Walsh and Repatriation Commission

[2005] AATA 288

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 288

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/301

VETERANS' APPEALS DIVISION		)
Re		DESMOND JOHN WALSH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO, Member

Date5 April 2005

PlaceSydney

Decision The decision under review is affirmed.

……………………………………..

Rear Admiral A R Horton AO, Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Army service – accepted disabilities – disability pension at 100% of general rate – Veterans’ Review Board  affirmed pension at 100% - criteria for eligibility for Extreme Disablement Adjustment (“EDA”) – assessment of medical impairment rating at 71 points – assessment of life style rating at 4 points - Applicant not eligible for EDA – decision under review affirmed.

Veterans Entitlement Act 1986 – section 22

Guide to the Assessment of Rates of Veterans’ Pensions (5^th edition)

REASONS FOR DECISION

5 April 2005   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 19 August 2003, subsequently affirmed on review by the Veterans’ Review Board (“VRB”) on 11 February 2004, which accepted a claim by Mr Desmond John Walsh (“the Applicant”) for postoperative cellulitic rash and impotence and continued disability pension at 100% of the General Rate. 

2. At a hearing before the Administrative Appeals Tribunal (“the Tribunal”) on 28 February 2005, Mr Walsh was represented by Mr Brian Winship, Solicitor and Barrister of Fairbairn Lawyers. Mr Nigel Bunn, advocate, represented the Respondent. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975,  reports from Dr M Burns dated 29 October 2004 (Exhibit A1), Dr R Lewin dated 15 July 2004 (Exhibit R1) and Dr P Harvey-Sutton dated 7 October 2004 (Exhibit R2) and Facts and Contentions by both parties (Exhibits A2 and R3).  Mr Walsh gave oral evidence.

BACKGROUND AND EVIDENCE

3.        Born on 27 July 1919, Mr Walsh served in the Australian Army from 1 October 1941 until 13 November 1945.  He has accepted disabilities of post traumatic stress disorder, bilateral sensorineural hearing loss, ischaemic heart disease, post operative cellulitic rash and impotence.  The latter two were accepted following lodgement of a claim on 14 October 2002; a condition of left vestibular dysfunction was not accepted as being related to war service, and the Respondent determined that disability pension was to continue at 100% of the General Rate.

4. On 11 February 2004, the VRB decided to affirm the decision under review, that is to continue disability pension at 100% of the General Rate. The VRB considered that Mr Walsh was not entitled to an earnings related pension at either the Special or Intermediate rates (vide sections 23 and 24 of the Veterans’ Entitlements Act1986 (“the Act”), and that he did not meet the essential criteria for payment of the Extreme Disablement Adjustment (“EDA”), the conditions for which are prescribed in section 22(4) of the Act.

5. Section 22(4) relevantly states:

“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 $433.65 per fortnight”.

6.        Using the Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”) the primary decision maker assessed impairment rating at 60 points, and lifestyle rating as 5.  The VRB considered the impairment rating to be 65 points and thus an essential criteria for EDA was not met.  Lifestyle rating was not addressed.

7.        At the outset, Counsel for Mr Walsh submitted that an impairment rating in excess of 70 points was justified on the evidence.  Whilst a lifestyle rating of 6, as required under the legislation, may not be supported on the evidence, it was essential that some certainty in assessment result from a de novo review by the Tribunal, particularly given the ages of the veteran and his wife.  

EVIDENCE

8.        Mr Walsh gave evidence in a clear and strong manner.  He presented as a very positive person, to the extent that the Tribunal saw the need to ensure that such a presentation did not mask psychiatric or physical conditions, which might have a bearing on impairment and lifestyle assessments. 

9.        Mr Walsh lives with his wife at Sutherland.  They have been “happily married”  for 60 years.  He retired from the work force at about the age of 60.  In January 2000, at the age of 80, he noted his heartbeat had slowed to 25 beats per minute, although he “felt very well and always exercised”.  Examination showed a “main artery 90% blocked”, and a triple bypass artery graft was subsequently performed and a pacemaker inserted.  He described his current situation as having no shortness of breath, but a tightness in the chest if he walks fast.  Hence he walks about 400 to 500 metres slowly to avoid chest pain.  This condition led to him ceasing to play golf, a sport that he misses, in 2000.  Recently he has started to play bowls once a week, a sport he enjoys, and it provides the opportunity to sit down and rest from time to time; he is driven to and from the bowling club by another club member.   Mr Walsh takes no medication for his heart condition other than occasionally – and this medication was not identified – to ease pain after eating.  He saw his general practitioner, Dr Khan, a few weeks prior to the hearing, this being the first occasion in about 12 months.

10.      In November 2004, Mr Walsh ceased driving his car following a near accident, and due to nervousness.  He had used his vehicle in the local area, to shops and to deliver Meals on Wheels, and he had indicated to Dr Harvey Sutton, occupational physician, some two months earlier (Exhibit R2) that he had lost confidence as well as having a blood clot behind the left eye, reducing him to drive with one eye only.  He lives close to the railway and can travel by train without difficulty, although for safety he holds on to the rail when climbing or descending steps.  

11.      Mr Walsh and his wife have 8 children, and a number of grandchildren and great grandchildren.  He described his relationship with them as “terrific”.  Two daughters live at home, the husband of one mowing the lawn and tending to the garden, as well as undertaking maintenance chores around the property.  Mr Walsh gave evidence that these matters aside, he looks after himself, and can cook to a limited menu.  He intends moving to Queensland, where he loves the climate and has relatives, later this year.  He has been a member of Cronulla RSL for many years, and with one or two others takes the train to Cronulla for monthly meetings.  He can go alone if necessary.

12.      Mr Walsh spoke at some length about the adverse lifestyle effects of his poor hearing.  He wears a hearing aid in the right ear, and stated that he has no hearing in the left, but a constant buzzing (tinnitus).  He described his inability to hear properly as “annoying and distressing ”.  He sees it as annoying and irritable to other people, and his inability to hear properly is affecting his marital relationship. It impinges on their social life; for example, they no longer go to the movies as he cannot hear well enough.  He used to play the trumpet, but can no longer do so because of his breathing problems.  At one time he had a dance band.  He considers he has only one real friend, his hearing being detrimental to a wider circle of friends.  His worry is that he might lose the hearing in his right ear.

13.      As regards a psychiatric condition, he stated that he has seen Dr K Koller Psychiatrist, on about 4 or 5 occasions.  He takes no medication for a psychiatric condition.  He described his relationships with people – further to the effects of his hearing problems – as poor.  He gets grumpy and occasionally loses his temper.  When asked if strangers noted his temper, he could not say.  He has periods of anxiety, cannot recall names and hence is embarrassed, and he finds it hard to concentrate, losing the thread of the conversation.  He forgets things quite frequently, citing the need to have a list when shopping.  He can cook, but at times forgets he has items on the stove.   

14.      Physically, Mr Walsh is comfortable playing bowls, as he can sit down frequently.  He can bend to a degree, but has to sit down to tie his shoelaces.  He cannot carry a heavy load.  He can no longer do much outside the home, and is inclined to lose his balance when bending down. 

15.      The post operative cellulite rash condition resulted from the removal of a vein from his right leg during his heart operation.  He had been informed that the condition resulted from a “golden staph”  infection, and his doctor has told him it cannot be cured.  The condition now effects both legs, and his feet, and for relief, he takes off his shoes and socks when he can.  The condition wakes him each night about 2 am, and thereafter he dozes.  He described this as a significant problem.  He applies a mixture of Celestone cream and sorbolene each day. 

16.      In terms of his present situation, Mr Walsh emphasised the frustration at no longer being able to play golf or the trumpet nor to have a full social life. No evidence was put forward in respect of the accepted disability of impotence.  Mr Walsh described his health now as “no good”, and he worries quite a bit, but he is determined to get to age 90.  He has always been a sports participator rather than a watcher, and sees the need to keep moving, exercising in his yard.

MEDICAL IMPAIRMENT 

17.      On 19 August 2003, and based on the reports of Dr Khan and Dr Koller, Psychiatrist (T8 page 45), the Respondent assessed the combined impairment rating under Chapter 18 of GARP as 60 points.  On 11 February 2004, the VRB concluded that a combined rating of 65 points was appropriate.

18.      A significant component when assessing impairment rating is that under table 4 of GARP.  An Emotional and Behavioural Worksheet completed by Dr Koller on 13 January 2003 in respect of PTSD (T8 page 45) assessed the combined rating under table 4 of GARP as 43, the dominant figures being related to Subjective (Table 4.1) and Manifest (Table 4.2) distress.   Dr Lewin, psychiatrist, saw Mr Walsh for the Respondent on 12 July 2004 (Exhibit R1).   He formed the opinion that a diagnosis of PTSD could not be made in the present circumstances, and that a diagnosis of Generalised Anxiety Disorder is more appropriate.  His assessment under Table 4 was 34 points, the significant difference to that of Dr Koller being under Table 4.2 where he considered 6 points, rather than 15, to be appropriate.

19.      Dr Harvey- Sutton, Consultant Occupational Physician, saw Mr Walsh for the Respondent on 16 September 2004 (Exhibit R2).  Accepting the previous rating under table 4 of 43 points as postulated by Dr Koller, and applying 20 points as being relevant to Mr Walsh being symptomatic at the MET 3- 4 level in respect primarily of his heart condition, Dr Harvey-Sutton assessed the combined impairment rating as 65 points.  Her calculations included reference to Table 1.3 (in respect of the MET criteria), which when applied to the correct Table 1.2, indicates a combined rating of 71 points.  For the Applicant, Dr Burns, Occupational Physician, subsequently undertook a report on the papers (Exhibit A1), also concluding that the combined impairment rating was 71 points. 

20.      Counsel for Mr Walsh contends that the correct impairment rating is 71 points.  The Tribunal is of the opinion that the significant factors that will support this contention, or otherwise, are the assessment of the psychiatric condition (Emotional and Behavioural Disorders under Table 4) and the appropriate MET rating under Tables 1.1 and 1.2.  In the case of the former, Dr Harvey- Sutton was aware that Dr Lewin had found for a significantly lower assessment (34 points) than Dr Koller (43 points) on the basis of the different responses by Mr Walsh under Manifest Distress at table 4.2.  Nonetheless, she saw that 43 points “had been accepted”, (presumably on the basis that the VRB accepted such a rating) and applied it accordingly.   Dr Burns also accepted such a rating, given that it had been made by the treating psychiatrist (Dr Koller).

21.      On balance, and placing some weight on the opinion of the treating psychiatrist, and that his assessment took place in a time scale more appropriate to the date of lodgement of the claim under consideration, the Tribunal accepts a rating under Table 4 of 43 points.

22.      As to the appropriate MET rating under Tables 1.1 and 1.2, the Tribunal notes that Mr Walsh’s representative before the VRB argued that in view of the age of Mr Walsh, a MET rating of 4-5 was unrealistic.  The Board did not accept that argument on the basis that there was no supporting medical evidence.  That is not the case before this Tribunal.  Both Dr Harvey-Sutton, on examination, and Dr Burns, on the papers, formed the opinion that a MET activity in the order of 3–4 was appropriate.  The acceptance of 3-4 MET by Dr Harvey-Sutton (albeit the resultant rating was incorrectly calculated) was accepted by the Respondent (Exhibit R3), and the oral evidence of Mr Walsh supported such a finding. 

23. Accordingly, the Tribunal finds that 30 points is the correct rating under Table 1.2, which when applied to the rating of 43 points for the psychiatric condition and the assessed ratings for other accepted conditions under the relevant Tables of GARP which have not been disturbed, gives a combines impairment rating of 71 points. Thus Mr Walsh meets the criteria for impairment rating of 70 points under subparagraph (c) of section 22(4) of the Act.

LIFESTYLE RATING

24. Subparagraph (c) of section 22(4) of the Act requires a lifestyle rating of 6 under Table 22 of GARP. The original decision maker assessed this rating as 5; the VRB did not proceed to an assessment as the criteria for medical impairment had not been met. Dr Harvey-Sutton was unable to support a combined rating of 5 points, considering that ratings in the order of 3 – rather than 5 - were more appropriate for all criteria. Dr Burns felt that a combined rating of 5, whilst on the generous side, could be supported. In summary, however, there is no medical opinion to support the contention that Mr Walsh has a lifestyle rating of 6.

25.      The Respondent submitted that the findings of Dr Harvey-Sutton should be followed, in that she opined that an average rating of 3 points was appropriate.  Whilst Dr Burns opined that a higher rating was appropriate, he too was of the opinion that the criteria for the EDA had not been met, and the evidence of Mr Walsh was not such as to lead to any other conclusion. 

26.      Mr Winship submitted that whilst the 6 point criteria may not have been met, a rating of 5 was the more appropriate assessment of lifestyle effects resulting from the accepted disabilities of Mr Walsh, and such a rating had been found by the original decision maker, and Dr Burns.  Counsel also submitted that it was essential that the correct rating in respect of this claim be determined by the Tribunal.

27.      The Tribunal has previously noted the positive attitude shown by Mr Walsh, and the need to look behind that attitude, in the light of the oral evidence, to ensure that the effects of his accepted disabilities on his lifestyle are properly ascertained.  In respect of personal relationships, Mr Walsh argued strongly that his relationship with his wife and family was “terrific”.  Yet he referred to occasional outbursts of temper, the frustration and irritability resulting from his hearing problems, and the effect this probably has on others, and a limited relationship with outsiders, with just one true friend.  That he can overcome these problems to an extent when playing bowls or attending meetings at the RSL, does not  detract from the difficulties he enumerated, but is a reflection on his evident determination to live as full a life as he can.  A rating of 4 is considered reasonable.

28.      Since his assessment by various medical practitioners, Mr Walsh has ceased driving.  Thus his mobility, and his ability to undertake such tasks as Meals on Wheels has been limited or curtailed.  Nonetheless, he travels unaided by bus or train, and can walk a limited distance.  The criteria for assessing mobility precludes consideration of age, but taking into account the circumstances in which he may feel safe to travel in public transport, a rating of 4 is appropriate.

29.      The ability of Mr Walsh to participate in community and recreational activities has become limited since he has had to give up golf and cease driving.  Nonetheless, he bowls and attends regular meetings at Cronulla RSL, but his evidence indicates close friendships are minimal, a situation he ascribes to reduced mobility and in particular hearing problems.  His evidence is also that his recreational activities, particularly with his wife are minimal.  A rating of 4 is appropriate.

30.      The evidence is that previous domestic activities associated with mowing and house maintenance, the ability to left heavy loads are severely curtailed.  The presence of his son-in-law to undertake these tasks may or may not have contributed to this situation, but the evidence of Mr Walsh was to the point.  The original decision maker and Dr Burns considered a rating of 5 to be appropriate, and whilst this may be somewhat generous, it is endorsed by the Tribunal, the age of Mr Walsh being a contributing factor.

31.      The Tribunal assesses the average lifestyle rating as 4.25, resulting in a lifestyle rating of 4.   It follows that in the matter before this Tribunal, whilst Mr Walsh meets the criteria of 70 points for impairment rating, he does not do so in respect of lifestyle effect, and thus he cannot be eligible for the Extreme Disablement Adjustment.

32.      The decision under review is affirmed. 

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Neil Glaser
  Associate

Dates of Hearing                   28 February 2005
Date of Decision  5 April 2005
Counsel for the Applicant  Mr Brian Winship 
Advocate for the Respondent                    Mr Nigel Bunn