Hopkins and Repatriation Commission

[2007] AATA 1291

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1291

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          V 200601093

VETERANS'        APPEALS      DIVISION		)
Re		ALAN ROLPH HOPKINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Regina Perton

Date2 May 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

VETERANS’ AFFAIRS - attendant allowance - whether veteran's cerebro-spinal condition is a war-caused injury or war-caused disease - lack of discretion - decision affirmed

Veterans’ Entitlements Act 1986 s 98

Re Ryan and Repatriation Commission (1986) 11 ALD 209

Re Campbell and Repatriation Commission [2001] AATA 84

REASONS FOR DECISION

2 May 2007 Regina Perton       

1.      Alan Rolph Hopkins is an 83 year old veteran.  He was a Royal Australian Air Force pilot attached to the Royal Air Force during World War 2.  He flew Lancaster bombers.  He suffers from multiple medical conditions, a number of which have been accepted as war-caused disabilities.  He is finding it increasingly hard to look after himself independently.  His wife assists him with a number of self-care tasks.  Mr Hopkins currently receives the Extreme Disablement Adjustment to the General Rate of pension.

2.      On 1 May 2006, Mr Hopkins applied for an Attendant Allowance (the allowance).  On 15 June 2006, the Repatriation Commission (the Commission) found he was ineligible for the allowance.  Mr Hopkins sought review of the decision by the Veterans’ Review Board (VRB). On 27 October 2006, affirmed the Commission’s decision.  Mr Hopkins applied to the Tribunal for review of the decision on 17 November 2006.

3.      The Tribunal will examine whether Mr Hopkins qualifies for the allowance.

Mr Hopkins’s Medical Conditions

4.      The Commission has accepted the following of Mr Hopkins’ disabilities as war-caused (acceptance date in brackets):

·Anxiety disorder (2 July1985)

·Deviated Nasal Septum (24 December 1987)

·Hypertension (24 December 1987)

·Post Traumatic Stress Disorder (27 October 1988)

·Osteoarthritis of the right knee (15 November 1998)

·Gout (29 February 2000)

·Psoriasis (29 February 2000)

Obstructive sleep apnoea (7 September 2001).

5.      The Commission has not accepted the following of Mr Hopkins’ disabilities as war-caused (rejection date in brackets):

·Sarcoidosis (23 January 1989)

·Osteoarthrosis of the first carpo-metacarpal joint of the left thumb (22 June 1999)

·Osteoarthrosis of the first carpo-metacarpal joint of the left and right thumbs (19 July 2000)

·Osteoarthrosis of the right and left shoulders (19 July 2000)

·Rotator cuff syndrome of the left shoulder (19 July 2000).

6.      Dr Laurence Clemens, consultant rheumatologist, provided a letter, dated 30 March 2007.  He stated that Mr Hopkins suffers from a number of musculoskeletal problems, including osteoarthritis of the knees, gout, bilateral rotator cuff disease and lumbar spondylosis.  Dr Clemens also described the medication taken by Mr Hopkins aimed at preventing progression of his condition.  In an earlier letter, dated 26 April 2006, Dr Clemens stated that Mr Hopkins had been in hospital as his patient from 23 December 2002 until 2 January 2003.  Mr Hopkins was treated for severe lumbar facet joint arthritis. 

7.      A Health Summary Sheet printed on 3 April 2007 by Dr M Coffey, general practitioner, provided a list of 20 current medications prescribed for Mr Hopkins. 

8.      On 1 June 2006, Dr Ken Whight, completed an Attendant Allowance Questionnaire.  Dr Whight indicated that Mr Hopkins can get into a bath, but not out of it; is able to feed and shave himself with an electric razor; needs help in dressing and needs rails or assistance when using the toilet.  He is not confined to bed or a wheelchair nor does he need constant attendance or supervision.  On 18 July 2006, Dr Whight reported that Mr Hopkins had attended his practice for the past 45 years.  He stated that Mr Hopkins had been coming for consultations every 2 to 3 weeks in relation to his anxiety, hypertension and osteoarthritis and that the osteoarthritis is becoming worse.  Dr Whight stated that Mr Hopkins is totally dependent on his wife to drive him to his city medical appointments and in the home for his domestic and personal matters.

Legislation

9. The circumstances in which a person can be paid the attendant allowance are set out in s 98 of the Veterans’ Entitlements Act 1986 (the Act).

(1)       Where a veteran is being paid a pension under Part II in respect of incapacity from a war‑caused injury or a war‑caused disease of a kind described in column 1 of the following table, the Commission may grant to the veteran an allowance, called attendant allowance, at the rate specified in column 2 of that table opposite to the description of that kind of incapacity in column 1, for or towards the cost of the services of an attendant to assist the veteran:

Column 1	Column 2
Kinds of incapacity	Rate per fortnight  $
1. Blinded in both eyes	84.30
2. Blinded in both eyes together with total loss of speech or total deafness	168.60
3.  Both arms amputated	168.60
4.  Both legs amputated and one arm amputated	84.30
5.  Both legs amputated at the hip or one leg amputated at the hip and the other leg amputated in the upper third	84.30

(2)Where:

(a)a veteran is being paid a pension under Part II in respect of incapacity:

(i)        from a war‑caused injury or a war‑caused disease affecting the cerebro‑spinal system; or

(ii)       from a war‑caused injury or a war‑caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro‑spinal system; and

(b)the Commission is of the opinion that the veteran has a need for the services of an attendant to assist the veteran;

the Commission may grant to the veteran an allowance, called attendant allowance, at the rate of an amount per fortnight equal to the amount specified in item 1 (in column 2) of the table in subsection (1), for or towards the cost of the services of an attendant to assist the veteran.

(3)       For the purposes of the application of the table in subsection (1) to and in relation to a veteran, a leg, foot, hand or arm that has been rendered permanently and wholly useless shall be treated as having been amputated.

….

Does Mr Hopkins qualify for the allowance?

10.     Mr and Mrs Hopkins told the Tribunal about the physical difficulties Mr Hopkins now faces.  Mr Hopkins described the impact of gout on his mobility.  He described the difficulties he has in bed because of his severe sleep apnoea, deviated nasal septum, gout and osteoarthritis of the knee.  His wife often needs to turn him over during the night due to his lack of mobility.  Mr Hopkins said that he can now only walk only a short distance on level ground and cannot use stairs.  He said his wife has to assist him with dressing and cuts up his food for him although he can feed himself and does some grooming such as shaving.  His wife has to drive him wherever they go.  Mr Hopkins submitted that his accepted war-caused conditions were causing a disability that was equivalent in severity and effect to a cerebro-spinal disease or injury. 

11.     On 20 November 2006, Mr Hopkins lodged a claim with the Commission for osteoarthrosis affecting both shoulders, osteoarthrosis of the left knee, osteoarthrosis of both 1^st carpometacarpal joints and lumbar spondylosis.  On 11 January 2007, the Commission determined that the disabilities in the claim were not related to Mr Hopkins’s war service.   Mr Hopkins has now applied to the VRB for review of that decision and is awaiting advice of a hearing date. 

12. Ms Jean McCulloch, an advocate with the Department of Veterans’ Affairs, representing the Commission, submitted that a cerebro-spinal injury is a severe condition that is of the order of the conditions described in s 98(1) of the Act, namely blindness or amputated limbs. She pointed out that being blinded in both eyes or having both legs and one arm amputated resulted in payment of only half the maximum attendant allowance. Ms McCulloch indicated that cerebro-spinal conditions such as quadriplegia or paralysis after a stroke would be considered equivalent. She stated that while Mr Hopkins has difficulties, he is not affected to the degree envisaged by the legislation. She informed the Tribunal that Mr Hopkins is paid a recreation travel allowance because he is dependent on his wife to drive him; so he does get consideration for his lack of mobility.

13.     In Re Ryan and Repatriation Commission (1986) 11 ALD 209, the Tribunal found that the applicant qualified for the allowance. However, Mr Ryan’s accepted war-caused conditions included thoracic spondylosis, lumbar spondylosis, cervical spondylosis and left muscular degeneration. In Re Campbell and Repatriation Commission [2001] AATA 84, the Tribunal found that the applicant, who suffered from Paget’s Disease of the bone and had limited use of his right arm, was not eligible for the allowance as his difficulties arose from a condition that was not accepted as war-caused.

14. The Tribunal accepts that Mr Hopkins suffers from medical conditions that affect his mobility. To qualify for the allowance, however, the veteran’s accepted war-caused conditions must lead to the need for assistance. Section 98(2) of the Act requires that the condition that has led to the need for an attendant must be a cerebro-spinal condition or injury with similar effect or severity. This condition must be the result of a condition that has been accepted by the Commission as war-caused. To date, Mr Hopkins has not had any cerebro-spinal condition accepted as war-caused. The Tribunal is not satisfied that his difficulties with gout, sleep apnoea, his knee or any other accepted war-caused condition can be equated to a cerebro-spinal condition. The Tribunal finds that Mr Hopkins does not meet the requirements of s 98(2) of the Act and therefore does not qualify for the allowance.

DECISION

15.      The Tribunal affirms the decision under review.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Ursula Noyé

Clerk

Date of hearing:  27 April 2007
Date of decision:  2 May 2007
Advocate for applicant:                Self represented
Advocate for respondent:            Ms J McCulloch