RONALD POLGLAZE and REPATRIATION COMMISSION
[2009] AATA 958
•26 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 958
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4476
VETERANS' APPEALS DIVISION ) Re RONALD POLGLAZE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M D Allen, Senior Member Date26 November 2009
PlacePerth
Decision For the reasons given orally at the conclusion of the hearing the decision under review is affirmed. ..................[sgd]............................
M D Allen, Senior Member
REASONS FOR DECISION
26 November Mr M D Allen, Senior Member 1. At the conclusion of the hearing of this application for review, Senior Member M D Allen stated orally the terms of the decision intended to be made and the reasons therefor. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 (“AAT”), requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision. Those reasons are now restated below accordingly, and will be furnished to the applicant and to the respondent.
2. In this matter the applicant seeks review of a decision by the respondent Repatriation Commission made 25 June 2008 to continue to pay a pension for war-caused incapacity at 90% of the general rate of pension.
3. At the outset of the proceedings I indicated, with the consent of the Respondent, that I would amend the diagnosis of the Applicant’s spinal condition so that what was previously termed “crucial neuralgia” is now more correctly referred to as osteoarthritis of the lumbar spine. See the report of Rehabilitation Physician Dr Burke.
4. Pursuant to s29 of the Veterans’ Entitlements Act 1986 (“VEA”), any calculation of the rate of pension to be paid to the Applicant must first be calculated in accordance with the Guide to Assessment of Rates of Veterans’ Pensions (“GARP”). The current edition of which is Edition No.5.
5. It must be stressed that the GARP method of assessment is an objective one, and even if an Applicant considers that there has been a deterioration in his condition, the GARP measures objective debility.
6. The injuries and diseases suffered by the Applicant, which have been accepted by the Respondent as having been war-caused are:
Follicular dermatitis;
Tinea pedis;
Otitis externa (recurrent);
Bilateral sensori neural hearing loss;
Bilateral tinnitis; andOsteoarthritis of the lumbar spine.
7. Once a figure has been obtained using the Combined Values Chart found at Chapter 18 of the GARP, representing the total degree of impairment occasioned to the Veteran by all war-caused injuries and diseases, this figure is then combined with a lifestyle rating – also calculated by scales contained in the GARP – to give a figure representing, to the nearest 10% of the rate of pension to be paid to the Applicant.
8. Should that figure be 70% or more of the General Rate, then the Applicant would be entitled to the Extreme Disablement Adjustment if his lifestyle rating was at least 6 points.
9. Given the Applicant’s age and time out of the workforce, the Special Rate and Intermediate Rate of pensions were not considered in the application for review.
10. On 25 October 2007 the Applicant was examined by his General Practitioner (“GP”), Dr Roohi. Dr Roohi’s report is at document T4 of the documents prepared for the Tribunal pursuant to s37 of the AAT Act.
11. Following the report by Dr Roohi that report was examined by a Departmental Medical Officer (“DMO”), and using GARP that medical officer calculated a total impairment of 50 points.
12. Subsequent to that calculation the Applicant has been examined by Dr Burke, a specialist physician in rehabilitation medicine, and by neurosurgeon Mr Knuckey.
13. In his report of 10 July 2009, Dr Burke states inter alia, under the heading “Back/Spine”:
“On inspection, his spine was in good alignment. Perhaps there was slight flattening of the lumbar lordosis. There was no tenderness to palpitations, and he indicated that his pain was felt across the lower back region bilaterally, but he was not tender in these regions. The range of motion of his back was really quite good, with forward flexion to 80 degrees, extension to 40 degrees, both within normal limits. Left and right lateral flexion was within normal limits, as was rotation to left and right.”
He continued under the heading Lower Limbs:
“There was no evidence of muscle wasting on inspection of his legs, and I did not attempt to examine him for straight leg raising in view of the bilateral hip replacements that have been performed.”
Dr Burke concluded his report by stating:
“From my examination, I did not detect any significant loss in range of motion of the thoraco lumbar spine because of this symptom, but he clearly does have pain which is increasing with time. It is seriously interfering with his mobility, and his ability to participate in activities of daily living.”
14. Neurosurgeon Mr Knuckey examined the Applicant apparently at the request of the Applicant’s GP on 1 December 2008. In that report he states:
“On examination today, his lumbar spine is non tender. He has a good range of back movement, and he is almost able to touch his toes. Straight leg raise is normal. He has no focal neurological signs in the lower limbs. I reviewed the CT with him, but shows diffuse degenerative changes in the lumbar spine with a broad based foraminal disc at L3/4. His predominant symptoms are back pain due to the degenerative disease of the lumbar spine without significant radicular signs.”
15. At page 44 of the documents prepared for the Tribunal is a report by Jessica Shave, physiotherapist. That report refers to the Applicant having a reduced range of movement in his lower back and an admission to hospital for the treatment of leg and lower back pain.
16. A further report by Ms Shave, dated 12 March 2008, expands on the reasons for the Applicant’s admission to hospital. She states:
“On March 10, 2008, Mr Polglaze was taken to Joondalup Hospital emergency department because of severe pain in his lower back and legs. He had spent most of the day working in his yard and had been shifting around some large stones, some of which that were fairly heavy. The spasms in Mr Polglaze’s lower back and legs are exacerbated by repetitive bending and lifting but can also occur without provocation. These spasms affect Mr Polglazes’s balance and make him more likely to fall and injure himself more severely. I have arranged for a four-wheeled walker for Mr Polglaze and he is now using it when he needs some additional support.”
17. In an undated report tendered to the Veterans’ Review Board, Ms Canini, a sports physiotherapist, said:
“I have been seeing Mr Polglaze for physiotherapy for his chronic lumbar and leg pains since 11/04/08. Objectively he has full lumbar range of motion.”
18. My understanding of the reports quoted above is that whereas the Applicant does not exhibit any loss of range of movement in the thoraco lumbar spine, he does have ongoing pain due to a degenerating osteoarthritis of the lumbar spine.
19. Any assessment of impairment under Part 3.3 of the GARP, which relates to the spine, requires in this matter, an assessment pursuant to Table 3.3.2. Table 3.3.1 which refers to a loss of range of movement results in a Nil rating as the Applicant has a nearly normal range of movement. See particularly the reports of Dr Burke and Mr Knuckey.
20. The Applicant does however have severely reduced loss of function in his lower limbs as a result of his osteoarthritis of the lumbar spine – this invokes the use of Table 3.2.2 and applying that table a rating of 30 is appropriate.
21. I have also included a figure from Table 3.4.1 Resting Joint Pain to cover the Applicant’s continual pain from his osteoarthritis of the lumbar spine. I consider a rating of 10 is appropriate.
22. So far as the impairment occasioned by the other war-caused disabilities is concerned, there is no material before me to challenge the ratings given by the DMO, viz:
Follicular dermatitis & Tinea pedis 10
Otitis externa (recurrent) 5
Bilateral sensori neural hearing loss 3
Bilateral tinnitus 5
Disfigurement and social impairment 5Resting Joint Pain 10
Using Table 18 the impairment rating is 54 which is rounded to 55.
23. At the time of the Applicant’s original assessment and at the time of his review before the Veterans Review Board, his lifestyle rating was assessed at 4.
24. Using the Combined Tables being Table 23.1 an impairment of 55 plus a lifestyle rating of 4 gives an entitlement to pension at 90%.
25. The Applicant’s state of health has deteriorated since the original decision in this matter. A new lifestyle questionnaire was completed by the Applicant and received at the Department of Veterans’ Affairs on 28 August 2009. Having regard to that document, plus the evidence of the Applicant, I find that the appropriate lifestyle ratings are:
Personal Relationships 3
Mobility 4
Recreational and community activities 4Domestic Activities 5
This gives a rating of 4 (that is a total of 16 divided by 4 to get an average). Combining 55 impairment points with a lifestyle rating of 4 again gives a pension at 90% of the General Rate.
I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: .............................[sgd]…...............................................
K. Lynch, AssociateDate of Hearing 26 November 2009
Date of Decision 26 November 2009
Applicant Mr Ronald Polglaze
Representative for the Respondent Mr Carl Ponnuthurai
Department of Veterans’ Affairs
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