Eden and Repatriation Commission

[2005] AATA 901

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 901

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1003

VETERANS' APPEALS DIVISION		)
Re		WILLIAM JOHN EDEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Patrick Lynch, Member

Date15 September 2005

PlaceSydney

Decision The Tribunal sets aside the decision under review and decides that Mr Eden is entitled to the extreme disablement adjustment to his rate of pension.

..............................................

Ms R Hunt        
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – War-caused depression – War-caused disability pension at 100% of general rate – Application for extreme disablement adjustment - Assessment of disability and lifestyle rating – Applicant entitled to extreme disablement adjustment – Decision set aside.

Veterans’ Entitlements Act 1986 s22

Guide to the Assessment of Rates of Veterans’ Pensions, 5^th ed

REASONS FOR DECISION

15 September 2005	Ms Robin Hunt, Senior Member Dr Patrick Lynch, Member
SUMMARY

1.      This matter is an assessment of disability and lifestyle rating to determine whether Mr William Eden is entitled to an extreme disablement adjustment to his already accepted war-caused disability pension of 100% of the general rate. Mr Eden suffers from war-caused endogenous depression. The Tribunal has assessed the emotional and behavioural consequences and lifestyle effects of his depression and finds that Mr Eden is entitled to an extreme disablement adjustment.

BACKGROUND

2.      It is not disputed that Mr Eden gave extraordinary military service for 6 years in several theatres of the Second World War. The most traumatic event was being buried alive in an air raid shelter during a Stuba bomber attack at El Alamein. He dug himself and several others out of the sand but this event, above any other, caused him to seek psychiatric help in 1947. He was referred to Dr George, a psychiatrist, who gave him reassurance but nothing else.

3.      Mr Eden got on with his life qualifying initially as a plumber, which he worked as until 1976. He then took 2 years off work and then qualified as an engineer and subsequently worked supervising oil and gas pipelines installation in Australia and overseas. 

4.      This successful career was interrupted by the onset of severe psychotic depression in 1980 when Mr Eden was diagnosed as having endogenous depression, which was accepted to be due to war-service. He worked full-time for a year after this episode and then worked part-time until around 1994. This condition, which had probably existed since 1947, was coped with, without treatment until 1980. This treatment involved 4 to 5 intensive impatient treatments from 1980 to 2002 and eventually ongoing treatment with regular lithium carbonate. This stabilised his condition so that his last intensive impatient treatment was in 2002.

5.      This stabilised psychiatric status and the disability, now present, is for assessment. However, the past recurrent requirement of approximately 3 years for periods of, on average around 7 week, intensive impatient treatment cannot be ignored in considering the totality of his war-caused endogenous depression.

6.      The Tribunal considered

·     Oral evidence of Mr Eden.

·     Oral evidence, report and disability and lifestyle assessment of Dr Phillipa Harvey-Sutton, occupational health specialist.

·     Oral evidence, report and lifestyle assessment of Mrs Helen Bell, occupational therapist.

·     Report and disability assessment of Dr Patrick Morris.

·     Disability assessment of Dr Karl Koller, treating psychiatrist.

·     Disability assessment by Dr Coverdale.

EVIDENCE OF MR EDEN

7.      Mr Eden appeared before the Tribunal as an intelligent, neatly dressed 82 year old man. He was a reluctant witness and it was difficult to extract evidence from him regarding his life and disabilities caused by the endogenous depression. He also gave information focused on what he used to be able to do, rather than what he could do now. By doing this, he understated his disabilities and it was only by dogged questioning that more realistic details of his current disabilities and the influence these had on his day to day life were made clear.

8.      His oral evidence under questioning revealed he has daily depression, he feels down in the dumps on waking and improves to normal around lunchtime. On questioning, Mr Eden qualified this to 70% of normal on wakening and 90% by lunchtime. Mr Eden, having experienced 4 morbid depressive psychotic episodes, would accept a somewhat lower level of normal mood than the average person. This therefore signifies his depression mood is probably greater than the 70-90% he estimates.

9.      This daily depressed mode is interfered with by bad days in which he feels sad and tearful and he doesn’t get out of bed all day. His sister is aware of his depression and monitors this situation by requiring him to visit her every second day for lunch. He is physically capable of making his own breakfast and an occasional evening meal using a wok on his barbeque. He acknowledged he goes to his sister’s house 3-4 times every week for lunch and she gives him prepared meals to take home. Thus, whilst he is capable, his sister supplies most of his meals because she considers that he lacks motivation to cook adequately for his meals.

10.     Mr Eden claims he does his own washing and cleans his caravan. In reality, this was found to be inadequate by Mrs Bell, and his wife and sister clean the caravan when they visit. Considering Mr Eden lives in a modern 22 foot caravan, which takes very little effort to keep neat and clean, this is hardly a significant capability. 

12.      Mr Eden described his relationship with his second wife as pleasant. In reality, they live separately and she visits him at weekends once every fortnight or month. Mr Eden told the Tribunal of his activities which seemed quite extensive on superficial analysis. However, it became obvious that his principle activity is reading which he can do if the topic interests him.

11.     He has only 3 people in the caravan park with which he is friendly and meets these people about once a week. He walks along the river. He used to fish regularly but has done so very rarely since he sold his boat in 2001. He attends Redfern RSL once every 3 months. He attends the Masonic Club by invitation from old friends but this is very rarely, being once or twice a year. He rarely attends the Miranda RSL. Thus, while Mr Eden is physically capable of reasonable activity and socialising, psychologically his depression (excluding his psychotic episodes at around 3 yearly intervals) renders him incapable of nearly all of these activities to anywhere near a normal level.

12.     Additionally, he can drive but does so rarely, preferring his sister to drive when they go shopping. He can maintain the car but this is a relatively infrequent task. He states that he does go shopping but he is accompanied by his sister.

CURRENT PSYCHIATRIC TREATMENT

13.     Mr Eden has been consulting Dr Koller every second month since 1999. Their consultations elevate his mood for about 2 weeks and Mr Eden would like to consult Dr Koller fortnightly but acknowledges this is not possible. Thus, his mood is low for 6 weeks out of every 2 months, which is most of the time. Mr Eden takes lithium which stabilises his condition. Dr Coverdale, his GP, supplements his medication with Prothiaden to help sleeping.

EVIDENCE OF DR PHILIPPA HARVEY-SUTTON

14.     Dr Harvey-Sutton considered Mr Eden presented as a well dressed, physically healthy person but when he stripped for examination, his musculature and presentation was that of a debilitated old man. She considered this to be inconsistent with his account of his swimming and gym sessions. She also noted old shrapnel wounds on his left thigh and also on his back.

15.     Dr Harvey-Sutton’s history detailed Mr Eden’s war experiences in England, Palestine, Tobruk, Palestine (again) and Lebanon. He returned to Australia in 1843 and after further amphibious landing training, took part in landings in Lae, Finchhafen and Tarokan.

16.     Dr Harvey-Sutton detailed Mr Eden married in 1944 and had 4 children with whom he keeps in contact by phone and he has a daughter and grandchildren who live in Miranda. His first wife was an alcoholic and disappeared. His second marriage in 1993 was to a Chinese medical doctor who currently lives at Five Dock and visits him at weekends and helps with cleaning the caravan. His relationship with his second wife was considered by Dr Harvey-Sutton to be functionally an estrangement. He also told Dr Harvey-Sutton of his 2 daily visits to his sister who lives locally and supplies him with most of his meals and helps him with shopping. Also, he reported to her his decreasing activities of bird keeping and fishing and that he spends most of his time at home. He rarely goes out as he has “difficulty tolerating most people” and avoids people.

17.     Dr Harvey-Sutton considered this to indicate persistent symptoms causing considerable subjective distress, equal to 15 points on Table 4.1 – Emotional and Behavioural Table. On Table 4.2, she considered the manifest distress was obvious to the casual observer and rated 10 points.

18.     On Table 4.3 she considered his original occupation was interrupted by the psychosis in 1980. On Table 4.6, she considered his recreational activities were restricted because of his loss in interest in most activities, earning him 5 points. On Table 4.7, his ongoing intervals of hospitalisation and drug therapy, rated 6 points.

19.     For the lifestyle assessment, as to personal relationships, considering his estranged relationship with his second wife and that his sister looked after him, Dr Harvey-Sutton rated 6 points. In relation to mobility, Dr Harvey-Sutton considered that Mr Eden earned a rating of 5 as he only drove his car in an emergency for short distances, used public transport occasionally and she took into account his clinical examination.

20.     In relation to the recreational and community assessment on Table 22.3, Dr Harvey-Sutton thought considering his small range of activities that 5 points was appropriate. In relation to domestic activities on Table 22.4, considering his sister does most of his cooking and his wife periodically cleans the caravan, she found his domestic activities are minimal and earn a rating of 6 points.

EVIDENCE OF MRS HELEN BELL

21.     Mrs Helen Bell saw Mr Eden at his sister’s house and also later in his caravan. Her detailed report described the major role of his sister in his daily care. This involved cooking most of his food and monitoring his good and bad days, which were outlined in detail and confirmed the oral evidence extracted from Mr Eden at the hearing.

22.     Mrs Bell described in detail Mr Eden’s frequent depression lasting until lunchtime and related his sister’s account of his episodes of neglecting his appearance and staying in bed all day. She noted he becomes distressed at world events and is intolerant of people whose opinions differ from his own and becomes abusive.

23.     Mrs Bell found the caravan cleaning to be sub-standard and observed, while he was physically capable of doing the cleaning, his decreased motivation due to his depression, interfered with his ability to cope.

24.     Mrs Bell defined his social activities:

·His wife visits most weekends.

·His sister visits him or he visits her and she supplies meals.

·His 2 daughters visit fortnightly or every 3 weeks.

·He sees his grandchildren occasionally.

·He has 3 good male friends who he sees weekly or fortnightly

·He visits Redfern RSL 4 times a year, Woronora RSL once a year and Masonic Club twice a year.

25.     Mrs Bell commented that Mr Eden’s sleep is disturbed 3-4 times per night but he gets back to sleep (with the aid of Prothiaden). His physical activity to walk, keep his balance and climb stairs is unimpeded. He is mobile around his caravan and is physically able to do independent core activities but Mrs Bell said that the appearance of the caravan was substandard because of lack of motivation and established routines.

REPORT OF DR PATRICK MORRIS

26.     Dr Morris, psychiatrist, gave a written report only, which included an Emotional and Behavioural Assessment but no Lifestyle rating. Dr Morris took a psychiatric history which was consistent with the facts of Mr Eden’s background, his war service, his first marriage, his working career, his second marriage, as well as his psychiatric symptoms.

27.     However, the Tribunal had difficulty with his GARP assessment. We assumed that he considered that Mr Eden’s stabilised psychiatric status following his commencement of lithium carbonate and last admission for acute intensive psychiatric treatment in 2002 are producing psychiatric symptoms, but not a disorder.

28.     As such, the significant symptoms which he elucidated were (excluding the 4 intensive impatient treatments):

·Occasional nightmares and unpleasant war memories

·Recurrent depression

·Regular medication with lithium carbonate 250mg twice per day

·“Feeling down” and being sad and tearful, complaining of feeling hopelessness, reduced energy and motivation, feeling slow, reduced appetite, poor sleep and feeling worse generally in the morning.

29.      His history of “feeling down” which Mr Eden calls “in between”, is inconsistent with that obtained by Dr Harvey-Sutton, Mrs Bell and Mr Eden’s oral evidence to the Tribunal. Further, as his assessment if Emotional and Behavioural consequences is so low, we can only assume it was Mr Eden’s tendency to understate his symptoms as “not too bad”. The Tribunal therefore found the report of Dr Morris of little help in its determination of the appropriate assessment according to GARP.

REPORT OF DR KARL KOLLER

30.     Dr Koller’s cryptic and only partially legible Emotional and Behavioural assessments gave little detail but, as he has treated Mr Eden since 1999 and seen him on a regular 2 monthly basis for assessment, warrant evaluation. It is noted that the Veterans’ Review Board accepted his assessment without question.

ANALYSIS OF IMPAIRMENT RATING FOR DEPRESSION

31.     The Tribunal’s assessment of the Emotional and Behavioural consequences, considering all the information before it, is as follows.

Subjective Distress Table 4.1 (Functional loss)

32.     Mr Eden has a varying level of depression nearly every day, ranging from “bad” to “not too bad”. When he is “bad”, he stays in bed all day, neglects his appearance and doesn’t eat. When he is “not too bad”, he gets up early after disturbed sleep, feels mildly depressed until lunchtime and goes to visit his sister. Thus, he has persistent symptoms causing considerable distress, despite his sister’s support, medication and 2 monthly consultations with Dr Koller.

33.     The Tribunal considers that the appropriate rating for subjective distress is 15 points. This is supported by Dr Koller and Dr Harvey-Sutton.

Manifest distress

34.     Mr Eden underplays his symptoms but as a minimum, he argues and becomes irritated by strangers who disagree with his opinions and he can become abusive. This would suggest a rating of 10 points. Dr Koller stated 15 points was appropriate stating:

“Tense worried depressed man, Suggestion of irritability. Depressed in (illegible).”

35.     This requires a fit of obvious continual distress. As Mr Eden’s distress is continual in the full sense of the word, the Tribunal felt Dr Koller’s long association and his opinion that there are elements of anxiety and worry, which have not been commented on by others or detected by the Tribunal, the high rating is probably appropriate. The Tribunal has decided that the appropriate rating is 15 points.

Functional Effects Table 4.3

36.      Mr Eden is capable of self care but not reliably or consistently. He is monitored by his sister every second day and she considers this essential for his ongoing well being. The Tribunal considers that he is capable but his depression reduces motivation to do things. With monitoring, he suffers moderate interference but only because he is being monitored. If his sister was ever unable to carry out surveillance, he would be worse.

37.     The Tribunal has decided that the correct appropriate rating is 3 points.

Occupation Table 4.4

38.     “The no age adjustment permitted for this table” suggests assessment should ignore that Mr Eden is 82 years old and cannot work, as he tried to work part-time and did so until he was 70 years old in 1993. This is 15 years after his overt psychosis was treated. Thus, the Tribunal finds Mr Eden should be within a rating of 5-8 points if his current disability is compared to his previous capability. We note however that Dr Koller gave 0 points and Dr Harvey-Sutton gave no assessment. Even if we are wrong and 0 points is appropriate, Mr Eden will otherwise achieve a GARP score rendering him deserving of the extreme disablement adjustment to his pension when the remainder of the table is calculated.

Domestic situation Table 4.5

39.     As the Tribunal and Dr Harvey-Sutton consider the separation of Mr Eden and his wife is virtually an estrangement, the appropriate rating is 6 points. The frequency of his wife’s visits is considerably less than weekly and the main activity appears to be cleaning up the caravan and annex.

Social interaction Table 4.6

40.     Mr Eden has good relations with his sister, very little time with his wife, a moderate relationship with his family and very little interaction with others because of his “crankiness”. The other people he interacts with are few and infrequent. This is a substantial reduction in social interaction because of his nearly continual daily depression, which varies in intensity. The Tribunal finds that the appropriate rating is 6 points.

Leisure activity Table 4.7

41.      Mr Eden has given up interest in swimming, fishing, horse riding, shooting and does little else than reading, walking and watching birdlife. The Tribunal finds that this loss of interest in most recreational pursuits due to lack of motivation and recurrent depression warrants a rating of 5 points.

Current therapy Table 4.8

42.     Mr Eden has had inpatient psychiatric admissions for an average of 7 weeks on each occasion. Since the last admission, he has required lithium carbonate, regular sessions every 2 months with Dr Koller and Prothiaden to help him sleep. This embraces the general description of both 5 and 6 points. Thus, the Tribunal finds that the appropriate rating is 6 points. The higher rating is reinforced by the degree of supervision supplied by Mr Eden’s sister, which is included in this table as “therapy”. This was considered by Dr Koller in his assessment.

ANALYSIS OF LIFESTYLE EFFECTS

Personal relationships Table 22.1

43.      Dr Harvey-Sutton regards Mr Eden’s relationship with his wife as an estrangement. Mrs Bell suggests that his wife lives with him most weekends but Mr Eden’s oral evidence conceded that his wife’s visits were fortnightly to monthly and related to cleaning the caravan. This led the Tribunal to consider this marriage to be as assessed by Dr Harvey-Sutton.

44.      Mrs Bell stated that Mr Eden sees his children regularly but most of his contact with them is by phone and he rarely sees his grandchildren. Mrs Bell also stated that Mr Eden has a good relationship with three male friends in the caravan park but again, these meetings are weekly or fortnightly.  The visits are too infrequent to be regarded as good relationships.

45.      Mrs Bell’s report of Mr Eden’s strong opinions and intolerance of anyone with opinions differing with his, would qualify him as a “cranky old man” who has very few friends other than family. His sister describes her tolerance of his “crankiness” as a feature of her continuing relationship with her brother.

46.      The Tribunal considers Mr Eden’s personal relationships are severely restricted because of his lack of motivation and his crankiness, which are directly related to his psychosis and warrant a rating of 6 points. 

Mobility Table 22.2

47.      Mrs Bell is considered to have had the advantage of seeing Mr Eden at his sister’s house and in his caravan. She acknowledged that there is an impact of Mr Eden’s psychiatric condition on his lifestyle but concentrated on considering mobility on his physical capabilities without giving due weight to the lack of motivation effects. Mr Eden is capable of doing things but lacks the motivation to do them. This lack of motivation varies from coping, as when he was when Mrs Bell saw him, to not coping where he does not get out of bed or shave. The frequency of these deep depressing episodes is unclear but Mr Eden’s sister regularly supervises this aspect and intervenes when necessary so it doesn’t become a protracted situation. The fact that he can drive but only does so for short distances and that he is accompanied by his sister, who sometimes drives, shows that whilst he can drive, he does so very rarely. This also decreases the significance of this ability to maintain the car which would be required very infrequently as a result.

48.      His use of public transport is about once per week at the most and probably less. This is because he goes to Redfern RSL four times a year, Miranda rarely and he used to go to the gym and swim but he doesn’t any longer.

49.      The Tribunal considers his mobility rating should be 5 points.

Recreational and Community Activities Table 22.3

50.      Mr Eden’s main interest is in reading, qualified by the requirement “as long as the subject interests him”. All of his other activities, which he was prepared to discuss, ceased several years ago. 

51.      He rarely visits local clubs and he visits the Redfern RSL, at most, four times a year as it serves a very good meal. He visits Miranda RSL twice a year and Masonic Club twice a year. Mr Eden has given up most of his other activities although he talks as though he still does all of these activities. This is misleading to anyone attempting to assess his disability.  He no longer fishes daily since he sold his aluminium runabout in 2001. He can fish in the river 50m away from his caravan but he does so rarely. He no longer travels to Sutherland to swim and attend the gym but he included this trip in his interview with Mrs Bell when discussing his use of public transport. He no longer goes shooting or horse riding but perhaps does some bird watching.

52.      The Tribunal is convinced that Mr Eden has stopped most of his recreational and community activities and is at the extreme range of 5 if not overtly warranting a rating of 6 points. Thus, the Tribunal considers a rating of 6 points is appropriate.

Domestic Activities Table 22.4

53.      Mrs Bell describes the caravan as being cleaned to knee level. Mr Eden lives in a new caravan and it requires little daily cleaning to have it gleaming. Mr Eden used the excuse that he was reorganising to explain the obvious disarray Mrs Bell encountered.

54.      Mr Eden is a proud man who is only just coping with a minimal domestic activity required in a modern caravan. He requires assistance with grocery shopping and this puts him into the 5 rating in addition to the minor requirements to maintain his caravan confirm that he is just coping.

55.      Mr Eden overestimates his cooking as his sister usually supplies lunch every second day and dinner as she sends home prepared meals as well. Mr Eden can barbeque and uses a wok but his sister is not prepared to rely on this and supplies most of his meals other than breakfast. His morning meal is in all probability of dubious frequency as he admits he is depressed every day until about midday.

56.      The physical ability of Mr Eden to do the tasks is not the limiting factor but the significant daily psychotic depression. He doesn’t sustain the routines adequately and requires regular and frequent intervention by his sister and less frequently by his wife. Thus, the Tribunal is convinced that the appropriate rating is 6 points and is supported by Dr Harvey-Sutton’s opinion.   

THE TRIBUNAL”S ASSESSMENT

43.     Mr Eden’s psychiatric impairment gave a total of 48 points. In addition to this, he has an impairment rating of 43 points for his hearing, tinnitus, impotence and skin disorder. On the combined values chart, this gives a rating of 70 points.

44.     Thus, the Tribunal’s assessment gives Mr Eden a disability rating of over 70 and an average lifestyle rating of 5.75 which rounds up to 6 points. Therefore, he is entitled to the extreme disablement adjustment to his pension. It follows that the decision under review is set aside.

DECISION

45.     The Tribunal sets aside the decision under review and decides that Mr Eden is entitled to the extreme disablement adjustment to his rate of pension.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 16 May 2005 
Date of Decision: 15 September 2005                  
Solicitor for the Applicant: Fairbairn Lawyers      
Solicitor for the Respondent: Department of Veterans’ Affairs