Drochman and Repatriation Commission
[2006] AATA 146
•23 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 146
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/549
VETERANS' APPEALS DIVISION ) Re ALAN DROCHMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott Date23 February 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
……………………………….
Senior Member
CATCHWORDS
VETERAN’S ENTITLEMENTS – veteran operational service Malaya – applicant already in receipt of disability pension at 100% - application for extreme disability adjustment rate – decision set aside and substituted.
Veterans’ Entitlements Act 1986 s 22
Bushell v Repatriation Commission (1992) 175 CLR 408
REASONS FOR DECISION
23 February 2006 Senior Member P McDermott Introduction
1. On 11 August 2003 Mr Alan Drochmann, a veteran who served in Malaya, applied for an increase in his disability pension from 100% of the General Rate.
2. I have to decide whether Mr Drochmann is entitled to such an increase in his disability pension.
3. This application requires me to consider whether the disabilities of Mr Drochmann are such that he should be granted the Extreme Disablement Adjustment rate of pension under s22 of the Veterans’ Entitlements Act 1986 (“the Act”).
Decisions
4. On 7 June 2004 a delegate of the Repatriation Commission (“the Commission”) decided that Mr Drochmann would continue to receive a disability pension at 100% of the General Rate.
5. On 1 February 2005 the decision of the delegate was affirmed by a decision of the Veterans’ Review Board (“the Board”).
6.Mr Drochmann now seeks a review of the decision of the Board.
Background
7. Mr Drochmann was born on 7 June 1938 and on the “application day” (as defined in s 19(9) of the Act) was 65 years of age.
8. Mr Drochmann served in the Australian Army from 15 June 1956 to 16 March 1962. For the purposes of the Act he had operational service with the Far East Strategic Reserve in Malaya between 25 September 1957 to 18 October 1959.
9. After his discharge from the Army in 1962 he worked for a short time for the Willoughby Council.
10. Mr Drochmann then worked for the State Rail Authority from about 1962 until he was made redundant in about 1991 or 1992. During his service with the State Rail Authority as a guard he sustained three injuries to his right knee. His initial injury was in 1978 and his third injury occurred in 1990. He was on light duties when he was made redundant.
11. Mr Drochmann has not been employed since he was made redundant. After his redundancy he went on the invalid pension. He then was given a service pension and subsequently a disability pension.
Accepted Service Related Disabilities
12.Mr Drochmann has a number of accepted service related disabilities:
§ bilateral sensori-neural hearing loss;
§ generalised anxiety disorder;
§ chronic airflow limitation; and
§ impotence.
Earliest Date Of Effect
13. Mr Drochmann has taken all steps in this matter within the prescribed time limits. The earliest date of effect, if this application regarding assessment is successful, would be 11 June 2003.
Standard Of Proof
14. This appeal relates to assessment and the standard of proof required to be met is that set out in s120 (4) of the Act, i.e. the ”reasonable satisfaction” standard.
Issues for Resolution
15. The Commission has conceded that Mr Drochmann satisfies the requirements of ss 22(4) (a)(i), (b) and (d) of the Act.
16. At the hearing I emphasised that in deciding this application I am not bound by any concessions made by any party. Having regard to the observations of Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 475, my duty in arriving at what is often referred to as the “correct or preferable decision” is to base that decision on evidence that is before me.
17. After a review of the material before me I am satisfied that this concession was properly made by the Commission. The degree of incapacity of Mr Drochmann is 100%. He has attained the age of 65 years. He is not receiving a disability pension at either the intermediate or special rates of pension.
18. What remains at issue in this case is whether Mr Drochmann satisfies the requirements of ss 22(4)(c) of the Act.
19. In order to satisfy the requirements of that provision it is necessary to show that Mr Drochmann has an impairment rating for his accepted disabilities of at least 70 impairment points; and that he has a lifestyle rating of at least 6 points.
20. In making an assessment of the impairment rating and his lifestyle rating I must be guided by criteria specified in The Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”).
Impairment Rating
21. The delegate of the Commission assessed Mr Drochmann as having an impairment rating for his accepted disabilities of 66 points rounded to 65 points. The delegate gave an impairment rating of 40 points for chronic airflow limitation; 27 points for generalised anxiety disorder; 5 points for hearing impairment and tinnitus with 2 points for bilateral sensori-neural hearing loss; and 15 points impairment to sexual function. To achieve the overall impairment rating the delegate combined the individual ratings using the Combined Values Chart in the GARP.
22. The Board came to the conclusion that Mr Drochmann has an impairment rating for his accepted disabilities of 67 impairment points rounded to 65 points. The Board differed from the assessment of the delegate by giving his tinnitus a rating of 5 points.
23. After the Board delivered its decision Mr Drochmann has been examined by two consultant occupational physicians: Dr P L Harvey-Sutton, and Dr Tim Anderson.
24. Both Dr Harvey-Sutton and Dr Anderson have given Mr Drochmann an impairment rating of 70 points. These physicians have come to the same rating but have differed in their approach in determining an appropriate rating.
25. Dr Harvey-Sutton has given Mr Drochmann an impairment rating of 40 points for chronic airflow limitation; 27 points for generalised anxiety disorder; 10 points for tinnitus with 5 points for hearing loss; and 15 points for impairment to sexual function.
26. Dr Anderson has given Mr Drochmann an impairment rating of 39 points for the respiratory condition; 36 points for generalised anxiety disorder; 5 points for hearing impairment and 2 points for his tinnitus with 15 points for impairment to sexual function.
27. I have mentioned that both physicians have differed in their approach in determining an appropriate impairment rating for Mr Drochmann. In particular Dr Harvey-Sutton gave a 10 point rating for his tinnitus whilst Dr Anderson has given him only a rating of 2 points. Dr Harvey-Sutton has given Mr Drochmann a 27 point rating for his general anxiety disorder whilst Dr Anderson has given him a rating of 36 points.
28. I have allocated a 10 point rating for his tinnitus as recommended by Dr Harvey-Sutton. Dr Harvey-Sutton in her report of 9 June 2005 has discussed how Mr Drochmann uses a radio as a masking device during the day to distract himself from the noise. The GARP table for functional loss (Table 7.1.11) gives an impairment rating of 10 points in the case of severe tinnitus which requires a masking device.
29. I find that Mr Drochmann has an impairment rating of 70 points.
Lifestyle Rating
30. In making the determination of 7 June 2004 the delegate of the Commission made a lifestyle rating as follows:
· Personal relationships - 5
· Mobility - 5
· Recreational and community activities - 5
· Domestic and employment activities - 6
By adding and dividing by 4, an overall lifestyle rating of 5 points was obtained. The Board saw no reason to disturb the ratings made by the delegate to the Commission.
31. Mr and Mrs Drochmann gave evidence before me. I relied upon that evidence as well as the medical reports to make an appropriate lifestyle rating assessment.
§ “Personal relationships”
32. The rating for “personal relationships” is given to refer to a veteran’s ability to take part in and maintain customary social, sexual and interpersonal relationships.
33. The evidence before me was that Mr Drochmann has a strained relationship with his wife. They have regular arguments. Mr Drochmann conceded that he caused most of the arguments (“I start most of the arguments”; “I just seem to go over the edge and have an outburst”).
34. Mr Drochmann also stated that he was dependent upon Mrs Drochmann to assist him. He relies on his wife to “help me out”.
35. Mr Drochmann maintains a relationship with his adopted daughter and any arguments with his daughter are not serious (“disagreements not serious, just arguments”).
36.Dr Harvey-Sutton reported that there are no estrangements in his family.
37. Mr Drochmann gave evidence of his difficulty in making friends. He takes “a while” in making friends”. He said that was “very suspicious of a lot of people”.
38. Mr Drochmann gave evidence that he takes his wife on a regular basis every week to a bingo session at the local bowls club. They stay for about 1 ½ hours where he has limited social contact.
39. I find that 5 is an appropriate rating for “personal relationships”. The descriptor for that rating refers to “severely affected relationships” and “able to relate only to particular, or few people, eg, spouse or children. These remaining relationships should are strained and of low quality”.
§ “Mobility”
40. The “Mobility” rating measures the effects of the accepted conditions on the veteran’s mobility. I am satisfied that the respiratory condition of Mr Drochmann is a major impediment to his mobility.
41. Mr Drochmann gave evidence that he uses a walking frame to assist him with walking. He stated that the main reason why he used the frame was because of his respiratory difficulties which he referred to as his “breathing problem”. He has shortness of breath. He did not use the walking frame during the hearing of his application.
42. Mr Drochmann gave evidence that when he goes shopping he leans on a shopping trolley for support.
43. Mr Drochmann is able to use public transport. When he gets in a bus he has to “sit straight down” because of his respiratory difficulties. He has difficulty in getting out of a bus. He does not fly as he stated that he is “scared stiff of aeroplanes”. He spoke of his experiences some 12 years ago when he flew to Perth.
44. Mr Drochmann can drive a car. He regularly drives his vehicle to participate in local activities. He drives the car on a weekly basis to the local bowls club. He also drives his car to the shops which are some 203 kilometres from his home. He stated that he drives his car to the doctor who is “10 minutes away” from his home. In 2005 he drove from Tweed Heads to Port Macquarie in two sessions of two and a half hours each. Mrs Drochmann does not drive.
45. I find that 5 is an appropriate rating for “mobility”. The descriptor for that rating refers to “major impediments to mobility”. I consider that this rating is appropriate because Mr Drochmann uses a walking frame. I have relied upon one of the descriptors for the rating of 5 which is “dependent upon others, or mechanical devices such as wheelchairs”. I consider that a walking frame is certainly a “mechanical device” within the spirit of that descriptor.
46. I do not consider that the condition of Mr Drochmann is severe enough to warrant a rating of 6 for “mobility”. The descriptor to that rating requires the veteran to be restricted to his home and the immediate vicinity or to be unable to drive a car in any circumstances whatever.
§ “Recreational and Community Activities”
47. The rating for “recreational and community activities” refers to the ability of a veteran to take part in any activities of the veteran’s choosing.
48. I have already mentioned that Mr Drochmann gave evidence that he takes his wife on a regular basis every week to a bingo session at the local bowls club. He also gave evidence that he regularly participates in a volunteer marine rescue unit which rescues people with boating difficulties. He operates the radio of the marine rescue unit. He is able to undertake that volunteer work with the assistance of his walking frame.
49. Mr Drochmann gave evidence that his respiratory condition prevented him for engaging in recreational activities such as 10-pin bowling.
50. I am satisfied that 5 is an appropriate rating for “recreational and community activities””. The descriptor for that rating refers to a “greater reduction in the number and kind of recreational activities which can be undertaken”.
§ “Domestic and employment activities”
51. The rating for “domestic and employment activities” requires a lifestyle rating to be selected from the table for ”domestic Activities” and the table for “employment activities” and, where applicable, the higher of the two lifestyle ratings is to be chosen as the lifestyle rating for “domestic and employment activities”.
52.I find that a rating for 5 is the appropriate rating for ”domestic activities”.
53. The descriptor for the 5 rating for ”domestic activities” is that there is a “limitation of activity to a small range of light tasks”.
54. The descriptor for the 5 rating for ”domestic activities” is that there is a limitation of activity to “watering the garden but has difficulty in weeding and pruning ”. This descriptor is certainly applicable to Mr Drochmann who gave evidence that he has difficulty weeding as he has “trouble in getting up and down”. He has a small garden, with a 3 square metre lawn, that he waters. Mrs Drochmann gave evidence of him watering “pots”. Dr Harvey-Sutton has reported that Mr Drochmann has had difficulty in gardening since 2003.
55. The descriptor for the 5 rating for “domestic activities” that refers to housework states that a veteran is “able to do some light household activities but has difficulty bending to make beds, or in putting out the rubbish bin”. This descriptor fits in with the evidence of Mr Drochmann who states that he has difficulty in making beds and vacuuming. Mr Drochmann advised Dr Harvey-Sutton that he does the “washing up”. That was corroborated by his wife. He states that he is “out of breath” when taking out the garbage. Mrs Drochmann, however, gave evidence that he takes out the rubbish bin, which is on wheels, for “a short distance”.
56. I do not consider that the condition of Mr Drochmann is severe enough to warrant a rating of 6 for “domestic activities”. One of the descriptors to that rating requires the veteran to be unable to prepare meals. There was evidence before me that Mr Drochmann is able to cook: he can boil an egg, and prepare meals such as “chops and chips”.
57. I find that a rating for 5 is the appropriate rating for “employment activities”.
58. The descriptor of the 5 rating for “employment activities” is that a veteran is “unable to work”. I consider that Mr Drochmann is unable to work. He has not been in employment since 1991 or 1992. Since his redundancy Mr Drochmann was initially in receipt of the invalid pension, then a service pension and subsequently a disability pension. Dr Anderson in his report of 30 June 2005 report of 30 June 2005 stated that it is “not a realistic expectation that he would be returning to work”. Dr Anderson states that Mr Drochmann is unlikely ever to find work as he has no transferable skills.
59. Dr Anderson, however, has expressed the view that he “would be fit for a light weight assembly job” (para. 45). Dr Anderson considers that this unskilled work could be undertaken on a “part time basis” (para. 42).
60. Dr Anderson in another report of 30 June 2005 has given Mr Drochmann a rating of 3 for “employment activities”. Against that rating he acknowledges that “due to his cardio-respiratory condition, which has been accepted, he probably would be unable to effectively work in his previous occupation without restructuring of the tasks”. Dr Anderson, however does not discuss what restructuring would be necessary in order for Mr Drochmann to be employed.
61. I do not accept the view of Dr Andersen that Mr Drochmann can be employed. Dr Anderson has not discussed the effect that the other accepted conditions (hearing bilateral sensori-neural hearing loss; generalised anxiety disorder) would have on the ability of Mr Drochmann to undertake employment.
62. I have relied upon the report of Dr Karl Koller who made a psychiatric report on 27 February 2003. Dr Koller reported: “There is much evidence for poor concentration” [T Docs., p. 13]. Based on this report I consider that Mr Drochmann would be unsuited for a “light weight assembly job”.
63. I have already mentioned that in making a rating for “domestic and employment activities” I must use the higher of the lifestyle rating from the table for ”Domestic Activities” and the lifestyle rating for the table for “employment activities”. As I have determined that Mr Drochmann has a rating of 5 for both ”domestic activities” and “employment activities”, I have allocated a rating of 5 for “domestic and employment activities”.
64. I appreciate that in giving a rating of 5 for “domestic and employment activities” I have given a rating which is lower than the rating of 6 that was given by the delegate of the Commission and the Board. However, in making an appropriate rating I must act on the evidence before me. Recently, the President of this Tribunal observed that the task of this Tribunal is to examine the decision under review “thoroughly and with care – often in a way that the original decision maker could not undertake”: see Justice Garry Downes AM, “Why Does Australia Have a General Review Tribunal”, Address to the New Zealand Chapter of the Council of Australasian Tribunals, 7 October 2005. I mention that my determination has been assisted by the evidence of Mrs Drochmann which was not before the Board.
65. I also mention that Mr Whinship, who appeared on behalf of Mr Drochmann, quite properly conceded that the rating of 6 for “domestic and employment activities” was a “generous rating”.
66.I make a lifestyle rating as follows:
· Personal relationships - 5
· Mobility - 5
· Recreational and community activities - 5
· Domestic and employment activities - 5.
By adding and dividing by 4, an overall lifestyle rating of 5 points is obtained.
Decision
67. I have to decide whether Mr Drochmann’s disabilities are of such a nature to warrant him being granted the Extreme Disablement Adjustment which is provided for in s 22 of the Act. I consider that his impairment rating is 70 points. Accordingly the sole issue that I have to consider is whether his lifestyle rating is less than, equal to, or more than 6 points. I have determined that an overall lifestyle rating of 5 points is appropriate. In these circumstances I consider that Mr Drochmann is not entitled to be paid the Extreme Disablement Adjustment rate of pension under s 22 of the Act.
68. In determining this application I have not relied upon the lifestyle effects report of Dr Anderson. I made an observation during the hearing stated that the descriptors against the criteria which are in the report are brief comments. The advocate who appeared for the Commission stated that the report was not an objective assessment of the medical condition of the medical condition of Mr Drochmann.
Order
69. Although I have made the same overall lifestyle rating of 5 points that was made by the Board I have differed in the rating that I have given for “domestic and employment activities”.
70. Given the additional evidence before the Tribunal, the respondent should take account of the new ratings under Lifestyle as recorded in these reasons. This is to ensure that his overall lifestyle rating is a matter of record.
71. I determine that Mr Alan Drochmann is not entitled to the Extreme Disablement Adjustment rate of pension under section 22(4) of the Act. Mr Drochmann has an impairment rating of 70 points. Mr Drochmann has an overall lifestyle rating of 5 points which is calculated as follows:
· Personal relationships - 5
· Mobility - 5
· Recreational and community activities - 5
· Domestic and employment activities - 5.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott
Signed: ………………………………
Legal Research Officer
Date/s of Hearing 20 January 2006
Date of Decision 23 February 2006
For the Applicant Mr B Winship, Winship Lawyers
For the Respondent Mr G Dube, Departmental Advocate
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