Quinn and Repatriation Commission
[2004] AATA 925
•3 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 925
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1831
VETERANS' APPEALS DIVISION ) Re JOHN QUINN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO, Member Date 3 September 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Rear Admiral A R Horton AO, Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - RAN service – accepted disabilities – disability pension at 100% of general rate – Veterans’ Review Board continued pension at 100% - eligibility for Extreme Disablement Adjustment (EDA) under consideration - medical impairment rating of 70 points – average lifestyle rating of 6 required to meet EDA criteria – lifestyle rating of 5 assessed – Applicant not eligible for EDA – decision under review affirmed.
Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”) (5th Edition)
Veterans’ Entitlements Act 1986 section 22
REASONS FOR DECISION
3 September 2004
REAR ADMIRAL A R HORTON AO
1. This is an application to review a decision of a delegate of the Repatriation Commission (“the Respondent”) dated 27 February 2003, subsequently affirmed on review by the Veterans’ Review Board (“VRB”) on 22 October 2003, which continued the disability pension of Mr John Quinn (“the Applicant”) at 100% of the General Rate.
2. At a hearing before the Administrative Appeals Tribunal (“the Tribunal”) on 30 July 2004, Mr Quinn was represented by Mr Brian Winship of Counsel, being instructed by Fairbairn Lawyers. Mr Nigel Bunn, advocate, represented the Respondent. The Tribunal took into evidence the section 37 documents provided by the Respondent pursuant to the Administrative Appeals Tribunal Act 1975. The Tribunal also took into evidence a report by Dr M Burns, Occupational Physician, dated 15 March 2004 (Exhibit A1), a report by Ms H Bell, Occupational Therapist, dated 27 February 2004 (Exhibit R1) and a supplementary report by Ms Bell dated 20 April 2004. Mr Quinn gave oral evidence.
BACKGROUND
3. Mr Quinn, born in 1926, served in the Royal Australian Navy for 12 years, and then undertook another 5 years service in the Fleet Reserve. He completed the latter service in 1965. He had a number of periods of operational service, including Korea onboard HMAS Murchison.
4. Mr Quinn has accepted disabilities of post traumatic stress disorder (“PTSD”), chronic bronchitis and emphysema, chronic solar skin damage to the face, bilateral sensorineural hearing loss, irritable bowel syndrome (“IBS”) and localised osteoarthrosis affecting both knees, the latter two conditions being more recently accepted from a claim lodged on 30 August 2002. Three other conditions claimed on 30 August 2002 were rejected as being not related to service, namely osteoarthritis of the left hand, carpel tunnel syndrome of both wrists and plantar fasciitis of the right foot. In reaching these decisions on 27 February 2003, the Respondent continued the disability pension at 100% of the General Rate.
5. The VRB reviewed the decision of the Respondent to continue disability pension at 100% of the General Rate, and affirmed that decision on 22 October 2003, the findings being that whilst Mr Quinn has an impairment rating of at least 70%, the lifestyle rating was 5, that being insufficient to meet the criteria for the Extreme Disablement Adjustment (“EDA”). That singular issue is the matter before this Tribunal and the standard of proof to be applied is that under section 120(4) of the Veterans’ Entitlements Act 1986 (“the Act”), that is, to the reasonable satisfaction of the Tribunal.
LEGISLATION AND ASSESSMENT
6. The conditions for eligibility for the EDA are defined in section 22 of the Act which relevantly states:
“(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) …
(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 $433.65 per fortnight.”
7. Sections 23, 24 and 25 do not apply to Mr Quinn. The authority for the guide to the Assessment Rate of Veterans’ Pensions (“GARP”) is found at section 29 of the Act. GARP involves the calculation of a combined medical impairment rating and the determination of a lifestyle rating, which are combined to establish a degree of incapacity from all accepted conditions. The assessment period under which this matter may be considered concludes on the decision by this Tribunal.
EVIDENCE
8. Mr Quinn has lived alone at Medowie, in the Port Stephens area, for the past six years. He retired from the work force in 1986 aged 60, he having in succession owned a garage at Woolgoolga, operated heavy earth moving machinery in Papua New Guinea and worked at Spectacle Island as a fitter and turner. His daughter lives in Sydney and visits on occasions such as Christmas and birthdays. He has differences of opinion with his daughter, which leads to her becoming stressed, and he has reservations about living with her should his circumstances lead to that. He sees his son only occasionally, about once a year in the last two years. He has an amicable relationship with his ex–wife, who on occasions accompanies their daughter when she visits him. He receives meals on wheels (one meal daily), and his household cleaning and domestic tasks are undertaken by Veterans’ Home Care. Without the latter, he believes he would have to move to a home. His brother and his wife live in the same suburb. The Department of Veterans’ Affairs pays for a local person to cut his lawn.
9. He gave evidence that he is extremely limited in what he can do about the house, relying very much on his brother for help with maintenance and in the garden, and to take him shopping. He prepares his own light breakfast and lunch, but does not cook. He uses a barbeque but relies on his relatives to clean up after the meal. He holds onto a rail whist showering. His sister in law does his ironing and some domestic chores. He cannot use a vacuum cleaner, because of the problems of standing. He lunches with his brother and sister-in-law every Sunday, and about once a month reciprocates by taking them to his local club for a meal. He makes little use of the club otherwise, finding the crowds and noise to be objectionable, and the environment leading to anxiety attacks. He attributes these feelings to his PTSD, as he does his difficulty at times in coping with visiting relatives. On those occasions he retires to his own room.
10. Mr Quinn has a motor vehicle, and drives when necessary to do small shopping and to the bank about once a fortnight. He is keen to retain his licence for the independence it provides. He is able to carry out normal routine driver maintenance, and his garage picks up and returns the car for repairs and periodic maintenance. He spoke of walking problems, and finds it painful to walk “long distances”, referring to a distance of 20 to 30 metres to his fowlyard as within his capability. He can stand for 5 to 10 minutes, a situation he attributes to his shortness of breath resulting from his chronic bronchitis and emphysema, and to his osteoarthritis of the knees. He gave evidence that he had not used public transport for some years, because of physical problems in boarding and alighting from buses or trains, and because of the sense of anxiety it generated. He thought the last train he caught was about 2 – 3 years ago. He stated that he does not need to use public transport, as he can rely on his brother, and when necessary to travel to Sydney, a lift with his son-in-law.
11. Mr Quinn takes non prescription Restavit tablets as required when in a crowded environment or when becoming anxious as to the clothing he was wearing and takes Panadol for pain as required. He attributes his nose getting blocked, requiring use of a nasal spray, to his PTSD condition. Mr Quinn stated that he sees Dr Boyle, his general practitioner, regularly, but he takes no prescribed medication. Subsequently, he indicated he took Noten for high blood pressure. His view was that medication does not work. About 2 to 3 years ago, he saw a psychiatrist in Mosman who put him on tablets but again they were of no use. There was no significant evidence before the Tribunal in respect of his bilateral sensorineural hearing loss.
12. Mr Quinn gave up golf and fishing some 4 years ago, because of pain in his knees and more recently, his condition of IBS. As noted above, the former made walking difficult and painful. He has concerns that he might suffer a sudden collapse. He also has ankle problems, wearing wedges fitted by a podiatrist. He stated that IBS has been present for some 1 and ½ years, giving him variable gastric problems or constipation which might last 3 to 4 days. Mr Quinn plays the clarinet and saxophone, his regular practice being reduced to about twice a week because of shortness of breath and arthritic fingers. He also writes articles for publication, mentioning a payment on one occasion of 800 pounds. He reads biographies but not about war or murder subjects, and watches television news and comedies.
13. He indicated that he obtained considerable satisfaction looking after his 4 fowls. He sees his neighbours, one in particular who takes out his garbage bin, and for whom he has repaired a broken glass object, but there is no social relationship. Mr Quinn is a member of the Newcastle Naval Association, last attending a meeting about 6 months ago. He is a “repairer”, in that he fixes broken items and artefacts, which he does alone, and for which he has “patience and plenty of time”. He only drinks beer and makes home brews.
14. The reports before the Tribunal variously refer to a female friend or partner. Mr Quinn clarified this by explaining that his friend of many years had in fact been a neighbour in Darwin, and now lived in Wollongong. She had nursed him after a recent prostate operation, and he sought a carer allowance for her. This was denied because of the short timescale involved. He sees her but occasionally.
MEDICAL EVIDENCE
15. Ms Bell and Dr Burns gave oral evidence and spoke to their respective reports. Ms Bell conducted her investigation in the home of Mr Quinn wherein she believed he could demonstrate functional abilities. Dr Burns, for good geographical reasons, conducted his examination in his Sydney surgery, and therein some differences in observation, fact finding and interpretation, became evident. Both parties addressed the Lifestyle Effects criteria as defined in Chapter 22 of GARP under the relevant Tables, that is, Personal Relationships (Table 22.1), Mobility (Table 22.2), Recreational and Community Activities (Table 22.3) and Domestic Activities (Table 22.4).
16. Dr Burns noted that Mr Quinn has no ongoing treatment in the form of medication for his PTSD condition. From the history he obtained, he notes that Mr Quinn is unable to visit his son or daughter due to his medical problems. His report adequately referred to the problems given in evidence by Mr Quinn in respect of shortness of breath leading to difficulties in playing instruments, and the reasons for giving up golf and fishing. In assessing lifestyle, Dr Burns concluded that ratings, in the order of the Tables, were appropriately 5, 5, 6 and 6, giving an average of 5.5, which is rounded up to the nearest integer, that is 6, in accordance with the instructions in GARP.
17. In explanation of his assessments, Dr Burns stated in evidence that he paid regard in the matter of Personal Relationships to the fact that Mr Quinn’s children did not live close to him, that his brother provided a service more so than a social interaction, and that he did not socialize with his neighbours. As to Mobility, he accepted that whilst Mr Quinn drove his car, he did so but infrequently, and indeed was afraid. Further he could not use public transport. As to Recreational and Community Activities, he placed weight on the evidence of Mr Quinn that he had been forced to give up golf and fishing due to his medical conditions. Mr Quinn had no other outside activities, his recreational pursuits and hobbies being undertaken in the home. Finally, his rating of 6 for Domestic and Employment Activities acknowledged that Mr Quinn lived alone, had limited capability about the home, and was reliant on substantial amounts of outside assistance.
18. In cross examination, Dr Burns conceded that he had not been made aware of Mr Quinn’s recent prostate operation and the support provided by his friend in Wollongong, nor his hobbies of repairing objects and his writing and publications. He did not consider that Mr Quinn’s Sunday lunches with his brother and sister-in-law implied a strong social relationship. In response to the Tribunal, Dr Burns opined that Mr Quinn would not cope with any reduction in the level of community help he was receiving.
19. In her report, Ms Bell recommended lifestyle ratings, in the order of the Tables, as 4, 4, 5 and 5, thereby giving an average of 4.5, this being rounded up to 5, which she concluded was the appropriate lifestyle rating, a conclusion she held to in oral evidence. In explanation of her findings, she confirmed that she took account of Mr Quinn’s relationships with his children, his friend in Wollongong, and his brother and sister-in-law. She confirmed that her observations of Mr Quinn had been made indoors in view of the inclement weather; she observed Mr Quinn making a drink, cleaning up in the kitchen, reaching for various items and bending to the floor. She did not observe him cleaning the home, this being the responsibility of the regular cleaners.
20. From the information given to her by Mr Quinn, Ms Bell understood he washed his own clothes, could hang them on the enclosed verandah and made his bed daily. He had also informed her that he put out his rubbish bin. She confirmed much of the facts given by Mr Quinn in terms of his hobbies, his limitations on playing his musical instruments, and his mobility (and she observed slight breathlessness around the home). She understood that he could walk 20 to 30 metres, and then a similar distance after a rest. She further understood he could use public transport, and had travelled to Sydney by train in late 2003.
21. In respect of the assessment by Dr Burns, Ms Bell said in her supplementary report (Exhibit R2) that whilst “many of Dr Burns’ comments relating to Mr Quinn’s lifestyle are consistent with my report, my assessment concluded that Mr Quinn had greater functional capacities than Dr Burns’ report indicates. My assessment was based on observation, physical screening, demonstration of functional activities and Mr Quinn’s self reporting of activities and functions.”
SUBMISSIONS
22. Counsel emphasised that the evidence given to the Tribunal by Mr Quinn accurately reflected his situation. Mr Quinn considered some of the evidence given by Ms Bell, particularly in respect of mobility and his domestic and recreational circumstances, did not accurately portray his real circumstances. Counsel referred the Tribunal to the experience of Dr Burns, particularly in the veterans’ field, and his knowledge of the requirements of GARP. Further, Dr Burns had justified in oral evidence his assessment leading to a lifestyle rating of 6, which given the agreed impairment rating of 70 points, met the criteria for the EDA.
23. The Respondent submitted that the assessment by Ms Bell should be preferred; she knew the facts and circumstances, some of which had not been ascertained by Dr Burns, and her home visit gave her a better view of the circumstances of Mr Quinn. In summary, the Respondent submitted that the circumstances of the personal relationships of Mr Quinn with his family and others were not sufficiently strained to justify a rating of 5, that Mr Quinn could and has travelled on public transport (train), and was capable of driving his car and hence a rating of 4 was appropriate. He has a number of recreational activities, which had not been made clear to Dr Burns, and a rating of 5 was justified. His ability to undertake light domestic work in his home, to carryout some shopping, and to make his breakfast and lunch, did not justify a rating of 6 under Table 22.4. Hence an average of 6, as put forward by the Applicant, could not be sustained, and accordingly Mr Quinn could not meet the EDA criteria.
FINDINGS
24. Criteria under Table 22.1 for Personal Relationships are relevantly defined as:
“THREEModerately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.
FOURMarkedly affected relationships. Most relationships are unsatisfying, maintenance of usual relations with relatives, friends, neighbours and colleagues is difficult. Much less time is spent socialising than was the case formerly.
FIVESeverely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality.”
25. The evidence before the Tribunal indicates that Mr Quinn has a generally satisfactory relationship with his daughter, less so with his son, albeit he suggests the latter has not the time, due to his business, to see him more frequently. His relationship with his brother and sister-in-law is seemingly quite adequate, and there is evidence of a social parameter in that relationship. He has a good long term relationship with his friend in Wollongong. The evidence of Mr Quinn was that a neighbour helps him by taking out his garbage bin, and that he in turn had repaired a broken artefact for his neighbour. Mr Quinn stated that he had no ongoing social relationship with this neighbour, nor indeed any other neighbour, but he does wave to those neighbours. The conclusion must be that Mr Quinn chooses not to seek any social relationship with his neighbours, rather than an inability to relate because of his medical condition. As to difficulties in crowds and with noise, the evidence of Mr Quinn was quite firm; he finds such situations difficult. On balance, however, the Tribunal considers a rating of 4 to properly reflect the situation in respect of personal relationships, and so finds.
26. Criteria under Table 22.2 for Mobility are relevantly defined as:
“FOUR Markedly reduced mobility:
-assistance is needed to cope with public or private transport
-there is considerable difficulty in travelling from home to destination
-restricted in the use of at least two forms of public transport
FIVE Major impediments to mobility:
-dependent upon others, or mechanical devices such as wheelchairs
- unable to use most forms of public transport
-able to drive a car only in a situation of emergency and then only for a short distance.”
27. Mr Quinn gave evidence that he had not been able to use public transport for some years, it being awkward to get on and off and because of the crowds. He stated that he relies on others to drive him where longer distances are involved, but he is able to drive to shopping and banking at Raymond Terrace, and as he informed Ms Bell, on occasions to visit with his brother. There is no suggestion that his use of his car fits the limiting criteria of “emergency” as required under a rating of 5. Whilst his walking is restricted, he does not use a walking stick or mechanical device, although he will at time use a stick/branch in his yard when proceeding to and from the fowlyard. The conditions for a rating of 5 are quite precise, requiring a dependence on others or mechanical devices, and driving in an “emergency”. The evidence before the Tribunal is not sufficient to meet this criteria. The restrictions in mobility of Mr Quinn are well acknowledged, but the evidence indicates that a rating of 4 under Table 22.2 is appropriate.
28. Criteria under Table 22.3 for Recreational and Community Activities are relevantly defined as:
“FIVEGreater reduction in the number and kind of recreational activities which can be undertaken; some assistance is needed to undertake those which are still possible, for example:
- can only visit or go out if taken to and from destination;
- finds doing a hobby or relaxing (for example stamp collecting, art and crafts, playing or listening to music, playing cards, etc) difficult to enjoy due to pain, suffering, or loss of dexterity.
SIXAble to engage in only a very few satisfying recreational activities. Restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors”.
29. Dr Burns considered a rating of 6 to be appropriate. Ms Bell recommended a rating of 5 as a higher rating would indicate Mr Quinn could only undertake passive activities, a situation she believed not to be the case. The evidence before the Tribunal is such that one might consider a rating of 4, where physical activities such as fishing and golf are no longer possible, and the person is restricted to “generally non-active interests”. Such a rating accords with much of the evidence. However, the Tribunal is satisfied that a rating of 5 can be justified, given the evidence points to difficulties in undertaking hobbies due to shortness of breath and loss of dexterity. In reaching that decision, the Tribunal recognises that Mr Quinn does not meet the criteria under a rating of 5 wherein visits can only be undertaken with assistance. The Tribunal also acknowledges the evidence of Mr Quinn that he has the patience and the time to undertake and enjoy repairing artefacts. Suffice this negates a higher rating of 6.
30. The final categories are those of domestic and employment activities at Tables 22.4 and 22.5 respectively. The latter is inappropriate as Mr Quinn is retired. Criteria under Table 22.4 are relevantly defined as:
“FIVE Limitation of household activity to a small range of light tasks, for example:
- watering the garden but has difficulty weeding or pruning
- able to do some light household tasks but has difficulty bending to make beds, or in putting out the rubbish bin;
- requires assistance with grocery shopping
SIXAble to carry put only very limited domestic activities, usually a restricted range of indoor activities. May require supervision in carrying out such activities, for example:
- able to do very light tidying, dusting but unable to cook or prepare meals
- has difficulty standing top set table or wash dishes.”
31. Dr Burns referred to Mr Quinn living alone, but having substantial amounts of outside assistance. That indeed is the case. Dr Burns also noted that Meals on Wheels provided all daily meals, and that is not the case, Mr Quinn stating that whilst he does not cook, he prepares his breakfast and when necessary, lunch. There is no evidence to suggest that Mr Quinn requires supervision in his limited household tasks. The Tribunal acknowledges that Mr Quinn believed that Ms Bell had overstated his capability in terms of his domestic activities, but notwithstanding, his evidence indicated that his domestic capability meets the rating of 5 under table 22.4. He can do light household tasks, and is able to care for his fowls, and he can undertake some shopping as he requires. The Tribunal accepts that Mr Quinn relies on considerable outside help, but there is no suggestion before the Tribunal that a reduction of such help is anticipated.
32. The Tribunal accepts that accepted disabilities restrict the lifestyle of Mr Quinn. However, lifestyle ratings add up to 18, which when divided in accordance with the procedure in GARP, and rounded up to the nearest integer, give a final lifestyle rating of 5, the Tribunal being reasonably satisfied that this is an accurate reflection of Mr Quinn’s circumstances. Whilst the combined impairment rating, as agreed by the parties, is 70 points, a lifestyle rating of 6 is necessary to meet the criteria for eligibility for the EDA. This has not been met.
33. The Tribunal must therefore affirm the decision of the Repatriation Commission on 27 February 2003 which continued the disability pension at 100% of the General Rate.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO
Signed: Neil Glaser
AssociateDate of Hearing 30 July 2004
Date of Decision 3 September 2004
Counsel for the Applicant Mr Brian Winship
Advocate for the Respondent Mr Nigel Bunn
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