Westburgh and Repatriation Commission - [2002] AATA 1118

DECISION AND REASONS FOR DECISION [2002] AATA 1118

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2002/021

Veterans' Appeals DIVISION    )
           Re      Edward William Westburgh
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date30 October 2002
PlaceHobart

Decision      The decision under review is set aside and in substitution therefor a decision that the applicant is to be paid a disability pension at 100 percent of the General Rate, with Extreme Disablement Adjustment from 22 May 2000, being the date of application for increase.
  [Sgd B W Davis]
  Part-Time Member
CATCHWORDS
Veterans' Appeals - disability pension - general rate - extreme disablement adjustment - impairment - lifestyle - Veterans' Review Board - GARP (Guide to the Assessment of Rates of Veterans' Pensions).
Legislation

Veterans' Entitlements Act 1986 – s22

REASONS FOR DECISION

30 October 2002 Associate Professor B W Davis AM (Part-time Member)

The Application

The applicant, Edward William Westburgh, seeks review of a decision made by a delegate of the Repatriation Commission on 18 April 2000, subsequently affirmed by a decision of the Veterans' Review Board (VRB) on 25 February 2002, whereby the applicant's pension was continued at 100 percent of the General Rate.
All steps having been taken within prescribed time limits, if the appeal succeeds the earliest date that may be set by the Tribunal would be 22 May 2000, being the date of application for increase.
The principal issue is whether the applicant's disabilities are of such a nature as to warrant him being granted the Extreme Disablement Adjustment provided for in s22 of the Veterans' Entitlements Act 1986 ("the Act"), but does not concede that s22(4)(c) is met, i.e. that the applicant has an impairment rating of at least 70 points and a lifestyle rating of 6 points. The respondent says these are matters for the Tribunal to determine.
The respondent concedes that Mr Westburgh satisfies the requirements of s22(4)(a)(I), (b) and (d) of the Act, but does not concede that s22(4)(c) is met i.e. that the applicant has an impairment rating of at least 70 points and a lifestyle rating of 6 points. The respondent says these are matters for the Tribunal to determine.
Background
Mr Westburgh served in the Australian Army from 1952 to 1972, with periods of overseas service in the Korean War from March 1953 to April 1954, in Malaya from October 1955 to December 1955 (suffering a major arm injury), and in the Vietnam War from August 1968 to August 1969. He saw traumatic scenes of combat and its aftermath and operated in life threatening situations. On return from Vietnam he was posted to Tasmania, where he served until retirement in 1972. He then worked as a civilian courier for the Army at Anglesea Barracks until 1993, living in a house near the barracks. In effect his life has been devoted to army service and its aftermath, including periodic contact with former comrades.
Mr Westburgh has a number of accepted service-related disabilities, including lesion of the left ulna, deformities of feet, bilateral sensori-neural hearing loss, bilateral tinnitus and post-traumatic stress disorder. There are other problems not accepted as service related. Mr Westburgh currently receives a veterans' pension at 100 percent of the General Rate.
In making the decision of 18 April 2000, the delegate of the Repatriation Commission assigned an impairment rating of 50 points and decided not to have Mr Westburgh medically assessed due to an overall lifestyle rating of 4 based on personal relationships (5), mobility (2), recreational and community activities (5) and domestic and employment activities (2). Pension had previously been applied at 100 percent of the General Rate and the delegate was satisfied this should continue with effect from 22 March 2000.
The VRB in reaching its decision of 25 February 2002 considered Mr Westburgh's situation in more detail, especially whether he was eligible for the Extreme Disablement Adjustment. The matter had been previously considered at a hearing on 8 August 2001, but adjourned pending receipt of a combined impairment assessment and completion of a lifestyle report. At the resumed hearing the VRB accepted a disability rating of 70 points, but rejected an advocate's claim that an appropriate lifestyle rating would be 5+5+6+6 = 22, averaged and rounded to 6 points. The Board considered that a more appropriate lifestyle rating would be personal relationships (5), mobility (4), recreational and community activities (4) and domestic activities (4), with an overall average of 4.25 rounded to 4 points. On this basis they rejected the claim for Extreme Disablement Adjustment and affirmed the decision under review.
Evidence
Mr Westburgh's appeal to the AAT was initially heard on 19 July 2002, but adjourned pending receipt of a psychiatric report and resumed on 9 October 2002. Mr Westburgh (the applicant) was represented by Mr R M Webster and Mr M A Castle appeared for the respondent.
Mr Westburgh was sworn and gave evidence about his disabilities and lifestyle. He lives alone, has no immediate family and admitted that he had become extremely reclusive because of his post-traumatic stress disorder, general depression and nightmares, with a strong desire to be alone. His prior recreational activity had been running, but with deformed feet he had to cut holes in his shoes for walking and experienced pain in his feet and arms at night. He had previously used the barracks gymnasium for exercise, but had now been barred on liability grounds and this greatly upset him. He was capable of minor domestic chores, but had virtually no recreational activities other than TV and brief occasional visits to the Vietnam Veterans' Counselling Service and the RSL. He had undergone periodic psychiatric counselling, but twice attempted suicide.
Under cross-examination Mr Westburgh said he had been an army driver and courier, but had ceased work in 1993 and now was not in a medical condition to drive and indeed had no motivation to do so.
Mrs Joan Montgomery, formerly a clinical psychologist with the Vietnam Veterans' Counselling Service and now a contract practitioner with the Service, was sworn and gave evidence, drawing upon a clinical report she had prepared on 25 June 2002, concerning Mr Westburgh's disabilities. She stressed that Mr Westburgh's post-traumatic stress disorder and depression were severe and worsening. He was trying to deny memories, but was becoming even more reclusive, since he lacked any lasting relationships and had become separated from army life and contacts to which he had devoted many years. She did not believe current forms of counselling could alleviate his situation; rather periodic meeting and reassurance were what Mr Westburgh sought and had received from her since 1996. She noted that he had twice attempted suicide, now had difficulties walking but claimed he could sometimes "beat the pain barrier". He was courageous and self-reliant, but therapy could not cure his symptoms of war trauma and were unlikely ever to do so.
In response to cross-examination she stated she only saw Mr Westburgh at infrequent intervals, but had also referred him to a psychiatrist (Dr I Burges Watson) and his medical practitioner (Dr M Graham), but with little effect. She understood he had attempted to march in the Anzac Day parade, but had to drop out because of his deformed feet.
Decision
The Tribunal has considered all evidence available to it and concluded that on balance it is reasonably satisfied Mr Westburgh should be granted the Extreme Disablement Adjustment for reasons which are stated below. It is uncontested Mr Westburgh has a disability impairment rating of 70 points, thus the only matter at issue is his lifestyle rating which must be determined in accordance with criteria specified in GARP (the Guide to Assessment of Rates of Veterans' Pensions).
In terms of personal relationships, the Repatriation Commission in April 2000 and the VRB in February 2002 assigned a rating of 5 points. Evidence given by the applicant plus the psychiatric report of June 2002 make it clear Mr Westburgh's PTSD and depression are rendering him increasingly reclusive and he has extreme difficulty in relating to anyone. A rating of 6 points therefore appears appropriate.
Mobility is more difficult to determine. It is clear Mr Westburgh tries to retain some mobility by walking, but his deformed feet severely limit this, although he claims to sometimes "break the pain barrier". The reality is these are major impediments to mobility outside his residence and no capacity or motivation to drive a car. The Repatriation Commission rating was 2 points and the VRB rating 4 points, but both appear under-estimates of his current and continuing situation, given recent evidence. The Tribunal considers 5 a minimum rating and Mr Westburgh would probably qualify for 6 points.
With regard to Recreational and Community Activities the Repatriation Commission rating was 5 points and the VRB rating was 4 points, although the advocate representing Mr Westburgh had argued 6 points would be more appropriate.
The Tribunal notes that Mr Westburgh is now able to engage in very few recreational activities, such as watching TV and paying brief visits to the RSL and Vietnam Veterans' Counselling Service where he finds it difficult to mix. As Mrs Montgomery noted, he is now personally isolated, has emotional numbing and can't relate to people and has lost his gymnasium access. He is at some risk of harming himself. Weighing this evidence the Tribunal considers he is restricted to a few passive activities hence a rating of 6 points is appropriate.
In terms of Domestic Activities, Mr Westburgh manages for himself, but at a very basic level, as his lifestyle questionnaire indicates. He is limited to some household duties, but cannot manage others. The Repatriation Commission rating was 2 points and the VRB rating 4 points, although Mr Westburgh's advocate thought 6 points more appropriate. The Tribunal considers 5 points a minimum and perhaps 6 points appropriate.
Collectively the Tribunal's assessment leads to a lifestyle of 6+5+6+5 = 22 points, with a supplementary point possible. The average of 5.5 points should be rounded upwards, in accordance with the ruling in Whitely and Repatriation Commission [1993] 29 ALD 575, the Tribunal in that case establishing that when GARP is applied to determine lifestyle ratings, the veteran should be given the higher of two possible ratings in cases of uncertainty.
The decision under review is set aside and in substitution thereof the applicant is to be paid a disability pension at 100 percent of the General Rate, with Extreme Disablement Adjustment from 22 May 2000, being the date of application for increase.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Assoc Professor B W Davis AM (Part-time Member)
Signed:         .....................................................................................
  Administrative Assistant
Date/s of Hearing  19 July, 9 October 2002
Date of Decision   30 October 2002
Counsel for the Applicant         Mr R M Webster
Solicitor for the Applicant
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Repatriation Commission