Clark and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 333

Clark and Repatriation Commission (Veterans’ entitlements) [2016] AATA 333 (23 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/2656
Re	Mr Russell Clark
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	23 May 2016
Place	Melbourne

The Tribunal affirms the decision under review

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Mr Conrad Ermert, Member

VETERANS' ENTITLEMENTS - Extreme Disablement Adjustment - impairment rating 70 points - whether lifestyle rating six points - decision affirmed

LEGISLATION

Veteran's Entitlements Act 1986

REASONS FOR DECISION

Mr Conrad Ermert, Member

23 May 2016

INTRODUCTION

1. Mr Clark, the Applicant, served in the Royal Australian Navy from 1963 to 1972 and had operational service which included three periods in Vietnam.  By November 2011 the Repatriation Commission, the Respondent, had accepted as war-caused the following conditions, for which he received a disability pension at 100% of the General Rate:

   ·Lumbar spondylosis,

   ·Gastro-oesophageal reflux disease,

   ·Chronic bronchitis and emphysema,

   ·Tinea,

   ·Acquired cataract,

   ·Colonic polyps,

   ·Ischaemic heart disease

2. On 19 March 2014 Mr Clark lodged a claim for the conditions of alcohol abuse / dependence and erectile dysfunction with loss of libido to be accepted as war caused.  On 29 May 2014 a delegate of the Repatriation Commission accepted the claim for erectile dysfunction but rejected the claim for alcohol abuse / dependence.  The delegate decided that the disability pension should continue at 100% of the General Rate.

3. On 18 June 2014 Mr Clark applied to the Veterans’ Review Board (VRB) for a review of the delegate’s decision.  On 18 August 2014 Mr Clark withdrew the claim for alcohol abuse / dependence but continued to seek review of the decision regarding the pension assessment so he could be granted a pension at the rate for an Extreme Disablement Adjustment (EDA).

4. On 12 March the VRB decided to affirm the decision that the pension continue at 100% of the General Rate.  This matter is an application for a review of the VRB decision. 

   HEARING

5. At the hearing Ms Fiona Ryan of Counsel represented Mr Clark.  Mr Gerald Purcell of Counsel represented the Respondent.  Mr Clark appeared in person and gave evidence on oath.

6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975. 

7. For Mr Clark I took in for consideration the Applicant’s Statement of Facts and Contentions dated 20 November 2015.  I took into evidence the following documents:

   ·Exhibit A1 - Statement of Russel Lee Clark dated 20 May 2015;

   ·Exhibit A2 – Report of Dr Chris Daley, a respiratory and sleep disorder physician, dated 23 November 2015; and

   ·Exhibit A3 – Report of Dr Chris Daley dated 25 January 2016.

8. For the Respondent I took in for consideration the Secretary’s Statement of Facts and Contentions dated 7 December 2015.  I took into evidence the following documents:

   ·Exhibit R1 – Bundle of clinical notes including:

   oFairhills Medical Clinic (22 pages) received 28 August 2015; and

   oNarregate Medical & Dental Centre (167 pages) received 28 August 2015;

   ·Exhibit R2 – Report of Dr Niall Cain, Consultant Physician, dated 17 September 2015;

   ·Exhibit R3 – Report of Dr Niall Cain dated 12 April 2016;

   ·Exhibit R4 – Transcript of Proceedings of the VRB hearing of 12 March 2015; and

   ·Exhibit R5 – Melways map of Narre Warren with highlighting.

   LEGISLATION

9. The relevant legislation is contained in the Veterans’ Entitlements Act 1986 (the Act).

10. Section 120(4) of the Act provides that the standard of proof to be applied in the assessment or re-assessment of rates of pension is to decide the matter to my reasonable satisfaction.

11. Section 29 of the Act requires the extent of the incapacity of a veteran be assessed by reference to the Guide to the Assessment of Rates of Veterans’ Pensions (GARP). 

    ISSUES

12. Subsection 22(4) of the Act provides for the payment of EDA where the veteran:

    ·is at least 65 years of age;

    ·Has an impairment rating of at least 70 points;

    ·Has a lifestyle rating of at least six points; and

    ·Is not receiving pension at the intermediate or special rate.

13. There is no dispute between the parties that Mr Clark has reached the age of 65 years, that his accepted disabilities attract an impairment rating of 70 points and that he is not receiving pension at the intermediate or special rate.  The only issue I must determine is whether Mr Clark’s lifestyle attracts a rating of at least six points.

    EVIDENCE

14. Ms Ryan took Mr Clark through his statement from May 2015 (Exhibit A1).  Mr Clark described his lower back pain as constant in the lower area.  At times the pain radiated down his right leg.  He had bought a brace which he uses every day and said that it eases the pain when he is standing.  He can stand for 15 to 20 minutes but then has to sit down or lean against something. 

15. Mr Clark said his walking was quite limited by his back pain and breathlessness and that he could only walk 60 to 80 metres at a time.  He takes anti-inflammatories to relieve the pain.  Bending causes him discomfort and he has to squat.  His lifting ability is limited to a maximum weight of 10 kilograms.

16. Describing the effects of his breathlessness Mr Clark said that his chest is constricted, he produces a lot of mucous and he suffers a lot of coughing which takes his breath away.  He uses a puffer regularly to relieve the symptoms however he suffers from breathlessness every day and night.  He never gets a full night’s sleep as he wakes up at about 3:00am from coughing even though he uses his nebulizer each night before going to bed.  When he gets up each morning he takes five medications and uses two puffers.

17. Asked about his personal relationships as described in his statement Mr Clark confirmed that when his grandson is participating in Auskick he sits in his car or the grandstand.  When having meals with his family and friends he has difficulty staying in one position and after about one hour he has to get up. He generally stays only one and a half to two hours. 

18. Asked about his driving Mr Clark said he does not drive long distances.  His son or a friend drives him to his lunches at the RSL.  Mr Clark said his back pain makes him irritable and he suffers from coughing and spasms. 

19. In regard to recreational activities Mr Clark said he used to sketch and draw with watercolours but does not do so anymore.  His last drawing is still unfinished as he lost interest.  He said the last art exhibition he went to was about two years ago and his former wife took him there.  Now he does not drive and does not bother to go to exhibitions.  When asked how he manages to get around an exhibition Mr Clark said he takes his time and rests. 

20. Asked about garden and house Mr Clark said he cannot look after his garden.  He cannot push his mower and relies on his neighbour to mow his lawns fortnightly.  His back prevents him doing a lot of housework although he can do a little bit at a time.  Although he was a chef and used to enjoy cooking he now cooks only simple meals.  His back problem makes standing difficult. 

21. In cross-examination Mr Clark said he does not use trains even though he could drive to the station.  He said if he cannot find a seat he is in trouble.  He told the Tribunal that to travel to the Tribunal for the hearing he drove to Glen Waverley car park, caught the train to the city and walked over the pedestrian bridge.  He said he would do the same on his way home. 

22. Mr Purcell took Mr Clark through his employment history which comprised:

    ·A chef in the Navy for nine years;

    ·Catering department at Southern Memorial Hospital;

    ·Chef and catering manager at Monash University until the late 1980’s;

    ·Quality control in the manufacture of spas at a plant in Hallam until the late 1990’s; and

    ·Assistant storeman at the UGL plant at Long Island Point, Westernport.

23. Mr Clark said his full time work with UGL lasted until 2007 after which he was employed on a casual basis, firstly for two days a week and finally for one day a week.  He finished his employment with UGL in February 2014.  He said that if his son was also working there at the time his son would drive him to the plant, otherwise he drove himself.  He said his work was mostly light work and did not involve lifting. 

24. Mr Clark was referred to a number of documents contained in Exhibit R1 (clinical notes).  His responses were:

    ·Report of Dr Daley dated 3 April 2014 (page 106) which recorded “Russell was due to see me in another one to two weeks but came in early as he is going to Sydney…”  - Mr Clark said he drove to Sydney to attend a motor race meeting and stayed overnight in Holbrook.  The weekend did not involve much walking as he parked inside the area and was picked up by colleagues. 

    ·Letter of Dr Malcolm Barnes dated 19 July 2013 (page 113) which recorded “He is about to head off to Vietnam …”  - Mr Clark said he did not take that trip as he did not feel up to it. 

    ·Report of Dr David McGaw dated 25 January 2012 (page 134) which recorded “He is exercising without limitation and restarting work next week … I am delighted with his progress …” – Mr Clark said that he did go back to work about seven or eight weeks after his operation.

    ·Letter of Dr Mark Overton dated 31 January 2012 addressed to UGL, Mr Clark’s employer, (page 140) which recorded “Russell now feels well with no further cardiac symptoms and a good exercise tolerance … Russell is now fit to carry out his normal role as a Trades Assistant” – Mr Clark said that his work at the time needed no restrictions.

    ·UGL Physical Capability Analysis (page 145) which recorded exposure ratings of 3 (High exposure) “Physical Requirements – Hearing 3; Walking 3 and Standing 3” – Mr Clark said he had had problems with one ear since childhood; his duties did not require much walking as he did a lot of driving and he did not have to go to the process area.

    ·Patient Medical History for 11 November 2014 (page 6) which recorded “Keeping well, cough went away while in Malaysia” – Mr Clark said his coughing had eased a bit at that time; he went to Malaysia for four days with the Ferrari team.

25. Mr Purcell referred to Mr Clark’s Lifestyle Report dated 26 May 2014 (T-Documents pages 75 to 83).  Mr Clark said that the report was completed by a representative of the RSL after an interview with himself.  Mr Clark signed the report.  Mr Purcell asked if the following statements were true:

    ·Page 76 – “I have no social life at all now.  I just remain at home drinking alcohol to get some peace” – Mr Clark said the statement was true, he was drinking a lot.  He added the statement was “possibly true” at the time. 

    ·Page 78 – “My alcohol excesses have reduced my driving but my son drives me a lot of the time now” – Mr Clark said it was correct at the time.

    ·Page 79 – “I have no enjoyment in life now.  I just stay at home because of my pain and mobility loss and drink alcohol to ease the pain” – Mr Clark said that is what he told the representative.

    ·Page 81 – “What is your occupation? Catering Manager” – Mr Clark said that was wrong.

    ·Page 83 – “Road Rage and Alcohol excesses have caused many problems” – Mr Clark said that was what he told the representative.  He became very angry when driving the car.

26. Mr Clark agreed that he was aware that his claim for acceptance of alcohol abuse as a war-caused disability was withdrawn before the VRB hearing.

27. Mr Clark’s responses to questions on the following documents were:

    ·Report of Dr L. Fernando dated 24 March 2011 (T-Documents page 24) which records “He now hardly ever uses alcohol” – Mr Clark did not recall saying that to Dr Fernando.  He recalls saying he reduced his alcohol intake. 

    ·Report of Dr Anthony Mariani dated16 August 2011 (T-Documents folio 9b) which recorded “He … rarely drinks alcohol” – Mr Clark did not remember making such a statement.

28. When asked about alcohol Mr Clark agreed he had an ongoing problem with alcohol.  He said it affects his life and his relations with his wife and children.  He said it used to cause him to stay at home but he has reduced his consumption.  He said his reported statements to Dr Fernando and Dr Mariani and the details in his Lifestyle Report may have been correct at the time.  He has cycles with his alcohol consumption.  He started to reduce his consumption at the end of 2015.

29. Mr Clark agreed with the suggestion that he has a social life, that he has taken trips overseas and has good relations with his son. 

30. Asked about the report of Dr Cain dated 17 September 2015 which recorded that his cough and phlegm are most likely to be related to his chronic rhinitis, Mr Clark said it may have been mentioned to him but he cannot recall.  Asked whether the condition started in Malaysia Mr Clark said it was variable and had notably changed when he went to Malaysia.

31. Mr Purcell asked about the effects of his conditions on his lifestyle.  Mr Clark said:

    ·He does not clean his car but takes it to a car wash;

    ·He tidies his house occasionally;

    ·He changes the sheets of his bed;

    ·He vacuums the house occasionally;

    ·His neighbour mows his lawns;

    ·He goes with a friend to the RSL club on about a monthly basis;

    ·He goes to Sprint Car race meetings at Avalon about four times a year;

    ·He has been to Sydney with the Ferrari team but not anymore; and

    ·He used to go to Bali three times a year to see his sister but does not go any more.

32. Responding to questions from Ms Ryan in re-examination Mr Clark said:

    ·He uses public transport very rarely because it is inconvenient and if there is no seat available he “is in trouble”;

    ·Over the last five years his breathlessness has become progressively worse although it now seems to have stabilised;

    ·He did not go to Vietnam in 2013 because he “was not good all over”;

    ·He no longer goes to Bali because he does not travel well in a plane and has severe back problems from a five to six hour plane trip;

    ·He managed the flight to Malaysia by taking lots of pain killers and walking around on the plane;

    ·He is thinking of making a trip to Vietnam in future;

    ·His alcohol consumption went in cycles and “how I felt related to how much alcohol I consumed”;

    ·Since September 2015 his daily consumption is  four to five long-necked bottles of light beer a week plus a generous shot of whisky each night;

    ·Alcohol does not restrict his driving now but his bronchitis and emphysema do;

    ·Vacuuming the house affects his back and the dust affects his chest;

    ·He does not use the motor mower because of his back and breathing problems;

    ·He no longer goes to Sprint Car race meetings around Western Victoria because of his back problems when a car passenger;

    ·His back pain and breathing problems affect his moods with low tolerance;

    ·Because of his moods he cuts short his visits to his son and friends;

    ·10 years ago he used to be more outgoing and sociable and had a wider network of friends through working with people;

    ·His breathing and back conditions have deteriorated over the last 10 years but his chest has stabilised over the last 12 months;

    ·The cause of his decreased social life is his general health, his back pain and his chest condition which affect his mood.

    TRIBUNAL CONSIDERATIONS

33. The provisions for the assessment of Lifestyle Effects are contained in Chapter 22 of the GARP as follows:

    The effects of impairment on lifestyle are specific to a veteran and are determined by reference to four components of that veteran’s life:

    oPersonal relationships,

    oMobility;

    oRecreational and community activities; and

    oEmployment and domestic activities.

34. The Respondent contends that the appropriate ratings are:

    ·Personal relationships – 4;

    ·Recreational and community activities – 4;

    ·Mobility – 5; and

    ·Domestic activities – 5.

35. The Applicant contends the ratings should be higher in each component.

36. I will consider each component in turn.

    Personal Relationships

37. The criteria for the ratings for Personal Relationships are listed in Table 22.1 of the GARP.  The criteria for a rating of five points are:

    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.

38. Ms Ryan referred to the evidence that, because of his back pain, Mr Clark has to sit in a car while watching his grandson play in Auskick, and the evidence that he can sit for no longer than an hour at mealtimes.  She submitted that he has only three friends and that the relationships have deteriorated because of Mr Clark’s back pain and breathlessness.  Ms Ryan contended that Mr Clark meets the criteria for five points as he has a very small circle of family and friends and the relationships are strained as a result of the moods caused by his condition.

39. The evidence is that Mr Clark goes to an RSL club monthly with friends, he visits friends and family albeit for only one to one and a half hours at a time, he has good relations with his son, he attends Sprint Car race meetings, in the recent past he drove to Sydney to attend a weekend motor race meeting with friends, and he flew to Malaysia via Singapore for a holiday and to attend a race meeting in Malaysia.  The evidence shows that Mr Clark relates to his luncheon friends as well as his associates in motor sport.  He clearly goes to considerable effort to be with those associates including driving to Sydney, driving to Avalon and flying to Malaysia.

40. I am not satisfied that there is any evidence to show that Mr Clark is able to relate only to particular or few people eg spouse or children.

41. Apart from the statement of Mr Clark that the relationships with his friends are strained there is no evidence that his remaining relationships are strained and of low quality.  I find that his monthly luncheons with friends and his travels to be with other people at car racing events indicate that his relationships are neither strained, nor of low quality. 

42. From the evidence I am not satisfied that Mr Clark’s personal relationships are severely affected.  I am satisfied that Mr Clark does not satisfy the requirements for a rating of five points under this lifestyle component. 

    Mobility

43. The criteria for the ratings for the Mobility component are contained in Table 22.2 of the GARP.  The criteria for a rating of five points are:

    Major impediments to mobility:

    -    Dependent upon others, or mechanical devices such as wheelchairs;

    -    Unable to use most forms of public transport; and

    -    Able to drive a car only in a situation of emergency and then only for a short distance.

44. Ms Ryan submitted that Mr Clark is dependent on others to drive any distance and when using public transport he has problems if no seats are available.  She contended that he relies on others to drive him because of his back pain and his coughing.

45. In regard to the use of public transport Mr Clark’s evidence is that he does not use public transport as it is inconvenient, however he has not given evidence that he is unable to use public transport.  His evidence is that he has problems if a seat is not available.  Apart from inconvenience he advanced no evidence that he was unable to drive to train stations at times when seats are more likely to be available.  His evidence regarding problems from standing is that after some time he has to lean against something. 

1. I do not accept this evidence is sufficient to meet the criterion that he is unable to use most forms of public transport. 

2. In regard to driving his car Mr Clark’s evidence is that while he was still employed at UGL he would drive himself to the plant at Westernport.  He said also his work there involved a lot of driving rather than walking.  He has also given evidence of driving to Sydney and to Avalon.  His driving is clearly not limited to emergency situations nor necessarily only for short distances.   

3. There is no evidence that he is dependent on mechanical devices for his mobility.  The only contention in regard to dependence on others for mobility is in relation to driving.  His evidence is that he is dependent upon others for driving, however this appears to be a preference rather than a necessity as he is able to drive significant distances himself if needed

4. In regard to his walking mobility I note Mr Clark’s evidence that he can walk only 60 to 80 metres before having a rest.  In his report dated 25 January 2015 Dr Daley reported:

   … he has had significantly reduced gas transfer factor and this has deteriorated significantly compared with 2011, likely representing significant emphysema and I note the gas transfer was not assessed by Niall Cain at the time of his recent review.

5. In his reports dated 17 September 2015 and 14 April 2016 Dr Cain recorded:

   Nowadays Mr Clark … takes walks around the shopping complex to help him keep fit.  He believes his breathlessness is a little worse some days than on others and there can be some mild wheezing, independent of any retained sputum or cough from time to time. … Clinically Mr Clark is not breathless on mild exertion … Mr Clark appears to maintain a fairly well-preserved respiratory capacity from the functional point of view.

   …

   … it would seem reasonable to attribute the moderate decrease in gas transfer factor to mild to moderate emphysema …  he should nevertheless be seen as suffering from significant emphysema … Certainly he did not appear breathless on mild exertion on the day that I saw him.

6. I am satisfied the evidence shows that Mr Clark has a degree of difficulty in his walking mobility from his emphysema but there is no evidence  to indicate that he is dependent on others or mechanical devices. 

7. From the evidence I am not satisfied that Mr Clark suffers major impediments to his mobility in the terms of the GARP.  I am satisfied that Mr Clark does not satisfy the requirements for a rating of five points under this lifestyle component. 

   Recreational and Community Activities

8. The criteria for the ratings for the Recreational and Community Activities component are contained in Table 22.3 of the GARP.  The criteria for a rating of six points are:

   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.

9. In her submissions Ms Ryan referred to the relevant section of the GARP which provides:

   A recreational rating is based on the veteran’s normal recreational and community activities and measures the limitation placed by the accepted conditions on the ability to continue those activities.

10. Ms Ryan contends that Mr Clark used to travel overseas and to Sprint Car events but he is no longer able to do so.  She said that he used to sketch and paint with watercolours and view exhibitions at art galleries.  Ms Ryan contends that he is no longer able to sit long enough to finish his drawings and is limited by his conditions in travelling to art exhibitions.  She contended he is now only passive.

11. I note, however, Mr Clark’s evidence that he has monthly luncheons with his friends at the RSL club.  He travels to Sprint Car race meetings at Avalon, although no longer to more distant meetings.  His evidence was that he is still able to go to art exhibitions albeit he takes more time and has more rests while walking around.  In addition I note that he is planning another overseas trip.  I accept this as evidence that he is not restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors. 

12. I am satisfied that Mr Clark does not satisfy the requirements for a rating of six for this lifestyle component.

    Domestic Activities

13. The criteria for the ratings for the Domestic Activities component are contained in Table 22.4 of the GARP.  The criteria for a rating of six points are:

    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.

14. Ms Ryan contends that Mr Clark satisfies the requirements for this rating as Mr Clark cannot do gardening and he is restricted to a limited range of activities.  She referred also to the Introduction in Chapter 22 of the GARP which states:

    Pain, suffering, impaired memory or concentration, or interference with sleep or sleeping arrangements that result from the accepted conditions must be taken into account.

15. In his oral evidence Mr Clark said he cannot look after his garden.  He cannot push his mower and a neighbour mows his lawns fortnightly.  His back prevents him doing a lot of housework although he can do a little bit at a time.  Although he was a chef and used to enjoy cooking he now cooks only simple meals.  His back problem makes standing difficult. 

16. In cross-examination Mr Clark said that he:

    ·does not clean his car but takes it to a car wash;

    ·tidies his house occasionally;

    ·changes the sheets of his bed; and

    ·vacuums the house occasionally.

17. However I note also the report of Dr Cain dated 17 September 2015 which records:

    Nowadays Mr Clark attends to his own personal requirements, he cleans his house, does the cooking and shopping …

18. There is no evidence that Mr Clark requires supervision in carrying out his domestic activities.  It is clear that Mr Clark is able to do light tidying and dusting and is able to cook and prepare meals, albeit simpler meals than he used to prepare.  The evidence is that, although he suffers some difficulty from his conditions, Mr Clark is able to perform a range of light household activities including cleaning, tidying and even vacuuming.

19. From all the evidence I am satisfied that Mr Clark does not satisfy the requirements for a rating of six for this lifestyle component.

    Summary of Lifestyle Ratings

20. I am reasonably satisfied that Mr Clark’s accepted conditions attract the following Lifestyle Ratings:

    ·Table 22.1 Personal Relationships   – four,

    ·Table 22.2 Mobility   – four,

    ·Table 22.3 Recreational and Community Activities    - five, and

    ·Table 22.4 Domestic Activities   - five.

21. These ratings produce a total of 18 and an average of 4.5 which is rounded up to a rating of five.  I find accordingly.

    Conclusion

22. I have found that the rounded up lifestyle rating for Mr Clark is five.  This rating does not satisfy the provisions of subsection 22(4) of the Act which requires a lifestyle rating of six in order to qualify for EDA.  As a result Mr Clark is not qualified for the payment of the EDA.  The decision of the VRB to continue Mr Clark’s pension payments at 100% of the General Rate is correct.

    DECISION

23. I affirm the reviewable decision.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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Associate

Dated 23 May 2016

Date(s) of hearing	20 April 2016
Counsel for the Applicant	Ms Fiona Ryan
Solicitors for the Applicant	Williams Winter
Counsel for the Respondent	Mr Gerald Purcell