Fry and Repatriation Commission
[2006] AATA 66
•25 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 66
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/324
VETERANS' APPEALS DIVISION ) Re JOHN KENNETH FRY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date25 January 2006
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – rate of pension payable – extreme disablement adjustment – lifestyle rating less than 6 – decision affirmed
Veterans’ Entitlements Act 1986 s 22
REASONS FOR DECISION
25 January 2006 Mr J G Short (Member) introduction
1. The applicant, Mr John Fry, lodged a claim for acceptance of conditions later diagnosed as ischaemic heart disease, ischaemic optic neuropathy (left), retinal haemorrhage (right) and cardiomegaly. By decision dated 5 June 2003 the respondent (the Commission) rejected the application. On 9 March 2004 the Veterans’ Review Board (VRB) accepted all of the diagnosed conditions as war-caused, except for the condition of cardiomegaly. The VRB remitted the issue of assessment to the Commission for determination. On 24 March 2004 the Commission assessed Mr Fry’s entitlement to pension at 100 percent of the general rate. Mr Fry appealed this issue of assessment to the VRB, and on 30 August 2004 the VRB affirmed the assessment decision. On 29 September 2004 Mr Fry lodged an appeal to this Tribunal.
2. It was common ground between the applicant and the Commission that Mr Fry’s degree of incapacity was 100 percent, he was more than 65 years of age as at the date of his claim and he was not entitled to payment of pension at either the special or intermediate rates. It was also agreed that Mr Fry’s impairment rating was of at least 70 points. I find, on the evidence before me, that the only other criterion which Mr Fry needs to satisfy in order to be entitled to receive the extreme disablement adjustment (EDA) is that of a lifestyle rating of at least 6 points.
issue for determination
3. In the light of the above mentioned findings, the only remaining issue before the Tribunal is whether Mr Fry satisfies the second limb of s 22(4)(c) of the Veterans’ Entitlements Act 1986 Act (the VE Act), that is whether, during the assessment period, Mr Fry had a lifestyle rating of at least 6 points according to the most recent edition (5th edition) of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP).
legislation
4. Section 22 of the Act reads as follows:
“(1)This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2)Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3)For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(4) Where:
(a) either:
(i)the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii)a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
(b) the veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and
(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is $433.65 per fortnight.
(5)For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
(a)the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
(b)amounts are being deducted from the pension under section 30P, 79 or 205; or
(c) the pension has been suspended under subsection 31(6).”
evidence and background
5. Mr Fry’s accepted disabilities are dermatitis, otitis externa, refractive error with conjunctivitis, gastro intestinal allergy, allergic state, haemorrhoids, sensorineural deafness, chronic bronchitis and/or emphysema, ischaemic heart disease, ischaemic optic neuropathy (left) and retinal haemorrhage (right). Mr Fry also has the following rejected disabilities: essential hypertension, bundle branch block, hiatus hernia, obesity and cardiomegaly.
6. Mr Fry provided evidence in relation to each of the lifestyle categories described in chapter 22 of GARP. Mr Fry said that the accepted disabilities, ischaemic heart disease producing angina and shortness of breath, and chronic bronchitis and emphysema, also producing shortness of breath and chest pain, were the conditions which primarily affected his lifestyle. He also referred to his virtual blindness in his left eye. He said that his right eye was “a bit short on sight”. He said that he had difficulty seeing things up close, but that sight over long distances was “not too bad”.
7. In relation to his mobility, Mr Fry said that he uses a walking stick. He later explained that this was primarily due to a non-accepted condition of arthritis of his right knee. He said that in the past he could walk 100 metres on the flat, but was now limited to about 40 metres before needing to stop to rest to alleviate chest pain and shortness of breath. Mr Fry said that he no longer drives a motor vehicle although he believed he could drive a vehicle in an emergency. He said that he uses his “gofer” each day to travel approximately one kilometre into a country South Australian town in order to collect his mail and perhaps to purchase bread or milk or other necessary items. Mr Fry said that the only difficulty he experienced in travelling in his “gofer” was that after travelling up a steep hill on the return journey his “gofer” batteries needed to be recharged. He attends to this. Mr Fry said that there are buses which travel from his home to Adelaide, however he finds the steps quite steep. He said that he can and does use buses around the city of Adelaide as those bus steps are lower. Mr Fry also said that he drives his “gofer” to watch bowls once a fortnight and to attend Legacy meetings once every two months.
8. In relation to recreational and community activities, Mr Fry described a history of having been very active in Legacy and as a freemason. Mr Fry said that he was now on the reserve list at Legacy. He said that he is still available if he is needed. He said that he ceased assisting widows with their pension claims as he found it difficult to explain why some widows are entitled to a gold card and others are not. He said that he became anxious when having to provide widows with disappointing news. Mr Fry said that he is still a financial member of the Freemason’s Lodge, but that he ceased attending meetings approximately 10 years ago.
9. Mr Fry said that in the past he greatly enjoyed playing bowls. He said that he no longer plays. He said that he believes he could play, particularly fill the role of a number 2 in a team, however he had been advised by a Legacy representative that “DVA doesn’t like it”. Mr Fry said that he attends bowls as an observer on a fortnightly basis. Mr Fry watches TV and talks with friends when they visit. He said that he has five close friends and has retained a number of friendships at bowls although he does not see these people as often as in the past. Mr Fry said that he can recall one occasion when he collapsed at bowls, however he said this was some time ago and that the problem was solved when a pacemaker was fitted. He has not had a blackout since.
10. In relation to his domestic activities, Mr Fry said that he does as little as possible around the house. He said that his wife does virtually all of the domestic chores. Mr Fry said that if called upon, he could water a garden and could do some cooking. He thought that he could cook a barbeque. He also considered that he could change bed linen, although he could not turn over a mattress. He also considered that he could sweep if necessary, and could dry dishes. He said that he was unlikely to be able to weed or prune. Mr Fry said that in the past he enjoyed his hobby of coin collecting, however his limited eyesight now reduced his interest in that activity. He said that he manages to read a newspaper by using a magnifying glass.
11. In reference to his personal relationships Mr Fry said that he gets on well with his friends and with his nieces and nephews on both sides of the family. He did not anticipate any problem in meeting and communicating with new people so long as those people did not have views significantly different to his. He said that he has been married for 60 years and although his relationship is different to the way it was 60 years ago, he is still with his wife. He has no children. Mr Fry said that he now spends less time socialising. He said that he doesn’t go out as much as he used to because of his age, eyesight, and health. In relation to his health, Mr Fry described the difficulties with his legs and with angina. Mr Fry said that he has a friend who visits periodically and that they enjoy watching a game of football together and sometimes playing a game of pool.
12. Mr Fry’s local medical officer, Dr Philip Gribble, provided evidence generally in terms of his report 11 May 2005 (Exhibit A2) in relation to Mr Fry’s lifestyle. In his evidence-in-chief, Dr Gribble suggested lifestyle ratings of 6 for each of mobility, recreational and community activities and domestic activities. In relation to personal relationships, he suggested a lifestyle rating of 4. In cross-examination, Dr Gribble said that he had not fully understood the method prescribed in chapter 22 of GARP for assessing a veteran’s lifestyle. He also indicated that he only saw Mr Fry in his consulting room or at the Chain of Ponds Hospital. He said that he was not aware of the number and nature of relationships Mr Fry had with his family and friends. He said that Mr Fry’s non-accepted condition of prostate cancer had been diagnosed before he took over Mr Fry’s care. He explained that he had forgotten that Mr Fry had a right knee replacement which affected his mobility. Dr Gribble also said that he found it difficult to artificially dismiss Mr Fry’s non-accepted disabilities from his mind when trying to assess Mr Fry’s lifestyle.
13. A summary of the evidence which Mr Fry had provided to the Tribunal was in my view put fairly to Dr Gribble. Dr Gribble was invited to indicate whether, in the light of that evidence, and on the assumption that the evidence was correct, he would now amend the ratings he had provided under the four lifestyle categories. Dr Gribble said that on this basis he would now ascribe ratings for each of domestic activities, mobility and recreational and community activities at 5, and that the rating he had provided for personal relationships of 4 may arguably be 3. Dr Gribble did say however that he thought Mr Fry may be exaggerating his ability to perform tasks around the home.
consideration
14. I remind myself that in considering assessment issues I am to make findings on the balance of probabilities. Mr Fry’s credibility was not attacked and I am satisfied that he did all in his power to provide the Tribunal with an accurate picture of how his accepted disabilities have affected his lifestyle. It is to Mr Fry’s credit that he remains as active as he does. In relation to his domestic activities, I find that Mr Fry’s household activities are limited to a small range of light tasks and that these activities should be ascribed a rating of 5. Similarly, I consider that ratings of no more than 5 are appropriate for Mr Fry’s recreational and community activities and for his mobility. I consider that his personal relationships are moderately affected and that a rating of 3 appropriately reflects his circumstances.
15. Lifestyle ratings of 5, 5, 5 and 3 total 18 and average (with appropriate rounding) 5. I consequently find that Mr Fry does not satisfy the second limb of the criterion described in s 22(4)(c) of the VE Act, that is that he have a lifestyle rating of at least 6 points. In these circumstances the decision under review is affirmed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: ..........J Coulthard............................................
AssociateDate of Hearing 19 December 2005
Date of Decision 25 January 2006
Counsel for the Applicant Mr G Hemsley
Solicitor for the Applicant Graeme D Hemsley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
0
0
0