mr Askew had not sought or received psychiatric treatment prior to his claim and had told Dr Champion that he did not believe he suffered from any nervous disorder. Dr Champion noted the significant range of Mr Askew’s interests and activities including undertaking the care of two elderly people, his enjoyment of socialising with his family, social tennis with his wife and friends every fortnight, swimming in his home swimming pool, gardening and pursuing an interest in computing.
21. Dr Champion considered that the common history given by Mr Askew to both himself and Dr Hordern is inconsistent with Dr Hordern’s claims concerning Mr Askew’s “residual symptoms”. Dr Champion could find no information in Dr Hordern’s report to confirm Dr Hordern’s claim that his anxiety symptoms have worsened over the last year. In relation to Dr Koller’s report, he considered that Dr Koller’s brief report does not adequately deal with Mr Askew’s history to be of value in an objective assessment. He noted that mild symptoms of anxiety are common in the community and do not necessarily represent psychiatric disorder or disability. He considered Dr Koller’s assessment to be inflated.
22. Dr Champion assessed Mr Askew at nil in the Emotional and Behavioural Worksheet. He concluded that Mr Askew’s work capacity is not reduced by any form of psychiatric disorder and noted that he is currently working on a part-time basis as part of a move toward retirement. He found this to be consistent with his age and lifestyle and not indicative of a psychiatric disorder. These comments were made by Dr Champion in his report of 5 April 2005.
23. In his report dated 1 March 2005, Dr Tim Anderson, consultant occupational physician, took a history of Mr Askew playing tennis once every two weeks or so and doing some swimming. He noted that his main hobby is working with computers and also pursuing his family history. He reported that Mr Askew has no difficulty driving and at home looks after the swimming pool and cuts the grass. He also goes shopping with his wife.
24. Dr Anderson noted that Mr Askew experiences difficulty with hearing, particularly in other than one to one situations and wears hearing aids in each ear. He also noted that he continues to be reviewed by Dr Koller every two or three months and is not on any psychotropic medication. He noted that Mr Askew has sleep apnoea and uses a C‑PAP machine and that at night his legs are sometimes restless. Dr Anderson also noted that Mr Askew told him that his tinnitus has never worried him much and does not worry him now.
25. While Dr Anderson made no comment on symptoms of anxiety, he noted that Mr Askew presented is a friendly and animated person with no obvious evidence of anxiety. He also described Mr Askew as well motivated.
26. Dr Anderson assessed an impairment of 27 and a lifestyle rating of 1 which together would give percentage incapacity of 40. However, this assessment left figures for anxiety to be provided by a consultant psychiatrist.
reasoning
27.In view of Mr Askew’s evidence of the role played in his functioning by his increasing age, Mrs Askew’s evidence of her husband’s social activities, the absence of any difficulties in the workplace, his continuing enjoyment of his work and his desire to spend more time with her; and the consistent histories taken by Drs Hordern, Champion and Anderson, we consider the answers given by Mr Askew in the lifestyle questionnaire to be unreliable.
28.The activities and behaviour reported by Mrs Askew and Drs Hordern, Champion and Anderson do not accord with the rather grim picture painted by Dr Koller and Dr Hordern in their Emotional and Behavioural Worksheets, or with the assessments made by them under the GARP. While the condition of generalised anxiety disorder has been accepted by the respondent as war caused, we do not consider it has any more than a very minimal effect on Mr Askew’s functioning and, we prefer, in this respect, the assessment made by Dr Champion.
29.However, we also note the evidence of Mr Askew of an increase in irritability over the last few years and the evidence of Mrs Askew of some small amount of agitation if he is interrupted. Taking this evidence at its highest, we consider the following assessment to be appropriate:
4.1 Subjective distress
Recurring symptoms causing mild distress. The veteran can easily distract himself from the distress on most occasions: evidence of occasional irritability and anxiety
3
4.2 Manifest distress
Distress is sometimes apparent, and/or the veteran’s preoccupation with the symptoms is sometimes noticeable to astute observers or persons familiar with the veteran: evidence of occasional irritability observed by spouse
3
4.3 Functional effects
Minor interference with function in some everyday situations: minimal loss of concentration and social withdrawal
1
4.4 Occupation
Minimal or no interference with work or occupation: decision to reduce days of work was due to age and desire for a retired lifestyle
0
4.5 Domestic situation
Minimal or no effect on ordinary family life: occasional irritation with spouse
0
4.6 Social interaction
Minor reduction in social interaction: minor social withdrawal
2
4.7 Leisure activities
Some loss of interest in activities previously enjoyed: some reduction in leisure activities
1
4.8 Current therapy
Medical therapy or some supportive treatment from LMO may be required, and if not commenced, may be recognised as being of use: no record of complaint to his LMO or any other treatment but supportive treatment may assist in dealing with irritability
1
3 + 3 + (1 + 2 + 1)
10
30.In the absence of any other evidence, we adopt the rating given by Dr Anderson for Mr Askew’s physical impairments, that is, 27. According to the Combined Values Chart in the GARP, 27 added to 10 yields 34. We also adopt the lifestyle rating of 1 given by Dr Anderson. This rating, applied to the rounded up figure of 35 yields a percentage impairment rating of 50.
31.This falls short of the 70% impairment rating required by section 23(1)(a) and precludes Mr Askew from payment at the intermediate rate. It is also less than the 90% assessed by the Commission, partly on the basis of Dr Koller’s assessment. Accordingly, we vary the decision under review.
decision
32.The decision under review is varied as follows:
(i) Disability pension is increased to 50% of the general rate.
(ii) The new rate of pension determined by the Tribunal is to have effect from the date of this determination
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr J Campbell, Member.
Signed: .........[Linda Blue].....................................
AssociateDate of Hearing 8 August 2005
Date of Decision 20 October 2005
Solicitor for the Applicant Fairbairn LawyersSolicitor for the Respondent Department of Veterans' Affairs
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