Reinhard and Repatriation Commission
[2008] AATA 1135
•19 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1135
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2565
VETERANS' APPEALS DIVISION ) Re LINDSAY REINHARD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date19 December 2008
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant’s disability pension is assessed at 70% of the General Rate with effect from 8 July 2006.
....................[sgd]..........................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – assessment of general rate – lifestyle effects of accepted conditions – decision under review set aside
Veterans’ Entitlements Act 1986 – Section 120
Guide to the Assessment of Rates of Veterans’ Pensions
REASONS FOR DECISION
19 December 2008 Ms N Isenberg, Senior Member BACKGROUND
1. Mr Reinhard, a Vietnam veteran, has the following conditions accepted as war or defence-caused:
· osteoarthrosis of the left knee;
· fracture of the right ankle;
· osteoarthrosis of the right knee;
· osteoarthrosis of the left ankle.
2. His disability pension has been assessed by the Veterans’ Review Board (VRB) at 60% of the General Rate with effect from 8 July 2006.
3. Mr Reinhard contends that he has been inadequately assessed.
LEGISLATION
4. Once an injury or disease has been accepted as war-caused or defence-caused, the degree of incapacity must be assessed using the Guide to the Assessment of Rates of Veterans’ Pensions (GARP). GARP sets out how medical impairment and the effects on a veteran’s lifestyle is to be measured. It provides rules for converting these measurements to a “degree of incapacity”, from 10% to 100%, in 10% increments.
5. Incapacity is assessed by considering it as being made up of two elements: medical impairment and lifestyle effects.
6. Lifestyle effects involves the following elements:
· personal relationships;
· mobility;
· recreational and community activities; and
· domestic activities and employment activities.
7. Only the effects of the war, or defence-caused, injuries and diseases are considered when assessing lifestyle.
8. The final impairment and lifestyle ratings are converted into a General Rate pension by reference to Scale 23.1 of GARP.
9. I have to decide the correct rate of pension to be paid, on the balance of probabilites: s 120(4) of the Veterans’ Entitlements Act 1986.
ISSUE
10. It was agreed that the period under review commenced on 8 July 2006. I am to assess up to that date.
11. There was no dispute as to the impairment ratings which had been attributed to Mr Reinhard’s various conditions by the VRB:
· 30 impairment points from 8 July 2006.
· 35 impairment points from 8 February 2008, the date of Medical Impairment Assessments completed by Dr Pearce, Mr Reinhard’s GP.
12. The only issue that remained in assessing Mr Reinhard’ pension was the lifestyle effects of his accepted disabilities. Once the lifestyle effects are determined I am able to assess the correct rate of pension payable to Mr Reinhard from 8 July 2006.
CONSIDERATION OF THE EVIDENCE
13. Mr Reinhard had completed several lifestyle questionnaires:
10 January 2007
Mr Reinhard made a self assessment of 4.27 August 2007
Mr Reinhard self-assessed his Lifestyle Rating as follows:Personal Relationships 4
Mobility 4
Recreational and community activities 4
Domestic and Employment Activities 5Average Lifestyle Rating (rounded) 4 (rounded)
10 October 2008
Mr Reinhard completed another lifestyle questionnaire, which provided information rather than assessment of the lifestyle effects.
14. At the hearing Mr Reinhard submitted that his lifestyle should be rated as follows:
Personal Relationships 4 - 5
Mobility 4
Recreational and community activities 4
Domestic and Employment Activities 4 - 5Average Lifestyle Rating (rounded) 5 (rounded)
15. Mr Reinhard submitted that his lifestyle had been rated at 3 since his osteoarthrosis of the right knee and fracture of the left ankle had been accepted in 2005. His lifestyle had been reviewed several times since then, and, particularly when osteoarthrosis of the left knee and fracture of the right ankle had been added as accepted disabilities, the assessment of his lifestyle had not been altered.
16. Mr Reinhard gave evidence which elaborated upon his lifestyle questionnaire of 10 October 2008. His wife also provided a statement dated 21 July 2008.
17. As noted above, I am to assess only the effects of Mr Reinhard’s accepted disabilities on his lifestyle. It was noted that he has a non accepted disability of lumbar spondylosis. In relation to his back Mr Reinhard said that his limited mobility and compensating gait hurt his back, rather than his back causing any problems with his mobility or gait. His back pain is minimal compared to the pain in his knees and ankles. I note that Mr Reinhard’s back condition was not used to discount the ratings attributed to his accepted disabilities by the Respondent or the VRB. In view of that approach, and Mr Reinhard’s evidence, I do not find his back condition to have impacted on his lifestyle such as to reduce the ratings I have found appropriate.
18. I turned to consider the evidence in respect of each of the components of lifestyle identified by GARP.
Personal Relationships
19. Mr Reinhard told me that his relationship with his wife had seriously deteriorated to the point where, in March 2007, they were “on the brink of separation”. They were constantly arguing. He attributed this largely to his unwillingness to attend social and even family functions because of pain. Mrs Reinhard wrote of her husband’s irritability, which led to disagreements and arguments, and that he had become more possessive.
20. Mrs Reinhard is a teacher and Mr Reinhard gave up attending school functions with her about 18 months ago. They would go to church regularly but he was embarrassed at his inability to kneel. Now his wife goes alone, and he attends at Christmas and Easter only.
21. For the sake of his relationship he would go to functions with his wife, but had a tolerance of a maximum of an hour and a half and would want to go home. Mrs Reinhard wrote of his withdrawal.
22. The prospect of separation made him realise that he needed to adjust his behaviour and make a greater effort and to explain to his wife why he did not want to participate. While their relationship has “settled down” from its low point, it is not “back to what it was”. They have had no sexual relationship for about 9 months and medication he tried produced side effects. He thinks his wife now has a better understanding of his pain, appreciating his restlessness at night and his continual use of painkillers. She has observed his difficulty getting on a plane. She has to drive him to work most days.
23. He has 3 children. He does not consider his relationship with his children to be of low quality, especially as he talks on the phone to them regularly. There was an altercation with his daughter about 15 months ago at a christening and for a while they did not speak. Last year all the children came home at Christmas with their families. There was tension as he was, he admits, self-centred and lacking in patience. He was unable to participate in more boisterous activities and was frustrated. He felt his conduct might have discouraged them from coming again, but this Christmas they are in fact all returning.
24. Most of his friends were through his sporting activities, but as he had to give these activities away, so his friends dropped off also. He has a social group, which consists of the partners of his wife’s work colleagues. They might get together every 8 weeks or so, largely at the instigation of his wife and her friends. For about 15 months he was a member of the men’s punters group but pulled out about 12 months ago. He has been invited back but has not done so.
25. At work he is cordial to those in the office he knows but does not go to drinks as often as he once did. That his wife needs to drive him home precludes attendance at after work drinks. One work associate told him that he knew when to keep away from him because he was moody and short tempered. Other than that he has tried to keep his pain and limitations to himself.
26. I consider that the descriptor in GARP that best fits Mr Reinhard’s circumstances is that of 4:
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.
27. Mr Reinhard’s relationship with his wife has been markedly affected and he has had arguments with his children. He has a reduced social circle and pain limits his interest in socialising at all and to the extent that he does so, it is at the instigation of his wife.
28. I do not consider his circumstances such as to attract a higher rating, mainly because he is able to maintain relationships, especially with his children, which are not of low quality.
Mobility
29. Mr Reinhard told me that he and his wife moved from their former home because he was unable to manage the steps there.
30. About 15 months ago he fell while alighting from a bus due to lack of stability, and, as a result has not used a bus since. For the same reason he has not used a train. There is a ferry service which he has used but, in order to reach his office, he must cross a railway line by way of over-track stairs. While there is a level crossing, to reach it requires an extra walk of 300 metres. For that reason, he has not used the ferry for about 12 months. Instead his wife drives him to work 3-4 mornings a week, and on the remaining day(s) he will drive himself. To travel to the hearing (from his home in Newcastle) he stopped for 15 minutes after about an hour.
31. On holidays he and his wife would travel long distances – up to 1000kms a week – and share the driving. He can no longer travel long distances. As it is, now his wife does 90% of the driving and they have to stop every hour to hour and a half so he can stretch his legs. Up until 3 years ago they would walk together daily. Their holidays had been built around travel to scenic or historical venues which entailed considerable walking and the need for stamina.
32. He does not use a walking stick, but does rely heavily on rails. When travelling by small plane he puts his papers in his luggage so he can hold both rails. His progress is slow and he delays the other passengers.
33. I consider that the descriptor in GARP that best fits Mr Reinhard’s current circumstances is that of 4:
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.
34. He has limited walking capacity. His wife does most of the driving and he must take frequent breaks.
35. In addition he has not been able to use public transport for about 15 months, as he fell from a bus due to instability. Prior to that time a rating of 3 would be appropriate.
Recreational and community activities
36. Mr Reinhard told me that his interests now are mainly sedentary: reading, a little punting and watching TV. He may do the grocery shopping with his wife on a Saturday. He has a disabled parking permit and he leans on the shopping trolley. He can only manage 30-45 mins.
37. He last played soccer in 1981 and tennis in about 1992. Mrs Reinhard wrote that her husband had always been a very active person and keen on socialising until he was overcome by the pain in his joints. Mrs Reinhard wrote that they would enjoy walks, but her husband could not maintain the pace and had to give it up.
38. Mrs Reinhard wrote of her husband’s loss of confidence and that he had reduced his participation in social activities.
39. On the rare occasions he and his wife go out, they may take 2 cars so he can come home early if necessary. Alternatively, his wife may arrange a lift home for herself.
40. I consider that the descriptor in GARP that best fits Mr Reinhard’s circumstances is that of 4:
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).
41. Mr Reinhard’s interests are now entirely sedentary, whereas previously he was an active sportsman. In particular, he is unable to participate in the daily long walks he and his wife would enjoy, and their active holidays.
Domestic and Employment Activities
42. Mr Reinhard told me that he works full time but loses, on average, about a day every fortnight due to pain, and his present physiotherapy regime takes about half a day a week. His office is considering piloting a work-from-home arrangement. About 9-10 months ago, there was a fire drill and his very slow movement on the stairs so delayed other staff that his office was moved to the ground floor.
43. Around the home he has a ride-on mower for his 1/3 acre block. His wife does the gardening, but he has never really been interested in it anyway. He was able to oil the veranda by sitting down and moving himself around on his buttocks. He is unable to go up the ladder, and tasks such as changing light bulbs are reserved until his son visits. The bin is taken to the road by dragging it beside the car.
44. He will help his wife prepare vegetables by sitting down at the kitchen bench, as his standing tolerance is only 15-20 minutes. They would share the bed making, but he is unable to bend down to help.
45. I consider that the descriptor in GARP that best fits Mr Reinhard’s circumstances is that of 4:
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.
46. While Mr Reinhard’s work is largely unaffected, around the home he requires assistance to undertake some basic home repairs, such as changing a light globe. He is able to assist his wife in the kitchen, sitting down.
47. I do not consider his circumstances to attract a higher rating, in that, although he has difficulty making the bed, he is able to go grocery shopping and can mow the lawn (albeit on a ride-on mower).
CONCLUSION
48. The average lifestyle effects from Mr Reinhard’s accepted disabilities is 4 (rounded). This applies to the entire period under review, notwithstanding my finding that mobility only attracted a rating of 3 until 15 months ago when he ceased using public transport.
49. Therefore in respect of the period from 8 July 2006 to 7 February 2008, taking Mr Reinhard’s total impairment rating of 30 points with his lifestyle rating of 4 converts to a 70% degree of incapacity.
50. From 8 February 2008 (and continuing) taking Mr Reinhard’s total impairment rating of 35 points with his lifestyle rating of 4 converts to a 70% degree of incapacity.
51. As noted above, Mr Reinhard‘s work is largely unaffected by his conditions. Therefore, it was unnecessary to consider any entitlement to an earnings-related pension, nor was there any application for such a pension.
DECISION
52. The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Reinhard’s disability pension is assessed at 70% of the General Rate with effect from 8 July 2006.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ........................[sgd]........................................................
Mr T Aviram, AssociateDate/s of Hearing 21 November 2008
Date of Decision 19 December 2008
Advocate for the Applicant self represented
Advocate for the Respondent Tim O'Reilly, Department of Veterans' Affairs
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