Parsons and Repatriation Commission

[2002] AATA 137

DECISION AND REASONS FOR DECISION [2002] AATA 137

ADMINISTRATIVE APPEALS TRIBUNAL

Nº V2000/368

VETERANS'       APPEALS     DIVISION

Re:            SYDNEY ALBERT PARSONS

(deceased)

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
  Dr P. Fricker, Member
Date:             5 March 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
  Senior Member
  VETERANS' AFFAIRS — whether veteran entitled to extreme disablement adjustment – whether impairment rating of at least 70 points – whether lifestyle rating of at least 6 points – impairment assessment for generalised anxiety disorder
Veterans' Entitlements Act1986 s.22(4)(c)

REASONS FOR DECISION

5 March 2002  Mr B.H. Pascoe, Senior Member
  Dr P. Fricker, Member

1. This is an application to review a decision of the Veterans' Review Board ("VRB") of 15 February 2000 which affirmed a determination of the respondent dated 1 October 1998 that disability pension be paid to the late veteran at 100 per cent of the general rate with effect from 6 April 1998.   At the VRB hearing, the late veteran sought entitlement at the intermediate rate, special rate or extreme disablement adjustment.  The veteran died on 21 July 2001, after the application for review was lodged with the Tribunal and before a hearing of the application.

2. At the hearing Mrs Sylvia Parsons, the widow of the veteran, Sydney Parsons, was represented by Mr D. De Marchi, a solicitor, and the respondent by Ms T. Chant, an advocate with the Department of Veterans' Affairs. Evidence was given by Mrs Parsons, Dr E. Cole, consultant psychiatrist, and Dr F. Morgan, senior medical officer with the Department of Veterans' Affairs. In addition to the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T documents), the following documents were tendered by the parties:

   Lifestyle Questionnaire completed by the late veteran dated 19 June 2000 — Exhibit A1
   Report of Dr Cole dated 24 July 2000 — Exhibit A2
   Report of Dr W. Stone, rehabilitation physician, dated 29 September 2000 — Exhibit A3
   Report of Dr C. Webster, chiropractor, dated 7 February 2001 — Exhibit A4
   Respiratory Function Test, Royal Melbourne Hospital dated 9 June 2001 — Exhibit R1
   GARP Report, Dr R. Jeffery, general practitioner, dated 21 June 2000 — Exhibit R2
   Audio Report, Prescription Hearing, dated 16 June 2000 — Exhibit R3
   Report of Dr B. Kenny, consultant psychiatrist, dated 7 February 2001 — Exhibit R4
   Clinical notes of Dr Jeffery — Exhibit R5
   Combined Impairment Assessment, Dr Morgan, dated 22 February 2001 — Exhibit R6
   Admission notes, John Faulkner – Moreland Hospital, 10 July 2001 — Exhibit R7

3. At the hearing Mr De Marchi accepted that the late veteran was not entitled to disability pension at the special rate and that the question for consideration was whether there was an entitlement to the extreme disablement adjustment ("EDA") under section 22(4) of the Veterans' Entitlements Act1986 ("the Act").  This section provides:

   22(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).

It was accepted by both parties that the sole matter in dispute was whether paragraph (c) was satisfied.

1. The veteran served with the Australian Army from 5 November 1941 to 11 June 1946, which constituted eligible war service under the Act. He did not have operational service. Under section 120(4) of the Act, the Tribunal is required to decide all matters to its reasonable satisfaction. Consequently, the assessment of the correct rate of pension is to be decided on the balance of probabilities. The method of assessing incapacity is set out in the "Guide to the Assessment of Rates of Veterans' Pensions" ("GARP") which is approved under section 29 of the Act. It involves the calculation of a combined impairment rating and the determination of a lifestyle rating. The late veteran had the following conditions accepted as being war-caused:

   malignant neoplasm of the bladder
   bilateral sensorineural hearing loss
   ischaemic heart disease
   diabetes mellitus
   generalised anxiety disorder
   atrial fibrillation

2. The dispute between the parties can be demonstrated by the impairment ratings submitted by each as follows:
   For Applicant           For Respondent      
   Neoplasm of the bladder               20                   10       
   Hearing loss             13                   12       
   Tinnitus   5                   5     
   Ischaemic heart disease                34                   (          33       
   Atrial fibrillation   2                 (  
   Diabetes   5                   5     
   Anxiety disorder                  24   0     
   Disfigurement and Social impairment                   2                   0     
   Combined impairment rating  71                   53       
   Rounded                  70                   55       
   Lifestyle Rating   6                   5     

It can be readily seen that the major area of difference in the impairment rating is the rating for anxiety disorder and, if the applicant's submission for a rating of 24 points is not accepted or reduced to 15 or below, then the claim for EDA must fail.  Similarly if the lifestyle rating of 6 is not accepted the claim must fail.

1. The late Mr Parsons retired from being a linesman with Telecom at age 60 in 1981.  In 1989 he commenced work again as a glasscutter.  He ceased work in December 1998 on advice of his general practitioner, Dr Jeffery, because of chest pains and shortness of breath.  The VRB decision after hearing evidence from Mr Parsons noted that:

   . . . He remains active, with shopping, cleaning, washing and cooking as well as gardening and odd jobs.  He drives an EJ Holden, his first and only car, which he purchased in 1963, but which he finds difficult to steer and only drives short distances.

2. Mrs Parsons said that her late husband could not walk far and had stopped driving his car after an ulcer problem in April 2001.  She said that he enjoyed television, did not go out much and had little social interaction.  She felt that he "got on well enough" with people but had never had many friends at all during his life.  She described him as a "nervous person" although was unable to elaborate on that description.  She said that, after an examination by a psychiatrist, he told her that he was "O.K." with no psychiatric problem.

3. Dr Kenny examined the late Mr Parsons on 31 January 2001 and provided the report of 2 February 2001.  He did not see Mr Parsons as having any psychiatric disturbance nor any impairment according to GARP nor any psychiatric effect on lifestyle.  Dr Parkin, consultant psychiatrist, had examined Mr Parsons and provided a report dated 31 August 1998 (T11).  He believed that Mr Parsons suffered from a generalised anxiety disorder and provided a combined impairment assessment under Tables 4.1 to 4.8 of 9 points.

4. Dr Cole examined Mr Parsons on 5 July 2000 and provided the report dated 24 July 2000.  He was of the view that Mr Parsons was "suffering from a chronic generalised anxiety disorder of moderate degree".   Dr Cole noted that there had been no psychiatric treatment but doubted whether any treatment "would have done more than control the worst of his anxiety and depression without having a great deal of influence upon the overall course of his condition".  The doctor provided the combined impairment assessment of 24 points.  In his oral evidence, Dr Cole accepted that he had not gone into detail in his report of the basis for his diagnosis but had considered it unnecessary with generalised anxiety disorder being an accepted condition.  The major differences in the assessments of Dr Parkin and Dr Cole were under Tables 4.1, 4.2, 4.6 and 4.7.  Under Table 4.1, subjective distress, Dr Cole assessed 6 points being "frequent symptoms causing moderate distress.  The veteran will sometimes be unable to distract himself or herself from the distress".  Dr Parkin assessed 3 points as being "recurring symptoms causing mild distress" and "the veteran can distract himself on most occasions".  Under Table 4.2, manifest distress, Dr Cole assessed 6 points being "distress is apparent, and/or the veteran's preoccupation with the symptoms is noticeable to astute observers or persons familiar with the veteran".  His assessment noted that "his wife knew when he was upset and told him to take it easy".  Dr Parkin assessed 3 points being distress "sometimes apparent" and symptoms "sometimes noticeable" to astute observers or persons familiar with him.  Under Table 4.6, social interaction, Dr Cole assessed 5 points as "substantial reduction in social interaction" whereas Dr Parkin gave 1 point, "occasional friction with colleagues and friends".   Under Table 4.7, leisure activities, Dr Cole assessed 5 points as "loss of interest in most recreational pursuits" compared with Dr Parkin's 1 point for "some loss of interest in activities previously enjoyed".

5. It should be noted that assessment under Tables 4.1 to 4.8 is for the effects of the accepted psychiatric condition. In our view, much of the difference between Dr Cole and Dr Parkin and the higher ratings given by Dr Cole is accounted for by Dr Cole allowing his judgement to be affected by not excluding the effects of the many physical disabilities of Mr Parsons. It should be noted, perhaps, that Dr Cole appears regularly before this Tribunal on behalf of applicants and, on occasions, is recognised as being somewhat generous in his diagnoses and assessments. That is not to say that some psychiatrists who appear for the respondent are not sometimes considered somewhat ungenerous. On this occasion it has been difficult without being able to hear evidence directly from the veteran. Nevertheless, on the basis of the evidence of Mrs Parsons, the findings of the VRB and a GARP report by Dr Jeffery, who knew Mr Parsons well and was liked by him, we prefer the assessment of Dr Parkin, which, if anything, may well have produced a higher rating compared with that of Dr Jeffery. As a result, the Tribunal finds that Mr Parsons had a combined impairment rating under Tables 4.1 to 4.8 of GARP of 9 points. Without considering other differences between the parties, this rating would reduce the combined impairment rating, as submitted for the applicant, to 65 points, thus not satisfying section 22(4)(c).

6. Given the foregoing, it is unnecessary to consider the other significant difference between the parties in relation to the impairment rating for neoplasm of the bladder.  Dr Stone assessed a rating of "15 or 20, perhaps nearer 15" under Table 9.2.1 although he felt that the table was "not really appropriate in his circumstances".  Dr Morgan assessed under Table 14.2 based on life expectancy.  We would be of the view that a rating of 20 is excessive in the circumstances of this case.

7. It is also unnecessary to consider the lifestyle rating given that the veteran did not have an impairment rating of at least 70 points.  However, on the basis of the lifestyle questionnaire completed by the late veteran his rating would be no more than 5.  Our maximum assessment would be:

   Table  22.1        4
   Table  22.2        4
   Table  22.3        4
   Table  22.4        4

   Table  22.5        5

These ratings under Chapter 22 of GARP would produce a lifestyle rating of 4.25, rounded down to 4. Consequently, we find that the veteran would not have a lifestyle rating to satisfy section 22(4)(c).

1. It follows from the foregoing that the decision under review should be affirmed.  It is, perhaps, relevant to note that Mrs Parsons was somewhat unsure of the necessity for the hearing as she had been under the impression that the issue of concern was her right to a widow's pension.  This had been granted on 17 October 2001 with effect from 23 July 2001.  Consequently the sole issue was whether the late veteran was entitled to EDA for the period 19 June 2000 to 21 July 2001.

   I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mr B.H. Pascoe, Senior Member
   Dr P. Fricker, Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  21 November 2001
   Date of Decision:  5 March 2002
   Solicitor for the Applicant:           Mr D. De Marchi, De Marchi & Associates

   Solicitor for the Respondent:        Nil - Ms T. Chant, departmental advocate