Thurlow and Repatriation Commission (Veterans' entitlements)

[2019] AATA 822

Thurlow and Repatriation Commission (Veterans' entitlements) [2019] AATA 822 (8 May 2019)

Division:Veterans' Appeals Division

File Number(s):      2015/5682

Re:Timothy Thurlow

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:8 May 2019

Place:Sydney

The reviewable decision is set aside and remitted to the respondent for reconsideration with a direction that the lifestyle rating is six.

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Deputy President B W Rayment OAM QC

CATCHWORDS

VETERANS’ AFFAIRS – application for extreme disablement adjustment – applicant’s general rate of pension at 100% – whether lifestyle rating of six – psychiatric conditions – decision under review set aside and remitted

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) s22

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

8 May 2019

1. The applicant is a gentleman of 94 years of age. He is a veteran of the Second World War and suffers from a number of medical conditions. He was assessed by the Veterans Review Board to be entitled to a pension from war-caused conditions at 100% of the general rate.

2. The applicant applied for the Extreme Disablement Adjustment under s 22(4) of the Veterans’ Entitlement Act 1988 (Cth). His entitlement to that adjustment depends, amongst other things, on his having a lifestyle rating of six points determined in accordance with the Approved Guide to the Assessment of Rates of Veterans’ pensions. All other aspects of the determination of his entitlement are agreed between the parties.

3. The applicant has applied to this Tribunal for review of the Board’s determination that his lifestyle rating is five and that is the only issue arising.

4. The Approved Guide describes a lifestyle effect as “a disadvantage, resulting from an accepted condition that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition”.

5. Amongst the accepted conditions of the applicant are a bilateral sensorineural hearing loss, a generalised anxiety disorder, major depression, hypertension, pterygium in the right eye and he has significant skin damage from sun exposure.

6. I observed the applicant and heard his evidence, which I accept. I also received the evidence of Dr Rosenthal, a specialist occupational physician, and of Dr Dinnen, a consultant psychiatrist called by the applicant and of Dr Chase, an occupational physician, and of Dr Selwyn Smith, a consultant psychiatrist called by the respondent.

7. The lifestyle rating is to be calculated in accordance with Chapter 22 of the Approved Guide. The Chapter involves assigning a rating to the veteran’s personal relationships, mobility, recreational and community activities, and employment and domestic activities. The ratings need to be assessed having regard to the accepted conditions, and, if his situation is affected by unaccepted conditions, to consider whether the accepted conditions would justify the rating in question, regardless of whether the unaccepted conditions were present. That is, if the applicant has a rating of six, and it is in fact due to accepted and unaccepted conditions, one asks what the rating would be if only the accepted conditions are considered.

8. The ratings are described in prose and by reference to an assigned rating. Thus, for example, in personal relations, the highest score is seven which means: “unable to relate to anyone. All relationships are prevented”. A score of five means “Severely affected relationships. Able to relate to particular, or few people, e.g. spouse and children. These remaining relationships are strained and of low quality”.

9. Mr Thurlow’s oral evidence persuaded me that he is entitled to a high score on each of the relevant dimensions, assuming that his accepted conditions are sufficient to support the scores in question. He does not leave his house except to see the doctor and he is transported door to door each way by taxi. Perhaps once in three months, his wife takes him to lunch at the club. He feels hemmed in if he goes out. He gets the feeling people are looking at him and feels like saying: What are you looking at? He added: “They are probably not looking at me at all”. If visitors come to his house he leaves their company and goes to another room. He has very little contact with his step-children, or step-grandchildren, and then only by skype once a week. Neither of his step-children live in Woy Woy, where he lives with his wife. The step-child in Tasmania visits only once every three or four years. His hearing is very poor. He walks using a walking frame and does very little house work. He has nightmares and his sleep is disturbed.

10. The scores when assessed need to be averaged. As between item 22.4 (domestic activities) and 22.5 (employment), one takes the higher rating, for the purposes of the averaging exercise. An average with a rating ending in .5 will be rounded up and otherwise the average will be to the nearest integer.

11. Having seen and heard from the applicant, the ratings which I would give him (ignoring for the moment the question of the contribution of the accepted conditions) are as follows: Personal relationships: five; Mobility: six; Recreational and community activities: six; Domestic activities: six to seven. The applicant could not work at all, and the employment score is at the highest level of five, therefore one would take the domestic activities score.

12. Dr Rosenthal scored him at six for personal relationships, mobility, and recreational activities; and five for domestic activities because his (non-accepted) arthritis accounted for some of what would otherwise have been a higher score. Dr Chase attributed significantly lower scores to the accepted conditions. They conferred together and agreed that the best way to resolve their differences of opinion was to involve a specialist psychiatrist. That suggestion was in my opinion a good one, because in many respects the differences between the occupational physicians depended on the contribution which the accepted psychiatric conditions made to the current disadvantages in lifestyle matters which Mr Thurlow has. Dr Dinnen, a psychiatrist with extensive experience and with experience of veterans, then had a consultation with Mr Thurlow and largely agreed with the scores of Dr Rosenthal, having also seen an earlier report prepared by a psychiatrist, Dr Altman. In his opinion, based exclusively on his psychological condition appropriate scores were six, five, six and six. He told me that he did not have much experience in the allocation of Chapter 22 scores, but it seems to me that the scoring remarks in Chapter 22 make it clear even to a person without medical training, where the veteran fits in the spectrum if the cause of the condition is the accepted conditions. Dr Smith’s evidence did not proceed from an acceptance of the psychiatric conditions which had been accepted by the respondent. On the contrary he considered that the diagnoses of Dr Altman and Dr Dinnen, which had been accepted by the respondent, were all incorrect. That made his evidence largely beside the point in this review. I must proceed, as does the reviewable decision, on the basis of the accepted conditions, as Chapter 22 of the Guide indicates. Dr Dinnen agreed with the accepted conditions and with Dr Altman’s earlier report.

13. In cross-examination some concessions were made by Dr Rosenthal and Dr Chase, but as was submitted to me by both parties, I am not bound by any of those answers. I have decided that the most reliable evidence before me is that led from Dr Dinnen. He concluded that the central cause of the difficulties which Mr Thurlow has is his accepted psychiatric conditions.

14. Accordingly I am mainly reliant upon the expert psychiatric evidence of Dr Dinnen, suggesting that ratings similar to my own and those initially accepted by Dr Rosenthal are largely or centrally to be accounted for by the accepted psychiatric conditions and I am satisfied to act upon the evidence of Dr Dinnen. It follows that a lifestyle rating of six on the facts as I have found them represents the correct or preferable decision. The reviewable decision will therefore be set aside. The matter is to be remitted to the respondent for reconsideration with a direction that the lifestyle rating is six.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated:  8 May 2019

Date(s) of hearing:

21 September 2017, 16 & 17 October 2018

Date final submissions received:

21 March 2019

Solicitors for the Applicant:

Mr G Isolani, KCI Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

Mr T Saunders

Ms E Baggett, Moray & Agnew Solicitors