Smith and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 774
•6 October 2015
Smith and Repatriation Commission (Veterans’ entitlements) [2015] AATA 774 (6 October 2015)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/1605
Re
Ernest Smith
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr Damien Cremean
Date 6 October 2015 Place Melbourne The Tribunal affirms the decision under review.
....................[sgd]............................
Dr Damien Cremean
VETERANS AFFAIRS — War-caused injury or disease − Extreme Disablement Allowance − Impairment Tables.
Legislation
Veterans’ Entitlements Act 1986 (Cth) section 22(4)
Secondary materials
Guide to the Assessment of Rates of Veterans Pensions
Cases
Hall v Repatriation Commission (1994) 33 ALD 454
REASONS FOR DECISION
Dr Damien Cremean
6 October 2015
On 15 May 2013 the Applicant lodged a claim for increase of pension with the Respondent, who refused the request on 7 June 2013.
On 25 June 2013 the Applicant requested a review of the Respondent’s decision by the Veterans’ Review Board (the Board). The Board affirmed the original decision on 11 March 2015 and the Applicant’s pension was continued at 100 percent of the General Rate.
On 7 April 2015 the Applicant, who is aged over 65 years, applied to this Tribunal for review of the Board’s decision.
The Applicant contends that he is entitled to the Extreme Disablement Adjustment Rate (EDA).
The eligibility criteria for EDA are set out in s 22(4) of the Veterans’ Entitlements Act 1986 (Cth). EDA is payable if:
(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
…
(bthe 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.
The single issue to be determined is whether the Applicant has a lifestyle rating of at least 6 points under the Guide to the Assessment of Rates of Veterans’ Pensions (GARP) − that is, whether he satisfies the latter part of s 22(4)(c). The remainder of s 22(4) is not in issue.
I agree with the Respondent that the assessment period commenced on 15 May 2013 and continued until the date of the Tribunal’s decision. (See Hall v Repatriation Commission (1994) 33 ALD 454.) In accordance with s 120(4) of the Act, any assessment or reassessment of a rate of pension must be determined to my reasonable satisfaction, that is, on the balance of probabilities.
At the hearing Ms Piggott, counsel for the Applicant, and Mr Rudge, appearing for the Respondent, traversed many matters which it is unnecessary for me to repeat in detail here.
The Applicant’s claim arises out of periods of service in Vietnam. He has the following accepted disabilities: lumbar spondylosis, alcohol dependence, solar keratosis, bilateral sensorineural hearing loss, bilateral tinnitus, osteoarthritis of the right knee, post-traumatic stress disorder, and asthmatic bronchitis. He also suffers from the following conditions, which have not been accepted as war-caused: sleep apnoea, cervical spondylosis, rotator cuff syndrome of the right shoulder, osteoarthritis of the left knee, and hypertension.
Chapter 22 of GARP is titled Lifestyle Effects. The Introduction to this chapter states that it is to be used to assess lifestyle effects of accepted conditions. It contains five tables, each of which assigns points ranging from nil to 7 based on various criteria, except for Table 22.5 which lists only six criteria. Table 22.1 concerns Personal Relationships. Table 22.2 relates to Mobility. Table 22.3 deals with Recreational and Community Activities. Table 22.4 regards Domestic Activities. Table 22.5 concerns Employment Activities. Veterans are assessed and then assigned a points rating for each Table. After a series of calculations the assessor arrives at a lifestyle rating. If the total is 6 points or more, the veteran is entitled to receive EDA, according to s 22(4) (c) of the Act. “This tallying of points is not an exact science and it is well known that the various points ratings in each Table overlap, meaning that a veteran may be entitled to a particular points rating although he or she does not fall precisely within its criteria. 11. In his application to the Board, the Applicant sought ratings of 6 points under Tables 22.1, 22.3 and 22.4 and a rating of 5 points under Table 22.2. According to GARP’s calculus, the total would be 6 points, making him eligible for the EDA.
In March, the Board assigned the Applicant an overall average of 4 points, insufficient to qualify him for the EDA. It .
At the hearing, the Respondent – rightly – conceded that under Table 22.4 the Applicant merited 6 points, rather than the 5 listed in the Statement of Facts and Contentions. Otherwise, the Respondent submitted that 3 points should be awarded under Tables 22.1 and 22.2 and 4 points under Table 22.3. According to GARP, this makes an average of 4 points.
It therefore falls to the Tribunal to decide between these competing contentions and to decide for itself, on the evidence, the correct points figure. As both Ms Piggott and Mr Rudge noted, doing this will confront the Tribunal with a dilemma. This is because in the case of some of the difficulties the Applicant experiences, for example driving, it is impossible to disentangle his accepted conditions from his non–accepted conditions. And the conditions that are not accepted cannot, of course, be taken into account. This is especially a concern with the subject of Table 22.2, mobility.
The Respondent’s concession with regard to Table 22.4 as regards Domestic Activities means that only Tables 22.1, 22.2 and 22.3 are in issue for me. I heard sworn evidence from the Applicant in relation to the matters relevant to each of these and he was cross-examined by Mr Rudge. I shall deal with each in turn.
Table 22.1 - Personal Relationships
GARP specifies how points are awarded under this Table as follows::
THREE [points]: Moderately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.
FOUR [points]: 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 [points]: 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.
The Board assigned the Applicant 4 points while noting that 3 points might be more appropriate. The Respondent submitted a rating of 3 points but the Applicant argued for 5 points.
I cannot agree with the Applicant. I do not regard him as being in a position where his personal relationships are severely affected. Nor do I see him as being able to relate only to − such as only to his wife Sarah, or his children, or grandchildren. And I cannot regard his relationships as strained and of low quality in any general way. Significantly, the Applicant, I think, enjoys good relationships with his wife, children and grandchildren. He appreciates his wife’s cooking. He may not see his children or his grandchildren very often but this is because they live interstate. The applicant’s wife encouraged him to interact more with his grandson when he was staying with them recently but I do not regard this as indicating a strained relationship. The Applicant ensures he is in fairly regular telephone contact with his children and grandchildren. He has not seen his daughter in Canberra for some two years but for health reasons and she does not travel to Victoria. I can agree that over the years his lifestyle has shrunk (to use Counsel’s expression) but he still seems to enjoy moderately good social relations. He might go out less frequently than he used to but he does still go out, occasionally with his wife to a local restaurant they favour. He goes to the local shops in Inverloch three times a week and will occasionally see people there even though he does not like to participate in lengthy conversations and he may even excuse himself. Inverloch is a smallish rural community about two hours from Melbourne. The Applicant goes to the local church every Sunday, followed by drinks with some neighbours. In addition, he personally telephones those who are to be rostered for the church’s opportunity shop even though someone else presents the rosters. He attends board meetings of the local cemetery trust and is also on the board of the Sir Edward 'Weary' Dunlop Medical Research Foundation. Occasionally, but not often as I understood it, he may attend an ex-Parliamentarians’ function.
These are all important considerations leading me to be satisfied that the Applicant’s personal relationships are not severely impaired. He is relating to those close to him and to others satisfactorily in my view. He must avoid crowds such as one might find at sporting venues or even on public transport so as to avoid catching colds or flu. I regard this as related to his accepted condition of asthmatic bronchitis rather than being connected in any way with his personal relationships. Seldom do people actually relate to others on public transport or at sporting venues unless they already know them. His wife and he sleep in different rooms but that seems to be due to his snoring. He also mentioned his nightmares, but his snoring would, I think, arise from his sleep apnoea which has twice been rejected as a war–caused condition.
His wife did threaten on one occasion to leave him and he describes himself as grumpy and occasionally aggressive, especially after drinking alcohol and seeing something about war on television. I was taken through his usual day from the time he gets up in the morning and it is true I think that he does lead something of an isolated life. But, importantly, it is far from being a life which is without social contacts, particularly at home and in the local area. I bear in mind too that he lives on a small farming property in a rural community about six kilometres out of town and that is bound to be an isolating factor to some degree.
I can be satisfied that the Applicant’s accepted conditions do indeed have some effect on his personal relationships but I am reasonably satisfied, on the evidence, that I should make a finding of fact that his personal relationships are not severely affected by his accepted conditions. I also find, on the evidence, that his personal relationships are markedly affected by those conditions and not merely moderately so. I assign him 4 points accordingly.
Table 22.2 - Mobility
GARP allocates points under this heading as follows:
THREE [POINTS]: Moderately reduced mobility: mobility curtained [sic] 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.
(a)FOUR [POINTS]: 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.
(b)FIVE [POINTS]: 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.
The Board determined that the Applicant’s accepted conditions attracted 4 points under the Mobility component. The Respondent submitted a figure of 3 points to the Tribunal while the Applicant contended that the rating should be 5 points.
Again I am unable to agree with the Applicant. I am not satisfied that his accepted conditions cause him to encounter major impediments to mobility although I do think he suffers some impediments. I would regard his mobility as markedly reduced and not merely moderately reduced. He certainly is driven around by his wife but he not is unable to drive himself. Three times a week he drives himself to the local shops to collect the mail and do other errands. This is not in the context of any emergency and I consider he is quite able to drive in other than emergencies and for more than only short distances. He does not use a wheelchair although he does use a stick. I would agree, however, that he does have difficulties using public transport but I am unable to say whether this is due to his accepted or to his non-accepted conditions. He did mention, as I have noted, his need to refrain from using public transport so as to avoid catching colds and flu. That I think is due to his accepted condition of asthmatic bronchitis. But I do not regard him strictly as unable to use most forms of public transport due to his accepted conditions. Moreover, there is not a great deal of public transport in the Inverloch area in any event and he does not, as I apprehend, frequently or often leave that area.
At the same time, as I have indicated, I am unable to agree with the Respondent that the Applicant’s mobility is only moderately reduced. It is, I think, considerably reduced and he does use a walking stick. He fears falling over as he has in the past. He even has great difficulty putting on socks and shoes. I would think it correct to say his mobility is markedly reduced and that he does have difficulty, depending on the length of the journey, in travelling from his home to a destination which is not close by. That could be due to the need for regular toilet breaks brought on by his medicine but it was not clear whether the tablets in question were for an accepted or for a non-accepted condition. Diuretics taken for hypertension − a non-accepted condition − are notorious in that regard. He does not seem to have this difficulty when travelling the short distance to and from the Inverloch shops. But he does have shoulder or back problems when reversing his car or parking. I consider his accepted conditions of lumbar spondylosis and osteoarthritis of the right knee as probably responsible for these driving difficulties (as he demonstrated in evidence) although the non-accepted conditions of cervical spondylosis and rotator cuff syndrome of the right shoulder plausibly have a role to play as well. I regard him therefore as substantially but not exactly falling within 4 points due to accepted conditions. But as the Applicant’s Counsel frankly admitted it is a little difficult to disconnect his accepted conditions from those that are not accepted conditions when it comes to driving.
While I do not doubt that the Applicant’s non-accepted conditions do contribute to his reduced mobility, I am reasonably satisfied on the evidence that that his mobility is markedly affected by his accepted conditions. Another finding of fact I make on the evidence is that the Applicant does not suffer major impediments to his mobility. I assign him 4 points accordingly.
Table 22.3 - Recreational and Community Activities
GARP specifies the points allocation under this heading as follows:
FOUR [POINTS]: 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 [POINTS]: 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.
(a)SIX [POINTS]: 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.
The Board granted the Applicant 4 points while noting that it considered this rating generous. The Applicant argues for 6 points whereas the Respondent supports a rating of only 4 points.
I cannot see on the evidence that only a 4 point rating is justified. The Applicant’s recreational and community activities are more restricted than that and the figure of 3 points mentioned as possibly more appropriate by the Board is very short of the mark. On the other hand, I do not consider on the evidence that the Applicant fits within the 6 point rating. The next rating is 7 points: Unable to take part in any recreational activities.These categories are far from watertight but the existence of a 7 point rating gives some indication of how limited a veteran’s ability to participate in recreational and community activities must be to attain a 6 points rating. In any event I do not regard the Applicant as able to engage in only very few satisfying recreational activities due to his accepted conditions. Indeed, and importantly, he seems to be involved in a number of community-related recreational activities. He is on the local cemetery trust; he meets neighbours for drinks each week; he goes to church; he does the rosters for the opportunity shop and calls people up; he occasionally attends Dunlop Foundation meetings and ex–Parliamentarian events. He listens to the radio and watches television and drives down to the local Inverloch shops a few times a week. I do not believe that he has hobbies such as stamp collecting or arts and crafts or playing cards so I am unable to say how his capacity to engage in these activities would be affected by his accepted conditions. I suspect though he could not remain seated for very long if he did participate in them. But that could also be due to non–accepted conditions.
At the same time the Applicant was concerned to point out that he had lost a lot of interest in doing things in life. I accept that this is so. In that regard he mentioned more than once the recurring thoughts or dreams he gets of past traumatic events which I would agree were horrific. He mentioned, as I have already noted, that he sometimes excuses himself if a person in the street comes up to speak to him and this indicates to some extent how much he can be regarded as able to fit into a community. But I would not regard him as restricted to non-active pastimes in the sense of not circulating in the community at all. He does move around in the community in Inverloch, whether he drives himself or whether his wife drives him to their favourite restaurant or to church. I would not consider him able to engage in or able to participate in meals on wheels volunteering, but he has never done so in the past, so it could not be regarded as an accustomed activity. But he does host drinks at his house for neighbours on Sundays when it is his turn.
On the evidence, I am not satisfied that the Applicant is only able to engage in very few satisfying pursuits and is restricted only to a few passive activities. However, I can be satisfied that the Applicant’s accepted conditions do have some effect on his recreational and community activities and I am reasonably satisfied, on the evidence, that they are greatly reduced as a consequence. I do not believe that the Applicant is only so mildly affected by his accepted conditions that he is unable to engage in only a few former pursuits. His situation is graver than that. I assign him 5 points accordingly.
Table 22.4--Domestic Activities
As I have noted, it is conceded by the Respondent that the 6 point rating applies.
CONCLUSION
I find that the Applicant’s points total 19, which works out as a lifestyle rating of 4.75 – 5 points when rounded up as GARP outlines. This is below the 6 points required for EDA. I observe in passing that this result would follow also if personal relationships attracted 5 points and recreational and community activities 6 points. The total would then be 21 and the average 5.25, which taken to the nearest integer is still 5.
The decision under review is affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean .........................[sgd].....................................
Administrative Assistant - Legal
Dated 6 October 2015
Date(s) of hearing 14 September 2015 Solicitors for the Applicant Williams Winter Solicitors Advocate for the Respondent Ken Rudge
0