Gow and Repatriation Commission - [2000] AATA 279

DECISION AND REASONS FOR DECISION [2000] AATA 279

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/161

VETERANS' ENTITLEMENTS DIVISION       )
           Re      JAMES GOW
  Applicant

And REPATRIATION COMMISSION
Respondent
DECISION

Tribunal Dr J D Campbell, Member

Date11 April 2000
PlaceSydney
DecisionThe decision under review is set aside and in substitution therefor, the Tribunal determines that:
(a)the Applicant has a disability of post traumatic stress disorder and this is a war-caused disability with date of effect being 23 December 1997; and
(b)the Applicant has a combined impairment rating for all war-caused disabilities of 70 points with date of effect being 23 December 1997; and
(c)the Applicant has a lifestyle rating of six points with date of effect being 23 December 1997; and
(d)the Applicant is entitled to the payment of an Extreme Disablement Adjustment with the date of effect being 23 December 1997.
(Sgd) J D Campbell
..............................................

Member

CATCHWORDS
VETERANS' ENTITLEMENTS - degree of incapacity 100% - disability rating - lifestyle effects - Extreme Disablement Adjustment.

Veterans' Entitlements Act 1986 - ss21A, 22(4), 120(1), (3) and (4)

REASONS FOR DECISION

Dr J D Campbell, Member

Mr James Gow ("the Applicant") in this matter seeks a review of the decision of the Veterans' Review Board dated 8 January 1999, which affirmed the decision of a delegate of the Repatriation Commission ("the Respondent") dated 19 July 1998. The latter decisions accepted the Applicant's disabilities of osteoporosis, bilateral sensorineural hearing loss with tinnitus, hypertension and solar keratoses as being war-caused disabilities, with an assessment of Disability Pension of 100% of the General Rate with effect from 23 December 1997. Further, the Applicant's claim for personality disorder was refused.
A hearing was held in Sydney on 20 December 1999. At that hearing the Applicant was represented by Ms E Sadlier, an advocate from the Veterans' Advocacy Service, Legal Aid Commission, and the Respondent was represented by Ms S Breuer, an advocate from the Department of Veterans' Affairs.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Statement of the Applicant's wife, Mrs Daphne Gow Medical report of Dr M Baz dated 19 May 1999 Medical report of Dr R W Wenden dated 28 July 1999 Medical reports of Dr M Burns dated 14 July 1999 and 17 August 1999 T1–T23 P1-98 Exhibit A1 Exhibit A2 Exhibit R1 Exhibit R2

Oral evidence was presented to the Tribunal by Mr and Mrs Gow.

ISSUES:

The relevant issues in this matter are:
(a)whether the correct diagnosis of the claimed anxiety condition is post traumatic stress disorder and whether this is a war-caused condition, with date of effect being 23 December 1997 if the condition is found to be war-caused; and
(b)whether the Applicant has an impairment rating of at least 70 points for war-caused disabilities; and
(c)whether the Applicant has a lifestyle rating of at least six points; and
(d)whether the Applicant satisfies the requirements for the payment of an extreme disablement adjustment.

LEGISLATION:

The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and, in particular, section 21A and subsections 22(4), 120(1), (3) and (4).
STANDARD OF PROOF:
The relevant standards of proof in this matter are:
(a)entitlement: the reasonable hypothesis (subsections 120(1) and (3) of the Act); and
(b)assessment: reasonable satisfaction (subsection 120(4) of the Act).

BACKGROUND:

The Respondent accepted on 4 November 1996 that the Applicant's aortic atherosclerotic disease and transitional cell carcinoma of the urinary tract, were war-caused disabilities. An application for disability pension was received by the Department of Veterans' Affairs from the Applicant on 23 March 1998, in which a claim was made for the following disabilities: osteoporosis, pericarditis, hearing loss, hypertension, anxiety and solar skin damage, to be accepted as war-caused disabilities (T10).
On 19 July 1999 the Respondent advised the Applicant that his claim for osteoporosis, bilateral sensorineural hearing loss with tinnitus, hypertension and solar keratoses was accepted. The Applicant was advised that his claim for personality disorder had been refused and that his disability pension had been increased to 100% of the general rate with effect 23 December 1997 (T18).
An appeal from the Applicant was heard by the Veterans' Review Board on 8 January 1999 with the decision, not to alter the findings of the Respondent, being forwarded to the Applicant on 11 January 1999 (T22).
CONCESSIONS:
At the commencement of the hearing, the Respondent conceded that:
(a)the Applicant has the war-caused disability of post traumatic stress disorder, with the date of effect being 23 December 1997; and
(b)the Applicant's combined impairment rating for all war-caused disabilities, including post traumatic stress disorder, was 70 points.

As a consequence of the Respondent's concessions, the Tribunal finds that the Applicant has a disability of post traumatic stress disorder which is war-caused, with the date of effect being 23 December 1977. Further, the Tribunal finds that the Applicant has a combined impairment rating for all war-caused disabilities, including post traumatic stress disorder, of 70 points, again with this finding being effective from 23 December 1977. As a consequence of the Respondent's concessions, the Tribunal was left to address in evidence the issue of lifestyle rating.
EVIDENCE:
Mr James Gow – The Applicant:
The Applicant informed the Tribunal that he had much difficulty with hearing and that he has a tendency to stutter when stressed or anxious. In describing the effects of his war-caused disabilities on his current lifestyle, the Applicant made the following statements:

a) He had come by taxi to the Tribunal as he cannot use public transport because of a lack of toilets. Further, because he was coming to the Tribunal he had had no fluid since 1800 hours the previous evening and, despite this, he had to stop the taxi twice on the way, to go to the toilet; and

b) He takes Lasix medication, drinks two litres of fluid per day, has only one kidney, wears an incontinence pad and changes his underpants twice a day. Since his first operation in July 1996, he has had 20 further cystoscopies and 18 chemotherapy treatments, leaving him with little feeling in the genital area; and

c) Mr Gow stated that he does not possess a driver's licence, and that it was a conscious decision that he not drive as he used to drink a lot and, for safety, it was better that his wife drive, a decision supported by his wife; and

d) In relation to other people, the Applicant stated that he has trouble and does not mix with other people. He has a quick temper, usually says what he thinks and often offends people. For a time an ex-prisoner of war used to come across for a cup of tea each morning, however, this stopped after the man fractured his ankle. Further, it was stated that the man was unable to talk but they seemed to get on. The Applicant says there is another man who feeds his dog when he is away or in hospital.

In response to questions asked in cross-examination, the Applicant stated:
(a)in relation to his daughter and her two children, he gets on with his daughter (a psychologist, who lives 100 kilometres away) and she has to work. In relation to the two children, aged 10 and 12, he can tolerate them for only a short period of time (five minutes) as they are not interested in what he is interested in. Further, the Applicant stated that his daughter and the two children usually come up for Christmas. Apart from a nephew he has no relatives, does not keep in touch with anyone regularly, and he may get a phone call at Christmas; and
(b)in relation to social activities the Applicant stated that he has done nothing for years, but used to go out for a drink. Further, the Applicant stated that there is a bus to Picton at 6am, 2pm and 8pm, but his wife usually drives him when he accompanies his wife shopping, where he has a look around, pushes a trolley and buys a lottery ticket. They usually park in the invalid parking area. Finally, the Applicant stated that he does not go out to dinner with his wife, although there was an occasion three to four years ago for their fiftieth wedding anniversary; and
(c)in relation to his own mobility, the Applicant stated that he could walk 200 yards and that his knees are bad but he does not use any aids such as a wheelchair or a walking stick. The Applicant stated that he tries to walk in the yard with his dog each day. Further, he stated that there had been no modifications to the home but he tends to use high back chairs to take weight off his back and transfer weight to his ankles, on account of his use of Prednisone resulting in fractures to his ribs and vertebrae. Nevertheless the Applicant, despite his skeletal difficulties, stated that he could get on and off buses and trains without help and that he could travel from Hilltop to Sydney by public transport, if he were free of his urinary tract difficulties. The Applicant confirmed that he does not help around the house now, when in the past he used to do everything, as he gets a lot of pain across both shoulders and back; and
(d)in discussing his hobbies, the Applicant indicated that he had a pair of bantams, a canary and some injured parrots but, following a severe chest illness for which he was admitted to Royal Prince Alfred Hospital for five weeks, he is not allowed nor is he able to look after them. Further the Applicant stated that his wife feeds the dog and he could if he had to, he watches some television, reads an occasional bird book, waters two bonsai plants and occasionally throws some feed to the native birds.
Mrs Gow – Applicant's wife:
In her statement of 16 December 1999 (Exhibit A1), Mrs Gow made the following observations:
(a)the Applicant has two friends, one of whom has had a stroke and who her husband visits for a short time on most days; and
(b)the Applicant does not readily engage in conversation and he can only sustain a social interaction for a short time before he starts to get irritable and needs to back away; and
(c)the Applicant's relationship with his daughter is structured so that visits are on a monthly basis, with her daughter being conscious not to upset him. Likewise, with his daughter's two children, he prefers them to be outside and too long an association will result in him becoming irritable; and
(d)the Applicant only goes out when she takes him, and trips are planned around his need to use a toilet. Further, his ability to walk distances is deteriorating because of breathlessness and skeletal pain – for the latter the Applicant takes analgesics to help with sleeping; and
(e)the Applicant is unable to assist around the house, in the garden or undertake his hobbies. He has an interest in his two bonsai plants but, as with television, he is unable to sustain an interest for greater than half an hour, although he does read a lot.
In evidence before the Tribunal, Mrs Gow confirmed much of what she said in her statement, while adding that her husband had never held a driver's licence and had never driven, as he did not want to hurt anyone. Mrs Gow stated that the Applicant's level of concentration depends on the situation, with him often getting bored and angry and wanting to get away. Mrs Gow further stated that the Applicant tries to look after the aviary but, while he can sit but not kneel, he is unable to work in the garden. In further comment, Mrs Gow stated that her husband tries to help others but has to be very careful who he befriends for he can be short tempered and outspoken. Further Mrs Gow, already having noted in her statement that she has been without holiday relief for three years, is trying to get someone to help them and this is proving to be very difficult.
In response to questions asked in cross-examination by the Respondent, Mrs Gow stated:
a) the Applicant's relationship with his daughter is variable and depends on his mood. The daughter can be outspoken, and tells him when he does things wrong. He is proud of his daughter and sometimes can sit and talk with her for a couple of hours; and
b) the Applicant will not have anyone telling him what to do and in the past, when he would go drinking with a few mates from the mine, her task was to pick him up from the hotel. He has only ever liked people he thought to be genuine; and
c) the Applicant's activities include an ability to walk around the yard, although he gets breathless; an ability to dress himself, make a cup of coffee, a piece of toast, heat a meal and wash dishes; and
e) she cannot afford to get sick as he needs constant care because of his various disabilities.

MEDICAL EVIDENCE:
Dr Khoo:

Dr Khoo, the treating general practitioner, has made the following series of observations, in a report dated 1 May 1998, concerning the effect of the Applicant's psychiatric impairment on the behaviour of the Applicant:
"- constantly on 'edge', 'nervous'
- short concentration and agitated easily
- constant nightmares.
.    agitated. Frequent outbursts of anger.
     Stammering & tremor & nervous sweating & teary.
.    Restless pacing and inability to converse when stess.
Introverted. Inability to mix with people & public. Increase anxiety on using public transport.
… Poor concentration on tasks.
Intense irritability & snappy towards wife & daughter. Easily get upset and agitated with people.
Loner, inability to form friendships because of his intense level of anxiety and irritability.
Loss of all interests in sports/games/hobbies. Avoidance to interact with public.
…" (T14 pp46, 47)

Dr R W Wenden:

Dr Wendon, a consultant psychiatrist, makes the following observations on the assessment of the Applicant's psychiatric impairment:
"Mr Gow suffers from a stammer when upset … tremor and irritability. These are frequent symptoms, are moderately distressing to Mr Gow and he is often unable to distract himself. …
…
There is evidence of obvious distress and preoccupation which is evident to casual observers and persons unfamiliar with the veteran…
Mr Gow can function if left alone but frequently needs his wife to be present with him to function. He is said to be 'never apart' from his wife and the 'slightest things upset him'. If upset he cannot eat. He suffers moderate interference in some everyday situations.
…
The veteran has occasional friction with family members.
Mr Gow has substantial reduction in social interaction. He has two friends that he sees besides his daughter and grandchildren but he has significant difficulty coping with his grandchildren and cannot tolerate them for too long.
…
Mr Gow shows significant reduction in recreational activities however this is not due to his PTSD. …" (Exhibit R1)

Dr M Baz:

In her report of 19 May 1999, Dr Baz, a consultant occupational physician, details a lifestyle rating for the Applicant in the following commentary:
"LIFESTYLE
Personal relationships: 5 With inclusion of psychiatric disorder, Mr Gow is limited to a few people and he has difficulty even with these relationships. The accepted disabilities cause considerable restriction to all interpersonal relationships, warranting a rating of 4.
Mobility: 6. Mr Gow is limited to his home and the immediate vicinity unless he has assistance from others as a result of his anxiety disorder and accepted disabilities. The currently accepted disabilities warrant a rating of 4 as mobility is markedly reduced by these disabilities.
Community and Recreational Activities: 6. The combination of disorders also has restricted him to very few satisfying recreational activities which are largely passive, and even these he has difficulty enjoying. The currently accepted disabilities would have caused considerable limitation to activities in which he could participate, and warrant a rating of 5.
Domestic Activities: 6. These disabilities limit him to very limited domestic activities and he would be unable to manage independently in his home. The accepted disabilities limit him to a small range of light tasks, and warrant a rating of 5.
Total:
All assessed disabilities: 23, average rounded up to 6.
Currently accepted disabilities: 18, average rounded up to 5." (Exhibit A2)

Dr M Burns:

Dr Burns, a consultant occupational physician, in his report dated 14 July 1999, made the following lifestyle assessment of the Applicant which he confirmed in his later report of 17 August 1999:
"LIFESTYLE ASSESSMENT
Personal Relationships
As mentioned previously, Mr Gow is married with one daughter and two grandchildren. He reports that he gets on very well with his family. He states that he has several old friends whom he sees occasionally. He gets on reasonably well with them. He does not get on very well with new people and avoids people who he believes are not sincere. I believe a personal relationships rating of 4 is appropriate.
Mobility
Mr Gow reports that he has never driven a car and has never held a car licence. He states that he used to love walking but now finds that walking leads to shortness of breath and also problems with his knees. He reports that he doesn't use public transport and that his wife drives him everywhere. It should be noted that no public transport is readily available within his area. I believe a mobility rating of 4 is appropriate.
Recreational and Community Activities
Mr Gow states that he has no outside activities but that he lives on an acre of ground. He keeps a few birds and also a dog. He feed the native birds, especially the parrots. He walks short distances around his property. I believe a recreational and community activity rating of 5 is appropriate.
Domestic and Employment Activities
Mr Gow ceased work in March 1982. When his abdominal aortic aneurysm was operated on in 1981 he was found to have some cardiac disease. It was for this reason that he ceased work as a coal miner. He states that around the house he can do very little. He occasionally wipes up and does minor chores. He has a native garden that he laid out himself so is no (sic) required to do any watering. I believe a domestic and employment activity rating of 6 is appropriate.
An average of his lifestyle affects ratings would be 4.75, which would be rounded up to 5." (Exhibit R2)

SUBMISSIONS:

The Applicant contended that all the requirements for the payment of an extreme disablement adjustment were met in that relying upon his own assessment of lifestyle rating, the comments of his general practitioner and the lifestyle assessment rating of Dr Baz, he had a lifestyle rating of at least six points and therefore satisfied all the requirements of subsection 22(4) of the Act.
The Respondent, in relying upon the evidence of the Applicant and the opinion and assessment of Dr Burns, contended that the Applicant had a lifestyle rating of, at best, five points and therefore failed to satisfy the requirements of subsection 22(4) of the Act.
CONSIDERATION AND FINDINGS:
As a result of concessions and earlier findings by the Tribunal in this matter, the one remaining issue to be decided is the lifestyle rating of the Applicant. This is the outstanding requirement for the Applicant to satisfy in order to be successful in his claim for an extreme disablement adjustment payment as nominated in subsection 22(4), which states:
"(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
(ii)   a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
(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;
the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).
…"

The Tribunal , in turning its considerations to the question of the Applicant's lifestyle rating, has given attention to and acknowledges the evidence of the Applicant, his wife, his treating general practitioner and Drs Wenden, Baz and Burns, in so far as it relates to the issue of lifestyle rating and which has been detailed earlier in this judgment.
In detailing the assessment of the Applicant's lifestyle effects, the Tribunal has paid particular attention to the introductory comments for each section within chapter 22, as well as the general introduction to chapter 22 of the Guide to the Assessment of Rates of veterans' Pension (fifth edition) ("GARP V"), as well as the specifics nominated within each table. In particular, the Tribunal notes that the Applicant made a self-assessment of a lifestyle rating of six on 4 March 1998 (T12) and that the determining authority apparently rejected that self-assessment rating when they found the Applicant to have a lifestyle rating of five in their determination of 19 July 1998. In accordance with page 264, paragraph one of chapter 22 of the GARP V the Applicant should have been given a second opportunity to complete a Lifestyle Questionnaire. There is no evidence before the Tribunal that this was done and, if not done, this may have been to the disadvantage of the Applicant's interests.
With introductory comments made, the Tribunal now turns to deal with the issue of lifestyle rating. Table 22.1 deals with personal relationships and it is the Tribunal's finding that the Applicant has a rating of five points in that he does have severely affected relationships and only relates to a few people, namely his wife, daughter and two grandchildren. These relationships are often strained, difficult and tenuous. The Applicant's relationship with the ex-prisoner of war and another person are of a limited nature and for a limited time. In forming such a finding, the Tribunal has given weight to the evidence of the Applicant himself, his wife, Dr Khoo, Dr Wenden and Dr Baz. The Tribunal disagrees with Dr Burns' statement that the Applicant:
"… gets on very well with his family. He states that he has several old friends whom he sees occasionally. He gets on reasonably well with them." (Exhibit R2)

The evidence before the Tribunal does not support such statements and indeed supports a contradictory view.

The Tribunal, in considering Table 22.2 which deals with the mobility of the Applicant, finds that the Applicant has a rating of six points. In arriving at such a finding, the Tribunal has given weight to the evidence of the Applicant, his wife, and Drs Khoo, Wenden and Baz, and in particular to the following:
a) Dr Wenden's statement that:
"Mr Gow can function if left alone but frequently needs his wife to be present with him to function. He is said to be 'never apart' from his wife and the 'slightest thing upsets him'." (Exhibit R1); and
b) the Applicant is unable to use public transport because of his frequency and urgency of micturition with some incontinence; and
c) he does not, nor has he ever driven; and
d) he has difficulty with walking beyond 100-200 yards, and even within that distance is suffering increasing breathlessness; and
e) his osteoporis, with spinal crush fractures, creates lower thoracic and lumbar spine pain.
Further, the Tribunal noted the history of the Applicant's journey to the Tribunal by taxi and the need for the Applicant to stop twice on the trip to visit the toilet. The Tribunal again states that Dr Burns, when he comments that "It should be noted that no public transport is readily available within his area", is creating an inference that is misleading. The evidence from both the Applicant and his wife was that there was a bus service on limited occasions to and from Picton, but the real issue was the Applicant's inability to use the bus because of a concern with his frequent desire and urgency to micturate.
In summary, the evidence led the Tribunal to a conclusion that both his physical and psychiatric war-caused disabilities were restricting the Applicant to limited movement around the house and its perimeter (including an ability to walk across the road), and that he was restricted in any movement beyond the relative confines of his property unless door to door transport was provided.
In turning to Table 22.3, which involves consideration of the Applicant's recreational and community activities, it is evident to the Tribunal that the Applicant takes part in but a few recreational and community activities. On the evidence before the Tribunal, the Applicant's only recreational activity is to water and prune his bonsai plants as he is now unable to feed the dog or his birds, although he may throw a handful of seed for the wild birds. Further, the Tribunal notes that the Applicant does not enjoy television and can concentrate on reading, mainly books on birds, for half an hour. As far as community activities, he is able to accompany his wife shopping and that is not necessarily every week. The Tribunal, mindful of the evidence of the Applicant, his wife, Dr Khoo, Dr Wenden and Dr Baz, finds that the Applicant has a rating under Table 22.3 of six points. The Tribunal, while noting Dr Burns' rating of five points, is of the view that such a rating does not properly reflect the paucity, let alone the lack of apparent satisfaction with recreational activities and that, when engaging in passive activities, the Applicant has difficulties of prolonged application because of his physical and psychotic accepted disabilities.
The Tribunal, in considering the evidence of the Applicant, his wife, Dr Khoo and Dr Wenden, and the opinions of Dr Baz and Dr Burns, finds that the Applicant has a rating of six points under Table 22.4 for domestic activities. It is evident to the Tribunal that the Applicant's contribution to domestic activities is limited to making a cup of tea, a sandwich and wiping the dishes, and that he is unable to undertake any meaningful outdoor activity.
The Tribunal has nominated a rating of five points under Table 22.5, for it is clear that the Applicant is unable to work and that this has been the situation for many years.
The Tribunal, as a result of its finding under each of the composite lifestyle tables, finds that the Applicant has a lifestyle rating of six points.
As a consequence of the Tribunal's earlier findings that the Applicant has a war-caused disability, namely post traumatic stress disorder, and that the combined impairment rating, for all war-caused disabilities including post traumatic stress disorder is 70 points, and the Tribunal's subsequent finding that the Applicant has a lifestyle rating of six points, the Tribunal further finds that the Applicant satisfies all the requirements nominated in subsection 22(4) of the Act and that, as a consequence, is entitled to the payment of an extreme disablement adjustment with date of effect being 23 December 1997.
DETERMINATION
As a consequence of its findings, the Tribunal makes the following determination:
The decision under review is set aside and in substitution therefor, the Tribunal determines that:
(a)the Applicant has a disability of post traumatic stress disorder and this is a war-caused disability with date of effect being 23 December 1997; and
(b)the Applicant has a combined impairment rating for all war-caused disabilities of 70 points with date of effect being 23 December 1997; and
(c)the Applicant has a lifestyle rating of six points with date of effect being 23 December 1997; and
(d)the Applicant is entitled to the payment of an extreme disablement adjustment with the date of effect being 23 December 1997.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 December 1999
Date of Decision  11 April 2000
Advocate for the Applicant           Ms E Sadlier, Legal Aid Commission Advocate for the Respondent  Ms S Breuer, Department of Veterans' Affairs

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Gow and Repatriation Commission [2000] AATA 279

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