Causer and Repatriation Commission - [2000] AATA 438

DECISION AND REASONS FOR DECISION [2000] AATA 438

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1552

VETERANS' APPEALS DIVISION )

Re RICHARD ALLAN CAUSER
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date5 June 2000
PlaceSydney

Decision The decision under review is affirmed

(Sgd) A Horton
..............................................
Member
CATCHWORDS
VETERANS' AFFAIRS - extreme disablement adjustment – accepted conditions of lumbar spondylosis, duodenal ulcer, anxiety state, gastro-oesophageal reflux disease and bilateral sensorineural hearing loss with tinnitus – 100% general rate - 70 impairment points – lifestyle rating
Veterans' Entitlements Act 1986 – ss22, 120(4)
Guide to the Assessment of Rates of Veternas' Pensions (Fifth Edition) – tables 22.1 – 22.4

REASONS FOR DECISION

June 2000 Rear Admiral A R Horton AO, Member

This is an application for review of a decision made on 3 February 1999 by a delegate of the Repatriation Commission ("the Respondent"), which was affirmed on 27 August 1999 by the Veterans' Review Board ("the VRB"), to maintain disability pension at 100% of the General Rate and to refuse the granting of an Extreme Disablement Adjustment ("EDA") to Richard Allan Causer ("the Applicant"). The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 15 October 1999.
The Applicant was represented by Ms Elizabeth Sadlier of Legal Aid. Ms Glenys Pacey appeared as advocate for the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal heard evidence from the Applicant and Mrs Valerie Causer, and received the following exhibits into evidence:
Exhibit A1 - Statement by Mrs Valerie Causer dated 28 April 2000;
Exhibit A2 - Applicant's Statement of Facts and Contentions dated 27 April
2000.

ISSUES BEFORE THE TRIBUNAL

A claim by the Applicant for acceptance of various medical conditions, and an increase in disability pension (from 100% of the General Rate) was lodged with the Respondent on 29 October 1998. The conditions of gastro-oesophageal reflux disease and bilateral sensorineural hearing loss with tinnitus were accepted on 3 February 1999, disability pension being continued at 100% of the General Rate. The Respondent considered that the Applicant was not eligible for either the Intermediate or Special Rate, because of time out of the work force and age, and that an assessed average Lifestyle Rating of 5 as calculated from the Guide to the Assessment of Rates of Veterans' Pensions fifth edition ("GARP V"), was insufficient to meet the requirements of s 22 of the Act in relation to EDA.
On 27 August 1999, the VRB affirmed the decision under review, and the Applicant lodged an application for review with the Tribunal on 15 October 1999. The accepted conditions that may be considered are lumbar spondylosis, duodenal ulcer, anxiety state, gastro-oesophageal reflux disease and bilateral sensorineural hearing loss with tinnitus. The earliest date of effect, as agreed by the parties, is 29 July 1998.
EDA is defined in s 22 of the Act, which states, relevantly:
"…
(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)…
(iii)the veteran has attained the age of 65;
(b)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
(c)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).
…"
In this matter, the parties are in agreement regarding the current impairment rating of 70 points. The single issue, therefore, is whether the Applicant meets a lifestyle rating of at least 6 (average) points. GARP is the applicable reference in this matter.
FACTS AND EVIDENCE
The Applicant was born in October 1921. He stated that prior to the war, wherein he saw operational service at Kokoda, Moratai and Ambon, he had worked in a cardboard factory. After the war, he returned briefly to this occupation, but then variously worked as a gardener and as a farmhand, and drove taxis and buses for a period, before serving for 27 years with Marrickville Council. On completion of his working life in the early 1980s, he and his wife moved to Young, before purchasing land and building a home at Oakville near Windsor, where they have been resident since 1985. They live in a granny flat in the rear of the house, their son and his family occupying the main house.
The Applicant stated that he had a good relationship with his wife, his son, and the eldest of the four grandchildren (grand daughter aged 22). He particularly enjoys talking with his grand daughter, who visits him on most days. Four siblings are alive, two brothers and two sisters, all of whom live in Sydney. He stated that he sees them rarely, and thought the last visit was on his birthday in October 1999. He does not ring them, although he thought his wife might.
The Applicant had completed a Lifestyle Questionnaire (in accordance with GARP V Chapter 22 Option 3) on 20 October 1998 (T6). In amplification of responses in this document, he stated that his life was "completely ruined", that there was "nothing I can do", that "I sit around all day….and can't go anywhere". He attributed this to the condition of his back and his legs (he stated that a specialist had said that nothing could be done about his legs which resulted from the accepted condition of lumbar spondylosis), and a loss of memory. He is always in pain except when lying down. He cannot lift due to his back condition, and the resultant leg problems. He stated that he does not listen to radio except for the football on Saturdays, nor watch television except for the news in the evening. In the late afternoon, he might have a few beers, prior to turning in. In cross examination, the Applicant stated that he lies awake most of the night. As regards his relationships with persons outside his immediate family, the Applicant said that he could not talk to them, that he "had nothing to talk about". Even with his son, he can only have a "sort of conversation". At times he becomes sick of listening. He has never mixed with people in the local community, and it was "now getting worse", but he occasionally sees the market gardener who lives across the road.
The Applicant has had a number of medical problems other than those accepted as war caused. He stated that at one period he was bedridden for 3 months. He is on various medications, and at one stage his doctor had put him on Prozac, but it made him ill so he stopped taking it. Apart from his doctor at McGraths Hill who he sees every three weeks for repeat prescriptions, he sees no other medical specialists. He recalled having seen two or three psychiatrists in the past; he was not seeing a psychiatrist at the time of the hearing.
The Applicant stated to the Tribunal that he does nothing around the house, due in particular to his back condition. He does no domestic chores; he does no cooking as he could go all day without eating and "never feels hungry". He does no maintenance on his home, it having been built in 1985.
In regard to activities outside the home, the Applicant stated that he drives his car to buy the Sunday papers, and to take his wife shopping at Windsor, and to his doctors surgery at McGraths Hill about once every three weeks. He does not like driving, and "never has". As regards public transport, he could use all public transport were it available locally, but needs assistance from his wife. He felt that he got bamboozled when using public transport, in terms of remembering what he was seeking to do, or where he was going. He believed he could get into trouble were his wife not present and in particular because of his objections to the manner in which young people conduct themselves. He has no hobbies, can no longer dance or play tennis, and it is too much trouble to get to the RSL Club. He has no interest in Anzac day activities.
In support of her statement at Exhibit A1, Mrs Causer stated that her husband's condition is such that she does not like to leave him alone, as she is frightened as to what he might do. She described him as extremely depressed and cranky 'because he cannot do anything'. In cross examination, she stated that he has a good relationship with her and their son, but becomes easily agitated and irritable. Since retirement he has withdrawn more and more; he does not wish to go out or have visitors. He dislikes driving, and she cannot drive. He liked swimming but could no longer do so due to his illnesses. He was always sitting around "waiting to die". He can not walk very far, having to frequently rest. She stated that her husband has no contact with ex-service compatriots or organisations. He does not speak about the war, although he had recounted that in a field hospital, the boy in the next bed had been killed.
ANALYSIS OF EVIDENCE AND FINDINGS
The issue in this matter is whether the Applicant meets a Lifestyle Rating of at least 6 (average) points in order to be eligible for the EDA. The standard of proof is that of reasonable satisfaction vide s120(4) of the Act.
The parties are in dispute as far as lifestyle ratings are concerned, and these are addressed in table order.
Personal Relationships (Table 22.1). The advocate for the Applicant assessed a lifestyle rating clearly in excess of 4, submitting that 5 was the appropriate rating. The rating of 5 is described in GARP V as:
"Severely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality".

The advocate submitted that such a criteria was realistic based on the assessment by the local General Practitioner, Dr Khan (T7) in respect of the accepted anxiety state, and the evidence of Mrs Causer that the Applicant had few friends, was rarely visited, (and when visited had little to say) and did not visit outside the home. Further, his relationship with his wife was at times strained, and his meaningful relationships with other members of the family were confined to his son and one grand daughter.

The Respondent submitted that a rating of 4 (as previously assessed by the VRB) remained appropriate, in that it took account of "markedly affected relationships", and acknowledged the difficulty in maintaining usual relationships with relatives, friends and neighbours. In particular, the criteria of "strained and low quality relationships" required of a 5 rating was not supported on the evidence.
The Tribunal is mindful of the responses by the Applicant to the relevant Personal Relationship questions in the Lifestyle Questionnaire (T6), which culminated in the assessment by the Applicant that his life was completely ruined. The Tribunal balances these responses against the evidence given at the hearing, wherein the Applicant stated that he does not use the telephone and "never did", albeit the Tribunal aknowledges the relevance of his accepted hearing disability; that in 1985 when moving to Oakville, he "never mixed with people"; his statement that he never did drive for pleasure; and that when asked why he did not have visitors, he stated that he "had nothing to talk about". Placing this evidence in context against the accepted disabilities, particularly his anxiety state, and accepting that it nonetheless reveals some indication of the social preferences of the Applicant, the Tribunal nonetheless is reasonably satisfied that a rating of 5 is appropriate.
Mobility (Table 22.2). The advocate for the Applicant submitted that mobility should be assessed at a rating of 5, whereas the Respondent strongly submitted that a rating of 4, (as previously assessed by the VRB) was the maximum that could be considered. The criteria for a rating of 5 under this table is:

"Major 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 a short distance."

From the evidence, the Applicant has reduced mobility as conceded by the Respondent, and is effected by pain and emotional instability resulting from his accepted disabilities. However, he stated that he could physically use public transport, but would require assistance in order to do so, and to ensure that he completed the journey successfully and did not get into trouble with other passengers. He could drive, and indeed does so from time to time for relatively short distances, but was not interested in doing so, finding it boring and leading to crankiness. The Applicant is able to travel as a passenger in private transport, and does so on occasions with his son and grand daughter. On the evidence, the Tribunal does not consider that the Applicant has such major impediments to his mobility as to meet the criteria for a rating of 5. Whilst a rating of 3 might be argued, the Tribunal is reasonably satisfied that an appropriate assessment for mobility is a rating of 4.
Recreational and Community Activities (Table 22.3). The advocate for the Applicant submitted that a rating of 6 was appropriate, this being:
"Able to engage in only a few satisfying recreational activities. Restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors."

The advocate submitted that the Applicant had very few recreational activities, these being to listen to the football on the radio at weekends, and to watch television in the early evening and occasionally with his son at the weekend. Due to his accepted disabilities, he could no longer engage in dancing, tennis or swimming, and the Tribunal notes that his General Practitioner, Dr Khan, described him as showing no interest at all in games and sports. The Applicant gave no evidence as to any involvement in community activities, and whilst he had visited the local RSL in the past, he was no longer able to do so. He had no hobbies. Whilst noting that the VRB had given Recreational and Community Activities a rating of 5, the Respondent conceded that a rating of 6 would be acceptable to the Respondent, and the Tribunal is reasonably satisfied that a rating of 6 is appropriate.

Domestic Activities (Table 22.4). The advocate for the Applicant submitted that the evidence supported the contention that the Applicant warranted a rating of 7, this being "total dependency upon others for domestic tasks". This assessment was based on the evidence of the Applicant, who had adequately described both his total lack of interest in domestic activities, and the physical difficulties that precluded him from undertaking such tasks. This was supported by the assessment at T7 by Dr Khan that the Applicant developed limiting systems (MET 2-3) for a range of household tasks, and by the evidence of his wife who stated that the Applicant had not carried out domestic tasks for years, had no interest in such activities, could not perform many tasks because of his disabilities, and that he was totally reliant upon his family.
The Respondent submitted that the assessment of 6 by the Department of Veteran's Affairs and by the VRB adequately reflected the circumstances of the Applicant. It was suggested that in the light of the evidence, the Applicant was able to carry out limited domestic activities, and can undertake some tasks. The Respondent referred to the evidence of Mrs Causer wherein she stated that her husband could make a sandwich, but could not be bothered, the latter implicitly confirmed in evidence by the Applicant himself, who stated that he could not be bothered eating unless his wife was available to prepare the meal. Mrs Causer also stated in cross examination that her husband could look after himself. From the evidence, the Tribunal is reasonable satisfied that a rating of 6 is a proper assessment in regard to domestic activities, in that some light tasks could be undertaken.
In summary, the applicable ratings under the lifestyle effects chapter of GARP amount to 5, 4, 6 and 6, being an aggregate of 21, and an average, vide GARP V Chapter 22, of 5.
Accordingly, the Applicant does not meet the criteria for eligibility for the EDA rate as defined in s 22 of the Act.
The decision under review is therefore affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of
Rear Admiral A R Horton AO
Signed:         .....................................................................................
  Associate
Date/s of Hearing  28 April 2000
Date of Decision  5 June 2000
Solicitor for Applicant               Ms E. Sadlier
Advocate for the Respondent Ms G Pacey