Singer and Repatriation Commission - [2002] AATA 178

DECISION AND REASONS FOR DECISION [2002] AATA 178

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1061

VETERANS' APPEALS DIVISION          )
           Re      Jack Singer
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr R P Handley

Date18 March 2002
PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes a new decision that the Applicant is qualified for payment of pension at the Extreme Disablement Adjustment Rate from 1 January 2001.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' pension – Extreme Disability Adjustment Rate – lifestyle rating - assessment of disability at time of application.

Veterans' Entitlement Act 1986 ss 22(4)(C), 23(4), 29(3), 120(4)

REASONS FOR DECISION

18 March 2002 Mr R P Handley

This is an application by Jack Singer ("the Applicant") for a review of a decision of the Veterans' Review Board ("VRB") made on 7 June 2001 affirming a decision of the Repatriation Commission ("the Respondent") dated 31January 2000 to continue payment of disability pension to the Applicant at 100% of the General Rate and refuse payment at the Extreme Disablement Adjustment Rate.
At the hearing, the Applicant was represented by Brian Winship of Rockliffs, Solicitors, and the Respondent was represented by Philippa Hook of the Department of Veterans' Affairs. The Tribunal had before it the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. The Applicant and Zelda Farrelly gave oral evidence.
BACKGROUND
Mr Singer was born on 28 July 1921 and is aged 80. He served in the Australian Army and later worked as a commercial traveller, ceasing work on 1 March 1981. His wife died 9 years ago, since when his daughter, Zelda Farrelly, who is a sole parent, and her two teenage daughters have lived with him. Ms Farrelly is caring for her father, which has been recognised by the Department of Family and Community Services who have granted her a carer pension.
Mr Singer receives a disability pension paid at 100% of the General Rate in respect of the following conditions which have been accepted as service related:

Bronchial asthma
Conjunctivitis
Coronary heart disease
Solar skin damage
Sensori-neural deafness
Emphysema

On 2 November 1999, Mr Singer lodged a claim for payment of disability pension at the Extreme Disablement Adjustment ("EDA") Rate. On 31 January 2000, a delegate of the Respondent assessed Mr Singer as having a combined impairment rating in respect of his accepted conditions of 60 points and a lifestyle rating of 4 points according to the Guide to the Assessment of Rates of Veterans' Pensions Fifth Edition ("GARP") approved in accordance with subsection 29(3) of the Veterans' Entitlements Act 1986 ("the Act"). According to Chapter 23 of the GARP, a combined impairment rating of 60 points and a lifestyle rating of 4 points equate to a degree of incapacity of 100%.
At the request of Mr Singer, the delegate's decision was reviewed by the VRB which assessed Mr Singer's combined impairment rating at 78 points and his lifestyle rating at 5 points. In doing so, they had regard to a report dated 26 June 2000 made by Dr Martha Baz, Occupational Physician (T9). Dr Baz assessed Mr Singer's combined impairment rating at 70 points and his lifestyle rating at 5 points.
Section 23(4) of the Act provides for the payment of disability pensions at the EDA Rate, which is 150% of the maximum rate per fortnight of the General Rate. To be qualified for payment at the EDA Rate, a veteran's degree of incapacity from war-caused injury or disease must have been determined to be 100%, the Veteran must have attained the age of 65, must not be receiving a pension payable at the Intermediate Rate or Special Rate (including temporary payment at Special Rate), and, in particular, in accordance with s22(4)(c), the veteran must have "an impairment rate of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved" GARP.
Thus, having assessed Mr Singer's impairment rating at 78 points and his lifestyle rating at 5 points, on 7 June 2001, the VRB decided to affirm the delegate's decision. On 24 July 2001, the Applicant lodged an application for a review of this decision by the Tribunal.
Evidence
Jack Singer (the Applicant)
Mr Singer said his wife died about 10 years ago. As a result, he was lonely and, after 3 or 4 months, asked his daughter, Mrs Farrelly, and her family to move in to his house with him. He owns the house. His daughter and her husband rented out their house. His daughter is now divorced, but she has a male friend who is at the house "quite a bit". Her two children have also lived at the house, although the older one, who is aged 19, moved to Brisbane in November or December last year to take up a position there. The younger, one, who is aged 16, still lives with them in the house.
Mr Singer said that of his accepted disabilities it is the emphysema which affects him most because he gets breathless after any exertion, and his chest "tightens up" and he gets angina. He has also had 3 heart attacks, a pulmonary oedema and a mild stroke about 4 or 5 years ago. In the past 12 months, his breathing and dizziness have got worse.
Mr Singer said his relationship with his daughter is "not too bad" – they have their "ups and downs and have a go at each other" from time to time. His daughter does everything for him. His relationship with his 16 year old granddaughter, Kate, is also "not too bad" but she does not always help when he asks and he gets frustrated and cranky. This also upsets the relationship with his daughter. Mr Singer said he gets on "reasonably" with his daughter's male friend. He does not really approve of the relationship but has to accept it. The male friend helps with maintenance jobs around the house and sometimes takes Mr Singer out in the car.
His daughter and her friend take him to the Bowling Club most Friday nights. Mr Singer said he likes to buy a raffle ticket and they have a "chatter". Sometimes, he nods to acquaintances, but he does not have many because he has not been able to bowl for about 6 years. His daughter also takes him to the library to get books and sometimes he sits and watches the bowls for half an hour while she shops, or goes to watch on a Sunday afternoon. He has a couple of light beers at the Club about once a week or once a fortnight. He used to go fishing but now cannot risk going out to sea because of his breathing problems and angina pain. He also used to walk and play golf which he cannot do now. He cannot walk far because he gets short of breath and gets angina pain.
Mr Singer said his lifestyle is pretty boring because he cannot do the things he used to. In the morning, he gets up and makes himself a cup of tea and a slice of toast. He collects the paper from outside when it is delivered and reads the paper and listens to the radio. He can walk short distances around the house without assistance. He has a shower - he has to support himself by leaning on the wall or on a bench while he dries himself. He usually shaves in the afternoon.
Mr Singer said he watches a bit of television in the morning or reads a book. He reads a lot and will often finish a good book in 2 to 3 days. He cannot do anything in the garden because he cannot bend down. Neither does he do anything around the house for the same reason and because it is too difficult. Mr Singer said he got his driving licence while he was in the Army in 1941. He has had 2 accidents over the years. He stopped driving about 12 months ago as a precautionary measure because of his dizzy spells. He could not remember any particular incidents, although he said other drivers had "honked" at him.
Mr Singer said he was in hospital before Christmas last year because he had blood in his stools, but this was only an aggravation of his bowel. He takes medication daily for his heart condition, for angina (Nitrolimgual spray), for his breathing (Bricanyl and Pulmocourt), for cholesterol (Ipex 40), to thin his blood (Warfarin), and for depression (Effexor-XR). He has been taking medication for depression for more than 12 months. After he saw Dr Baz and received her report, his daughter read it and went to see Dr Blackman, his General Practitioner ("GP"), who called him in to discuss whether he was depressed and subsequently prescribed medication for this. Mr Singer said that since he has been taking the Effex or tablets, he has not been "as jumpy" as he used to be.
Mr Singer said he travelled to Sydney on his own to see Dr Baz (on 1 June 2000). He flew to Sydney and caught a train into the city from the airport. He was about 3 hours early for his appointment so he sat on a bench in the Park to wait. This was all he could manage to do. He said that if he had to travel to Sydney now, he would not go on his own – he would want someone with him – and he could not cope with catching the train.
Mr Singer said that in the last 3 or 4 weeks he has had a lot of dizziness. His GP, Dr Blackman, has been away, so Mr Singer saw another doctor at the same Medical Centre, Dr D F Kennedy, who said Mr Singer had low blood pressure.
Mr Singer said he is resigned to his life and reasonably happy. He would be much happier if he had good health and could do the things he would like to do, like go fishing. He also gets frustrated having to rely on his family. His daughter does just about everything for him. If she was not there, he supposed he would have "to get someone in". He acknowledged that he does not much like domestic chores or cooking. If he cooks, he forgets he has put saucepans on the stove and burns their bottoms. He also acknowledged that one of his other two daughters died about 18 months ago after 6 years of illness with cancer.
Zelda Farrelly
Mrs Farrelly said she has lived with her father since her mother died on 10 March 1993, because her father did not want to stay in the house on his own. Her mother used to do everything for him. So Mrs Farrelly and her husband rented out their house in Coffs Harbour and, after doing some renovations to her father's house to make room for them all, she and her husband and two children moved in. At this time, Mr Singer's health was "OK" and he helped look after the children, for example collecting them from school, while she and her husband ran their business. However, Mr Singer's health has deteriorated since then. He has had heart problems and now gets very frustrated.
Mrs Farrelly said she gets on "OK" with her father because she is very patient. He is very short tempered with the children although there is only her younger daughter, Kate, who is 16, at home now. He always wants things done immediately and so clashes with the children. Mrs Farrelly acknowledged that these clashes do upset her – generally she asks both sides to "lay off". Mrs Farrelly is now divorced from her husband and has a relationship with another man who visits regularly. She is aware that this does not please her father because he does not like the intrusion. He does not like other people coming to the house and will sometimes go to bed if they are invited in.
Mrs Farrelly said she is now receiving a "carer pension" for looking after her father. This is her only source of income. She is very conscious that she cannot leave him on his own for very long because he is insecure. Mrs Farrelly was referred to her statement dated 18 December 2000 (T10). She said her father stopped caring about anything – how he dressed and what he did. For example, he was getting up to urinate in the night and would urinate on the toilet seat on the floor in the bathroom. After receiving Dr Baz's report, Mrs Farrelly went to see Dr Blackman who started her father on anti-depressants. This was about 6 months after her sister died of cancer.
Mrs Farrelly said her father had run his own business, employing staff and handling large sums of money. Her mother did most of the domestic chores. He played bowls and managed one of the penant teams and was a very social person. Now he does not socialise at all. No one comes to the house and he does not visit anyone. Most of the time, he just stays at home, watches television and reads. He gets up in the morning and makes himself a cup of tea and some toast, reads the newspapers and watches television. He sleeps for 2 or 3 hours from 1 pm every afternoon and then stays up listening to the radio at night. The noise is very trying for the rest of them at night.
Mrs Farrelly said her father cannot bend down without getting dizzy. She does everything for him around the house, even making his bed. He stopped driving about 12 months ago and she now drives him everywhere. When he was still driving and collected the kids from school, they would complain about his driving and how other drivers "honked" at him when he veered across the road. Now they just have one car and Mrs Farrelly has a disabled sticker because her father can only walk a few hundred metres. She takes his arm because he gets dizzy. Sometimes he comes to the supermarket with her but, if he feels dizzy, sits outside.
At the house, they have a swimming pool which Mrs Fanelly said her father used to swim in during the summer to cool off but now he cannot be bothered to change and he has not been in for the past 2 years. Once or twice a week, she takes him to the RSL Club where he sits for an hour or so and chats to acquaintances, and then she takes him home, always by 7:00 pm. He gets bored and cranky with himself and depressed because he cannot do what he used to do. He is not interested in keeping up friendships and does not go to functions if he is invited. He likes her to take him out but she always has to be with him. Mrs Farrelly said her father flew to Sydney to see Dr Baz on his own because she could not afford the plane ticket to accompany him. He could not now travel by himself.
Mrs Farrelly said she has noticed a slow deterioration in her father's condition over the last couple of years. The condition which affects him worst is his bronchial asthma and emphysema and shortness of breath. He uses puffers for the asthma – may be 2 or 3 times a day, although she could not be sure because he keeps the puffers in his room. His hearing has also deteriorated – she has to repeat things and he turns the television up very loud and yells.
Mr Singer is taking Warfarin and has to have blood tests every 2 weeks and also usually sees the doctor every 2 or 3 weeks. Mrs Farrelly said her father has been having dizzy spells – last week on 4 or 5 days. He saw Dr Kennedy at the Medical Centre – Dr Blackman was away, who provided a medical certificate about this (Dr D F Kennedy, Certificate dated 5 February 2002 (A2)).

SUBMISSIONS
Applicant

Mr Winship, for Mr Singer, said that it is obvious from the evidence that Mr Singer has 3 major disabilities, all of which are worsening: hearing loss, breathing difficulty and dizziness. The first two conditions have been accepted. The third condition is probably linked to Mr Singer's low blood pressure which is a symptom of his accepted coronary heart disease. Mr Winship said Mr Singer's depression is clearly linked in the main to his accepted disabilities. He referred the Tribunal to Dr Blackman's report dated 3 December 2001 (R1). Of the factors identified by Dr Blackman as significant factors in relation to Mr Singer's depression, only the death of his daughter is not related to his war service. His chronic illness, frustration with his medical problems and difficulty with living with his grandchildren are all related to his war service. Dr Blackman noted, in particular, Mr Singer's "controlled cardiac failure" and emphysema.
Mr Winship said the Applicant is not submitting that Mr Singer's depression is a separate condition. Rather it is consequential on his other medical conditions which are mainly war-caused. Moreover, it is only the lifestyle effects of Mr Singer's conditions which are at issue in the present proceedings.
Mr Winship noted that Dr Blackman did not actually see Mr Singer at the time he prepared his report for the Respondent. Mr Winship submitted Dr Blackman's lifestyle ratings for Mr Singer were "way out of kilter" with the ratings assessed by both Dr Baz (29 June 2000 (T9 and the VRB (7 June 2001) (T12)).
Mr Winship said the Applicant contends that his lifestyle rating in respect of personal relationships is 4 points relying on Dr Baz's opinion (T9) and the findings of the VRB (T12) 6 points since Mr Singer no longer drives and is driven every where by his daughter, recreational and community activities 6 points relying on the findings of the VRB, and domestic activities 7 points since Mr Singer does nothing around the home and is reliant on his daughter who receives a carer pension. This gives a final lifestyle rating of 5.75 which is rounded up to 6 points, the required points for payment of the EDA rate of pension.
With regard to the date of effect of any decision substituted by the Tribunal, Mr Winship noted that Mr Singer was driving until about 12 months ago, albeit his driving was very limited before that as the VRB noted (T12). Mr Winship suggested that other key dates were the date of the VRB decision (7 June 2001) and that of Dr. Blackman's report (R1 – 3 December 2001).
Respondent
Ms Hook, for the Respondent, said Dr Blackman was asked by the Respondent to rely on his notes when preparing his report dated 3 December 2001 (R1) since the Respondent knew that he saw Mr Singer regularly. Dr Blackman was sent the relevant chapters of GARP and asked to assign lifestye ratings.
Ms Hook submitted that Mr Singer's depression is a separate identifiable condition, albeit one which is affected by restrictions on Mr Singer's lifestyle as a result of his medical conditions. Depression cannot be added as a symptom of his other conditions. It must be separately claimed and accepted. It has not yet been claimed and the Respondent has not, at this stage, accepted Mr Snger's depression as war-caused.
Ms Hook said the Respondent submits that the appropriate lifestyle ratings for Mr Singer are personal relationships 3 points, mobility 5 points, recreational and community activities 5 points, noting that depression cannot be considered, and domestic activities 6 points, noting that while Mr Singer is significantly affected by emphysema and asthma and his inability to bend down, he has always been looked after by either his wife or, latterly, his daughter. This gives a final lifestyle rating of 4.75 which is rounded up to 5 points.
With regard to a date of effect, if the Tribunal finds in favour of Mr Singer, Ms Hook submitted this should not be earlier than the VRB's decision (7 June 2001) but perhaps shortly thereafter.
FINDINGS AND APPLICATION OF THE LAW
As stated above, for a veteran to be qualified for the payment of pension at the EDA rate, the veteran's degree of incapacity from war-caused injury or disease must have been determined to be 100%, the veteran must have attained the age of 65, must not be receiving a pension payable at the Intermediate Rate or Special Rate (including temporary payment at Special Rate) and, in particular, in accordance with s 22 (4)(c):
(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 Veterans' Pensions

There is no dispute that Mr Singer's degree of incapacity has been determined at 100%, he has attained the age of 65 – he is in fact 80, and he has an impairment rating of at least 70 points. In its decision made on 7 June 2001, the VRB assessed Mr Singer's impairment rating at 78 points. Therefore, accepting Mr Singer's impairment rating as being appropriately assessed at 78 points, the remaining issue for the Tribunal to determine is whether he has a lifestyle rating of at least 6 points determined in accordance with GARP. The Tribunal notes that, in accordance with s 120(4) of the Act, this is to be determined to its "reasonable satisfaction".

Looking at Mr Singer's personal relationships, the Tribunal considered a lifestyle rating of 4 is appropriate. The criteria for a rating of 4 is as follows:
Ratings Criteria
FourMarkedly affected relationships. Most relations 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.
The Tribunal finds Mr Singer's relationships have been markedly altered by his war-caused disabilities. The Tribunal accepts his and Ms Farrelly's evidence as to his not having maintained former friendships and now only having a few "acquaintances" at the Bowling Club but otherwise limiting his relationships to those with immediate family members which are regularly strained. Both Dr Baz (T9) and the VRB (T12) also considered a rating of 4 was appropriate.
In the case of Mr Singer's mobility, the Tribunal considered a lifestyle rating of 6 is appropriate. The criteria for a rating of 6 is as follows:
Ratings Criteria
Six Severe impediments to mobility:
Restricted to home and immediate vicinity, unless door to door transport and assistance from others are provided;
unable to drive a car in any circumstances whatever.
The Tribunal finds that Mr Singer is no longer able to drive, does not use public transport and is restricted to his house unless transported door to door by car. The Tribunal accepts his and Ms Farrelly's evidence that he could only walk very short distances about 100m, and could only cross a major road with assistance. After short distances, Mr Singer becomes breathless and suffers angina pain. Mr Singer's evidence was that he stopped driving about 12 months ago. This was a change from the time he saw Dr Baz (26 June 2000), who rated his mobility at 6, and the VRB (7 June 2001), which rated his mobility at 5. The VRB found Mr Singer "has virtually ceased driving".
With regard to recreational and community activities, the Tribunal considered a rating of 6 is appropriate. The criteria for a rating of 6 is as follows:
Ratings Criteria
Six "Recreational and Community Activities
Able 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.
The Tribunal finds that Mr Singer is entirely limited to passive activities such as listening to the radio, watching television and reading. His only activity outside the home is a regular trip to the Bowling Club for an hour or so where he chats with his daughter or her friend or acquaintances for a short while. Dr Baz rates these activities at 5 points and the VRB at 6 points.
Finally, with regard to domestic activities, the Tribunal considered a rating of 6 is appropriate.
Ratings Criteria

SixAble to carry out 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 to set table or wash dishes.

Mr Singer's evidence, and that of his daughter, is that the only domestic activity undertaken by Mr Singer is to make himself a cup of tea or slice of toast. For all other domestic tasks, other than self-care, he is dependent upon Ms Farrelly who now receives a carer pension from Centrelink. Apart from his restricted mobility, a particular difficulty is Mr Singer's inability to bend down without getting dizzy. The Tribunal notes Dr Baz's and the VRB rating of 6. In the Tribunal's view, Mr Singer is no longer able to cook a meal as the VRB found. Mrs Farrelly's evidence is of a slow deterioration in her father's condition over the last couple of years. In the Tribunal's view, Mr Singer is near a rating of 7 for "total dependency upon others for domestic tasks".
Following the steps in Chapter 22 of GARP, Mr Singer has an average lifestyle rating of 5.50 (4+6+6+6 = 22 ÷ 4). Fractions of 0.5 are to be rounded up so Mr Singer's final lifestyle rating to be used in the assessment is 6 points. This means he satisfied the final criteria for payment of pension at the EDA rate.
The Tribunal had regard to the Respondent's submission that Mr Singer's depression is a separate identifiable condition, which must be separately claimed and accepted for its effect to be taken into account in determining Mr Singer's lifestyle rating. The Tribunal notes Dr Blackman began treating Mr Singer for depression (report dated 3 December 2001) (R1) about 12 months ago. Dr Blackman attributes Mr Singer's depression to a number of factors, one being the death of another daughter after a long illness with cancer. However, the other three factors - general debility associated with chronic illness, frustration associated with his medical problems and his advancing years and difficulty in living with teenagers, are largely attributable to his accepted conditions. In the Tribunal's view, the most significant cause of Mr Singer's depression is, therefore, his accepted disabilities, and it is reasonable in the circumstances to assess depression as a symptom of those disabilities rather than as a separately identified condition. Thus, the effect of depression as a symptom can only show up in a determination of lifestyle rating.
The Tribunal also notes that it has chosen not to rely on Dr Blackman's assessment of Mr Singer's lifestyle rating because his assessment is out of line with Dr Baz's and the VRB's assessment and does not accord with the Tribunal's own findings. The Respondent stated that this report (R1) was prepared by Dr Blackman from his notes and without a formal examination or discussion of these matters with Mr Singer or Mrs Farrelly.
The Tribunal's decision is to set aside the decision under review and substitute a new decision that Mr Singer is qualified for payment of pension at the EDA rate, but only from 1 January 2001, approximately 13 months ago, being around the time Mr Singer gave up driving.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         ..............................
  Associate
Date/s of Hearing  7 February 2002
Date of Decision  18 March 2002
Representative for the Applicant   Mr Brian Winship
Representative for the Respondent        Ms Philippa Hook