Deegan and Repatriation Commission
[2001] AATA 40
•25 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 40
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2000/152
VETERANS' APPEALS DIVISION )
Re ARCHIBALD JOHN DEEGAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member)
Date25 January 2001
PlaceHobart
Decision The decision under review is affirmed.
[Assoc Professor B W Davis AM]
Part-Time Member
CATCHWORDS
Veterans' Appeals – disability pension – general rate – extreme disablement adjustment – Veterans' Review Board – impairment – lifestyle – GARP (Guide to Assessment of Rates of Veterans' Pensions).
Veterans' Entitlement Act 1986
Guide to Assessment of Rates of Veterans' Pensions, Fifth Edition, 1998.
REASONS FOR DECISION
25 January 2001 Associate Professor B W Davis AM (Part-time Member)
The Application
The applicant, Archibald John Deegan, sought review of a decision made by a delegate of the Repatriation Commission on 7 April 2000, subsequently affirmed by a decision of the Veterans' Review Board on 23 October 2000, whereby the applicant's disability pension was continued at 100 percent of the General Rate.
BackgroundMr Deegan suffers from a number of medical conditions, some of which have been determined as war-caused, including tinea, basal cell carcinoma, carcinoma, nervous disorder, coronary artery disease and hypertension, with other maladies determined as not war-caused i.e. eczema, sebrrhoeic keratoses and restrictive lung disease.
Mr Deegan did not contest the impairment rating of 75 points determined by a delegate of the Repatriation Commission on 7 April 2000, but considered that the lifestyle rating was incorrect and that his general disability situation warranted pension including the Extreme Disablement Adjustment provided for by s.22 of the Veterans Entitlements Act 1986 ("the Act").
As this appeal relates to assessment only, the standard of proof is that contained in s.120(4) of the Act.
The respondent conceded that the applicant satisfied the requirements of ss.22(4)(a)(i), (b) and (d) and that part of s.22(4)(c) providing an impairment rating of at least 70 points, but did not concede that the lifestyle rating should be at least 6 points. The respondent stated this was a matter for the Tribunal to determine on the evidence.
The EvidenceAt the hearing, Mr Deegan was represented by Mr R M Webster. Mr M Castle appeared for the respondent.
Mr Deegan was sworn and gave evidence. He appeared a truthful witness and under examination by counsel described his medical condition and lifestyle in some detail. He claimed poor quality of life, not only from his medical situation, but because of poor hearing and other factors, found difficulty in dealing with others and suffered some tensions in being largely confined to his household. It became apparent that the applicant's situation was one where he was suffering a major loss of motivation and morale, become less active than perhaps his limited physical condition might allow.
Analysis.The Tribunal is required to stand-in the position of the decision-maker, giving due weight to statutory provisions and guiding principles, but also giving appropriate consideration to contextual factors. The Tribunal does not have to accept prior decisions.
The uncontested disability impairment rating of 75 points, relies mainly on cardio respiratory impairment, but also notes nervous disorder, hearing impairment and tinnitus as well as skin disorders and tinea. Mr Deegan drew attention to some difficulties in walking and growing reliance upon a stick as aid.
There is some disagreement amongst commentators on his lifestyle rating. The delegate of the Repatriation Commission making the initial determination on 7 April 2000 evaluated the situation as follows:
Personal relationships - 4
Mobility - 5
Recreational and community activities - 5
Domestic and employment activities - 6
Combined these produce an overall lifestyle rating of 5, which together with the impairment rating of 75 points, gives a pension assessment of 100 per cent of the General Rate.
At the Veterans' Review Board hearing held on 23 October 2000, Mr. Deegan's advocate (Mr Alf Dilba) suggested the following lifestyle factors as appropriate: Personal relationships – 5, Mobility – 5, Recreational and community activities – 6, Domestic Activities – 6. During the hearing counsel for the respondent (Mr Castle) gave his personal view as follows: Relationships 3, Mobility 3, Community 4 and Domestic 5.
The Tribunal has considered these views, evidence presented by the applicant and noted GARP (Guide to the Assessment of Rates of Veterans' Pensions). The Tribunal's determinations are as follows:
(a) Relationships:Unsatisfactory in some ways, but partly attributable to choices made by the applicant. Less time spent socialising than previously. Rating 4.
(b) Mobility:
Now restricted by walking difficulties, but still able to use a vehicle for limited trips and travel by air on occasions. Rating 5.
(c) Recreational and community activities:
Finds it hard to engage in conversation, so does not socialise and rarely visits his club. Rating: 5 possibly 6.
(d) Domestic activities:
Very limited home activities, perhaps because his wife and neighbours assist. Disability or low morale lifestyle? Rating: 5 possibly 6.
The combined score is 5 whether the lower or higher ratings are adopted. Combined with the disability rating of 75 points, this confirms the initial decision of a 100 percent General Rate pension and does not indicate that an Extreme Disablement Adjustment is currently warranted.
DecisionThe decision under review is affirmed.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 17 January 2001
Date of Decision 25 January 2001
Solicitor for the Applicant Mr R M Webster
Solicitor for the Respondent Mr M Castle (Dept of Veterans' Affairs)
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