Glasscock and Repatriation Commission

[2004] AATA 1227

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1227

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/418

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ATHOL GLASSCOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date23 November 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.......[Sgd].......

MJ Carstairs

Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans Entitlements – general rate of pension and extreme disablement adjustment rate – whether impairment due to non-war caused disease or war caused injury – impairment due to war caused injury alone insufficient to increase pension

Veterans’ Entitlements Act 1986, s 22

REASONS FOR DECISION

23 November 2004  Ms MJ Carstairs, Member

1.      This is an application by Athol Glasscock (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 27 February 2003.

2.      At the hearing the applicant was represented by Mr D O’Gorman of counsel, instructed by Noel Woodall and Associates Solicitors. The respondent was represented by Mr B Williams. 

3.      The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) numbered T1-T6 as well as exhibits marked A1- A2 for the applicant and R1- R2 for the respondent.

BACKGROUND

4.      The applicant was born on 1 February 1921 and now is aged eighty three.   He has a number of conditions accepted as due to his war service, namely mild perceptive deafness of the right ear; malaria; anxiety state with tension headaches; malignant neoplasm of the colon; impotence; and cervical, lumbar and thoracic spondylosis.

5.      The applicant resides at Sundale Nursing Home, having been admitted there in August 2000.  On 6 September 2000 he lodged a claim for increase in the rate of his pension above the 100% general rate that it had been determined he was entitled to receive.   The delegate of the respondent decided that the applicant was not qualified for the extreme disablement adjustment rate because the delegate considered that the applicant did not meet the necessary ratings for impairment or lifestyle that are set out in the legislation.  The VRB also decided that the applicant was not entitled, though it was satisfied that the applicant met the necessary impairment rating, however not satisfied that he reached the required lifestyle rating.

6.      The applicant applied to this Tribunal on 15 May 2003.  The issue for the Tribunal is whether the applicant satisfies the requirement for an impairment rating of 70 and a lifestyle rating of 6, both attributable to war caused incapacity alone.

EVIDENCE

7.      The applicant was not able to attend the hearing.  The parties relied on the written medical reports.

8.      In a medical report dated 4 January 2000 (exhibit R1) Dr A Raine completed a form assessing the applicant’s medical conditions. He noted his advanced Parkinsonism and that it is difficult to separate this from other problems, particularly when assessing the applicant’s psychiatric status, cervical and lumbar spondylosis.  Dr R Mackay, medical officer completed an assessment on 2 March 2003 (exhibit R2), concluding that the overall impairment rating was 65 after adjustment was made for severe Parkinson’s disease.  Dr J Smeeton completed a further calculation of impairment (T4, p22), taking into account additional medical information from the applicant’s general practitioner.  Dr Smeeton concluded that the applicant had a rating of 65 impairment points, though some of the ratings for individual medical conditions differed from those assigned by Dr MacKay.

9.      In a medical report dated 17 December 2002, Dr P Grant, senior medical officer with Department of Veterans’ Affairs stated that he had assigned an overall rating of 75 impairment points though he believed that the applicant’s general practitioner had over assessed the psychiatric symptoms by failing to distinguish those effects that might be attributable to Parkinson’s disease from those attributable to anxiety state.  Dr Grant said that it was not possible to estimate an adjustment.

10.     In a medical report dated 30 June 2004 (exhibit A2), Dr G Moseley, general practitioner stated that the applicant was unable to walk when admitted to the nursing home and that he had typical features of Parkinson’s disease including rigidity, repetitive movements and Parkinson’s related dementia.   Dr Mosley stated that the applicant was admitted because of his Parkinson’s disease and  continued:

…this caused most of his incapacity at that time.  Parkinson’s disease did not cause or was not caused by (war caused disabilities), and at his advanced stage would not have been worsened by the above conditions.

CONSIDERATION OF THE ISSUES

11. The provision for payment at the extreme disablement adjustment rate, which is a payment at 150% of the general rate of pension, is made in s22 of the Veterans’ Entitlements Act 1986 (the Act).

22       General rate of pension and extreme disablement adjustment

(1)       This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.

…..

(4)       Where:

(a)either:

(i)        the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force;

Or

...

(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;

the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).

…

12.     As the Federal Court pointed out in Raisbeck v Repatriation Commission (1993) 31 ALD 704, the Act requires in s29 that the Guide to Assessment of Rates of Veterans’ Pensions is used to determine a veteran’s incapacity from war caused disease, and the lifestyle effects arising from that incapacity, not incapacity generally. Thus, the 70 points and 6 points referred to in s22 must arise from war caused incapacity only, not the veteran’s overall incapacity from both war and non-war caused disability.

13.     The difficulty in the applicant’s case is that his most disabling condition is his Parkinson’s disease, and the added difficulty this condition presents in assessing the level of impairment arising from his war conditions.  Both Dr Grant and Dr Moseley point to the substantial difficulties in the assessment exercise in this case.

14.     Mr O’Gorman submitted that the Tribunal could be satisfied that the applicant reached the necessary rating of 70 impairment points and a lifestyle rating of 6, excluding the effects of the Parkinsonism.

15.     The Tribunal took into account the medical reports that have been completed in the course of the claim, and took into account the submissions made in regard to how the impairment should be assessed where a disability that is not war related interferes with a medical practitioner’s task of assigning a rating to war caused disability in isolation.  The Tribunal accepts the submission of Mr Williams that Chapter 19 of the Guide requires that a partially contributing impairment must be worked out where non-war caused disabilities contribute to incapacity.  The introduction to the Guide provides

…assessment of impairment must take into account the contribution to impairment from other conditions and the expected course of the condition including the effect of aging by reference to age adjustment tables as appropriate.

16.     The Tribunal accepts the submission that the medical assessments dated 2 March 2000 and 23 August 2000 provide a more accurate assessment of the contribution of the applicant’s Parkinson’s disease to his overall impairment, and should be preferred to the assessment carried out by the VRB.  The Tribunal agrees that in arriving at an assessment of 75 points the VRB placed undue reliance on the report of Dr Grant.  That report, properly read, assigns a figure of impairment, while commenting that the figure was reached in reliance on a report of Dr Moseley, which Dr Grant clearly does not believe could be accepted at face value.  Dr Moseley has commented on the difficulties of the assessment process, however his report dated 30 June 2004 leaves in no doubt that the applicant is most severely disabled by his Parkinson’s disease. 

17. The Tribunal was satisfied that the applicant impairment from war caused disability was less than the 70 points required under s22. The applicant’s Parkinsonism has a significant impact on his lifestyle and this is reflected in the reports of his treating doctor, Dr Mosley whose clear evidence was that his condition of Parkinson’s disease caused most of his incapacity at the time of his admission to the nursing home. The date of his admission was close to the start of the assessment period that has to be applied. The Tribunal was reasonably satisfied that throughout the period the most disabling condition was the applicant’s non-war caused condition. Dr Raine, general practitioner noted in several places in his report dated 1 August 2000 the impact of Parkinsonism on the other medical conditions and on the applicant’s lifestyle. The lifestyle rating takes into account four components of life, namely personal relationships mobility recreational and community activities and employment and domestic activities. The Tribunal was satisfied that this non-war caused condition impacted significantly on the applicant’s lifestyle. On the medical evidence he is completely immobile due to the advanced stage of his Parkinsonism (“mobility”) and is totally dependent on others and in nursing home care because of his Parkinson’s disease (“domestic activities”). Even taking into account that the supervention of Parkinson’s makes it difficult to assess that impact of the war caused conditions on lifestyle, the Tribunal was satisfied taking into account the medical an other evidence that the applicant could be rated no higher than five across the lifestyle factors when solely war caused disability is taken into account.

DECISION

18.     The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:      Sam Appleton

Associate

Date/s of Hearing  17 November 2004
Date of Decision  23 November 2004
Counsel for the Applicant         Mr D O'Gorman
Solicitor for the Applicant          Noel Woodall and Associates
For the Respondent                  B Williams, Departmental Advocate