Chidley and Repatriation Commission [ 2011] AATA 905
[2011] AATA 905
•16 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 905
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0912 &
VETERANS' APPEALS DIVISION ) 2011/0913 Re JOHN CHIDLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member
Dr M Denovan, MemberDate16 December 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............[Sgd].................................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Royal Australian Navy – Claims for pension for carotid arterial disease and extreme disablement adjustment – Hypothesis that carotid arterial disease caused by operational service not reasonable – Criteria for extreme disablement adjustment not satisfied – Decisions under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 22, 23, 24, 25, 120, 120A, 196B
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
16 December 2011 Dr K S Levy RFD, Senior Member
Dr M Denovan, MemberINTRODUCTION
1. The applicant, Mr John Chidley, served in the Royal Australian Navy from 30 November 1942 to 11 September 1944. Pursuant to ss 6C and 7 of the Veterans’ Entitlements Act1986 (Cth) (“the Act”), the entirety of his naval service was operational service.
2. Mr Chidley is 85 years old and suffers from many medical ailments. The respondent has accepted the conditions of asthma, congestive cardiac failure secondary to asthma (resolved), non-melanotic neoplasm of the skin on various sites, emphysema, sensorineural hearing loss and tinnitus as having been caused by Mr Chidley’s operational service.
3. Mr Chidley also has a number of conditions that have not been accepted as service-related. These include osteoarthritis of the toes of both feet and the fingers on both hands, trigeminal neuralgia, chronic paroxysmal hemicrania, tension type headache, lumbar spondylosis, ischemic heart disease, cervical spondylosis and thoracic kyphosis.
4. Mr Chidley applied to the respondent informally for acceptance of ‘cerebrovascular disease’ on 23 February 2010. He made a formal claim for cerebrovascular disease on 17 March 2010, and completed a lifestyle questionnaire as part of the claim. Mr Chidley contends that he was suffering from this condition as a result of smoking tobacco, a habit for which his operational service was responsible. In the alternative, Mr Chidley contends that the condition was caused by exposure to exhaust fumes during his operational service. In the decision under review the respondent determined that the most appropriate diagnosis for Mr Chidley’s claim was carotid arterial disease.
5. On 30 March 2010 Mr Chidley also applied for an increase in his rate of pension. Because, at the date of his claim, Mr Chidley was over 65 years old and was receiving 100% of the general rate of pension, his application was for the extreme disablement adjustment (EDA) pursuant to s 22(4) of the Act.
6. On 30 June 2010 a delegate of the respondent determined that carotid arterial disease was not war-caused. On 12 July 2010 a delegate of the respondent also decided to continue Mr Chidley’s pension at 100% of the general rate. The Veterans’ Review Board affirmed both decisions on 16 December 2010. On 14 March 2011 Mr Chidley applied to this Tribunal for review of the decisions.
ISSUES AND LEGISLATION
7. The relationships between conditions and service are set out in s 70, s 196B and ss 120(1), 120(3) and s 120A of the Act.
8. Specialist vascular surgeon Dr J V Sing provided a diagnosis of carotid arterial disease in his report dated 2 November 2009.
9. The relevant section for war-caused injuries and diseases is s 9(1) of the Act. Relevantly, it states:
War-Caused Injuries or Diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
10. In deciding this matter we must also have regard to the provisions of the Act, in particular ss 120 and 120A, together with Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”).
11. Section 120(1) states:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
12. The Deledio case sets out the steps to be followed in applying the above sections[1]:
[1] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 – 98.
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B (2) or (11).
…
3.If a SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The tribunal must then proceed to consider under s120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” (At 49 ALD 206).
13. To determine whether Mr Chidley’s condition of carotid arterial disease “arose out of” or “was attributable to” and “contributed to in a material degree by,… service”[2], one or more factors in the relevant Statement of Principles (SoP) must be satisfied.[3] SoPs are brought into existence to comply with s 196B of the Act and provide the statutorily determined relationship to service.
[2] Veterans’ Entitlements Act 1986 (Cth) s 9(1).
[3] Veterans’ Entitlements Act 1986 (Cth) s 120A(3).
14. Both parties agree that the SoP relevant to Mr Chidley’s matter on the date of his claim is Instrument No 9 of 2003, as amended by Instrument No 29 of 2003.
15. The criteria for assessing the rate at which disability pension is to be paid are set out in ss 22, 23, 24, 25 and 30 of the Act. If a person’s rate of pension is assessed at 70% or more of the general rate, the Tribunal must decide if the person is entitled to one of three higher rates of pension, these being special rate (s 24), intermediate rate (s 23) and the EDA(s 22(4)).
16. Mr Chidley was 85 years old on the date he made his claim for increase in pension. As he has not worked for many years, and both of the rates relate to capacity to undertake remunerative work, he is not eligible for either special rate or intermediate rate. Therefore, EDA is the only remaining rate for consideration. EDA is 150% of the general rate of pension, and is payable to those severely disabled veterans who do not qualify for either special rate or intermediate rate.[4] EDA is payable if the following criteria are met under s 22(4):
·The veteran is receiving pension at 100% of the general rate (s 22(4)(a)(i));
·The veteran is 65 years old or older (s 22(4)(b)); and
·The veteran has an impairment rating of at least 70 points (s 22(4)(c)); and
·The veteran has a lifestyle rating of at least 6 points (s 22(4)(c)).
[4] Veterans’ Entitlements Act 1986 (Cth) s 22(4)(d).
17. In relation to the claim for carotid arterial disease (“entitlement issue”), it is Mr Williams’ contention that Mr Chidley has raised no reasonable hypothesis. Firstly, he submitted that there are no factors in the relevant SoP which deal with a hypothesis about exposure to vessel fumes. Secondly, he submitted that the hypothesis that the condition was caused by service related cigarette smoking fails to meet factor 5(d) in the SoP because Mr Chidley ceased smoking more than 30 years prior to the clinical onset of carotid artery disease.
18. In relation to the assessment of pension (“assessment issue”), it is not in dispute that Mr Chidley meets all of the criteria except that he has been assigned a lifestyle rating of only5. The rating given to lifestyle must relate to the impairment the veteran experiences as the result of only those conditions that have been accepted as caused by operational service.
19. In order to decide the entitlement issue we must decide whether a reasonable hypothesis is raised. If we do find a reasonable hypothesis is raised, then we must decide whether we can be satisfied beyond a reasonable doubt that Mr Chidley’s carotid arterial disease was not war-caused.
In order to decide the assessment issue, we must determine what lifestyle rating is appropriate for Mr Chidley’s service caused conditions.
CONSIDERATION
Entitlement Issue – Carotid arterial disease
20. Mr Chidley has provided two hypotheses which he says connect carotid arterial disease to his operational service. The SoP for carotid arterial disease, as noted above, is Instrument No 9 of 2003. The first two steps of the Deledio test are therefore satisfied.
21. In considering whether there is a reasonable hypothesis connecting Mr Chidley’s PTSD with his war service, and in applying the relevant Deledio steps to that end, we must consider all of the material before us, whether or not that material supports the hypothesis: Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271 at [21] (“Bull”); Elliott v Repatriation Commission (2002) 73 ALD 377 (“Elliott”); Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433 per Hill J at [39] – [41].
22. In Elliott, Stone J very aptly likened the decision-maker’s task at this point to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.[5]
[5] Elliott v Repatriation Commission (2002) 73 ALD 377 at [25].
23. Taking account of all the material, a hypothesis will not be reasonable where it is “obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous” (see Bull at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517). It was said in Bull that “the material must point to the connection between service by the applicant and the claimed injury, disease or death for the claim to be reasonable”. We refer also to Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364, where in their joint judgment Northrop, Sundberg, Marshall and Merkel JJ said (at page 490) that “a “reasonable hypothesis” involves more than a mere possibility”, and is “a hypothesis pointed to by the facts, even though not proved on the balance of probabilities”.
24. As stated above, Mr Chidley advanced two hypotheses to connect carotid arterial disease to his operational service. The first is that he inhaled fumes when serving at sea and as a result he developed carotid arterial disease some time prior to its diagnosis on 19 September 2009. The second is that he smoked 30 cigarettes a day continuously (except for a period of about three months when he was hospitalised), from approximately November 1942 until approximately November 1950 and as a result he contracted carotid arterial disease some time prior to its diagnosis.
25. Mr Chidley attended the hearing and gave evidence. In relation to the hypothesis which implicates vessel fumes in the contraction of CAD, Mr Chidley told us that he believed this to be true, because his doctor told him such fumes from the ship engine would do the same damage to his lungs as cigarettes do. Mr Chidley said that he was exposed to these fumes four or five times an hour, two to three times a day.
26. Mr Chidley told us that he commenced smoking in 1942. He ceased smoking in 1950. He told us that he ceased temporarily when he developed chest pain and was so unwell that he was hospitalised for three months. After he was discharged from hospital he recommenced smoking again.
27. Mr Chidley said that he understood what ‘clinic onset’ meant however It is more appropriate to consider the time when the condition first developed, which was likely many years prior to the diagnosis in 2009.
28. In a smoking questionnaire dated 27 July 2005 Mr Chidley stated that he could not remember when he commenced smoking, he thought it was approximately November 1942. He ceased smoking and then started again, smoking up to 30 cigarettes a day. He ceased smoking in 1945. Mr Chidley told us that the information he provided in that questionnaire was incorrect. His wife reminded him that he was smoking when she met him and he stopped at her request soon after they married in November 1950.
29. In his report dated 1 September 2009, neurologist Dr Maxwell recorded Mr Chidley stating that he smoked in the Navy over at least a two years period. Based on a carotid duplex study dated 17 September 2009 Dr Maxwell provided a diagnosis of right internal carotid artery stenosis. Dr Maxwell referred Mr Chidley to vascular surgeon Dr Sing, who performed an enarterectomy.
30. The relevant SoP, Instrument No 9 of 2003, does not contain any factor that provides a template into which Mr Chidley’s hypothesis about vessel fumes would fit. For that reason Step 3 of the Deledio test is not satisfied and the hypothesis cannot be regarded as reasonable.
31. Factor 5(d) of the SoP does provide a template for smoking as a cause of carotid arterial disease. It states:
Smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of carotid arterial disease and where smoking has ceased the clinical onset has occurred within 30 years of cessation.
32. Clause 8 of the SoP provides the following definition of “pack years of cigarettes or the equivalent thereof in other tobacco products”:
“pack years of cigarettes or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7,300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7,300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.
33. We consider that the most Mr Chidley smoked was 30 cigarettes a day for 8 years. That is approximately 96,000 cigarettes, which equates to just over 13 pack years. This is below the 15 pack years required by the template contained in factor 5(d) of the SoP. Mr Chidley accepts that the clinical onset of his carotid arterial disease was in September 2009, 59 years after Mr Chidley ceased smoking. The factor makes no provision for the pathological onset.
34. As both of the hypotheses fail to fit within any of the templates of the SoP, they are not reasonable. Therefore, s 120 of the Act is not satisfied and Mr Chidley’s carotid arterial disease is not war-caused.
Extreme Disablement Adjustment
35. As stated above, the only issue in dispute is whether Mr Chidley has a sufficient rating to be qualified for EDA.
36. A lifestyle effect is “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”.[6] The effects for impairment on lifestyle are determined by reference to four components of a veteran’s life: personal relationships, mobility, recreational and community activities, and employment and domestic activities.[7]
[6] Department of Veterans’ Affairs, Guide to the Assessment of Rates of Veterans’ Pensions (5th edition) (Commonwealth Department of Veterans’ Affairs, 1997), p 264.
[7] Department of Veterans’ Affairs, Guide to the Assessment of Rates of Veterans’ Pensions (5th edition) (Commonwealth Department of Veterans’ Affairs, 1997), p 265.
37. Tables for the measurement of the effects of lifestyle are included in Chapter 22 of the Guide to the Assessment of Rates of Veterans’ Pensions (5th Edition) (the Guide). Ratings are based on a progressive scale from 0 to 7: the higher the number, the worse the severity of the effect on the veteran’s lifestyle. Impairment that results from conditions that are not related to Mr Chidley’s service, that is trigeminal neuralgia, osteoarthritis of both feet and the fingers on both hands, lumbar spondylosis, ischemic heart disease, cervical spondylosis and thoracic kyphosis, cannot be taken into account.
38. In his medical impairment assessment report dated 11 May 2010, Dr R Ramiah reported that due to lumbar spondylosis Mr Chidley has pain when standing, needs to rest after walking 30 metres, is unable to use stairs and only goes to places that have lifts. Also, due to this condition, Dr Ramiah stated that Mr Chidley’s movements were restricted, he is unable to pick things up from the floor and he has difficulty sleeping. Dr Ramiah stated that Mr Chidley needs regular analgesia for the pain generated by this condition.
39. Mr Chidley has two adult children. One lives in Brisbane and the other in northern New South Wales. Mr Chidley enjoys speaking to them. They do not visit often because they are involved in their careers. Mr Chidley tries to keep in contact and speaks to them on the phone at least once a week. He told us that social activities such as going to dances, balls, theatre, concerts, meetings, civic affairs and speaking in public were all activities he normally took part in. He would like to go to the local club or to shows, but is unable to do so. He said that he is also unable to enjoy a sex life due to the side effects of his medications.
40. Mr Chidley has contact with friends who often pick up both himself and his wife to go shopping and to church. He is a member of a senior citizens group and once a fortnight the group drives him and his wife to the Hyperdome shopping centre. Mr Chidley said that he does very little in the kitchen; when guests come over they usually take over the kitchen. Mr Chidley said that he helps out in the kitchen by stacking the dishwasher and making a cup of tea. He makes his own breakfast, and prepares a light lunch. He and his wife were receiving Meals-on-Wheels for some time, but because of the amount of waste they now prepare their own meals. They use a lot of frozen meals. He and his wife don’t do much housework or gardening: a cleaner comes in once a fortnight.
41. Mr Chidley and his wife currently live in their own house, but they have been looking at retirement villages which offer company and activities they think they would enjoy. There is one retirement village that they are particularly interested in. It has a full-size cinema and ballroom as well as computer rooms, sing along, bus tours, concerts and parties. The facility also takes the residents shopping and carries the groceries inside for the residents. Mr Chidley said that he and his wife think this facility would be able to meet all of their needs.
Personal Relationships
42. Table 22.1 of Chapter 22 of the Guide lists the rating scale used to assess personal relationships. It reads:
RatingsCriteria
NIL No or negligible effect on personal and social relationships. Relationships are satisfying, with full participation in accustomed social and personal activities.
ONE Personal and social relationships are fairly satisfying. Intermittent disadvantages may inhibit, but not prevent participation in accustomed range of social and personal activities.
TWO Mildly affected personal and social relationships. Social contacts and activities are reduced, veterans participation in the accustomed range of activities is restricted.
THREE Moderately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.
FOUR Markedly 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.
FIVE 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.
SIX Extreme difficulty in relating to anyone, for example:
·difficulties in relating because of psychosis; or
·social interaction limited to carer(s) due to confinement; or
·ability to communicate is restricted due to stroke or other effect of accepted conditions.
SEVEN Unable to relate to anyone. All relationships are prevented.
One rating from this table is to be selected.
43. Mr Chidley and his wife have days where they do not venture out of their house, and no doubt they have fewer social contacts than they did prior to Mr Chidley having the degree of incapacity he has now. Most of the restrictions on social life described by Mr Chidley are due to his impaired mobility and his need to rely on others to drive. Those mobility restrictions are not due to his service caused conditions alone. The medical evidence indicates that the condition of lumbar spondylosis has a considerable impact on Mr Chidley’s mobility, and so too the medications he takes to treat this condition and to treat osteoarthritis in his feet, another condition that is also not related to his service.
44. We find that Mr Chidley’s accepted conditions have, at most, a moderate effect on his personal and social relationships. His relationship with his children has not been affected and he still has personal contact with friends and fellow members of the senior citizens social group he attends. Taking into consideration the decline in his ability to enjoy a normal sexual life with his wife, we regard the appropriate rating from Table 22.1 is 3.
Mobility
45. Table 22.2 is used to rate the effect of a person’s incapacity due to service caused conditions on mobility. It reads:
RatingsCriteria
NIL No or minimal restrictions of mobility, ie full mobility.
ONE Intermittent or periodic effects on mobility:
·mobility affected only when impairment eg migraine, angina, sciatica, or panic attack, is present. Between attacks there are no restrictions;
·if there is permanent impairment, eg night blindness, the effect is only sporadically limiting.
TWOMild effects on mobility, eg slowing of pace in some circumstances, or
need for a walking stick.
THREE Moderately reduced mobility: mobility curtained or diminished because or frailty, lack of confidence: or moderate agoraphobia;
·travel as a passenger, in private and public transport, possible in most circumstances without undue difficulty (‘undue difficulty’ not being the need for a break in travel or for special seating arrangements);
·dependent on a walking stick or similar device. Independent in leaving home and reaching destination, but has some difficulty.
FOUR Markedly reduced mobility:
·assistance is needed to cope with public or private transport;
·there is considerable difficulty in travelling from home to destination;
·restricted in the use of at least two forms of public transport.
FIVE 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 for a short distance.
SIX Severe 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.
SEVEN Restricted to room or chair:
·severe agoraphobia permanently confines veteran to home;
·dependent upon others, or hoists or similar appliances, for getting in and out of bed.
One rating from this table is to be selected.
46. Mr Chidley does not need assistance to cope with private transport. Mr Chidley indicated that he hoped to partake in bus trips organised by the nursing home, and we conclude that he is able to use a bus; however, it may be that he needs assistance in entering and departing from the bus. The medical evidence before us is that Mr Chidley has limited capacity to walk and sit as a result of non‑accepted conditions. For these reasons we find that the appropriate rating from Table 22.2 is 3.
Recreational Activities
47. Table 22.3 is used to assess the effect of a veteran’s accepted conditions on their recreational and community activities. It reads:
Ratings Criteria
NIL Able to undertake the full range of usual recreational pursuits and community activities.
ONE Intermittent interference with recreational pursuits and community activities. Between episodes is able to continue with the range of accustomed recreational pursuits and community activities.
TWO Mild but constant interference with accustomed recreational pursuits and community activities, but is able to continue with them even if less frequently or to enjoy alternatives.
THREE Unable to continue some accustomed recreational pursuits and community activities, for example:
·competition sporting activities (golf, tennis, bowls, etc) but is still able to enjoy most other activities (camping out, hobbies, going visiting, watching sport, etc);
·unable to perform some community or voluntary activities involving physical activity (eg working bees) but is still able to participate in most other activities including welfare work, fund raising work etc.
FOUR Unable 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).
FIVE Greater 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 and 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.
SIX Able 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.
SEVEN Unable to take part in any recreational activities.
One rating from this table is to be selected.
48. Mr Chidley was a very active man when he had no medical problems. He remains interested in cinematology and looks forward to participating in activities organised by a retirement home. Osteoarthritis of the feet and lumbar spondylosis would have an impact on Mr Chidley’s capacity to participate in many of the activities Mr Chidley used to enjoy, such as making amateur films. Mr Chidley cites pain as the reason why he is unable to continue making films. His accepted conditions also restrict Mr Chidley’s mobility, but not to the same extent as his non-accepted conditions. This limits the rating that can be assigned under this Table. We consider the appropriate rating from Table 22.3 is 3.
Domestic Activities
49. Table 22.4 is used assess the effect of service caused conditions on domestic activities. It reads:
Ratings Criteria
NIL Able to sustain any usual activities.
ONE Intermittent effects of accepted disablement on usual activity.
TWO Able to carry out accustomed tasks, but has difficulty with some heavier tasks, for example:
·has difficulty with heavy gardening activities such as digging, pruning trees etc.
THREE Unable to perform heavy activities, but able to carry out lighter household tasks, taking breaks during sustained activity, for example:
·mowing the lawn;
·washing the car;
·performing light maintenance or gardening activities if working at own pace, taking breaks as necessary.
FOUR Unable 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.
FIVE Limitation 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.
SIX Able 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.
SEVEN Total dependency upon others for domestic tasks.
One rating from this table is to be selected.
50. Mr Chidley participates in very few domestic activities. He can only undertake basic meal preparation in the kitchen and relies on a cleaner to complete most household tasks. His lack of involvement is contributed to by both accepted and non-accepted conditions. We consider the appropriate rating for Mr Chidley is 4.
51. Adding the four ratings from Tables 22.1, 22.2, 22.3 and 22.4; and dividing the number obtained by 4 to calculate the final lifestyle rating. The result is 3.25. That means Mr Chidley has an overall lifestyle rating of 3.[8]
[8] Page 265 of the Guide states that “the result of the division is to be rounded to the nearest integer”.
52. As Mr Chidley does not have a lifestyle rating of 6 or more, he does not satisfy s 22(3)(c) of the Act and is therefore unable to be paid EDA.
DECISION
53. The decision under review is affirmed.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member and Dr M Denovan, Member
Signed: ..............[Sgd]..................................................................
AssociateDate/s of Hearing 26 October 2011
Date of Decision 16 December 2011
Applicant was self-represented
Solicitor for the Respondent Bruce Williams, departmental advocate
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