Mason and Repatriation Commission

[2002] AATA 203

DECISION AND REASONS FOR DECISION [2002] AATA 203

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/307

VETERANS' APPEALS  DIVISION       )          
           Re      ALLAN MASON     
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date28 March 2002 

PlaceSydney

Decision      The Tribunal affirms the decision under review.         
  ..............................................
  Dr J D Campbell  Member
CATCHWORDS
Veterans' Affairs - recreation transport allowance - payment at higher rate - qualification requirements

Veterans' Entitlements Act 1986 - section 104

Re Clifford and Repatriation Commission (1988) 14 ALD 721

REASONS FOR DECISION

Dr J Campbell, Member  

1. In this matter Mr Allan Mason ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 14 February 2001 which affirmed the decision of the Respondent dated 12 December 2000, which refused the Applicant's claim for recreation transport allowance at the higher rate, pursuant to section 104 of the Veterans' Entitlements Act 1986.

2. A hearing was held before the Tribunal on 13 February 2002 at which the self represented Applicant presented oral evidence. The Respondent was represented by Ms Phillipa Hook, an advocate from the Department of Veterans' Affairs.

3. The following documentation was placed into evidence before the Tribunal:
   Exhibit No     Description    Date   
   T1-T16 pp1-28 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents")
   A1      Memo on Benign Paroxysmal Positional Vertigo  
   R1      Respondent's Statement of Facts and Contentions     11 February 2002   
   R2      Medical report from Dr Chang      8 October 2001       

issues

1. The relevant issue before the Tribunal is whether the Applicant qualifies for payment of recreation transport allowance ("RTA") at the higher rate, pursuant to section 104 of the Veterans' Entitlements Act 1986.
   legislation

2. The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular section 104.
   background

3. The Applicant lodged a claim for RTA with the Respondent on 26 September 1995. The Respondent, in a decision dated 1 February 1996, granted the Applicant RTA to be paid at the lower rate with the date of effect being 28 September 1995 (T13).

4. On 1 December 2000 the Applicant lodged an application for RTA at the higher rate (T7) in which he indicated that:

• he had negligible powers of locomotion i.e. only short distances can be covered with the aid of crutches or walking sticks;

• the disability that affected his powers of locomotion was perceptive deafness with vertigo; and

• he had difficulties with steps and escalators, because of balance.

1. On 12 December 2000 the Respondent decided that RTA should continue to be paid to the Applicant at the lower rate (T5). Following a request by the Applicant for reassessment of his claim on 16 January 2001 (T4), the Respondent in a decision dated 14 February 2001 affirmed the decision of 12 December 2000 to continue to pay the Applicant's RTA at the lower rate (T2). The Applicant appealed to this Tribunal on 28 February 2001 (T1).
   applicant's evidence

2. The Applicant told the Tribunal that he was born on 7 February 1921 and that he had lived in Rose Bay all his life. Further, he had been married for fifty six years and had served in artillery both in Australia and overseas during World War II.

3. The Applicant told the Tribunal of his hearing impediment, which started during World War II. The Applicant spoke of his increasing difficulties over the years with hearing, in his right ear more than in his left ear, and with vertigo, with an increasing tendency to veer to the right, coupled with episodic giddiness, loss of balance and ever increasing tinnitus. The Applicant further stated that these particular difficulties had worsened over the last ten years, and the episodes could occur once a week to once a fortnight. He also stated that during this period he would find it best to remain in bed for periods of up to three days.

4. The Applicant told the Tribunal that he had surrendered his driving licence at the age of 80 as a result of particular medical advice. Further the Applicant stated that he tried to be out and about as much as possible with all trips from home to other activities being by taxi or by car driven by others. He finds that the glare of oncoming headlights at night causes him to blink, and as a result he tends to look continually towards the floor when riding as a passenger. The Applicant said that he was unable to use public transport because of this and other ?disabilities.

5. The Applicant stated that his condition had deteriorated significantly in the last five years and that his outings from the house included shopping each Friday with his wife (by taxi), attendance at the RSL Club each Wednesday to carry out his treasurer's duties (by taxi) and occasional outings by car.

6. In further discussion the Applicant indicated that on a good day he had the ability to walk and undertake the activities described above. However, his walking was restricted in distance and duration because of difficulties with his knees (right more so that his left) and his back. He used a stick to assist with his mobility. The Applicant stated that he enjoyed reading, but was concerned that he might become house bound, which he believed was not in his interest. The Applicant indicated that he has had a number of falls because of his condition, one of which occurred when he attended the Sydney Football Stadium in 2001.
   other evidence

7. In a medical report dated 8 October 2001, Dr Chang, the Applicant's treating Consultant in Otolaryngology, detailed the following (Exhibit R2):

   " On the 29th August 2001 I reviewed Allan Mason, a 78 year old gentleman with bilateral progressive sensorineural hearing loss and marked imbalance. Mr Mason's imbalance limits his ability to walk without resting. Presently his ambulation is unstable and there have been a number of occasions where he has fallen to the floor. There does not appear to be any prodromal symptoms that warn him when he is about to fall. Mr Mason is unable to walk more than 50 metres without fear of falling. At this stage I have recommended a walking stick and vestibular rehabilitation at St Vincent's Hospital.
   At this stage I do not believe that Mr Mason is fit to drive. He does require assistance by another person when he has significant episodes of imbalance. Mr Mason is able to use public transport but only with assistance. There is no medication that will presently improve Mr Mason's vestibular function. This condition is likely to be constant. I believe that Mr Mason's condition is category number 10."

submissions

1. The Applicant contended that his war caused disability caused him handicap to his locomotion to the degree that it was similar to, or worse than, handicap to the locomotion of an individual with either both legs amputated above the knees, or with negligible powers of locomotion, so as to be capable of moving with the aid of crutches or walking sticks, for short distances only. In so submitting, the Applicant contended that his war caused condition prevented him from using aids to locomotion such as electric scooters, or wheelchairs.

2. The Respondent contended that the Applicant's incapacity from accepted disabilities does not satisfy the requirements nominated in categories 1, 2 or 3 within section 104 of the Act. In making such a contention, the Respondent relied upon the report of Dr Chang, a Consultant Otolaryngologist, dated 8 October 2001 (Exhibit R2), in which Dr Chang concluded that the Applicant's condition should be categorised as 10 under column 1 within section 104 of the Act.
   consideration and findings

3. In preliminary consideration the Tribunal notes the following disabilities which have been accepted as war caused:

• dyspepsia;

• solar keratoses;

• dental caries;

• recurrent ulcers of mouth with cervical adenitis;

• cholelithiasis with cholecystectomy and incisional hernia;

• recession of gums;

• functional diarrhoea;

• anxiety state with perianal pruritis;

• dyshidrotic eczema; and

• perceptive deafness with vertigo.

1. The Tribunal also notes the following list of disabilities which have not been accepted as war caused:

• hammer toes;

• lumbar spondylosis with fibrositis;

• allergic conjunctivitis with bacterial infection superimposed;

• tinea pedis;

• arthralgia left knee;

• hiatus hernia;

• urticaria;

• proctitis;

• leakage from bowel;

• ischaemic heart disease; and

• vertebro-basilar insuffficiency.

1. The Tribunal, in recognising the Applicant's difficulty with hearing, considered that the Applicant's presentation of his evidence and his response to questions was refreshingly succinct and not in any way self serving. In the Tribunal's view, the Applicant described the effects of his war caused incapacity (bilateral perceptive deafness with vertigo) in a frank and realistic fashion, and in like fashion described the effects on his ability to walk by non accepted conditions (right and left knee problems, low back problems).

2. The Tribunal, having reviewed all the evidence, concludes that the Applicant's  war caused incapacity of bilateral sensorineural deafness with vertigo, affects his locomotion in the following ways:

• The Applicant has episodic disturbance of his balance, together with giddiness and this causes him to fall.

• The episodes occur on average once a week to once a fortnight and last from a brief period of time to up to three to four days.

• The episodes are associated with sudden movement of the head, and movement to the upright position. The Applicant is able to recognise when he is going to have a bad day and generally stays in bed.

• The Applicant's locomotion is much restricted on days when he has an episode, as his dizziness restricts his capacity to move from the horizontal.

• On good days the Applicant is able to walk, with the assistance of a stick, with his limitation in distance being restricted by his knees (right more so than left) and his lumbar spondylosis, the latter skeletal disabilities being non accepted conditions.

• The Applicant is limited to walking 50 metres because of balance difficulties, but is able to travel by taxi to do shopping with his wife on Fridays and attend to the duties of treasurer at his RSL club for a few hours each Wednesday.

• The Applicant does not use public transport, but if was to do so, his use would be severely limited by his accepted and non-accepted disabilities and he would need to be accompanied because of his balance difficulties.

• The Applicant is able to walk around his home and potter in the small garden (his neighbour tending to significant issues regarding the garden), with most of his day spent sitting and reading.

statutory framework

1. The Tribunal notes section 104 of the Act which relevantly states:

   "Recreation transport allowance
   (1) Subject to this section, the Commission may grant an allowance, called recreation transport allowance, to a veteran who is suffering an incapacity from a war-caused injury or a war-caused disease of a kind described in column 1 of the following table:

Column 1     Column 2    
Description of incapacity            Rate per fortnight $           
1. Both legs amputated above the knees      44.80          
2. Negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only         44.80          
3. Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar to the degree of handicap with regard to locomotion associated with a disability described in item 1 or 2          44.80            
4. Both arms amputated at or above the wrists        22.40          
5. Both legs amputated below the knees      22.40          
6. One leg amputated above the knee and the other below the knee         22.40          
7. One leg amputated above or below the knee and one arm amputated below the elbow           22.40            
8. Blinded in both eyes         22.40          
9. Incapacitated to an extent that, in the opinion of the Commission, is similar in effect or severity to the extent of incapacity associated with a disability described in item 4, 5, 6, 7 or 8    22.40          
10. Handicapped with regard to locomotion to a degree that, in the opinion of the Commission, is similar in degree to the handicap with regard to locomotion associated with a disability described in item 5, 6, 7 or 8              22.40          

1. The Tribunal observes that the higher rate of RTA is to be paid when both the veteran's legs are amputated above the knees; or when the veteran has negligible powers of locomotion so as to be capable of moving, with the aid of crutches or walking sticks for short distances only; or, alternatively, when the veteran is handicapped with regard to locomotion to a degree that is similar to that of the two incapacities mentioned earlier in this paragraph.

2. The Tribunal also notes the decision in Re Clifford and Repatriation Commission (1988) 14 ALD 721, where negligible powers of locomotion were considered at 727:

   " The remainder of the item description, 'so as to be capable of moving, with the aid of crutches or walking sticks, for short distances only' appears to be descriptive of the negligible powers of locomotion. That is, the veteran's negligible powers of locomotion must be such that the veteran is capable of moving only short distances even if the veteran uses aids in the form of crutches or walking sticks. The corollary is that if the veteran is capable of walking long distances with the aid of crutches or walking sticks, then the veteran would not be regarded as having negligible powers of locomotion."

3. In considering the effect of the Applicant's war caused disability of bilateral sensorineural deafness with vertigo, the Tribunal concludes that the Applicant is restricted to walking short distances only on the days on which he has an episode, while on the other days, which are very much in the majority, the Applicant has the ability to walk distances which cannot he described as negligible. Further, the Tribunal observes that the Applicant's locomotion is restricted by his non-accepted disabilities in his knees and low back, and also observes the opinion of Dr Chang.

4. The Tribunal recognises the episodic nature of the Applicant's disability and the difficulties that this imposes on the Applicant's ability to walk during an episode. Nevertheless, the Tribunal concludes that the Applicant's war caused disability does not handicap his locomotion to the degree of an individual who has negligible powers of locomotion so as to only be able to move short distances with the aid of a walking stick. Nor is the handicap similar to the situation where a veteran has both legs amputated above the knee. In so finding, the Tribunal recognises the permanency of the condition as nominated in columns 1 and 2 where the incapacity is described, while distinguishing the current situation on the variability of the Applicant's ability to walk, with a capacity to walk greater than negligible distances on a significant majority of days.
   decision

5. The Tribunal finds that for the reasons outlined, the Applicant does not qualify for RTA at the higher rate, and therefore determines that the decision under review is affirmed.

   I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

   Signed: O. Caragianni            .....................................................................................
     Associate

   Date of Hearing  13 February 2002
   Date of Decision  28 March 2002
   Self-represented Applicant       
   Advocate for the Respondent  Ms P Hook