Anderson and Repatriation Commission - [2000] AATA 1072

DECISION AND REASONS FOR DECISION [2000] AATA 1072

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1468

VETERANS' APPEALS DIVISION       )
           Re      WILLIAM ERNEST ANDERSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr J Campbell Member

Date6 December 2000
PlaceSydney

Decision      The Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 19 September 1997 as affirmed by the Veteran's Review Board on 1 September 1999 to continue the Applicant Mr William Ernest Anderson's disability pension at 100% of the General Rate.
  ..............................................
   Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans' entitlement - effect on mobility, social relationships and domestic matters of the non-accepted disabilities - decision under review affirmed

LEGISLATION
Veterans' Entitlements Act 1986 ss 22, 120(4)
Guide to the Assessment of Rates of Veterans' Pensions

REASONS FOR DECISION

6 December 2000 Ms G Ettinger Senior Member Dr J Campbell Member

The matter for review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 19 September 1997 (T2) as affirmed by the Veterans' Review Board of 1 September 1999 (T17), to continue to pay Mr William Ernest Anderson, the Applicant in these proceedings, a pension at 100% of the General Rate.
The Applicant was represented by Ms J Buchanan, advocate of the Legal Aid Commission, and the Respondent Repatriation Commission was represented by its advocate, Ms S Breuer.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was whether Mr Anderson qualified for pension at the Extreme Disablement Rate ("EDA") pursuant to section 22 of the Veterans' Entitlements Act 1986 ("the Act").
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter was the Veterans' Entitlements Act 1986, in particular sections 22 and 120(4). Section 22 provides as relevant:
"General rate of pension and extreme disablement adjustment
22(1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3) For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(4) 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 increased by 50% of the maximum rate set out in subsection (3).
…"
The standard of proof applicable to determine whether Mr Anderson qualified for pension at the Extreme Disablement Rate was to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act.
"120 Standard of proof
…
120(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…."
The Tribunal noted that Mr Anderson whose date of birth was 16 February 1924, was 73 at the date of his application on 22 July 1997. The Tribunal further noted that the Applicant served his country on operational service in the Pacific Islands and Papua New Guinea with the Royal Australian Air Force between 3 November 1942 and 20 February 1946.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following Exhibits:
ITEM DATE NAME
Lifestyle Statement of William Ernest Anderson           23 October 2000     Exhibit A1
Lifestyle Statement of Dorothy Irene Anderson          23 October 2000     Exhibit A2
Medical Report of Dr M Baz          13 December 1999 Exhibit A3
Medical Report of Dr T Fermanis 16 August 2000       Exhibit A4
T-Documents   Exhibit R1
Medical Report of Dr P Henke     11 January 2000     Exhibit R2
Clinical Notes of Dr T Fermanis               Exhibit R3
Medical Report of Dr T Fermanis 18 October 2000     Exhibit A4

Mr Anderson and his wife, Mrs Dorothy Irene Anderson gave oral evidence before the Tribunal.
DISABILITIES ACCEPTED AS WAR-CAUSED AND NON-ACCEPTED DISABILITIES
The Tribunal noted that in order to make the assessment as to whether Mr Anderson was eligible for a pension at the EDA rate, it had to take into account the effect of his disabilities accepted as war-caused on his personal relationships, mobility, recreational activities and domestic activities pursuant to the Guide to the Assessment of Rates of Veterans' Pensions ("GARP").
Mr Anderson's accepted disabilities were:
·     External otitis right and left;
·     Malaria;
·     Dysidrotic eczema ;
·     Anxiety state;
·     Sensori-neural hearing loss;
·     Postural vertigo.
Ms Buchanan indicated that irritable bowel syndrome had, since 6 July 1999, been added to the list of accepted war-caused disabilities.
Mr Anderson also suffers from a number of other medical problems which have not been accepted as war-caused, and which, of course, also impact on his lifestyle.   The main disabilities follow:
·     Right hydrocele;
·     Peripheral neuropathy;
·     Ischaemic heart disease;
·     Transurethral prostatectomy
·     Spinal fusion
·     Prosthesis in both knees
·     Rotator cuff syndrome

The Tribunal also noted that Mr Anderson had a spinal fusion approximately four years ago.
Both the Applicant and the Respondent agreed, and the Tribunal accepted that Mr Anderson has an impairment rating of at least 70 points.
EVIDENCE AND SUBMISSIONS BEFORE THE TRIBUNAL IN RELATION TO GARP CHAPTER 22 LIFESTYLE EFFECTS
Chapter 22 in GARP deals with 'Lifestyle Effects' of accepted war-caused conditions. A lifestyle effect is defined 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. In this case, the assessment was made by considering each of the following; Table 22.1 dealing with Personal Relationships, Table 22.2 dealing with Mobility, Table 22.3 dealing with Recreational and Community Activities and Table 22.4 dealing with Domestic Activities. Table 22.5 was not relevant to Mr Anderson's situation as, due to his age, he was no longer in the work force.
table 22.1 personal relationships
The preamble to Table 22.1 states that it refers to the Veteran's ability to take part in and maintain customary social, sexual and interpersonal relationships. The Tribunal was expected to establish how the physical and psychological effects of the accepted conditions affected the Veteran's ability to interact socially with other people.
In their opening, the parties agreed that a rating of four for Mr Anderson would be appropriate for this Table. The Tribunal was not bound by that agreement, and also considered other ratings, in particular three and five in relation to Mr Anderson. In doing so, the Tribunal considered the evidence of Mr and Mrs Anderson, the medical evidence and the submissions of the representatives, noting that three, four and five read as follows:
"Table 22.1 - Personal Relationships
RatingsCriteria
…
THREEModerately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.
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.
FIVESeverely affected relationships. Able to relate only to particular, or few, people, e.g. spouse or children. These remaining relationships are strained and of low quality.
…"

The Tribunal considered that the rating of three, which essentially categorised the personal and social relationships as moderately affected, would be insufficient given the evidence before it of the effect of his accepted disabilities on Mr Anderson.
Mr Anderson, in oral evidence, said that generally he did not get out of the house very much unless he accompanied his wife to the Masonic or Bowling Club for a meal. He said that occasionally a friend would take them both to a dinner dance at the bowling club or that his wife would sometimes drive him to Gosford to meet an old friend for lunch.
Mr Anderson also said that due to his disabilities, he had given up his involvement with Probus as he was no longer able to go on their outings and felt he was depriving someone else of membership. He further said that when he ventured outside his home, he made sure that he was close to amenities.
The Tribunal noted the Applicant's statement at Exhibit A1 that the Applicant was "… wholly dependant on my wife who is my keeper and helps me considerably" although he has two sons who would either visit or call him once or twice a week to see how he was faring.
Mrs Anderson said that her husband had a tendency to "get a little aggro, short tempered and frustrated. He bottles things up." She said that this has affected her husband's social relationships in that:
"Bill doesn't look for social contact and he does not want or seek social outings. He is anti-social. Our activities are generally only with family. He does not encourage visitors. He is happy only with his sons. Visitors, not very often, consist only of my sisters and brothers-in-law and his siblings who do not live close by. In the past we had quite a good rapport with friends."

Mrs Anderson also said that her husband was very anti-social and avoided socialising with people when they went to the club for lunch or when they had previously attended Probus meetings.
Dr M Baz, occupational physician, in her report dated 13 December 1999 which was before the Tribunal at Exhibit A3, opined that although the relationship the Applicant had with his sons was good, there was "… a considerable problem, and source of distress, in his relationship with his wife."
Notwithstanding, Dr Baz held that a lifestyle rating of four was appropriate in the circumstances. She said that while the Applicant was "generally socially withdrawn" and the "relationship with his wife is strained … the relationship with his children is not, and neither of these relationships is of low quality."
Dr P Henke, consultant in rehabilitation medicine, in his report dated 11 January 2000 which was before the Tribunal at Exhibit R2, noted that as the Applicant has severe sensorineural hearing loss with moderate tinnitus "… normal communication is significantly impaired and his ability to communicate, particularly in crowded situations or wherever there is any background noise is severely impaired." Dr Henke rated the Applicant's capacity for personal relationships at four.
The Tribunal also considered the rating of five, which essentially applied to a person who suffered severely affected relationships as a result of his war-caused disabilities. The Tribunal considered from the evidence that Mr Anderson fitted the category of persons with markedly affected relationships in that he spent less time than previously socialising, and had found maintenance of relationships with relatives, neighbours and friends difficult.
The Tribunal considered therefore the rating of four was the correct one to make for Mr Anderson in relation to Table 22.1.
table 22.2 mobility
The preamble to Table 22.2 defines mobility as "the veteran's ability to move about effectively in carrying out the ordinary activities of life." The Tribunal was required to examine both the physical and psychological impediments to mobility suffered by the Applicant when applying Table 22.2.
The Applicant submitted that the Tribunal accept the evidence of the Applicant and his wife as well as the opinion of Dr Baz, that Mr Anderson suffered from severe impediments to mobility resulting in a lifestyle rating of six. The Respondent submitted that the Tribunal bear in mind the Applicant's severe non-accepted disabilities, his advanced age, and the age-related limitations the Applicant suffered when it applied Table 22.2. Ms Breuer further argued that a lifestyle rating of four or five was more appropriate considering the Applicant's mobility was greatly impaired by the effects of his non-accepted disabilities.
The Tribunal, in considering the evidence of Mr and Mrs Anderson, the medical evidence and the submissions of the representatives, noted that GARP provided the following criteria for the lifestyle ratings of four, five and six:
""Table 22.2 - Mobility
RatingsCriteria
…
FOURMarkedly reduced mobility:
·assistance is needed to cope with public or private transport;
·there is considerable difficulty in travelling from home to destination;
-is restricted in the use of at least two forms of public transport.
FIVEMajor impediments to mobility:
-dependent upon others, or mechanical devices such as wheelchairs;
·unable to use most forms of public transport;
·able to drive a car only in a situation of emergency and then only for a short distance.
SIXSevere 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.
…"

Mr Anderson told the Tribunal that he had been a fitness fanatic all of his life. He said that he was previously involved in the coaching of surfing and football and religiously performed exercises every day to keep fit. He said that due to the vertigo he suffers, he has reduced the physical activity he can now do each day. He informed the Tribunal that he now only did a few repetitions of squats and leg flexes, and used spring grips and a permabond as well as an exercise bike to alleviate the stiffness he suffers.
Mr Anderson said that exertion made him nauseous and giddy and he attributed this to his vertigo. In his statement at Exhibit A1, he said that:
"I get vertigo climbing stairs and ramps at railway stations or walking any distance … I have difficulty in using a bus or train and avoid it because of vertigo. I cannot stand in a crowed bus or train or hold onto rails above my head. I get slight nausea and giddiness due to movement and swaying."
Mr Anderson also told the Tribunal that he did not drive and had not done so for a number of years upon the recommendation of his doctor, who advised him that his vertigo made him a danger on the roads. He said that he only travelled by car when his wife was able to drive him or on the occasional times when they were taken to a dinner dance at the Bowling Club by a friend. He said due to difficulties in travelling on public transport, he would only travel to the city when someone was able to drive him.
Mr Anderson said that his mobility was restricted further due to his irritable bowel syndrome because he needed to be close to toilets.
Mrs Anderson confirmed that her husband did not drive due to his vertigo. She said in her statement at Exhibit A2 that "he gets giddy, head spins and his eyes go out of focus." Mrs Anderson also said that due to the vertigo suffered by the Applicant, he did not venture away from home without her, although he might go across the road to visit a neighbour on occasions. However, Mrs Anderson stressed that she would be able to watch him cross the road from their house. She further informed the Tribunal that even when they did go on outings, they did not go further than their immediate neighbourhood.
Dr Baz, in her report at Exhibit A3, noted that while the Applicant's non-accepted disabilities caused him significant restriction to mobility, his accepted disabilities had the same impact. Dr Baz reported that:
"He has not driven for 18 months on his doctors (sic) advice, after episodes of vertigo occurred while driving and he was concerned he would have an accident.
He travelled by train with his wife to this review. He does not go out alone. He lacks confidence to go out alone …
Mr Anderson was also giddy at times and unsteady on his feet. It was of severe degree and affected him all the time."
Dr Baz found that due to his inability to drive as a result of the vertigo and the difficulties Mr Anderson faced in going out alone due to a combination of his vertigo and anxiety disorder, the appropriate lifestyle rating for mobility for him was six.
Dr Henke at Exhibit R2, rated the Applicant's mobility at four, stating that:
"It is considered that in the presence of severe positional vertigo that it is inadvisable for him to drive as he may be subject to symptoms which could render him at risk of having an accident.
He may have some difficulties using public transport but provided care is taken the possibility of him developing postural vertigo on public transport should be relatively small.
With regards to his lifestyle rating his current pathology with his lower limbs renders him incapable of walking for significant distances and makes movement of any distance difficult.
Looking at lifestyle effects he has restriction of mobility because of the risk of his postural vertigo."
The Tribunal considered the evidence before it and found that the appropriate rating for the lifestyle effects of the Applicant's accepted disabilities on his mobility was four. The Tribunal held that in respect of Table 22.2, the Applicant's restrictions did not constitute major or severe impediments to mobility. The Tribunal noted that osteoarthritis of the knees was not an accepted disability and contributed to loss of mobility. His operations for prostheses of both knees had been undertaken in 1994. However, Mr Anderson was not confined to a wheel chair, could ride his exercise bike slowly, and could cross the road alone and walk approximately 200 metres to visit a friend. Mr Anderson was able to use public and private transport with assistance and although suffered difficulty in travelling between home and another destination, he was still able to do so with some regularity. The Tribunal considered that Mr Anderson's concerns regarding dizziness may well also emanate from his peripheral neuropathy, a non-accepted disability.
table 22.3 recreational and community activities
The Tribunal then considered recreational and community activities, noting that GARP defines an Applicant's capacity for recreational and community activities as "the ability to take part in any activities of the veteran's choosing."

The Applicant submitted that the appropriate lifestyle rating for recreational and community activities for the Applicant was a rating of six. Ms Buchanan submitted that the Applicant was a fitness fanatic and had formerly enjoyed an extensive range of sporting pursuits including golf, bowls, surfing and beach fishing. She submitted that due to his accepted disabilities he was no longer able to enjoy such activities and was restricted to considerably more passive pursuits including reading the sports section of the newspaper, listening to music or watching television. The Respondent submitted that a lifestyle rating of four or five was more appropriate considering the Applicant gave evidence that he was able to read technical books, including complex law and building books, learn languages, watch television and listen to the radio. He also performed daily exercises and pottered around in the shed.
The Tribunal considered the evidence before it of the Applicant and his wife as well as the medical evidence, noting that the criteria for the lifestyle ratings of four, five and six were as follows:
"Table 22.3 - Recreational and Community Activities
RatingsCriteria
…
FOURUnable to take part in formerly favoured recreational pursuits, leisure and community activities, but less physical activities are possible, for example:
-restricted to generally non-active interests (eg music, art, stamp or coin collecting, attending clubs, etc); and
-unable to participate in accustomed activities (eg camping, going for long walks, fishing, voluntary activities such as meals on wheels).
FIVEGreater reduction in the number and kind of recreational activities which can be undertaken; some assistance is needed to undertake those which are still possible, for example:
-can only visit or go out if taken to or from destination;
-finds doing a hobby or relaxing (for example stamp collecting, art & crafts, playing or listening to music, playing cards, etc.) difficult to enjoy due to pain, suffering, or loss of dexterity.
SIXAble 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.
…"

As outlined above, the Tribunal noted the Applicant's evidence that he had been a fitness fanatic all of his life. He told the Tribunal that he had been involved in the coaching of surfing and football, and religiously performed exercises very day to keep fit. He said that due to the vertigo he suffered he was unable to enjoy the activities he formerly could. He informed the Tribunal that he was only able to do a few repetitions of squats and leg flexes, and used spring grips and a permabond as well as few rotations on a stationary bike to alleviate the stiffness he suffers.
Mr Anderson also told the Tribunal he had to give up bicycle riding, running, golf, bowls, beach fishing and his hobby of making children's toys for the Salvation Army due to the problems he suffered with dizziness. He told the Tribunal that the cessation of his participation in bowls was not due to his non-accepted disability of osteoarthritis of the knees, but rather his vertigo. Mr Anderson also said he had disposed of his carpentry tools because he could no longer use them. He said further that he was not able to punch his punching bag to relieve the depression he suffers from not being able to undertake his preferred activities. He said that now his pastimes consisted mainly of sitting in a chair.
The Tribunal noted that the Applicant, in his statement at Exhibit A1, said that "I now have no active interest in any sports. The exertion of walking and bending up and down makes me nauseous and giddy." Mr Anderson also said that he could no longer swim or surf due to his concerns about having an attack of vertigo in the water.
The Applicant informed the Tribunal that he no longer attended meetings with Probus or at the Masonic Lodge despite a considerable period of membership, (forty-five years with the Masonic Lodge). The Applicant said in his statement that "… I'm not well enough to attend. I do not attend the social outings or lunches. I intend to resign because I cannot attend sufficient meetings to remain a member."
Mrs Anderson gave evidence of her husband's current activities. She said that he generally watched sport on television, read the sports section of the newspaper or listened to music. She confirmed the Applicant's evidence that he no longer played golf or bowls nor made toys for the Salvation Army due to his vertigo. She said:
"Exertion causes him vertigo with headspins and nausea. If he gets vertigo he has to lie down or grab hold of something. I have to constantly 'watch him' and distract him with suggestions of 'time out' if I think he is pushing himself too hard with exercising naturally with consequent dizziness."

Dr Baz, in her report at Exhibit A3, found that the Applicant had a lifestyle rating of five in respect of his capacity to engage in recreational and community activities. Dr Baz opined that the Applicant had:
"…stopped golf and surfing because of vertigo. He has fallen and then would refuse help, and he would disrupt their golf game and this distressed him.
About once a fortnight he is driven with his wife to a local club.
He is unable to continue making toys for the disadvantaged children. He is distressed that he can no longer do this. He is fearful of falling and injuring himself if vertigo occurred.
He goes to Probus meetings once a month, but often leaves early because of his leg problems, anxiety and vertigo."
However, Dr Baz said that even though there had been a reduction in the number and kind of activities in which the Applicant could participate, he was able to go to meetings or to the Club for a meal and was not restricted in receiving visitors. Accordingly Dr Baz considered that the Applicant was more suited to the lifestyle rating of five rather than six.
Dr Henke at Exhibit R2, noted that the Applicant had "previously maintained himself in a high level of fitness training on most days which would include running and swimming before then going on to work." He also recorded that the Applicant used to be:
"… involved in the surf club but says that he is no longer able to swim as he feels that he is not safe. He also has a cycle which he would use to exercise but finds that this is no longer able to be used."
Dr Henke opined that bearing this reduction in mind, the Applicant's lifestyle rating was appropriately 5 for Table 22.3.
The Tribunal noted that the Applicant was no longer a member of Probus at the time of the Hearing. However, in considering the evidence before it, the Tribunal found that the appropriate rating for the lifestyle effects of the Applicant's accepted disabilities on his capacity to undertake recreational and community activities was five.
The Tribunal held that in respect of Table 22.3, the Applicant's accepted conditions did not constitute major or severe reduction in his ability to engage in recreational and community activities. The Tribunal found that while there was no dispute that the Applicant was disabled through his war-caused disabilities, his life was not substantially different from that of other men of his age, and had not substantially changed in the last ten years. In awarding a lifestyle rating of five, the Tribunal acknowledged that the Applicant continued to watch sport on the television, read, learn languages including Japanese and German, visit with his Japanese friend and go out for meals with his wife.
table 22.4 domestic activities
The Tribunal then turned to consider the Applicant's capacity for domestic activities. GARP defines domestic activities as "the veteran's ability to sustain effective routines in a domestic environment."
The Applicant submitted that the appropriate lifestyle rating for domestic activities was six. Ms Buchanan submitted that the Applicant's vertigo and anxiety disorder resulted in him having a limited capacity for domestic activities. Ms Buchanan said that while the Applicant's wife tended to do most domestic activities around the house, the Applicant was previously responsible for outdoor domestic activities, including repairs and maintenance.
The Respondent submitted that a lifestyle rating of six was not appropriate as the Applicant had done very little around the house previously, and that essentially all domestic tasks were attended to by his wife. Ms Breuer further submitted that the Applicant could help his wife to make the beds and wash and dry a cup and saucer. On this basis, Ms Breuer submitted that a four or a five rating was the more appropriate and in line with the medical opinions of Dr Baz and Dr Henke which were before the Tribunal.
The Tribunal considered the evidence before it of the Applicant and his wife and the medical evidence, noting that the criteria for the lifestyle ratings of four, five and six were as follows:
"Table 22.4 – Domestic Activities
RatingsCriteria
…
FOURUnable to carry out a full range of normal household activities, particularly some moderate tasks which require exertion. Needs assistance with some activities, for example:
·vacuuming carpets, cleaning floors or mowing lawns;
·home repairs and maintenance, etc.
FIVELimitation of household activity to a small range of light tasks, for example:
·watering the garden but has difficulty in weeding or pruning;
·able to do some light household activities but has difficulty bending to make beds, or in putting out the rubbish bin;
·requires assistance with grocery shopping.
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.
..."

The Tribunal noted the Applicant's evidence that he assisted his wife with domestic tasks throughout his life but was no longer able to help her around the home. The Tribunal also noted Mr Anderson's evidence that he paid for a person to clean and maintain their home as well as cut lawns.
The Tribunal noted the Applicant's statement at Exhibit A1 as follows:
"I am a carpenter and builder by trade. I built my home and always carried out my own maintenance and attended to my lawns and garden. Due to vertigo, I am unable to do any maintenance on my own home. My lawns and shrubs require exertion and continual bending over which causes nausea and giddiness, causing me to fall down.
I am unable to bend down or reach above my head due to vertigo and find myself useless. From about 6 to 8 years ago, I can't do grocery shopping, house cleaning, house repairs, gardening, lawn mowing, washing the car or lifting due to vertigo. "
The Tribunal acknowledged that the Applicant was reluctant to do many domestic tasks as he was concerned about dropping or knocking over items, particularly, a jug of boiling water.
Mrs Anderson gave evidence of her husband's inability to engage in the "… maintenance or upkeep of our home". She said that he could make a cup of tea for himself and wash up, and dry a plate, cup and spoon if he lent against the kitchen bench. However, Mrs Anderson told the Tribunal that it was her role to "run the house", and that her husband had never really had to do any housework. Mrs Anderson said that she now had some assistance with domestic chores. The Tribunal also noted Mrs Anderson's evidence that her husband's inability to maintain and look after outdoor domestic activities was due to his vertigo.
Dr Baz, in her report at Exhibit A3, found that the Applicant was able to perform only limited domestic activities because of his vertigo and anxiety disorder and the limitations based on his accepted disabilities were such as to warrant a lifestyle rating of six. Specifically, Dr Baz opined as follows:
"He 'can't do anything'. He is distressed that he cannot do his own home maintenance. He sometimes washes the dishes and helps makes the bed. He cannot do any of the other household chores.
They engage paid help for the repairs and maintenance and this causes him significant distress. He 'locks (him)self in the shed' because of this distress.
He can no longer wash the car or do any cooking because of the vertigo."
Dr Henke at Exhibit R2, opined that the Applicant's accepted conditions were such to result in a lifestyle rating of five. Because "domestic activities are restricted to lighter tasks with him avoiding bending and twisting due to his vertigo." Dr Henke also noted that:
"At home he is very limited in what he can do. He does not do any gardening and carries out only very light cleaning type activities particularly over the last two years."
In considering the evidence before it, the Tribunal found that the appropriate rating for the lifestyle effect of the Applicant's accepted disabilities on his capacity to engage in domestic activities was five.
The Tribunal held that in respect of Table 22.4, the Applicant was not required to undertake domestic chores in the home and accepted the evidence of his wife that it was her role to look after the house. He nevertheless was able to wash a cup and saucer, assist with making the bed and turn the tap on to water the garden. There were some small inconsistencies in that the Tribunal noted Mr Anderson's evidence that he had never been interested in gardening whilst others involved in the Hearing appeared to be submitting that Mr Anderson could no longer garden due to his disabilities. Overall the Tribunal did not find that this made a great impact on its findings.
The Tribunal noted and accepted that men of the Applicant's age would be similarly restricted in carrying out heavy home maintenance. The Tribunal noted also that Mr Anderson's non-accepted disabilities, age and previous habits contributed to him being unable to perform household chores.
It was clear that Mrs Anderson is very concerned about her husband and hardly leaves him by himself unless it is for her weekly game of tennis or for him to potter in his garden shed. She also said that she paid all the bills but that she had always attended to those duties.
table 22.5 employment activities
The Tribunal noted that this Table was not relevant to Mr Anderson's situation.
CONCLUSIONS
The Tribunal considered all the evidence, and submissions with regard to Mr Anderson and the relevant Tables in GARP. The Tribunal took into account the effect the non-accepted disabilities such as ischaemic heart disease, peripheral neuropathy and osteoarthritis and prostheses of the knees would have on the Applicant's lifestyle. The Tribunal noted that during the Hearing, the Applicant and Mrs Anderson put a large amount of emphasis on what they considered were the effects of the vertigo. By contrast, the extensive medical records of Dr Fermanis, (Exhibit R3), Mr Anderson's General Practitioner reveal little reference to vertigo.
Accordingly, the GARP ratings given by the Tribunal were four for Personal Relationships, four for Mobility, five for Recreational and Community Activities, and five for Domestic Activities. This gave Mr Anderson a Rating of 18 pursuant to Chapter 22 of GARP. Therefore, in applying the formulae, he could not be eligible for pension at the EDA rate pursuant to section 22 of the Act.
DECISION
The Tribunal affirms the decision of the Respondent Repatriation Commission dated 19 September 1997 as affirmed by the Veteran's Review Board on 1 September 1999 to continue the Applicant Mr William Ernest Anderson's disability pension at 100% of the General Rate.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr J Campbell Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 October 2000
Date of Decision  6 December 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         Ms J Buchanan
Counsel for the Respondent    N/A
Solicitor for the Respondent    Ms S Breuer