De Brabander and Repatriation Commission
[2000] AATA 1124
•13 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1124
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/17
VETERANS' APPEALS DIVISION )
Re: RICHARD DE BRABANDER
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date13 November 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/17
)
VETERANS' APPEALS DIVISION )
Re: RICHARD DEBRABANDER
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 13 November 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
The Applicant, RICHARD DEBRABANDER, is entitled to disability
pension at the extreme disablement adjustment rate as and from 12 December 1998.(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Extreme Disablement Adjustment. Interpretation of GARP Tables. Interpretation to be one that advances purpose, namely to benefit veterans.
Veterans' Entitlements Act 1986 - subs22(4), subs120(40)
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Ticsay 16 AAR 241 followed
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent and the Applicant, through his solicitors, of a copy of the decision that was in fact made, the Respondent and the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed:
..................................................................................……………………………….
Associate
Date of Hearing 13 November 2000
Date of Decision 13 November 2000
Counsel for Applicant Mr N DawsonSolicitor for Applicant R L Whyburn & Associates
Advocate for Respondent Mr P Godwin, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/17
By Mr M.D. ALLEN, Senior Member
DE BRABANDER and REPATRIATION COMMISSION
SYDNEY, MONDAY, 13 NOVEMBER 2000MR ALLEN: In this matter, the applicant pursuant to an application lodged with the Tribunal on 10 January 2000 sought review of a decision by the respondent as affirmed by a Veterans' Review Board on 24 November 1999 continuing his disability pension at 100 per cent of the general rate. The applicant currently has the following incapacities accepted as being war caused, namely cervical spondylosis, bi-lateral cataracts, osteoarthritis of the right knee and carotid arterial disease. It is the contention of the applicant in these proceedings that he is entitled to the extreme disablement adjustment. The criteria for the grant of pension at that rate are set out in section 22 of the Veterans' Entitlements Act 1986, as amended. Sub section (4) of section 22 reads inter alia:
Where:
(a)either:
(i) the degree of incapacity of a veteran from war-caused injury or -caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force;
…
(b)the veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and
(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25 and is entitled to the extreme disablement adjustment.
Now, in this matter, the applicant is currently in receipt of pension at 100 per cent of the general rate and was so in receipt at all material times. He is over the age of 65 years having been born on 25 June 1924. He is not receiving a pension under sections 23, 24 or 25. Consequently, the issue before me today is whether he has an impairment rating of 70 points and a lifestyle rating of at least six points.
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©Auscript Pty Ltd 2000In assessing his impairment rating one takes, first of all, a report by Dr Roderick McEwan, consultant physician, dated 10 May 2000, that is exhibit R2. After obtaining a history from the applicant, Dr McEwan assessed his lifestyle at a rounded out rating of 6 and the assessment of impairment was assessed by Dr McEwan at 70 points. Subsequent to that assessment, it was ascertained that the applicant also suffers from diffuse idiopathic skeletal hyperostosis that, of course, is not a condition which has been accepted as being attributable to the applicant's war service. The applicant's treating rheumatologist is Dr Christopher Needs and he dealt with this in his report of 9 November 2000 which is exhibit R4.
In that report, Dr Needs says:
Mr De Brabander has cervical spondylosis as well as diffuse idiopathic skeletal hyperostosis. This is occurring in association with cervical spondylosis and osteoarthritis of the right knee. While this is a distinct diagnostic entity, it often co-exists with established cervical and lumbar spondylosis. The aetiology of this is unknown.
The condition is generally abbreviated to DISH and Dr Needs stated in his report:
In my opinion, some 20 per cent loss of the cervical function may be attributable to DISH while less than 10 per cent of right knee function is attributable to DISH.
Dr McEwan also discussed the effect of DISH on the applicant and in a supplementary report dated 21 July 2000 stated:
However, on balance, it would seem to me that his disability and incapacity is due in a greater degree to DISH than it is to the two accepted disabilities of cervical spondylosis and osteoarthritis of the right knee.
A further report by Dr McEwan which became exhibit R7 in these proceedings states:
In my opinion, more than half of Mr De Brabander's disability and incapacity is due to DISH and thus the major part of his medical impairment and lifestyle ratings are due to DISH.
In considering this matter, sub section 4 of section 120 of the Veterans' Entitlements Act states that the degree of proof is to the Tribunal's
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©Auscript Pty Ltd 2000reasonable satisfaction. In Repatriation Commission v Smith the Full Court of the Federal Court equated that to the civil standard of proof, namely proof on the balance of probabilities. I would also mention too that in approaching a question of proof on the balance of probabilities the High Court decision of Briginshaw v Briginshaw must also be taken into account. So far as the medical reports are concerned, I am more persuaded by Dr Christopher Needs who is the applicant's treating rheumatologist.
Dr McEwan's report initially is thorough but his estimation of the DISH has simply been done on perusing the clinical notes of Dr Needs so that where one has a clash between Dr McEwan's interpretation of Dr Needs' clinical notes and the opinion of Dr Needs, I find more persuasive the report of Dr Needs who as I must reiterate is the applicant's treating rheumatologist. It was argued for the respondent that having regard to the DISH condition table 19.2 of the Guide to the Assessment of Rates of Veterans Pensions Fifth Edition must be applied to any assessment of the applicant's impairment. The notes in chapter 19 state:
The judgment of the relative contributions should be based on proper medical advice. The contribution should be expressed in the form "the accepted conditions contribute not at all about one quarter, about one third, about one half" etcetera.
The table 19.2 which is headed, Partially Contributing Impairment then sets out impairment ratings and on one side goes about three quarters, about two thirds, about one half, about one third, about one quarter and not at all. Tables such as that are, of course, cause difficulties when it comes to making an assessment on a legal bases. The way in which the interpretation of such tables should be approached was set out by his Honour Olney J in Comcare v Ticsay 16 AAR 241 at 248. His Honour was there speaking of the Comcare Guide, however, that guide as it says in its introduction has had regard to the Guide to the Assessment of Rates of Veterans Pensions in its compilation. At page 248, His Honour said:
In so far as it is relevant to this case, the function of the Guide is to set out: "Criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined.
His Honour continued:
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©Auscript Pty Ltd 2000In its reasons the Tribunal canvassed in some detail the authorities relating the proper approach to be adopted to the construction of workers compensation legislation.
I would only interpose to say that I see interpretation of veterans' legislation to be exactly the same. Both are forms of what are known as remedial legislation. He Honour then said:
The first principle established by the authorities is clearly stated by Hill J in Thiele v Commonwealth (1990) 22 FCR 342 at 346 when he said in relation to the precursor of the Act:
"The present legislation is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such. Thus where two constructions are possible, that which is favourable to the worker should be preferred: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J."
Reference was also made to the dictum of Mr Justice Gibbs as he then was in Public Transport Commission (NSW) v J. Murray-More (NSW) Pty Ltd 132 CLR 336 at 350 where two meanings are open. It is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.
His Honour then stated:
Having regard to the definition of the term "impairment", to the provisions of ss 14 and 24, and to the particular purpose of the Guide as provided in s 28(1), it seems that the legislative policy of the Act is to provide for the payment of compensation to an employee who has suffered an injury resulting in a permanent impairment. The Guide should be construed and applied in aid of the general statutory purpose, not as a means of limiting it."
In this matter, the medical specialist who opinion I have preferred says that some 20 per cent loss of cervical function may be attributable to DISH. Twenty per cent is not a quarter. A quarter is 25 per cent. Also, the medical practitioner says "may be: which is hardly a bases upon which to carry out a reduction in the degree of impairment allocated to a veteran because of his war service. It seems to me that on the interpretation of the guide where it speaks of one quarter as the initiating factor 20 per cent not being one quarter, no deduction is required to be made in relation to cervical spondylosis for the applicant's DISH.
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©Auscript Pty Ltd 2000Similar comments, of course, apply to 10 per cent and in fairness to the respondent they did not even seek to argue that so that, in my opinion, the applicant does, as per the exhibit R2, the initial report of Dr McEwan, have an impairment using the appropriate guide of 70 points. It is then a matter of ascertaining his lifestyle. The difficulty in assessing lifestyle, is that the applicant has as a non recognised condition, a post traumatic stress disorder or, as I should say, anxiety state disorder. Document T19 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a report by a psychiatrist, Dr Keshava, to the applicant's general practitioner. That report is dated 10 August 1999.
In that report, Dr Keshava took a history that the applicant gets very depressed periodically. He said nothing interests him and he sits on his Jason chair and rocks for hours. He cannot concentrate on the TV shows; he gets irritable with his grandchildren; his sleep is disturbed. Dr Keshava then opined Mr De Brabander suffers from generalised anxiety state disorder chronic and alcohol dependence. He has low frustration tolerance and he loses his temper easily. Those remarks must be taken into account when one considers his lifestyle.
Table 22.1 refers to personal relationships. As I understand the applicant's evidence today, he goes nowhere. The only person he sees, apart from his wife is his son who comes to do the garden and mow the lawn. He sees his grandchildren about once a month but said that he can't tolerate them. Friends no longer visit. He said, "People used to come and see me, but I'm short fused and I tell them just what I think". There does not appear to be any marital discord although his wife has told him he is no longer the man she married and they do sleep in separate beds as a result of the applicant's pain and discomfort from his war-caused injuries.
In assessing personal relationships, I believe I must make allowance for the psychiatric conditions, however, a rating of 4, "Markedly affected relationships, most relationships are unsatisfying, maintenance of usual relationships with relatives, friends, neighbours and colleagues is difficult much less time is spent socialising than was the case formerly". It seems to me that 4 is appropriate because, obviously, the pain and suffering from the other conditions relates in a person who is not inclined to be gregarious, obviously, if the psychiatric condition were accepted, a higher rating would be appropriate.
So far as mobility is concerned, the applicant says that he can't walk beyond the corner of his house although that seems to be somewhat of an exaggeration as today he gave evidence that he managed to walk
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©Auscript Pty Ltd 2000from Town Hall station to the Tribunal. He did not say, however, how many pauses that took him. I also note that in getting (a) to this Tribunal and (b) at an earlier occasion to his counsel's chambers, the applicant was driven from his home at Greystanes to Strathfield station which is not his local station and that he has to use Strathfield station because it has a lift and then at Town Hall station he used escalators. I know, of my own knowledge, that Town Hall station has not only escalators to street level, shall we say, but also to the next level above so that he would find himself in George Street and then Market Street to the Tribunal by being able to use escalators.
He says he doesn't go for drives or anything of that nature because he has difficulty sitting. Indeed he says, "I don't go out at all". His only excursions beyond the home are – apart from the ones I've just stated to the Tribunal and to see his counsel, are to his general practitioner. It seems to me that on the bases of mobility a factor of 5 is appropriate. Again, the various tables are difficult to understand. For example, 5 says major impediments to mobility – depended upon others or mechanical devices such as wheel chairs; unable to use most forms of public transport but it seems to me that the evidence was he can't use a bus because of the steps up. Train is difficult in that he needs a railway station with either lifts or escalators and he doesn't and can't drive a car, so 5 seems appropriate.
There was some discussion about taxis and I think it is correct to say that when public transport is referred to it is referring to the general forms of public transport, for example, buses, trains, etcetera. So far as recreational community activities are concerned, a factor of 6 is stated to be able to engage in only a very few satisfying recreational activities restricted to a few passive activities such as watching television, listening to radio, reading and receiving visitors and that seems to encompass the applicant even allowing for psychiatric condition. I notice he gave away bowls because of complications from his carotid arterial disease and also pain in the legs. So 6 seems to be appropriate there.
Domestic activities, 7 is total dependency upon others for domestic tasks and it seems that this is the fact, the qualification for the applicant. As I understand his evidence, he gets out of bed then sits in a Jason rocker chair in the lounge room and reads large print books or watches television and only leaves his lounge chair to go to the doctors. He says that his wife even brings him his meals there. He undertakes no domestic tasks, of course, the garden and lawn are mown by his son. His wife apparently does the rest so 7 is appropriate there. On my mathematics, 4, 5, 6 and 7 equates or adds up to 22 which divided by
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©Auscript Pty Ltd 20004 is 5.5 which is rounded up to 6. On that basis, the applicant has an impairment of 70 and a lifestyle rating of 6 which entitles him to the Extreme Disablement Adjustment. The claim was lodged on 16 December 1998.
RECORDED : NOT TRANSCRIBED
mr allen: The decision under review is set aside, the Tribunal substitutes in lieu thereof its decision, namely that the applicant is entitled to the Extreme Disablement Adjustment as and from the 12th day of December 1998.
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