Smith and Repatriation Commission
[2006] AATA 739
•30 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 739
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/671
VETERANS' APPEALS DIVISION )
Re E ROSS SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date30 August 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ........[Sgd].........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - assessment of rate of pension – neither special rate of pension or intermediate rate of pension payable - criteria for extreme disablement adjustment to general rate of pension not satisfied – use of Guide to the Assessment of Rates of Veterans' Pensions - pension payable at 100% of the general rate – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s37
Domestic and Family Violence Protection Act 1989 (Qld)Veterans’ Entitlements Act 1986 (Cth) ss9, 21A, 22, 23, 24, 25, 29, 120
Fogarty and Repatriation Commission (2003) 37 AAR 363
REASONS FOR DECISION
30 August 2006 Mr RG Kenny, Member Background
1. On 10 October 2005, the Veterans’ Review Board (the Board) determined that Mr E Ross Smith (the applicant) was entitled to receive a pension in accordance with the terms of the Veterans’ Entitlements Act 1986 (the Act). The Board assessed Mr Smith’s incapacity from a range of disabilities at one hundred percent (100%) under section 21A of the Act and his appropriate rate of pension at that same level under subsection 22(2) of the Act. The incapacity was that associated with disabilities some of which had previously been accepted by the Repatriation Commission (the respondent) and others which were accepted by the Board as being war-caused under section 9 of the Act. These were otitis externa; deflected nasal septum with eustacian blockage; exostosis right foot; bilateral sensori-neural hearing loss; pleural plaque; ischaemic heart disease; solar keratosis (face, both arms and both legs); non melanotic malignant neoplasm (face, both arms and both legs); bilateral cataracts; emphysema; impotence; and peripheral vascular disease (left leg). The date from which the most recent acceptance decision was made and from which pension for any associated incapacity could be paid by the respondent was 13 October 2003.
2. Mr Smith also has conditions which have been determined not to be related to his service. These are osteoarthritis both knees, elbows and left shoulder; frozen right shoulder; localised osteoarthritis left elbow; localised osteoarthritis right elbow; localised osteoarthritis left shoulder; rotator cuff syndrome right shoulder; hypertension; subdural haematoma; alcohol dependence or alcohol abuse; multiple myeloma; and peripheral neuropathy.
Hearing
3. Mr Smith, who was born on 30 March 1924, attended the hearing and was represented by Mr R Clutterbuck of counsel. The respondent was represented by Mr B Williams. Material before the Tribunal included the “T” documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975. Mr Clutterbuck and Mr Williams made written submissions after the hearing and I have noted the contentions raised therein. At the hearing, evidence was given by the applicant, by his neighbour, Ian Brown, and by the applicant’s wife, Lynette Ruth Smith, whom he married in 2004. Mrs Smith left the matrimonial home in November 2005 and, in that same month, both she and Mr Smith obtained a domestic violence order against the other under the Domestic and Family Violence Protection Act 1989 (Qld). I found the evidence of Mrs Smith in this matter to be of little assistance in determining the extent to which the applicant’s accepted disabilities impact upon his lifestyle.
Issues and Legislation
4. The issue raised by the applicant in this case is whether he meets the criteria for making the extreme disablement adjustment to the general rate of pension under subsection 22(4) of the Act. This has the effect of increasing the rate of pension to one hundred and fifty percent (150%) of the general rate. The provision, in so far as relevant, reads:
22 General rate of pension and extreme disablement adjustment
(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. The standard of proof for determining assessment matters under the Act is provided for in subsection 120(4) thereof. This requires that such matters be determined to the decision maker’s reasonable satisfaction. This imports the civil standard of proof: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. It is not in dispute and I am reasonably satisfied that Mr Smith had attained the age of 65 years by 13 October 2003 and that he does not receive and does not satisfy the requirements for payment of a pension at a rate provided for by sections 23, 24 or 25 of the Act. Accordingly, the requirements of paragraphs 22(4)(b) and (d) of the Act are met.
6. For the purposes of paragraph 22(4)(c) of the Act, the Board allocated the following impairment ratings points under the relevant tables in the 5th edition of the Guide to the Assessment of Rates of Veterans' Pensions (the Guide) which is published by the respondent in accordance with section 29 of the Act:
condition
chapter
impairment
pleural plaque
ischaemic heart disease emphysema1
10, 2
peripheral vascular disease (left leg) 2 5 exostosis right foot
peripheral vascular disease (left leg)3
2, 8
bilateral sensori neural hearing loss 7 24, 15 otitis externa,
deflected nasal septum with eustacian blockage7
5, 0, 0
impotence 10 10 solar keratosis (face, both arms and both legs),
non melanotic neoplasm (face, both arms and both legs)11
5
bilateral cataracts 6 20 disfigurement and social impairment 17 2 combined impairment rating 18 70
7. It was conceded by Mr Williams that these ratings correctly reflected the respective impairments present in Mr Smith and, having considered the reasoning of the Board in arriving at those ratings, I am reasonably satisfied that the concession by Mr Williams was properly made. This means that Mr Smith has an impairment rating of at least 70 points and that, therefore, the first element of paragraph 22(4)(c) of the Act is met. Under scale 23.1 of the Guide, an impairment rating of 70 points equates with an incapacity of 100% of the general rate and that satisfies the requirement in subparagraph 22(4)(a)(i) of the Act. It remains to be determined whether he has a lifestyle rating of at least 6 for the purposes of paragraph 22(4)(c) thereof. This must be assessed during the assessment period which, pursuant to the meaning of that term in subsection 19(9) of the Act, commenced on the date of Mr Smith’s initial claim on 13 January 2004 and continues until the Tribunal’s decision is made.
Consideration
8. The Introduction to chapter 22 of the Guide describes a lifestyle effect as a disadvantage which results from an accepted condition. Accordingly, effects associated with non-accepted or non-claimed conditions can not be considered. A lifestyle rating is determined in accordance with the tables in chapter 22. It is measured on a scale of zero to 7 and is the average of four individual ratings allocated to separate categories of lifestyle. These are personal relationships in table 22.1, mobility in table 22.2, recreational and community activities in table 22.3 and either domestic or employment activities in tables 22.4 or 22.5, respectively. To assist in the determination of the appropriate lifestyle rating, three options are available to a veteran. Option 1 involves the completion by the veteran of a self-assessment form with ratings in the above-listed categories being nominated by himself. The average of the four ratings will give the overall lifestyle rating. Option 3 involves the completion of a lifestyle questionnaire and the information contained therein is relied upon to calculate ratings and to use for averaging purposes. Option 2 arises when neither of those former approaches is selected and, in that case, guidance is provided by the “shaded area” of scale 23.1 in the Guide which defines expected lifestyle ratings for given impairment ratings.
9. In this case, the applicant exercised option 1 with ratings of 5, 5, 6 and 6, respectively, in the above-noted categories and Mr Clutterbuck submitted that these were the appropriate ratings throughout the assessment period. Mr Smith also exercised option 3 when he completed a lifestyle questionnaire on 22 January 2004. In allocating ratings of 4, 4, 4 and 5 with an overall rating of 4, the Board took this into account as well as Mr Smith’s evidence which was given by telephone. Mr Williams submitted that a rating of 4 should be allocated to each of the four categories. I have not accepted Mr Smith’s self assessment as I am satisfied that the ratings adopted are not consistent with his impairment. I have taken into account the lifestyle questionnaire as well as the other evidence provided at the hearing.
Personal Relationships
10. The instructions and criteria in table 22.1 of the Guide read:
PERSONAL RELATIONSHIPS 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.Rating Criteria NIL No or negligible effect on personal and social relationships. Relationships are satisfying, with full participation in accustomed social and personal activities. ONE Personal and social relationships are fairly satisfying. Intermittent disadvantages may inhibit, but not prevent participation in accustomed range of social and personal activities. TWO Mildly affected personal and social relationships. Social contacts and activities are reduced, veteran is participation in the accustomed range of activities is restricted. THREE Moderately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances. 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 social interaction limited to carer(s) due to confinement; or ability to communicate is restricted due to stroke or other effect of accepted conditions. SEVEN Unable to relate to anyone. All relationships are prevented. 11. As noted above, the relationship between Mr and Mrs Smith is severely affected. Mr Smith’s evidence was that the need for separation arose because of physical assaults upon him by his wife and because of his serious concerns about Mrs Smith’s misuse of monies in their joint bank account, in particular, in gambling on poker machines. Mr Smith denied that he had been violent towards his wife. Mr Smith has three adult children from a previous marriage. They do not live in Queensland but his daughters visit him on occasions and had recently completed a 10 day visitation with him prior to the hearing. He maintains telephone contact with his son and he said that he had a good relationship with all of his children.
12. Mr Smith has maintained a friendship with a neighbour, Ian Brown. He described Mr Brown as a friend whose company he enjoyed and with whom he discussed a range of things including sporting activities. In his evidence, Mr Brown also described a good friendship with Mr Smith. He said that they visited each other and would, on occasions, enjoy a conversation when they come across each other in exercising their dogs. He also said that they had meals together from time to time at each other’s houses though he had seen less of Mr Smith after Mr Smith’s marriage. He said that, since Mrs Smith left the premises in 2005, he was again associating with Mr Smith from time to time. He said that they had not shared meals in recent times but that he would regularly “pop over” to Mr Smith’s house to visit him.
13. For many years, Mr Smith has enjoyed a close association with the surf lifesaving movement. He has served in official capacities in various lifesaving clubs including Bilinga, Tugun and Currumbin. He has also officiated as a judge in life-saving competitions. He attended the most recent Australian titles in March 2006 where he carried out light duties providing assistance to the judging panel. This included the maintenance of the security of property in the judges’ room as well as the monitoring of inappropriate attendance by contestants or others upon the judges which he would be required to report to the competition referee. He said that he was conveyed to the competition from his house by friends.
14. Mr Smith has been associated with the Palm Beach and Currumbin veterans’ support centre and has provided his services as a Commissioner for Declarations to witness various documents that are completed by veterans. He continues to carry out these duties from his own home on about 6 or 7 occasions per week. He also continues to attend the support centre from time to time and does so by means of riding a 50cc motor scooter from his home. When necessary in the case of house-bound veterans in his local area, he rides his scooter to their houses to assist them in executing documents. He described his scooter as a new machine which was purchased for him in 2005 by a veterans’ organisation to assist him in carrying out these duties after his previous scooter had been damaged by local flooding.
15. While Mr Smith’s personal relationships with others may be affected by his accepted disabilities, the evidence is that this is not sufficient to equate with a rating of 5 under table 22.1. He enjoys a good relationship with his children and other friends and the evidence was not consistent with these being strained or of low-quality. His relationship with his wife is characterised by difficulty but the genesis of this was not attributed by Mr Smith to his accepted disabilities but rather, to the conduct of his wife. On the balance of probabilities, I am satisfied that the appropriate rating under this table is 4.
Mobility
16. The instructions and criteria in table 22.2 of the Guide read:
MOBILITY The mobility rating measures the effects of the accepted conditions on 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 (e.g. agoraphobia, claustrophobia, dementia, anxiety, confusion, etc), or sensory deficit (e.g. hearing loss, or reduced vision) should be rated in the same way as the more obvious restrictions due to physical impairment. Rating Criteria NIL No or minimal restrictions of mobility, i.e. full mobility. ONE Intermittent or periodic effects on mobility: mobility affected only when impairment eg migraine, angina, sciatica, or panic attack, is present. Between attacks there are no restrictions; if there is permanent impairment, eg night blindness, the effect is only sporadically limiting. TWO Mild effects on mobility, eg slowing of pace in some circumstances, or need for a walking stick. THREE Moderately reduced mobility: mobility curtailed or diminished because of frailty, lack of confidence; or moderate agoraphobia; travel as a passenger, in private and public transport, possible in most circumstances without undue difficulty (‘undue difficulty’ not being the need for a break in travel or for special seating arrangements); dependent on a walking stick or similar device. Independent in leaving home and reaching destination, but has some difficulty. 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. SEVEN Restricted to room or chair: severe agoraphobia permanently confines veteran to home; dependent upon others, or hoists or similar appliances, for getting in and out of bed. 17. Mr Smith has limitations imposed upon his mobility because of his medical conditions. However, there is evidence that not all of these limitations are associated with disabilities that have been accepted by the respondent under the Act. Compensation Medical Advisor, Dr J Smeeton, in a report dated 5 July 2005, noted that Mr Smith’s lower limb impairment was contributed to by conditions which have not been accepted as being related to Mr Smith’s service. These include peripheral neuropathy and spinal stenosis. Further, Mr Smith described periods of recuperation because of the impact of surgical procedures on his lower limbs for removal of sarcomas in July and December 2005 and June 2006. He described these as being a source of pain to him.
18. Mr Smith utilises a stick to assist him in walking and denied the suggestion by his wife that he did this only when in company. Nevertheless, he agreed that there had been an occasion when he and his wife had been in the precincts of the Southport Magistrates Court when he had walked to the toilet without the assistance of the stick. Mr Smith said that he was able to walk some 50 to 75 meters without taking a break and that, when he needed to, he would utilise a nasal spray to assist his breathing. Mr Smith said that he would sometimes walk to the local RSL Club, a distance of about 200 meters, but would take breaks during that walk. He said that he relied upon vehicle transfers provided by the respondent to meet hospital appointments and rode his scooter each day to collect his mail from the local Post Office. Mr Smith agreed that, with the scooter he previously owned, he had been unable to start it on one occasion and walked it to the local repair shop. He denied that he had been running on that occasion as alleged by his wife. Mr Smith said that he was looking after his own grass-cutting duties until around December 2005 and that, since then, he has engaged a contractor. He also said that he no longer uses a ladder to clear leaves from his roof but still utilises a garden rake to gather droppings from his palm trees.
19. Mr Smith said that he was not required to register his scooter or to have a driver’s licence for it. Nevertheless, he continues to hold a motor vehicle driving licence.
20. On the balance of probabilities, I am satisfied that the rating that best accommodates Mr Smith’s circumstances under table 22.2 of the Guide is 4. He does depend upon others for the purposes of attending hospital appointments but is self-reliant with the use of his scooter to meet other transportation needs. He clearly manifests sufficient mobility and confidence in himself to be able to negotiate traffic on the vehicle albeit over short distances in his local area. He uses a stick from time to time but is not totally dependent upon it to assist him when walking.
Recreational and Community Activities
21. The instructions and criteria in table 22.3 of the Guide read:
RECREATIONAL AND COMMUNITY ACTIVITIES 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. Rating Criteria NIL Able to undertake the full range of usual recreational pursuits and community activities. ONE Intermittent interference with recreational pursuits and community activities. Between episodes is able to continue with the range of accustomed recreational pursuits and community activities. TWO Mild but constant interference with accustomed recreational pursuits and community activities, but is able to continue with them, even if less frequently, or to enjoy alternatives. THREE Unable to continue some accustomed recreational pursuits and community activities, for example: competition sporting activities (golf, tennis, bowls, etc) but is still able to enjoy most other activities (camping out, hobbies, going visiting, watching sport, etc); unable to perform some community or voluntary activities involving physical activity (eg working bees) but is still able to participate in most other activities including welfare work, fund raising work etc. FOUR 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). 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 & crafts, 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. SEVEN Unable to take part in any recreational activities. 22. In the past, Mr Smith has enjoyed his involvement with the surf life-saving movement and also with Australian rules football. Whilst he is no longer associated with the latter, in any official capacity, he still watches television broadcasts of games but his enjoyment is diminished because of his hearing difficulties. He continues to be involved in the surf life-saving movement although to a much reduced extent. However, he was able to provide some assistance to judging at the Australian titles earlier this year. He fulfilled a role of tending personal property and monitoring inappropriate contact with the judges. These are functions which clearly involved the need to act in a responsible manner. He has also maintained his interest in providing assistance to the veteran community, and in particular, in his capacity as a Commissioner for Declarations when witnessing signatures both at his home and by visiting house-bound veterans.
23. On the balance of probabilities, Mr Smith’s recreational and community activities are not limited to the extent described at rating 6 in table 22.3 and I am satisfied that the rating which best accommodates his circumstances is 5.
Domestic/Employment Activities
24. The Guide requires the adoption of whichever is the higher of the veteran’s rating for domestic or employment activities in tables 22.4 or 22.5, respectively. The instructions and criteria in those tables read:
DOMESTIC ACTIVITIES 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. Rating Criteria NIL Able to sustain any usual activities. ONE Intermittent effects of accepted disablement on usual activity. TWO Able to carry out accustomed tasks, but has difficulty with some heavier tasks, for example: has difficulty with heavy gardening activities such as digging, pruning trees etc. THREE Unable to perform heavy activities, but able to carry out lighter household tasks, taking breaks during sustained activity, for example: mowing the lawn; washing the car; performing light maintenance or gardening activities if working at own pace, taking breaks as necessary. FOUR 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. 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; requires assistance with grocery shopping 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 SEVEN Total dependency upon others for domestic tasks
EMPLOYMENT ACTIVITIES Employment activities refers to the veteran’s ability to work. An employment rating is based on the effects of the accepted conditions on the ability to work for remuneration. It should take into account any necessary changes or modifications to employment or the workplace.
Ratings from Table 22.5 do not confer on the veteran an earnings related benefit, but are intended to compensate for the adverse effects (other than loss of income) of unemployment, reduced employment, or diminished quality of working life
Rating Criteria NIL Able to engage in usual employment ONE Able to carry out usual employment that is affected intermittently. TWO Able to follow accustomed employment but difficulty is experienced in carrying out full range of occupational activities. THREE Unable to follow accustomed employment without modification to workplace, provision of aids or restructuring of tasks. FOUR Either unable to work full time in normal occupation, or has had to change occupation or number of hours worked, or both, because of the accepted conditions. FIVE Unable to work 25. Mr Smith has not been engaged in employment since 1985 and table 22.5 does not arise for consideration. In any event, the highest rating available under that table is 5.
26. Mr Smith obtains assistance for a range of his domestic activities. He receives visitations from Meals on Wheels on two occasions per week and gets household assistance from the RSL in the form of cleaning on two days per month and weekly transportation for shopping activities. However, he is able to attend to everyday activities such as meal preparation, bed-making and washing and hanging clothes. In his evidence he said that the person who cleans his place comments that there is not much for her to do because the house is kept in a tidy state.
27. On the balance of probabilities, I am satisfied that Mr Smith’s circumstances do not meet the requirements at level 6 in table 22.4 and that the rating which best accommodates his situation is 5.
Overall Lifestyle
28. In summary, I am reasonably satisfied that the appropriate lifestyle ratings in the categories noted above are 4, 4, 5 and 5, respectively, throughout the assessment period. This results in an overall lifestyle rating of 5 which is not sufficient to meet the threshold requirement of 6 in paragraph 22(4)(c) of the Act. This means that the extreme disablement adjustment can not be made to Mr Smith’s pension which continues to be paid at 100% of the general rate.
Decision
29. The Tribunal affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Philip Richardson
Legal Research Officer
Dates of Hearing 17 July 2006
Date of Decision 30 August 2006
For the Applicant Mr R Clutterbuck, of Counsel
Haney Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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