Shaw and Repatriation Commission
[2003] AATA 310
•4 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 310
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/940
VETERANS' APPEALS DIVISION ) Re WILLIAM SHAW Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date4 April 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd).......................
Mr I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – extreme disablement adjustment – lifestyle rating - whether applicant qualifies for extreme disablement adjustment
Veteran’s Entitlements Act 1986 s 22
REASONS FOR DECISION
4 April 2003 Mr IR Way, Member 1. This is an application by William Richard John Shaw (the applicant) for review of a decision of the Repatriation Commission made on 21 June 2000, and affirmed by the Veterans’ Review Board (VRB) on 20 September 2001, that the applicant’s disability pension is to be continued at 100% of the General Rate.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and documentary evidence as follows:
§ Statement of the applicant dated 15 November 2002 Exhibit A1
§ Statement of Elizabeth Anne Steen dated 29 January 2003 Exhibit A2
3. The applicant was represented by Mr D O’Gorman and the respondent was represented by Mr J Kelly. The applicant and his daughter Elizabeth Ann Steen gave oral evidence.
4. This matter was contested solely on the basis of whether the rate of pension payable to the applicant should be increased by 50%, pursuant section 22(4) of the Veterans’ Entitlements Act 1986 (the Act). In this respect, the standard of proof is that of reasonable satisfaction.
5. Section 22(4) of the Act relevantly provides as follows:
“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).”
6. The applicant was born on 13 February 1917 and is in receipt of Disability Pension assessed at 100% of the General Rate.
7. The applicant’s accepted service related disabilities are:
§ Tinnitus
§ Peptic Ulcer
§ Deviated Nasal Septum
§ Otitis externa
§ Rhinitis
§ Bronchitis
§ Bilateral Sensorineural hearing loss
8. His non-service related disabilities are:
§ Osteoarthritis both knees
§ Cerebrovascular disease
§ Bifrontal headaches
§ Lumbar pain
§ Gastro oesophageal reflux disease
§ Carcinoma of prostate
§ Heart murmur (possible mitral valve incompetence)
§ Asthma (probable)
§ Obesity
9. There is no dispute between the parties that the applicant satisfies sections 22(4)(a), (b) and (d) of the Act, as set out above, and the Tribunal so finds.
10. Furthermore there is no dispute between the parties that the applicant has an impairment rating of at least 70% and on the material before it, the Tribunal finds accordingly.
11. The central issue in this matter then is whether the applicant has a lifestyle rating of at least 6 points.
12. Pursuant to section 29 of the Act, the Repatriation Commission has prepared the Guide to the Assessment of Rates of Veterans’ Pension 5th Ed (GARP 5). This Guide is to be applied to assess the extent of incapacity from war caused or defence caused injury or disease. Its provisions are binding on the Repatriation Commission, the VRB and the Administrative Appeals Tribunal.
13. Chapter 22, Lifestyle Effects, is relevant in the assessment of effects of the applicant’s accepted conditions on his lifestyle. Chapter 22 provides for the assessment of the effects of impairment by reference to the Veterans’ personal relationships, his mobility, his recreational and community activities and his employment and domestic activities. The Chapter also sets out how a lifestyle rating is to be calculated.
Applicant’s Evidence
14. In his written statement dated 15 November 2002 (Exhibit A1) the applicant highlighted the difficulties he faces as a result of his bronchitis, including being housebound and dependent on his daughter, neighbours and others for daily necessities, including shopping.
15. With respect to domestic activities, the applicant, in his oral evidence, told the Tribunal he lives in his home alone and that he pays a lady to come in once a week to vacuum and dust and clean floors, toilets and the bathroom. He said he was able to shower and shave and dress himself, to get his own breakfast (2½ Weetbix and a banana), straighten his bed clothes, wash his own clothes, including hanging out the washing, and wash up and put away the small number of dishes and cutlery he uses every day. He said he relied on neighbours and others to look after his garden and yard apart from a little hosing and weed killing which he could manage himself. With respect to lunch and dinner it was his evidence these meals were provided either by local friends or his daughter.
16. With respect to his ability to move about effectively in carrying out the ordinary activities of life, the applicant said he could not use public transport because he could not get up or down steps or ramps, does not visit friends or family and only very occasionally does a little shopping and cannot carry anything.
17. Insofar as personal relationships are concerned, the applicant said he did not go out socially at all and his only social interaction was with his daughter, the lady who comes in once a week to clean and his neighbours.
18. With respect to recreational and community activities, it was the applicant’s evidence that he does a lot of reading, listens to music and watches sport and news on the TV and for the past twelve months has been trying to write up his war experiences. He said he had only managed to write about 40 pages so far. He said that in years gone by he engaged in all sorts of recreational pursuits but apart from reading, writing and watching TV he is no longer interested in such activities.
19. In cross-examination the applicant said that his wife died ten years ago and that his house comprised three bedrooms on a 600m2 block with a very small garden. He told the Tribunal that his activities were affected by the problems he has with his knees and back and that he needs a stick to assist him in getting his balance because of the effects of a stroke. The applicant also highlighted the difficulties he has in breathing and how he was “knocked up” whenever he tried to do anything. He said he had three daughters and a number of grandchildren and he said that he saw the one daughter, who lives in Brisbane, practically every day. The other two daughters lived interstate and he said he would see them about twice a year. However, he would speak to them regularly on the phone. He said that most of his old friends were now dead but he kept in touch with the wife of one old friend once a month.
20. The applicant said he still owned a car and still had a driving licence. It was his evidence that he still drove the car occasionally to go to the shops about a quarter of a mile away.
21. In re-examination the applicant reinforced the difficulties his breathlessness caused and his need to carry a “puffer” at all times and to have a ventilator available in his home.
22. Elizabeth Anne Steen, the veteran’s daughter, in her written statement dated 29 January 2003, stated:
“I reside at Lawnton which is 15 minutes from where my father lives.
I provide to my father means by which he can be driven from his home to places such as the doctor, shopping and when he is well enough, for meals away from his home to give him a break.
We often pick him up and bring him to my home or my daughter’s home where we can have a meal as a family away from his everyday home environment and routine.
During a period of a week I would take him out of his home for one reason or another on at least 5 occasions.
When the neighbours, who provide meals and assistance to Dad, are away we take him his meals so that he does not have to cook.
I also provide Dad with 2 loaves of bread which we bake at home and deliver to his home each and every week.
If Dad is unwell because of his Bronchitis then we just cannot get him out of the house and need to tend to him as best we can at his home.
If Dad had been less independently minded then common sense tells us that he would be easily looked after at one of our homes rather than leave him at home where he is now.
However, Dad’s sense of independence demands he stay as much as he can in his own home so that he is not a burden on anyone.
Therefore we give him as much support as we can so that he has some semblance of independence in his life.
I keep in contact with Dad on a daily basis to make sure that everything is running smoothly in his life and that he has not too many problems that we can otherwise fix.
If Dad has things that need to be done around his house we will organise someone to do them if we cannot do them ourselves.
When Dad had his Stroke it took him quite a reasonable time to get over the affects of that but there is no doubt that his perseverance assisted him to get over the Stroke and there is only a small remnant of the Stroke left, namely his slur of speech from time to time. The main reason Dad has difficulty in getting around is his chest condition, namely the Bronchitis from which he suffers.
Since Dad’s operation on his knees 11 years ago, they have of late been stiff and sore.
It is only lately that he has complained of the knee problem as the replacements are at the end of their estimated life according to the orthopaedic surgeon.
I know Dad suffers from BiFrontal Headaches for which he takes medication.
In my opinion Dad is completely dependent upon myself and my family for his livelihood and well being.”
23. In her oral evidence Mrs Steen affirmed the considerable difficulty her father faced in undertaking activities because of his bronchitis.
24. In cross-examination Mrs Steen said that her father suffered from bronchial incidents every six weeks or so, that she would take her father to the doctor every two weeks or so and that her father would see the doctor for headaches, back problems, problems with his knees and sun cancers as well as his bronchitis. Mrs Steen expressed the opinion that while her father’s bronchitis was the primary cause of his inability to do things around the house, his health problems, other than his bronchitis, “definitely” had an effect.
Submissions and Considerations
25. Mr O’Gorman, for the applicant, submitted that the applicant’s lifestyle rating should be 6 or more. In so submitting Mr O’Gorman contended that each of the applicant’s lifesytle ratings for personal relations, mobility, recreation and community activities and domestic activities should be six.
26. Mr Kelly, for the respondent, contended that the applicant’s correct ratings should be four for personal relationships, four for mobility, five for recreational and community activities and five for domestic activities, giving an overall rating of five.
27. Turning then to a detailed consideration of each component of lifestyle rating.
Personal Relationships
28. GARP 5 states:
“Personal relationships” refers to the veteran’s ability to take part in and maintain customary social, sexual and interpersonal relationships.
To determine the effect on personal relationships, it is necessary to establish how the physical and psychological effects of accepted conditions affect the veteran’s ability to interact socially with others.”
29. GARP 5 lists criteria for a rating of 4, 5 & 6 as follows:
“PERSONAL RELATIONSHIPS
Ratings
Criteria
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
- ability to communicate is restricted due to stroke or other effect of accepted conditions.”
30. The Tribunal accepts that a number of the interpersonal relationships that the applicant has can be categorised as carer relationships and that the applicant maintains only limited customary social relationships. However, on the evidence before it, the Tribunal is satisfied that the applicant does not have extreme difficulty in relating to anyone, that he does not have any accepted psychiatric or neurological condition which would effect his personal relationships and that any difficulties that he has with respect to his stroke fall within the category of non-accepted disabilities. The Tribunal therefore is satisfied that the applicant does not meet the criteria for a rating of six. The Tribunal is also satisfied, on the material before it, that the applicant does not meet the criteria for a rating of five. It cannot be said that he is able to relate only to particular, or few people, nor can it be said that his relationships with family are strained or of low quality. After consideration of all of the material before it and the submissions of both parties, the Tribunal accepts the respondent’s submission and finds the applicant’s personal relationships rating is four.
Mobility
31. GARP 5 states:
“The mobility rating measures the effects of the accepted conditions of the veteran’s mobility. ‘Mobility’ refers to the veteran’s ability to move about effectively in carrying out the ordinary activities of life. It allows for the veteran’s ability to use available forms of transport. Lack of public transport is not to be taken into account.
Both physical and psychological impediments to mobility are to be taken into account when applying Table 22.2. Restrictions on mobility due to mental health factors (eg agoraphobia, claustrophobia, dementia, anxiety, confusion, etc) or sensory deficit (eg hearing loss, or reduced vision) should be rated in the same way as the more obvious restrictions due to physical impairment.”
32. GARP 5 lists criteria for ratings four, five, and six.
“MOBILITY
Ratings
Criteria
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.”
33. On the applicant’s own evidence, he is not restricted to home and immediate vicinity unless door to door transport and assistance from others are provided. He is able to drive his own car and does so on a regular basis. The Tribunal is therefore satisfied that a lifestyle rating of six is not appropriate.
34. With respect to consideration of a rating of five or four the Tribunal accepts that the applicant has major impediments to mobility and that he is unable to use most forms of public transport. However, the applicant’s non-accepted conditions of osteoarthritis of both knees, lumbar pain and cerebrovascular disease, on his own evidence and the evidence of his daughter, do have a significant impact on his mobility and the Tribunal is satisfied that the respondent is correct in submitting that an appropriate rating is four and so finds. In arriving at this view the Tribunal has accepted Dr Brown’s opinion (T4/80) that the applicant’s chronic bronchitis and any underlying asthma are variations of the one condition and as such while the Tribunal accepts that the applicant’s bronchitis has a significant debilitating effect on him, the Tribunal has placed no weight on any effect which may arise from the applicant’s non-accepted condition of asthma (probable).
Recreation and Community Activities
35. GARP 5 states:
“This refers to the ability to take part in any activities of the veteran’s choosing.
A recreational rating is based on the veteran’s normal recreational and community activities and measures the limitation placed by the accepted conditions on the ability to continue those activities. The table takes into account the veteran’s need to modify recreational pursuits or to seek alternatives. Community activities include welfare work in a voluntary capacity.”
36. GARP 5 lists criteria for a rating of 5 and 6 as follows:
“RECREATIONAL AND COMMUNTIY ACTIVITIES
Ratings
Criteria
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 & craft, 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.”
37. On all of the material before it the Tribunal is satisfied that the applicant is able to engage in only a few satisfying recreational activities. The question before the Tribunal is whether the limitation on his activities arises from his accepted conditions. The Tribunal is satisfied that the applicant’s bronchitis plays a very significant part in limiting such activities.
38. The Tribunal notes the respondent’s submission that the applicant’s non-accepted disabilities would play a role in the restriction of his activities, however, this submission must be considered in the light of the applicant’s ability to still go to the shops and to drive his own car. The Tribunal is of the view that on balance it can be said that the veteran’s accepted condition of bronchitis places a limitation on his ability to continue to pursue the recreational and community activities that he used to pursue, such that he meets the lifestyle rating of six.
Domestic Activities
39. GARP 5 states:
“‘Domestic activity’ refers to the veteran’s ability to sustain effective routines in a domestic environment. Only the impact of accepted conditions on the ability to engage in domestic activity is to be taken into account: The veteran’s inability to do domestic work for some other reason (for example, choice, habit, inexperience, lack of skill) is not to be taken into account.”
40. GARP 5 lists criteria for a rating of 5 and 6 as follows:
“DOMESTIC ACTIVITIES
Ratings
Criteria
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;
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.”
41. On the evidence before it, the Tribunal is satisfied that the applicant is able to prepare meals albeit he has assistance from others in this regard and that he can wash dishes even though he has some difficulty in standing because of his non-accepted conditions. On his own evidence the applicant is able to undertake a small range of light domestic tasks and as such the Tribunal accepts the respondent’s submission that the correct lifestyle rating for domestic activities is five and so finds.
42. It follows that adding together the lifestyle ratings, as determined above, the aggregate lifestyle of the applicant is 19, resulting in a final lifestyle rating of five to be used in assessment.
43. The Tribunal is therefore satisfied that the applicant’s disability pension is correctly assessed at 100% of the General Rate.
44. For the reasons given above, the Tribunal affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 4 March 2003
Date of Decision 4 April 2003
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr J Kelly, Departmental Advocate
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