Milburn and Repatriation Commission
[2001] AATA 344
•30 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 344
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1555
VETERANS' APPEALS DIVISION )
Re ANTHONY NOEL MILBURN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date30 April 2001
PlaceSydney
DecisionThe Tribunal sets aside the decision under review and substitutes a decision that:
1.the Applicant is entitled to a Disability Pension payable at 60% of the General Rate; and
2.this rate is payable with effect from the first pension payday on or after 1 September 1997.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – bilateral sensorineural hearing loss – tinnitus – post traumatic stress disorder – operational service in Vietnam - Guide to the Assessment of Rates of Veterans' Pensions – impairment rating – degree of incapacity
Veterans' Entitlements Act 1986, ss 5B(1), 6C(1), (3), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), 20, 21A, 22, 29, 120(4), Schedule 2, Item 8
REASONS FOR DECISION
30 April 2001 M J Sassella, Senior Member
History of Application
On 1 December 1997 Anthony Noel Milburn ("the Applicant") lodged an application for a Disability Pension with the Repatriation Commission ("the Respondent") in respect of the conditions of hearing loss/tinnitus and post-traumatic stress disorder ("PTSD"). He claimed that these conditions were war-caused as a result of his army service in Vietnam between 28 March 1970 and 18 March 1971 (T4).
On 8 April 1998 the Repatriation Commission accepted the claim for bilateral sensorineural hearing loss and PTSD, with the date of effect being 1 September 1997. The Applicant was granted a Disability Pension at 40% of the General Rate (T7, T8).
On 30 April 1998 the Applicant lodged with the Veterans' Review Board ("the VRB") an application for review in respect of the Repatriation Commission decision of 8 April 1998. On his application he stated that he disagreed with the assessment of his PTSD, which was given a rating of 20 points under the Guide to the Assessment of Rates of Veterans' Pensions (5th edition) ("GARP") (T9).
On 8 May 1998 the Respondent notified the Applicant that it had decided not to conduct a review pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act").
On 25 November 1998 the Applicant's representative wrote to the Respondent (T12) requesting a s 31 review in light of a new GARP assessment by Dr Koller of 42 points (T11).
On 20 January 1999 the Respondent again refused to conduct a s 31 review because Dr Koller had not provided any reasons for his GARP assessment. (T13).
On 7 July 1999 the VRB affirmed the Repatriation Commission decision of 8 April 1998 (T14). In its reasons the VRB stated that Dr Koller had assessed the Applicant as having an assessment rating of 42 points on 4 August 1998 and 47 points on 29 January 1999 and that there was no explanation for the different ratings. In summary the VRB found the following GARP ratings appropriate:
Table 4.1 – Subjective stress 6 points
Table 4.2 – Manifest stress 6 points
Table 4.3 – Functional effects 0 points
Table 4.4 – Occupational effects 2 points
Table 4.5 – Domestic situation 1 point
Table 4.6 – Social contacts 2 points
Table 4.7 – Leisure activities 2 points
Table 4.8 – Current therapy 3 points
The hearing loss impairment was also taken into account, giving a combined rating of 20 points. Combined with a lifestyle rating of 2, this results in a pension at 40% of the General Rate.
On 18 October 1999 the Applicant lodged with the Tribunal an application for review of the VRB decision (T1).
BackgroundThe Applicant was born on 25 December 1948. He was brought up in Paddington in Sydney, the second of three children. He left school at the age of 16 and worked for an insurance company until he was 20 years old. The Applicant volunteered for the Army in 1969 and served in Vietnam from 28 March 1970 until 18 March 1971. In Vietnam the Applicant initially served in the catering corps for three months, then on patrol and as a special guard. After his discharge from the Army he worked variously with an insurance company, as a night security patrolman, as a salesman and then, from 1986 onwards, as a postman (Exhibit A2).
Mr Milburn has been married three times. He married his first wife three months before his posting to Vietnam. They divorced in 1972, shortly after the birth of a child. Mr Milburn married again in 1982, divorcing in 1990. He has been married to his present wife since 1998 (Exhibit A2).
Medical evidenceOn 17 November 1972 the Applicant was admitted to Broughton Hall psychiatric clinic (Exhibit R3). Although in later medical reports it is stated that the Applicant has no children from any of his three marriages, the discharge report from Broughton Hall states that there were two children in the first marriage, the Applicant claiming that they were fathered by other men whilst he was away in Vietnam. The children were four years and 20 months old, respectively, at the time of his being admitted to Broughton Hall.
On 6 March 1998 Dr Koller reported on the Applicant (T5). He reported a history of heavy smoking and drinking as well as bed wetting upon his return from Vietnam. Dr Koller stated that "there is little doubt that after the Vietnam war he experienced PTSD." The Applicant was seriously fired upon twice at Nui Dat and in Saigon the Applicant saw a man kicked to death. The Applicant recalls traumatic incidents from Vietnam and has nightmares about them. Dr Koller also diagnosed adjustment disorder, stemming from the difficult domestic environment he returned to and then the experiences of hostility from the community and his family. Dr Koller further described moderate and persistent symptoms and a noticeable reduction in social contacts.
On 6 April 1998 a medical impairment assessment was undertaken for the Respondent by Dr Dunn (T6). She reported symptoms of flashbacks, irritability, alcohol excess and nightmares. Dr Dunn noted his unstable employment history and the fact that he had problems forming relationships. She further stated that the symptoms may also be due to depression or adjustment disorder.
On 4 August 1998 Dr Koller provided a GARP assessment for the Respondent (T11). He found a total impairment rating of 42 points. Also on this date, in a note to Professor Toyuz, Dr Koller stated that the Applicant "has PTSD and requires stress management and in particular anger management" (T12).
On 29 January 1999 Dr Koller provided a report on the Applicant in regard to his GARP assessment rating (T4A). He described the Mr Milburn as being "plagued by ruminations, thought intrusions, angry irritability and depression as well as social avoidance…" Dr Koller further stated that the Applicant had "great difficulty in adjusting back to life after Vietnam."
On 26 May 1999 Sam Borenstein, a clinical psychologist, wrote to Professor Toyuz regarding the Applicant (T13A). Mr Borenstein stated that the Applicant "has great difficulty forming attachments as is evident in his current marriage…he displays markedly compromised interpersonal skills." It was also stated that the Applicant's admission to Broughton hall on his return from Vietnam was likely to be responsible for his detached personality.
On 29 January 2000 Dr Koller updated his GARP assessment to a rating of 47 points (T4A).
On 17 January 2000 Dr Carne, consultant forensic psychiatrist, provided a report on the Applicant's condition (Exhibit A2). Using GARP, he assessed Mr Milburn as having an impairment rating of 37 points. He further gave him a lifestyle rating of 4. He concluded that PTSD "does not adequately encompass the full range of Mr Milburn's psychiatric disability." He also diagnosed social phobia and alcohol dependence which he found to be consequences of the Applicant's service in Vietnam and the circumstances of his return to Australia.
On 22 April 2000 Dr Schultz, consultant psychiatrist, reported for the Respondent on his consultation with the Applicant (Exhibit R1). The Applicant described a number of symptoms, including nightmares, ruminations, anxiety, avoidance and hyper-arousal. Dr Schultz found these symptoms to be consistent with a diagnosis of PTSD. He also found that the Applicant's drinking habit would satisfy a diagnosis of psychoactive substance abuse and dependence. Dr Schultz disagreed with Dr Carne's opinion that social phobia was a distinct condition from PTSD. He assessed the Applicant as having a GARP rating of 35 points. He gave the Applicant a lifestyle rating of 2 points.
IssuesIn relation to an impairment rating for tinnitus and sensorineural hearing loss the parties agree that a rating of 1 is correct. The other issue is that of the impairment rating for the Applicant's accepted condition of PTSD. The Respondent contends that the medical impairment rating should be assessed at 35 points, based on the report of Dr Schultz. Based on the same report, the Respondent further contends that a lifestyle rating of 2 is appropriate, resulting in an entitlement to a disability pension at 60% of the General Rate.
The Applicant relies on the report of Dr Koller (T4A), recommending an impairment rating of 47 points for PTSD. Combined with the rating of 1 for tinnitus and sensorineural hearing loss, this warrants a total rating of 50 under GARP. Further, relying on the report of Dr Carne of 17 January 2000 (Exhibit A2), the Applicant contends that the appropriate lifestyle rating for the Applicant's accepted condition of PTSD is 4. Therefore the Applicant is entitled to a disability pension at 90% of the General Rate. Alternatively, the Applicant relies on the report of Dr Carne in recommending an impairment rating of 37, which entitles the Applicant to a disability pension at 80% of the General Rate.
Relevant legislationThe relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act"), ss 5B(1)(definition of "operational area"), 6C, 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), 20, 21A, 22, 29, 120(4), Schedule 2, Item 8:
"5B War and operational area related definitions
(1) In this Act, unless the contrary intention appears:
allotted for duty in an operational area has the meaning given by subsection (2).
operational area means an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1;
period of hostilities means:
(a) World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or
(b) World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or
(c) the period of hostilities in respect of Korea from 27 June 1950 to 19 April 1956 (both included); or
(d) the period of hostilities in respect of Malaya from 29 June 1950 to 31 August 1957 (both included); or
(e) the period of hostilities in respect of war-like operations in operational areas from 31 July 1962 to 11 January 1973 (both included);
war to which this Act applies means World War 1 or World War 2;
World War 1 means:
(a) the war that commenced on 4 August 1914; and
(b) any other war in which the Crown became engaged after 4 August 1914 and before 11 November 1918;
World War 2 means:
(a) the war that commenced on 3 September 1939; and
(b) any other war in which the Crown became engaged after 3 September 1939 and before 3 September 1945.""6C Operational service - post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…(3) For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full-time service in an operational area during the period commencing on:
(a) if the member was in Australia on the day (relevant day) from which the member, or the unit of the member, was allotted for duty in that area—on the day on which the member left the last port of call in Australia for that service; or
(b) if the member was outside Australia on the relevant day—on that day;
and ending at the end of:
(c) if the member, or the unit of the member, ceased to be allotted for duty—the day from which the member, or the unit, ceased to be allotted for duty; or
(d) if the member, or the unit of the member, was assigned for duty from the operational area to another area outside Australia (not being an operational area)—the day from which the member, or the unit, was assigned to that other area, or the day on which the member, or the unit, arrived at that other area, whichever is the later; or
(e) in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
…""7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…""9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…""13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:…
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.""14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…""20 Date of operation of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
(2) Where:
(a) a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14 (3) (a);
(b) the person subsequently makes a claim for the pension in accordance with a form so approved:(i) at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with a form so approved; or
(ii) within 3 months after the person had been so notified; and
(c) a pension is granted to the person upon consideration of that claim in accordance with a form so approved;
the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.(3) Nothing in this section empowers the Commission to approve payment of a pension to a person from a date before the person became eligible to be granted the pension."
"21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2) Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3) The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension."
"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.
(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3) For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(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).(5) For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
(a) the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
(b) amounts are being deducted from the pension under section 79, 30P or 205; or
(c) the pension has been suspended under subsection 31 (6).""29 Guide to the assessment of rates of veterans' pensions
(1) The Commission may, from time to time, prepare a written document, to be known as the "Guide to the Assessment of Rates of Veterans' Pensions" setting out:
(a) criteria by reference to which the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, shall be assessed; and
(b) methods by which the extent of that incapacity, as assessed in accordance with those criteria, shall be expressed as a percentage of incapacity from that injury or disease, or both, being a percentage not exceeding 100 per centum.(2) The Commission may, from time to time, by instrument in writing, vary or revoke the approved Guide to the Assessment of Rates of Veterans' Pensions prepared by it.
(3) A document prepared by the Commission in accordance with subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4) Where the Commission, the Board or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the extent of the incapacity of a veteran resulting from war-caused injury or war-caused disease, or both, the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions are binding on the Commission, the Board or the Administrative Appeals Tribunal, as the case may be, in, and in connection with, the carrying out by it of that assessment, re-assessment or review, and the assessment, re-assessment or review of the extent of that incapacity made by it shall be in accordance with the relevant provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(5) The percentage of incapacity of a veteran from war-caused injury or war-caused disease, or both, ascertained in accordance with the methods referred to in paragraph (1) (b) may be nought per centum.
(6) In preparing criteria by reference to which the extent of incapacity of a veteran from war-caused injury or war-caused disease, or both, shall be assessed, or in varying those criteria, the Commission shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury or disease and the extent (if any) to which incapacity resulting from the injury or disease may reasonably be capable of being reduced or removed.
(7) When a document prepared by the Commission in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, the Commission shall furnish copies of the document or instrument to the Minister and the Minister shall cause copies to be laid before each House of the Parliament within 15 sitting days of that House after the Minister received those copies.
(8) The Commission shall make copies of the Guide to the Assessment of Rates of Veterans' Pensions that has been approved by the Minister, and of any variation of that Guide that have been so approved, available upon application and payment of the prescribed fee (if any).
(9) Sections 48 (other than paragraphs (1) (a) and (b) and subsection (2)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide to the Assessment of Rates of Veterans' Pensions or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
(10) For the purpose of the application the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9) of this section, a document referred to in that subsection shall be deemed to have been made on the date on which it is approved by the Minister under this section."
"120 Standard of proof
…(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."
" Schedule 2, Item 8 (The period from and including 31 July 1962 to and including 11 January 1973)
All that area of land and waters (other than land or waters forming part of the territory of Cambodia or China) bounded by a line commencing at the intersection of the boundary between Cambodia and Vietnam (Southern Zone) with the shore of Vietnam(Southern Zone) at high-water mark; thence proceeding in a straight line to a point 185.2 kilometres west (true) of that intersection; thence proceeding along an imaginary line parallel to, and at a distance of 185.2 kilometres from, the shore of Vietnam at high-water mark to its intersection with the parallel 21 degrees 30 minutes north latitude; thence proceeding along that parallel westerly to its intersection with the shore of Vietnam at high-water mark; thence following the shore of Vietnam at high-water mark to the point of commencement."
Appearances
Mr Neale Dawson of counsel appeared for Mr Milburn and Mr Peter Godwin of the Department of Veterans' Affairs represented the Respondent. At the hearing the following material was taken into evidence:
Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 Exhibit TD1
Applicant's amended statement of facts and contentions dated 29 February 2000 Exhibit A1
Report of Dr J Carne dated 17 January 2000 Exhibit A2
Report of Dr Schultz dated 22 April 2000 Exhibit R1
Military service documents from Soldier Career Management Agency Exhibit R2
Medical records from Rozelle Hospital Exhibit R3
Respondent's statement of facts and contentions dated 19 June 2000, including folio 24A of the s 37 documents Exhibit R4
Applicant's evidence
From his evidence as a Tribunal witness the Tribunal discerned the following:
Mr Milburn had been seeing Dr Koller quarterly for nearly three years and Mr Borenstein monthly for a year. He has eschewed medication.
Mr Milburn had been a postman for 14 years when he gave evidence. He found the job easy. It is low stress and possible to do alone and so suits him well. He tends not to socialise with workmates and he spends a lot of time in the office at work listening through headphones. He is called "Grumpy" at work. He had had some attendance problems at work but had settled down in the last three years under the influence of his third wife. He has some conflict with managers when he disagrees with their orders. He gets on well with his wife. She is understanding and needs to be because he can tend to drink and seek solitude when at home. He used to do little other than work but now sees the odd movie, football game and goes for an occasional drive. This is only with his wife. He has no other close friends. He has no leisure activities, although he used to engage in rock fishing and paddling on rivers. He has relatively little contact with his family. He has nothing to do with his sister and phones his brother once a month. Asked to describe how he feels, he said, "Pissed off with the world, I guess. I feel let down. I'd rather be on my own; left alone." Mr Milburn said he spends time alone. He does not trust people, authority or government. He feels sad. He thinks about what "should have been; the unfairness". He used to read a lot but now reads little and he concentrates on reading newspapers.
The Applicant sleeps well sometimes. Sometimes he does not sleep well. He finds he cannot stop thinking, again, about the unfairness of everything. In cross-examination he suggested that he sleeps poorly about once a week but there is no regular pattern. He does not have nightmares that he can remember.
The Applicant seems to have sufficient concentration skills to deal with his work tasks. These involve sorting mail into a street pattern for delivery and then delivering the mail on his motorcycle.
The Applicant takes little sick leave. He has leave for his visits to doctors paid for by the Department of Veterans' Affairs.
Representatives' submissions
At base the case concerned the appropriate GARP ratings to accord Mr Milburn in respect of his accepted disability of PTSD and the lifestyle effects of his accepted disabilities. Rather than make formal submissions the representatives and the Tribunal discussed the appropriate ratings to be given under GARP table by table. This process is reflected in the next part of these reasons.
Findings on material questions of fact with reference to the evidence or other material on which the findings are basedThese reasons were prepared without the benefit of access to a transcript of the proceedings.
The Applicant saw operational service in Vietnam from 28 March 1970 to 18 March 1971. The standard of proof in assessment issues is reasonable satisfaction under s 120(4) of the Act. The earliest date of effect of any decision more favourable to the Applicant would be 1 September 1997.
The relevant aspects of GARP are chapters 4 ("Emotional and Behavioural") and 22 ("Lifestyle Effects"). Chapter 4 provides eight tables (tables 4.1 to 4.8). A points score is attached by the decision-maker to each of these tables. An overall rating is derived from adding together the points scores for tables 4.1 and 4.2 and the three highest scores for tables 4.3 to 4.8. This is not at all an exact science. As will be seen below, three medical experts derive quite different scores for a number of the tables.
GARP Chapter 4 – Emotional and BehaviouralTable 4 1 deals with "subjective distress".
Dr Koller (T4A) awards a rating of 15. He has not particularised reasons for this rating in either T4A dated 29 January 1999 or in T5 dated 6 March 1998. Dr Koller in T4A takes umbrage that his overall GARP assessment of 42 points for PTSD (in T11 dated 4 August 1998) was rejected by the Respondent in a section 31 review dated 20 January 1999 (T13) because the rating was unsupported by detailed reasoning and he refers to his "comprehensive report of 6.3.98. [stating] and if this had been read with the points compared with the explanatory notes issued with the GARP would have explained the veteran's psycho-social situation. All it requires is a bit of reading on the part of the assessor." With respect to Dr Koller, he has not provided any explanation as to why a certain rating applies under table 4.1 or any other table in any of his reports. Further, he awarded an assessment of 30 on 6 March 1998, an assessment of 42 on 4 August 1998 and an assessment of 47 on 29 January 1999, all essentially on the basis of the first report. It is therefore difficult to know what to make of Dr Koller's rating of 15.
Dr Carne (Exhibit A2) awards a rating of 12 saying, "He is avoidant to minimise distress. He drinks a lot will attenuate his subjective distress and if he were to abstain may feel worse." There is in fact no 12 rating provided for in table 4.1, which offers a choice of 10 or 15.
Dr Schultz (Exhibit R1) awards 10 points noting complaints "of a variety of symptoms including nightmares, ruminations, anxiety, hyper-arousal and avoidance that were present in varying degrees, worse when reminders occur and less at other times. His alcohol use is noted as a problem but is not unwanted … His symptoms are not severe enough to prevent him from working however and one would therefore have to assume that he is able to be adequately distracted to be able to engage in other activities."
Mr Dawson suggested a score of 15 because of ongoing frustration and anger. Mr Milburn says he feels sad. He had a desire to escape at the hearing. Mr Godwin for the Respondent suggested a 10 rating as per Dr Schultz which he considered relatively generous.
The Tribunal has considered this array of opinions and finds that Dr Schultz's score of 10, along with his explanation of that score, best describes the Applicant's situation. The impression the Tribunal gained of the Applicant as a witness was that he had problems but can hold down a job and can cope with a quiet, but not unrewarding, private life. The descriptor for 10 points reads, "Very frequent symptoms causing moderate distress. The veteran will often be unable to distract himself or herself from the distress." Mr Milburn can distract himself sufficiently to cope with work.
Table 4.2 deals with "manifest distress":
Dr Koller awards a score of 15 but again it is difficult to understand why he has done that.
Dr Carne has awarded a score of 6. He says, "Again his manifestation of distress may be attenuated by his considerable alcohol abuse."
Dr Schultz has awarded a score of 10, saying "Some of Mr Milburn's symptoms would be visible to others, particular hyper arousal and alcohol use. These would be noticed by his family and people who observe him more carefully and only to a limited extent by casual acquaintances."
Mr Dawson recommended a score of 10 or 15 citing the fact that he is called "Grumpy" at work. He invited the Tribunal to observe Mr Milburn's anger and distress when giving evidence. Mr Godwin supported a 10 rating.
Again, the Tribunal finds that a rating of 10 is appropriate. The descriptor in GARP for a 10 rating is, "Obvious distress and pre-occupation with the symptoms is evident to casual observers and even persons unfamiliar with the veteran." To attract a score of 15 there must be "[o]bvious continual distress". The Tribunal did not observe such continuous distress and the Tribunal doubts that he could hold his job if he manifested such distress.
Table 4.3 deals with "functional effects":
Dr Koller awarded no rating.
Dr Carne awarded 5 points noting that Mr Milburn is highly avoidant of human contact.
Dr Schultz awarded a nil score stating that Mr Milburn would not have any difficulty managing these issues. "These issues" are described in GARP as such things as dealing with personal hygiene, preparation and consumption of food, use of electrical appliances, finding one's way around, returning safely home from shops, remembering the location of ordinary objects and having an ability to catch public transport.
Mr Dawson and Mr Godwin made no submission on table 4.3.
The Tribunal finds that a nil rating applies here. The Tribunal agrees with Dr Schultz that there is no evidence that the Applicant would have any problem with these activities.
Table 4.4 deals with "occupation":
Dr Koller awards a score of 2. Again he does not explain this rating.
Dr Carne awards a score of 2 saying that the Applicant has "chosen a low stress occupation – considerably lower than his potential – and which enables him to work largely alone."
Dr Schultz awards a score of 5. He writes, "Mr Milburn continues to work full time as a postman which suits him because it provides him with a relatively isolated environment. However, this need for isolation could be seen to have produced a limitation of career opportunities and this was certainly noticed early in his insurance career which seems to have been terminated as a result of his alcohol abuse and anxiety problems that were existent at the time."
Mr Dawson supported Dr Schultz's assessment. He has modified his job to suit himself and he is not regularly assessed. Mr Godwin supported a 5 rating.
The Tribunal agrees with Dr Schultz and Mr Dawson. Their reasoning agrees closely with the oral evidence the Applicant gave to the Tribunal. The score is 5. GARP describes this as "hav[ing] major difficulties at work, which may be manifested by job modification or restriction of career opportunities. The disorder may contribute to the loss of a job."
Table 4.5 deals with "domestic situation":
Dr Koller awarded a score of 2.
Dr Carne awarded a score of 2. He wrote, "He says it's 'OK' but acknowledges that his wife thinks him odd and admits that he is ambivalent about the relationship. It is not so much that there is conflict but rather mutual tolerance."
Dr Schultz awards a score of 5 explaining that "Mr Milburn has had two failed marriages and reports that the current relationship of two years is also under pressure. He blames these problems on his emotional difficulties related to the war although it should be noted that marital difficulties may also be affected by his personality and coping style and the adjustment of his partner. For the purposes of the score I have assumed that all the dysfunction is caused by his disturbance of behaviour."
Mr Dawson reinforced Dr Schultz's assessment by referring to the fact that he is into his third marriage and has been married only 2½ years. He does not speak to his sister. He has a disrupted domestic situation. Mr Godwin argued for a 3 rating on the basis that Mr Milburn has outings with his wife. He communicates with his brother and sometimes initiates them.
The Tribunal finds that 5 is a correct assessment, largely for the reasons put by Dr Schultz and Mr Dawson. 5 means that he has continual conflict with family members. A 3 would mean he has frequent conflict with family members. From its own observations during the hearing the Tribunal considers a 5 rating more accurate.
Table 4.6 deals with "social interaction":
Dr Koller awards a score of 6.
Dr Carne scores this at 8. He writes, "Says he avoids social contact and enjoys solitary activity."
Dr Schultz awards a score of 5. He writes, "Mr Milburn reported that he has limited social interaction and that he avoids meeting with people in both social and occupational settings. Notably though he has not been so isolated that he has not been able to meet a new woman to marry on several occasions and has been able to maintain these relationships at least long enough to get married indicating that he is not totally isolative."
Mr Dawson said that the Applicant's social interaction is negligible except with his wife and except for the occasional phone call with his brother. The rating should be 8. GARP describes a rating of 8 as meaning "negligible social contact". The 5 rating means "substantial reduction in social interaction". Mr Godwin argued for a 5 rating.
The Tribunal endorses Dr Schultz's assessment and finds that 5 is the correct rating. This is largely because, as Dr Schultz points out, the Applicant found and married his third wife in relatively recent times.
Table 4.7 deals with "leisure activities":
Dr Koller awards a score of 6.
Dr Carne scores this at 6 saying that he has limited his activities to those that enable him to be alone.
Dr Schultz scores this at 5 saying, "Mr Milburn is involved in isolative leisure activities only and described a reduction in interest in pursuing these activities".
Mr Dawson argued for a rating of 8 saying that he goes only to the odd movie. Mr Godwin submitted that Mr Dawson overstated the situation. A rating of 5 is justified.
The Tribunal notes that 5 means "loss of interest in most recreational pursuits". 8 means "virtually all recreational activities abandoned". 6 means "substantial reduction in most recreational pursuits". The Tribunal again opts to accept Dr Schultz's assessment and finds that 5 is the correct score. Mr Milburn does attend the football with his wife. He also goes for a drive. His situation has improved since his most recent marriage. He told the Tribunal that before this marriage he was interested in little other than work, although he said he has discontinued rock fishing and river paddling. Overall, 5 appears fair.
Table 4.8 deals with "current therapy" and all three doctors rate Mr Milburn at 5 on this table. Mr Dawson and Mr Godwin did not disagree. GARP describes a 5 rating as meaning that he has a "[n]eed for intensive specialist psychiatric treatment on an outpatient basis, including medication and/or in-patient hospital care for short periods".
The Tribunal finds that 5 is the correct assessment and accepts the doctors' view. The overall result from these figures is 35.
GARP Chapter 22 – Lifestyle EffectsDrs Carne and Schultz in Exhibits A2 and R1, respectively, have given their opinions on the lifestyle effects.
Table 22.1 deals with "personal relationships":
Dr Carne awards a 5 rating. He says Mr Milburn has severely affected personal relations and is able only to relate to his spouse.
Dr Schultz awards a 3 rating. He writes, "Mr Milburn has very limited personal interactions outside of his home though he is able to interact at some level in this setting. Even though he avoids social contact he is able to cope with the level of interaction required as a postman indicating that he can relate to some acquaintances when needed."
Mr Dawson for the Applicant argued for a 5 rating. Mr Godwin argued for a 3 rating.
The GARP descriptors prescribe for a 5 rating, "Severely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality." For a rating of 3 GARP says, "Moderately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances." The Tribunal finds that a rating of 5 is the appropriate rating on the basis of its observations and the Applicant's comments when he gave his evidence. The descriptor for 5 is a more accurate reflection than the descriptor for 3.
Table 22.2 deals with "mobility" and both doctors give the Applicant a nil rating. Mr Dawson and Mr Godwin suggested nothing to the contrary. Mr Milburn appeared to the Tribunal to be unaffected as regards his mobility. A rating of nil is appropriate.
Table 22.3 deals with "recreational and community activities":
Dr Carne assesses a 6 rating on the basis that Mr Milburn can engage in only a few satisfying recreational activities.
Dr Schultz awards a 3 rating. He says that recreational and community activities are restricted, although he can still be involved in solitary activities.
Mr Dawson pressed for a 7 rating. This would mean he is "unable to take part in any recreational activities". Mr Godwin saw a rating of 4 or 5 as appropriate.
The Tribunal finds that a rating of 4 is appropriate. The Applicant still partakes in some less physical recreational pursuits but has given up rock fishing and river paddling. This fits the "less physical activities" rubric in the descriptor in GARP for a 4 rating.
Table 22.4 deals with "domestic activities", the doctors scoring this as nil or not scoring it at all. Mr Dawson and Mr Godwin did not score it. The Tribunal attributes no lifestyle effect under this heading.
Table 22.5 deals with "employment activities":
Dr Carne awards a score of 4 because Mr Milburn has had to change his occupation because of his condition.
Dr Schultz awards a score of 2.
Mr Dawson argued for a score of 4 on the basis that the Applicant works but has had to change the requirements of the job to accord with his needs. Mr Godwin argued for a 3 or 4 rating.
The Tribunal agrees with Mr Dawson that a 4 rating is appropriate. The way that Mr Milburn works is not the copybook way a postman usually operates. He has succeeded in having the employer accept his needs.
The overall average comes out as 3.35. Rounded, that comes out as a lifestyle rating of 3.
Bilateral sensorineural hearing lossThis has been an accepted condition with effect since 1 September 1997. It originally attracted an impairment rating of zero. The VRB looked at the zero rating for hearing loss in T14 and concluded the correct impairment rating was 1.
At the hearing the parties identified that Mr Milburn's hearing should be re-tested and the Tribunal should be able to review the VRB's decision with the benefit of fresh evidence. On 20 July 2000 the Tribunal received a copy of an audiogram test carried out on 12 July 2000. This has been entered as Exhibit PH1 (abbreviation for post-hearing exhibit number one). On 21 July 2000 the Respondent filed an impairment calculation based on Exhibit PH1. This will be Exhibit PH2. It shows a hearing loss of 2.6 which translates to an impairment rating of 1. On 25 July 2000 the parties filed with the Tribunal an "agreed statement of facts" (Exhibit PH3) in which their agreement records that the Applicant's audiogram report in Exhibit PH1 entitles the Applicant to 1 impairment point for hearing loss.
The Tribunal is satisfied that this result reflects a correct application of scale 7.1.9 in GARP. The Tribunal therefore finds that the impairment rating for loss of hearing is 1. There could be an issue as to whether this finding can apply as far ago as the date of effect of the Tribunal's ultimate decision as the test was performed in July 2000. However, as the result will not affect the rate payable pursuant to the Tribunal's decision, in any event, it is unnecessary to resolve this issue.
ConclusionThe Tribunal has found that the correct impairment rating for the Applicant's PTSD is 35; that the correct rating for hearing loss is 1; and that the lifestyle effects rating is 3.
Application of the combined values chart in chapter 18 of GARP gives a combined impairment rating of 36. This rounds to 35.
The conversion to a degree of incapacity in accordance with scale 23.1 in GARP results in a 60% figure. This is the degree of incapacity as defined in s 21A of the Act. By s 22 of the Act the rate of Disability Pension to be paid is also 60%, but 60% of the General Rate.
DecisionThe Tribunal sets aside the decision under review and substitutes a decision that:
the Applicant is entitled to a Disability Pension payable at 60% of the General Rate; and
this rate is payable with effect from the first pension payday on or after 1 September 1997.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 27 June 2000
Date of Decision 30 April 2001
Counsel for the Applicant Mr N DawsonRepresentative for the Respondent Mr P Godwin
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