Forrest and Repatriation Commission (Veterans' entitlements)
[2020] AATA 1308
•14 May 2020
Forrest and Repatriation Commission (Veterans' entitlements) [2020] AATA 1308 (14 May 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2015/0300
VETERANS' APPEALS DIVISION )Re: Thomas Forrest
Applicant
And: Repatriation Commission
RespondentDIRECTION
TRIBUNAL: Deputy President Britten-Jones
DATE OF CORRIGENDUM: 1 July 2020
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter:
1. the text in the headnote of the decision by adding ‘from 30 April 2015’ to the end of the headnote; and
2. the text in the reasons for the decision by adding ‘from 30 April 2015’ to the end of paragraph 72
[Sgnd]
...................................................................
P BRITTEN-JONES
(Deputy President)
Division:VETERAN’S APPEALS DIVISION
File Number(s): 2015/0300
Re:Thomas Forrest
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:14 May 2020
Place:Melbourne
The decision under review is set aside and substituted with a decision that the Applicant has a lifestyle rating of at least 6 and satisfies the criteria in s 22(4) of the Veterans’ Entitlement Act so as to be entitled to the extreme disablement adjustment from 30 April 2015.
[Sgnd]
.......................................................................
Deputy President Britten-Jones
CATCHWORDS
VETERANS' AFFAIRS – claim for increase in disability pension – seeking extreme disablement adjustment – dispute as to lifestyle rating – question of causation where impairment results from accepted conditions and non-accepted conditions – whether there is a disadvantage resulting from an accepted condition – calculation of lifestyle rating – decision set aside and substituted with a decision that the Applicant is entitled to the extreme disablement adjustment
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
CASES
Repatriation Commission v Money [2009] FCAFC 11
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87
Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510
Collins v Repatriation Commission (1994) 33 ALD 557
Forrest and Repatriation Commission (Veterans’ entitlements) [2018] AATASECONDARY MATERIALS
Guide to the Assessment of Rates of Veterans’ Pensions (No 2) 2016Order of Snaden J in Thomas Forrest v Repatriation Commission (Federal Court of Australia, VID497/2018, 17 July 2019).
REASONS FOR DECISION
INTRODUCTION
On 4 April 2018 the Tribunal made a decision affirming the Veterans’ Review Board’s denial of an application for an increase to the Applicant’s pension.[1] The Tribunal’s decision was appealed to the Federal Court and was set aside by consent and remitted to the Tribunal for determination according to law. The application of the retired veteran, the Applicant, has been reheard and these are my reasons for allowing the application.
[1] Forrest and Repatriation Commission (Veterans’ entitlements) [2018] AATA.
As was noted in the order made by the Federal Court, the decision under review concerned whether the Applicant met all the requirements prescribed by s 22(4) of the Veterans’ Entitlements Act 1986 (VE Act) for payment of a pension with an additional extreme disablement adjustment (EDA) in relation to his service-related disabilities of bilateral sensorineural hearing loss, lumbar spondylosis, tinea, acquired cataracts in both eyes and post-traumatic stress disorder, accepted pursuant to section 9 of the VE Act (accepted conditions). The Respondent accepts that the Applicant meets all the requirements prescribed by s 22(4) of the VE Act save that the effect on the veteran’s lifestyle of his accepted conditions was less than the minimum required by subsection (c), of a lifestyle rating of 6.
It was noted in the order made by the Federal Court that:[2]
The Tribunal’s reasons contain no findings about how the Applicant’s accepted conditions impaired his personal relationships, mobility, recreational and community activities, employment and domestic activities, what, if any, lifestyle rating it determined best accommodated the Applicant’s circumstances from tables 22.2 to 22.5 or why, or whether, and if so how, it undertook the required comparison and calculation of an overall rating.
There is no evident or intelligible justification in the Tribunal’s reasons for the finding at paragraph 136 that it “accepts the VRB lifestyle rating of an average of 5, although this is probably generous and a more exact figure may be an average rating of 4”. The Tribunal’s findings did not determine what restrictions on mobility, recreational and community activities, domestic activities and e``mployment activities resulted from the Applicant’s accepted conditions, both physical and psychological or what lifestyle ratings from the tables in the Guide best accommodated the Applicant’s circumstances.
[2] Order of Snaden J in Thomas Forrest v Repatriation Commission (Federal Court of Australia, VID497/2018, 17 July 2019).
The parties agreed, as was noted by the Federal Court, that the sole issue for determination is whether, at any stage in the assessment period that commenced on 26 May 2014, the Applicant had the required lifestyle rating. Noting the comments from the Federal Court, I am required to make findings about how the Applicant’s accepted conditions impaired his personal relationships, mobility, recreational and community activities, employment and domestic activities, and what, if any, lifestyle rating best accommodates the Applicant’s circumstances from tables 22.1 to 22.5 of the Guide to the Assessment of Rates of Veterans’ Pensions (5th Edition) (the Guide) so as to calculate an overall rating.
The Applicant applied for an EDA, which 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.[3] EDA is payable if the following criteria are met under s 22(4):[4]
·the veteran is receiving pension at 100% of the general rate;
·the veteran is 65 years old or older;
·the veteran has an impairment rating of at least 70 points; and
·the veteran has a lifestyle rating of at least 6 points.
[3] Veterans’ Entitlements Act 1986 (Cth) s 22(4)(d).
[4] Veterans’ Entitlements Act 1986 (Cth) ss 22(4)(a)(i), 22(4)(b) - 22(4)(c).
It is not in dispute that the Applicant meets all of the criteria except with respect to the lifestyle rating. The rating given to lifestyle must relate to the impairment that the veteran experiences as a result of only those conditions that have been accepted as caused by operational service.
Extreme Disablement Adjustment
As stated above, the only issue in dispute is whether the Applicant has a sufficient rating to be qualified for EDA. To determine if the Applicant has a sufficient rating it is necessary to assess his lifestyle effects, namely the effects of impairment on lifestyle specific to the Applicant.
Guide to the Assessment of Rates of Veterans’ Pensions
Chapter 22 of the Guide provides that 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’.[5] The Guide is part of the law of Australia; it is authorised by the VE Act and has binding effect according to its terms.[6] I will use the term ‘disadvantage’ or impairment as a shorthand for a disadvantage that limits or prevents the fulfilment of a role that is normal for a veteran of the same age without the accepted condition. The effects of impairment on lifestyle are determined by reference to four components of the veteran’s life: personal relationships, mobility, recreational and community activities, and employment and domestic activities.[7]
[5] Department of Veterans’ Affairs, Guide to the Assessment of Rates of Veterans’ Pensions (5th edition) (Commonwealth Department of Veterans’ Affairs, 1997), p 264.
[6] Collins v Repatriation Commission (1994) 33 ALD 557 at 566.
[7] Department of Veterans’ Affairs, Guide to the Assessment of Rates of Veterans’ Pensions (5th edition) (Commonwealth Department of Veterans’ Affairs, 1997), p 265.
The Guide includes tables for the measurement of the effects of lifestyle. The Guide provides that pain, suffering, impaired memory or concentration, or interference with sleep or sleeping arrangements, that result from the accepted conditions must be taken into account. The rating that best accommodates the veteran’s circumstances is to be selected from the descriptions in the tables. Ratings are based on a progressive scale from 0 to 7: the higher the number, the greater the disadvantage or impairment suffered by the veteran resulting from the accepted condition.
A lifestyle effect and causation
There are two elements to a lifestyle effect, in terms of causation, which must be established in order to satisfy the definition and therefore obtain a lifestyle rating. To borrow a phrase from Finn and Edmonds JJ in Repatriation Commission v Money,[8] the lifestyle effect is ‘bifocal in its enquiry’. The first enquiry is to determine a disadvantage or a lifestyle impairment at a level commensurate with the specific circumstances of the veteran. The second is to establish a causative link between that level of disadvantage or impairment and an accepted condition.
[8] [2009] FCAFC 11[7].
With respect to determining the disadvantage, it is the circumstances specific to the Applicant that must be considered in order to determine the appropriate rating. What is the extent of his disadvantage by reference to the four stated components of his life? Having carried out this factual analysis of the extent of impairment, one must then consider whether the disadvantage results from an accepted condition.
With respect to establishing a causative link, there are some principles of causation that can be drawn from workers’ compensation cases that have construed phrases which include ‘resulting from’. There is no doubt that the phrase ‘resulting from an accepted condition’ in the definition of a lifestyle effect raises a question as to causation. Whether a disadvantage or an impairment results from an accepted condition is a question of fact.[9] The relevant inquiry directs attention to whether the accepted condition caused or materially contributed to the impairment.[10] Where the causal chain reveals multiple and sequential (or cumulative) conditions that are alleged to provide causes for an impairment, before an earlier such condition can properly be said to be a condition for the purposes of determining a lifestyle effect, it must be able to be said that it remained an effective or operative cause of the impairment.[11]
[9] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463.
[10] Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87 at 98.
[11] Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510 at 515.
The question as to whether an impairment results from an accepted condition may be clouded by the presence of a non-accepted condition which contributes to the impairment. That is this case. The Respondent accepts, appropriately, that an impairment may result from more than one condition. The accepted condition need not be the sole cause of the impairment, but it does need to be a cause so as to establish that the impairment results from the accepted condition. If it is found that a non-accepted condition is the sole cause of the impairment because the accepted condition plays no role in the impairment, then there will be no lifestyle effect. However, if the impairment results from both a non-accepted condition and an accepted condition then there will be a lifestyle effect if it can be established that the accepted condition caused or materially contributed to the impairment.
THE EVIDENCE AT THE REMITTAL HEARING
The approach on remittal
At the hearing before me, the Applicant gave oral evidence so as to update his evidence of the effects of impairment on his lifestyle. No other witnesses were called by either party. The Respondent tendered a further report received from Dr Horsley dated 22 October 2019. She was not cross-examined on her report. I received into evidence the transcript from the hearings on 23 March 2017 and 23 October 2017 together with the exhibits that were tendered on those days.
The reasons for decision given by the Tribunal on 4 April 2018 (the 2018 reasons) summarised the lay evidence given both in writing and orally by Mr and Mrs Forrest together with the medical evidence consisting of written reports and records from many health professionals and the oral evidence of Dr Kemp and Dr Chambers. I have read the transcript from the hearings in 2017 and the 2018 reasons for decision, and I consider the 2018 reasons provide an accurate summary of the evidence before the Tribunal. I do not propose in these reasons to re-state that summary of evidence. Other than paragraph 136 of the 2018 reasons, which contains the finding for which there was no evident or intelligible justification, there was no criticism made by the Federal Court. The error of the Tribunal was the lack of findings as to how the Applicant’s accepted conditions impaired his personal relationships, mobility, recreational and community activities, and employment and domestic activities. There was no criticism of the findings made with respect to the accepted conditions and the medical evidence generally or the lay evidence. It follows that it is appropriate for me to focus my reasons on what the Tribunal failed to do.
Evidence from the Applicant at the remittal hearing
The Applicant gave evidence as follows. The Applicant and his wife moved to a lifestyle village just after October 2017. It is a small three-bedroom house.
The Applicant walks with a stick at a slow pace. He walks to the local shops which are about 500 m away, but he has to stop every 100 m and have a rest on a bench.
The Applicant rarely leaves the village. His wife occasionally drives him to the shops. If he goes shopping with his wife, he holds onto the trolley and rests on the chairs that are in the shop. His back gets sore and seizes up if he stands too long, so he needs to sit down when shopping. He might help unload the lighter things from the trolley, but it hurts his back to lift heavy things.
The handyman in the village takes out the bins. A cleaning lady helps around the house. The Applicant does not attempt to do anything around the house except for light duties such as to pull up his doona, dry the dishes and get the washing off the line. When standing to dry the dishes he needs to take a break.
He used to be an avid gardener but now he simply waters the pots. His back hurts too much to stand. He cannot use a fork or a spade and he cannot bend because of his back. He uses a pick-up stick because he cannot bend over. He uses a chair out in the garden to water the pots. He has a kneeler with handles. He finds it difficult to get up from the ground and he crawls around to get things. The man next door helped him with the rocks in the garden. The handyman helps with the leaves.
His back has got worse lately. He has difficulty shaving and avoids doing it because he has to stand up. He uses a chair in the shower.
He gave up driving about six or seven years ago after some minor accidents. He had problems feeling the pedals with his feet. When driving he would get a pain in his back that affected his ability to concentrate. He also felt that he had a slow reaction time and could not make decisions quick enough, so he stopped driving completely. He can take a taxi, but he does not like bending down because of his back and therefore he prefers to be driven by his wife in her SUV. Getting in and out of a normal car is difficult. He uses his stick to take the pressure off his back.
He has flown to Canberra twice since October 2017. He required assistance getting on and off the plane. Last Christmas, they flew to Cairns via Brisbane and he spent two days recuperating when he got there. He had to use a wheelchair when he went on a cruise in 2013 and he has not travelled overseas since.
There has been a recent history of 4 falls. He fell when he tripped over in Bunnings. He fell in the backyard and his wife had to come to get him up. Whilst in Canberra he fell and split his head open in a restaurant. He dropped his stick and bent over and slipped off the chair. He needed to go to hospital.
His body shuts down after morning activities and he needs to sleep sometimes for a couple of hours nearly every afternoon. His back pain impacts his concentration. At night he gets up and looks at news sites on his computer.
He reads the paper but not books because he cannot concentrate for long enough.
He gets on well with his wife, but they have no sexual relations due to his back. They sleep in separate rooms. He has a son and a daughter. His son lives in Ballarat about 8 km away. His daughter lives with her husband and two children in Canberra.
He does not see his son very often and he gets disappointed because his son does not help him. His granddaughter does help him sometimes. His daughter does not accept that he has PTSD. He has rare contact with his daughter and his son.
The Applicant occasionally talks to his daughter about her job and he is proud of her. She gets some leave but rarely comes to visit. Usually they go to see them. He plays a role with his granddaughter who is 17 years old. They have been up to Canberra at Christmas time and once they went there to look after the grandchildren.
He has no real friends. He said that he has a budgerigar. He does not like too many people. He does not like to get close to people and avoids crowds. He prefers to stay at home. He does not like people examining him or knowing things about him. He gets worried that something might happen if he tells people things.
He does not interact with the handyman or the cleaning lady. His wife deals with them. He has never been into other people’s houses in the village. It is friendly, but everyone lives separate lives.
His wife has a lot of friends and he goes along with her to visit them perhaps about once a month, but he does not have his own friends. There are no other excursions with his wife except to visit relatives or his wife’s friends about once a month. He does not like going out to places where there are lots of people. There is one couple and a single lady who visits them in their house. One of them helps with his computer.
He used to have a large collection of miniature cars, but he has now sold them and given up that interest because he could not stand and could not use his hands to maintain them.
His mental health is not good at the moment, and he has an appointment booked with the psychiatrist. He said that he sometimes wishes he was not here. When in pain for 24 hours a day he gets frustrated. He has been seeing a psychologist but now needs to see a psychiatrist. Sometimes he gets emotional. Being in pain 24-hour is a day does not help. He gets up in the middle of the night because of the back pain and takes pain medication.
The Applicant agrees with Dr Horsley’s recent report, which says that he has a sitting tolerance of about an hour, but he disagrees that he has a static standing tolerance of 30 minutes. With respect to dynamic standing tolerance he said that would be about 10 or 15 minutes. As to walking at a slow pace for about 500 m he agrees but says that he can only walk 100 m before having to have a rest.
Recent Report from Dr Horsley dated 22 October 2019
Dr Horsley is an occupational physician who prepared a report dated 22 October 2019.[12] She refers to the lumbar spondylosis as the current problem and notes the MRI of his lumbar spine which confirms early degenerative change at all lumbar levels. She says that there is evidence of a small annular tear at L5/S1 which is likely to be an ongoing pain generator. She refers to the report from Associate Professor Chambers, a neurologist, who said that the MRI scan shows age appropriate degenerative disc disease which ‘could be contributing to Mr Forrest’s chronic pain, particularly the proximal lower limb component.’
[12] Exhibit R11, Report from Dr Horsley dated 22 October 2019.
Dr Horsley records the Applicant’s current symptoms as chronic pain in the back and feet. She says that his lumbar spondylosis and bilateral leg and feet pain have a significant impact upon his daily functioning.
As to physical disabilities and their impact on daily functioning, Dr Horsley says that her opinions have not changed from her earlier report. She refers to screening tests showing severe depression with moderate suicidal ideation and severe anxiety.
Dr Horsley says that his functional tolerances have improved since his last assessment and that they are related to a combination of his chronic back pain and chronic leg pain.
She says on the basis of his lumbar spondylosis alone, he has no realistic capacity for work. In addition, his level of disability is significantly compounded by his peripheral neuropathy and the symptoms thereof.
ISSUES AND CONTENTIONS
The focus of the dispute was whether the effects of impairment on the Applicant’s lifestyle resulted from the accepted conditions or from non-accepted conditions. There was no issue of credit with respect to the Applicant. There was no dispute as to what were accepted conditions and what were non-accepted conditions. The accepted conditions that significantly impact on the Applicant’s lifestyle are his diagnosed PTSD and his lumbar spondylosis. His non-accepted conditions that have the greatest impact are the anxiety disorder, diabetes and the peripheral neuropathy.
Respondent contentions as to medical evidence
The Respondent accepts that the Applicant is suffering pain and that the consequences are what he has described. However, the Respondent says that the medical evidence establishes that the cause of the pain is not lumbar spondylosis. The Respondent relies on the radiologist, Dr Shnier, who says that the spondylotic changes are ‘within the expected range for the patient’s age.’ In his report dated 7 September 2015, Associate Professor Chambers says that the predominant explanation for neuropathic pain is peripheral neuropathy and that it is magnified in terms of impact by the Applicant having a heightened sensitivity to pain. In his report dated 8 February 2016, Associate Professor Chambers says that he is still of the view that the underlying cause of the Applicant’s chronic pain condition is likely to be a peripheral neuropathy.
Applicant contentions as to medical evidence
The applicant relies upon the most recent report from Dr Horsley, which says that the lumbar spondylosis and bilateral leg and feet pain both have a significant impact on the daily functioning of the Applicant. The Applicant also relies upon Dr Kemp as the treating physician who provided reports in 2011 stating that the Applicant had real problems with lower back pain which radiates as far as the toes and makes reference to the peripheral neuropathy ‘perhaps clouding the issue’. Dr Kemp gave evidence at the hearings on 23 March and 23 October 2017. He said that the Applicant’s suffering cannot be attributed to peripheral neuropathy.[13] At the hearing on 23 October 2017, Dr Kemp maintained his opinion that the Applicant’s mobility problems resulted from his lower back rather than his peripheral neuropathy but he noted that, since he first saw the Applicant, his peripheral neuropathy has evolved in the clinical arena.[14] He also said that the central pain sensitisation arose out of the lower back condition.[15] His opinion is that notwithstanding the possibility of a peripheral neuropathy component, the vast majority of all his debility is attributable to the lower back.[16]
[13] Transcript p 89.
[14] Transcript p 173.
[15] Transcript p 174.
[16] Transcript p 177.
Consideration of medical evidence
The Applicant was initially diagnosed with lumbar spondylosis in 1970. He experienced ‘seizing up’ of his back and was admitted for a three-week period to the Repat Hospital where he was given traction and diagnosed with lumbar spondylosis. By November 2008 there was an increase in back pain. He was first assessed by his treating physician, Dr Kemp, on 6 July 2010. In the report of Dr Kemp dated 8 June 2011, he refers to the Applicant’s real problems with lower back pain and radiation as far as the toes. He also refers in that report to the documentation of a peripheral neuropathy. The Applicant was then referred to a pain management specialist, Dr Vivian, who provided a report dated 29 August 2011,[17] which said:
The restless leg syndrome is particularly prominent and has been present for a long time… He gets prominent pain that can shoot from the feet of the leg into the back and at times higher. He gets sudden jolts of pain 5-6 times a day. He gets a burning sensation in the legs from the feet up to the knees in particular, and marked sensitivity to touch. He only occasionally gets pins and needles in the legs. The back pain is prominent. It is again burning. He gets a sharp pain in the abdomen shooting from the back when he stands up from sitting. The whole area of the back and at times the abdomen feels burning. He gets a lot of soreness to light touch in the back, such as when wearing a belt or contact with a chair when sitting.
[17] Exhibit R2, Bundle of Documents from UFS p 101.
Dr Vivian’s report refers to pain shooting up from the feet and pain in the abdomen shooting from the back. This wide-ranging pain including all the lower limb muscles is not explained by a diagnosis of peripheral neuropathy.[18] There is another source of pain, namely the lumbar spondylosis. It is apparent from the 2011 reports of Dr Kemp and Dr Vivian that a component of the Applicant’s pain could be explained by the peripheral neuropathy. However, the effect of Dr Kemp’s current evidence is that the vast majority of the Applicant’s current impairment is attributable to the lumbar spondylosis.[19]
[18] See Kemp XN at transcript p 173 lines 31 to 33.
[19] Transcript p 173 and 177.
The evidence from Dr Horsley supports the proposition, and I so find, that the pain giving rise to impairments in the Applicant results from two conditions, namely the lumbar spondylosis and the peripheral neuropathy. Associate Professor Chambers reaches a tentative contrary view in his report dated 7 September 2015 where he says ‘I suspect that the predominant explanation for the neuropathic pain is peripheral neuropathy’. He maintains that opinion in his letter date 8 February 2016 but says ‘I can’t be 100% sure’. The Associate Professor then reviews the MRI scan and says on 7 July 2016[20] that the degenerative disc disease ‘could be contributing to Mr Forrest’s chronic pain, particularly the proximal lower limb component.’ I note that the radiologist, Dr Shnier, later reports that the MRI shows spondylotic changes within the expected range for the Applicant’s age but says:
However, annular tears and apophyseal joint degeneration from time to time can be symptomatic, can cause pain at the level of degenerative change and even cause referred pain.
[20] Exhibit R7, Report from Associate Professor Chambers dated 7 July 2016.
Dr Schnier also refers to the spondylosis and the peripheral neuropathy giving ‘overlap symptoms and radicular pain’. Dr Schnier’s final comment in his report that the spondylotic pain is most unlikely to give diffuse bilateral pain, is contrary to the opinions expressed by Dr Kemp as the treating physician and Dr Vivian, the pain management specialist, so I give it very little weight. Overall, the opinion of the radiologist, Dr Schnier, is consistent with a finding that the annular tear and joint degeneration is likely to be causative of pain for the Applicant.
This analysis of the medical evidence is not determinative of the issue as to whether the Applicant has a lifestyle rating sufficient to obtain an EDA, but it does refute the contention of the Respondent that the cause of the Applicant’s pain is not lumbar spondylosis. The evidence shows that both the peripheral neuropathy and the lumbar spondylosis are causes of the pain suffered by the Applicant. I am satisfied that despite the onset of the peripheral neuropathy that the lumbar spondylosis was an operative cause of the Applicant’s impairments. In addition, the Applicant suffers from PTSD and severe depression which also cause impairments to his lifestyle. These general findings of causation establish that the Applicant has a lifestyle effect (as defined) because he is suffering ‘a disadvantage resulting from an accepted condition’. However, the critical issue for determination is the extent of that disadvantage by reference to the four following components of the Applicant’s life.
ASSESSMENTS OF LIFESTYLE EFFECTS
Personal Relationships
Table 22.1 of Chapter 22 of the Guide lists the rating scale used to assess personal relationships. It reads:
Ratings Criteria
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, veteran’s 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.
The Applicant contends that the rating that best accommodates his circumstances is a 5. The Respondent says that his rating is in the 4 to 5 range, probably 4. I consider the appropriate rating for the Applicant’s personal relationships is 5 for the reasons that follow.
The Applicant suffers from the accepted conditions of PTSD and severe depression. I am satisfied that his accepted conditions have caused the following impairments on his personal relationships.
When serving his country, the Applicant saw close friends die so he now avoids forming relationships with others or making friendships. He maintains very few personal relationships. He has no friends of his own and only sees friends of his wife with whom he has no meaningful relationship. He does not trust others. He does not interact with the cleaning lady or the handyman who both help around the house. He gets on well with his wife but has no sexual relationship with her and they sleep in separate beds. He no longer accompanies her to the movies and the theatre. He has a strained relationship with his son and daughter with whom he has rare contact. His daughter does not accept that he has PTSD. His son lives nearby but does not help much, which disappoints him. He relates well with one or two of his grandchildren, but he does not initiate any contact with them.
A rating of 5 best accommodates his circumstances because his relationships are severely affected and mostly of a low quality.
Mobility
Table 22.2 is used to rate the effect of a person’s incapacity due to service caused conditions on mobility. It reads:
Ratings Criteria
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.
The Applicant contends that the rating that best accommodates his circumstances is a 6. The Respondent says that a rating of 5 is appropriate. I consider that the rating that best accommodates the Applicant’s mobility is 5 for the reasons that follow.
The Applicant’s ability to move about effectively has been severely impacted by his lumbar spondylosis and the pain and concentration loss that it causes. The Applicant no longer drives because of the pain in his back, his inability to feel the pedals and problems concentrating. Dr Kemp gave evidence that his lumbar spondylosis would make it unsafe for him to drive.[21]
[21] Transcript p 70.
With respect to public transport, the Applicant said that there are too many people, it is too crowded and there is too much conflict. He states, ‘I don’t like lots of people and I don’t like people crowding me.’ The Applicant states that it is most difficult to get in and out of trains.[22]
[22] Transcript p 18.
The Applicant is able to walk to his local shop to get the paper. It is about 500 m away and he stops every 100 m or so to rest on a bench. He goes with his wife to do the shopping once a week, but he is dependent on her and could not do this on his own.[23] In recent years he has travelled twice to Canberra and once to Cairns. He is not restricted to his home and immediate vicinity.
[23] Transcript p 96.
I am satisfied that his impairments to mobility result from his accepted conditions, namely the lumbar spondylosis and resulting pain and his PTSD. I would describe his impediments to mobility as major but not severe. The appropriate rating is 5.
Recreational Activities
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.
The Applicant contends that the rating for his recreational and community activities is a 6. The Respondent says that a rating of 5 is appropriate. I consider that the rating that best accommodates the Applicant’s circumstances is 6 for the reasons that follow.
The Applicant used to be a keen (and talented) golfer and tennis player, an avid gardener and a collector of model cars (he had about 14,000 of them) which he maintained. He is now able to engage in very few recreational activities. He has given away his model cars because he can no longer stand and concentrate and because he cannot use his hands to maintain them. Dr Horsley said in her report of 30 April 2015:
He is unable to participate in a lot of tasks around home and is unable to participate in his hobbies and interests. His primary hobby involved die cast cars acquired through opportunity shops – he restores them. He is unable to do this activity because of chronic pain, concentration issues secondary to his post-traumatic stress disorder and depression, and some degenerative change in his fingers resulting in stiffness.
His exercise tolerance has significantly diminished over the last 12 months.
He has not played golf or tennis for years because of his back. His gardening is restricted by his back pain, so he sits on a chair to water the pots and the strip. He no longer reads books because of his difficulty in concentrating. He does not go out to the movies or the theatre because he has difficulty concentrating and sitting for that length of time. He does not take out his grandchildren. He does not engage in any community activities.
I am satisfied that his impairments to recreational activities result from his accepted conditions, namely the lumbar spondylosis and resulting pain and loss of concentration and his PTSD. The rating that best accommodates his recreational and community activities is a 6 because the Applicant is restricted to a few passive recreational activities at home such as listening to the news, reading the paper, looking at the news on the internet and watching TV.
Domestic Activities
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.
TWOAble 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.
The Applicant contends that the rating for domestic activities is a 6. The Respondent says that a rating of 5 is appropriate. I consider that the rating that best accommodates the Applicant’s domestic circumstances is 6 for the reasons that follow.
Dr Horsley was asked about his disabilities and their impact on his daily functioning. She said in her report of 30 April 2015:
The Applicant’s daily functioning is primarily impacted upon by neuropathic pain – mechanical back pain, leg pain, and bilateral foot pain. He has been diagnosed with lumbar spondylosis and a peripheral neuropathy/small fibre neuropathy… These conditions are his primary disability and result in chronic pain and significantly reduced functional tolerances.
The Applicant carries out very limited domestic activities. I am satisfied that the impairments on his domestic activities result from his accepted conditions. Their house was modified to include toilet rails, sliding doors, higher bed bases and other similar things. He uses a chair in the shower and a pick up stick because he has difficulty bending over to pick up things. His back causes him chronic pain all day and night. He takes six Panadeine Forte tablets a day to ease the pain. He has fallen twice in his own backyard and needed his wife to come and help him. His wife helps him put on his socks. His wife does a lot of the work around the house which frustrates him because he says that she is not that well either. He has difficulty standing to wash the dishes. He helps getting the washing off the line and doing the dishes, but he needs to take a break and sit down because of his back and significant discomfort in his legs. This is supported by Dr Horsley who said in her 30 April 2015 report that his independent static standing is 10 minutes and that his dynamic standing tolerance is 10 minutes. More generally, Dr Horsley said:
His lumbar spondylosis/bilateral leg and feet pain – neuropathic pain have a significant impact upon his daily functioning.
The Applicant suffers from chronic neuropathic pain which results in the reduced functional tolerances outlined above and a significant level of disability. He requires assistance with dressing and undressing. He is unable to participate in a lot of the tasks around home and is unable to participate in his hobbies and interests.
The appropriate rating is 6 because he is able to carry out only very limited domestic activities and is dependent on his wife who supervises him around the house.
Calculation of lifestyle rating
To calculate the lifestyle rating I add the four ratings from Tables 22.1, 22.2, 22.3 and 22.4 and divide the number obtained by 4. The result is 5.5 which is rounded up to 6.
As the Applicant has a lifestyle rating of 6, he satisfies s 22(4)(c) of the Act and is therefore entitled to the extreme disablement adjustment.
DECISION
The decision under review is set aside and substituted with a decision that the Applicant has a lifestyle rating of at least 6 and satisfies the criteria in s 22(4) of the Act so as to be entitled to the extreme disablement adjustment from 30 April 2015.
73. I certify that the preceding seventy two [72] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
[Sgnd]
................................................
Administrative Assistant Legal
Dated 14 May 2020
Date of hearing: 12 December 2019
Representative for the Applicant: Mr D Brown, AGS
Representative for the Respondent: Ms F Spencer, instructed by Williams Winter Solicitors
0
6
1