Hetzel and Repatriation Commission

[2003] AATA 1011

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2003] AATA 1011

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/355

VETERANS' APPEALS  DIVISION		)
Re		COLIN ARTHUR HETZEL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date22 September 2003

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review. 

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements –  Disability Pension – whether veteran’s war-caused conditions are appropriately assessed at 100% of the general rate – whether Extreme Disablement Adjustment rate is payable – whether effects of war-caused condition on veteran’s lifestyle is such that an overall lifestyle rating of at least 6 is warranted

Veterans’ Entitlements Act 1986 section 22

ORAL REASONS FOR DECISION

22 September 2003   Senior Member WJF Purcell         

1.      This is an application for review of a decision of the Repatriation Commission (the Commission) dated 24 May 2002, which refused the veteran’s claim for an increase in Disability Pension, and continued his pension for war-caused conditions at 100% of the general rate.  The Veterans’ Review Board affirmed this decision on 26 August 2002.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with an exhibit tendered by the veteran, who was represented by Mr White, and gave oral evidence.  Mr Crowe represented the Commission.

3.      The veteran, who is 81 years of age, served in the Australian Army (the Army) during Word War II, and had operational service in the South West Pacific area.  He has been in receipt of Disability Pension at 100% of the general rate since about July 1998, in respect of his accepted war-caused conditions of malaria, dermatitis, chronic appendicitis, irritable colon, acquired cataract in the right eye, acquired cataract in the left eye, ischaemic heart disease, osteoporosis, chronic bronchitis and emphysema.  On 30 April 2002 the veteran lodged an application for an increase in pension.

4. The veteran asserts that he is entitled to pension at the Extreme Disablement Adjustment (EDA) rate, in accordance with section 22(4) of the Veterans’ Entitlements Act 1986 (the Act), which provides:

“(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 increased by 50% of the maximum rate set out in subsection (3).”

5.      It is not in dispute between the parties that the veteran has the necessary impairment points for the EDA rate, namely 70 points or more, and is over 65 years of age.  What remains an issue is his lifestyle rating, and whether or not he has an impairment rating of 6 or more points for lifestyle.  The veteran submits that he should have the following assessments:

(a)      Personal relationships  5

(b)      Mobility  5

(c)       Recreational and Community activities    6

(d)      Domestic activities  6

In relation to personal relationships, in accordance with Table 22.1 of the Guide to the Assessment of Rates of Veterans’ Pensions (GARP), a rating of 5 requires:

“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.”

In relation to mobility, in accordance with Table 22.2 of GARP, a rating of 5 requires:

“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.”

In relation to recreational and community activities, in accordance with Table 22.3 of GARP, a rating of 6 requires:

“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.”

In relation to domestic activities, in accordance with Table 22.4 of GARP, a rating of 6 requires:

“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.”

6.      The Commission contends that the veteran is appropriately assessed for his Disability Pension at 100% of the general rate, and that he does not satisfy the criteria necessary to qualify for the EDA rate.  It contends that the appropriate assessments are:

(a)      Personal relationships  4

(b)      Mobility  4

(c)Recreational and Community activities    5

(d)Domestic activities  6

In relation to personal relationships, a rating of 4 requires:

“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.”

7.      In relation to mobility, a rating of 4 requires:

“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.”

8.      In relation to recreational and community activities, a rating of 5 requires:

“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.”

In relation to domestic activities, the Commission endorses the rating of 6 as submitted by the veteran.

9.      The veteran gave his evidence clearly, succinctly, and without embellishment or exaggeration, and I accept his evidence.

10.     Addressing the assessments in turn:

(a)  personal relationships

11.     The veteran gave evidence that he used to have good personal relationships, but now with the constant severe pain in his back he is often bad-tempered and short with people, "a bit cranky".  Because of the pain he loses track of what is going on.  He used to play pennant bowls, and enjoy the company of other players, but now that he gets breathless carrying the bowling balls, and is unable to travel long distances, he has been forced to give up pennant bowls, plays social bowls rarely, and played indoor bowls until March 2003.  His social contact is limited to his immediate family, a bowling friend of long standing, and attending the bowls club from time to time to watch players.  By June 2002 he was unable to continue as State Vice-President of the RSL, a position he had held for 7 years.  He was a member of the State Board for 14 years, and has now lost social contact with his former colleagues.

12.     I consider, on the whole of the evidence, that the veteran's personal relationships have been affected by his disabilities.  He continues to have a relationship with his 2 sons, 3 daughters and 3 grandchildren, and would be able to continue the relationship with former colleagues and bowlers, although “a bit cranky at times”, if it were not for the major disabilities affecting his back, and his breathlessness.  In my view he does not fulfil rating 5 as he asserts, but that a rating of 4 is appropriate.

(b)  mobility

13.     The veteran gave evidence that he can walk about 100 yards before needing to sit down because of breathlessness.  He can drive his car for about half an hour at a stretch because of back pain, and if he over exerts himself, and becomes breathless, this brings on his bladder problems.  He cannot stand for long because of back pain, and he has difficulties with showering as the shower is over the bath.  He has recently commenced physiotherapy treatment for his back pain on his treating general practitioner’s advice.

14.     I consider that on the evidence, the veteran is able to drive for up to half an hour and walk for 100 yards.  He is not dependant on others or mechanical devices such as wheelchairs; he does not, in my view, satisfy the balance of the criteria for a rating of 5.  In my view a rating of 4 is appropriate.

(c)  recreational and community activities 

15.     The veteran's bowling and RSL activities are severely affected because of his disabilities.  He reads a little, enjoys listening to music, watches television, and every 3 weeks or so, he and his wife go to the pictures at the Marion shopping complex.  Because of his breathlessness, he has stopped swimming, and now simply walks in the water at the beach.

16.     In my view, although his recreational activities are reduced and restricted by his disabilities, he is not restricted to a few passive activities, and his condition does not satisfy the balance of the criteria for a rating of 6.  I am satisfied, on the evidence, that a rating of 5 is appropriate.

(d)  domestic activities

17.     On the veteran's evidence, he is now unable to undertake the domestic duties he used to perform to assist his wife; and his condition has deteriorated even further over the last 12 months.  He can no longer vacuum, mow the lawn, do the gardening and pruning as he did in the past.  Domiciliary Care now assists with the housework.  He pays a man to cut the lawn, and his son sometimes does some weeding on the weekend, and takes the dog for a walk, as the veteran can no longer do this.

18.     Both parties submitted that a rating of 6 was appropriate, and I consider, on the whole of the evidence, that this submission should be accepted.

19. Adding together the lifestyle ratings of 4, 4, 5 and 6, gives a total of 19, which gives a final lifestyle rating of 5. To be eligible for the EDA rate, pursuant to section 22(4) of the Act, a lifestyle rating of at least 6 points is required. The veteran's application cannot succeed.

20.     For these reasons the Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .......................................................................................
  Associate

Date of Hearing  22 September 2003
Date of Decision  22 September 2003
Counsel for the Applicant         Mr T White
Solicitor for the Applicant          Tindall Gask Bentley
Counsel for the Respondent     Mr A Crowe
Solicitor for the Respondent     DVA