Stevens and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 297

Stevens and Repatriation Commission (Veterans’ entitlements) [2016] AATA 297 (10 May 2016)

Division	VETERANS APPEALS DIVISION
File Number	2015/3516
Re	Cyril Richard Glen Stevens
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Lt Col R Ormston (Rtd) (Member)
Date	10 May 2016
Place	Adelaide

The decision under review is affirmed, that is, disability pension to be continued at 100% of the general rate.

.........................[Sgd]..........................................

Lt Col R Ormston (Rtd) (Member)

CATCHWORDS

VETERANS' ENTITLEMENTS – Eligibility for extreme disability adjustment rate – Whether the applicant meets the lifestyle rating criterion of at least 6 points – Personal relationships – Recreational and community activities – Domestic activities – Decision under review affirmed.

LEGISLATION

Veterans' Entitlements Act 1986, s 22

SECONDARY MATERIALS

Guide to the Assessment of Rates of Veterans' Pensions 2016

REASONS FOR DECISION

Lt Col R Ormston (Rtd) (Member)

10 May 2016

INTRODUCTION

1. The applicant, Mr Stevens, served in the Royal Australian Navy from August 1964 to August 1973, which included six periods of operational service in Vietnam between 22 April 1966 and 30 May 1969.

2. As a consequence of his service, Mr Stevens suffers from bilateral sensorineural hearing loss, anxiety disorder, osteoarthritis affecting both knees and osteoarthritis of the left hip, all of which have been accepted as war-caused.  In addition, Mr Stevens had alcohol use disorder accepted by the respondent with effect from 20 January 2015. 

3. Mr Stevens has been receiving a disability pension at 100% of the general rate of disability since March 2009.  On 17 June 2013, he lodged an application for an increase in pension payable in respect of his accepted conditions, which was refused by the Repatriation Commission on 25 June 2013. In August 2013, Mr Stevens applied to the Veterans’ Review Board (VRB) for a review of that decision.  In May 2015, the VRB affirmed the decision of the Repatriation Commission assessing his pension at 100% of the general rate.

4. On 14 July 2015, Mr Stevens applied to this Tribunal seeking review of the decision by the VRB, and giving rise to these proceedings.  Mr Stevens contends that he is entitled to an increase in pension, payable at the extreme disablement adjustment rate (EDA), effective from 17 June 2013.

   LEGISLATION AND ISSUES

5. The issue before me is whether Mr Stevens is entitled to the EDA rate pursuant to s 22(4) of the Veterans Entitlements Act 1986 (the VE Act) from 17 June 2013 or some time later.

6. In order to establish that he is entitled to be paid disability pension at the EDA rate of pension, Mr Stevens must demonstrate that he satisfied all of the requirements of s 22(4) of the VE Act at some point during the assessment period. For the purposes of this matter, the assessment period is the period between the date when Mr Stevens first lodged his application, being 17 June 2013,[1] and the date of this Tribunal’s decision.

   [1] Exhibit 1, T8/38.

7. Subsection 22(4) of the VE Act relevantly provides as follows:

   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.

   .…

   (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;

   ….

   (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.

8. There was no dispute between the parties that at all times relevant to the present matter Mr Stevens satisfied:

   (a)subsection 22(4)(a)(i), in that he has been receiving disability pension at 100% of the general rate;

   (b)subsection 22(4)(b), in that he has attained the age of 65;

   (c)the first limb of subsection 22(4)(c), in that he has an impairment rating of at least 70 points; and

   (d)subsection 24(1)(d), in that he has at no time received a pension at a rate provided for by s 23 (Intermediate Rate), s 24 (Special Rate) or s 25 (Temporary Special Rate) of the Act.

9. I also accept that Mr Stevens satisfied those provisions.  It follows that the particular issue for determination is whether Mr Stevens’ accepted disabilities can correctly be assessed in terms of the current Guide to the Assessment of Rates of Veterans’ Pensions at a lifestyle rating of 6 points or more.

   CAN MR STEVENS’ ACCEPTED DISABILITIES BE CORRECTLY ASSESSED IN TERMS OF THE CURRENT GUIDE TO THE ASSESSMENT OF RATES OF VETERANS’ PENSIONS AT A LIFESTYLE RATING OF 6 POINTS OR MORE?

10. Mr Crowe, representing the respondent, drew to the attention of the hearing that the Guide to the Assessment of Rates of Veterans’ Pensions, 5th Edition (GARP V) has recently been superseded by a sixth edition.  Although neither party, nor the Tribunal, had ready access to the new edition, Mr Crowe contended that his cursory review of GARP VI indicated there has been no change to the provisions relating to the assessment of lifestyle ratings.  I have subsequently satisfied myself that Mr Crowe’s contention is correct and that GARP VI is the appropriate guide to the assessment of Mr Stevens’ lifestyle rating.

11. Chapter 22 of GARP VI, titled ‘Lifestyle Effects’,[2] provides guidance on assessing the lifestyle effects of accepted conditions. It specifies (at pp 264-265) that:

    [2]     Federal Register of Legislative Instruments F2016L00145, pp 263 - 274.

    The effects of impairment on lifestyle are specific to a veteran, and are determined by reference to four components of that veteran’s life:

    +      personal relationships

    +      mobility

    +      recreational and community activities, and

    +      employment and domestic activities.

    All are of equal weight.

    ….

    The rating that best accommodates the veteran’s circumstances is to be selected from the descriptions in Tables 22.1 to 22.5.

    To calculate the lifestyle rating … determine the lifestyle rating from each of Tables 22.1, 22.2, 22.3, 22.4 and 22.5 (taking the higher rating from Tables 22.4 and 22.5), [then] add together the lifestyle ratings … and divide the number … by four. The result is to be rounded to the nearest integer. The fraction of 0.5 is to be rounded up. This is the final lifestyle rating to be used in the assessment.

12. I propose, therefore, to assess sequentially each of these components in terms of Mr Stevens’ accepted disabilities.

    Personal relationships 

13. Mr Miller, counsel for the applicant, contended that Mr Stevens should be assessed at a rating of 5 for this component as he meets the criterion of ‘severely affected relationships’, as well as the added guidance of ‘able to relate only to particular, or few, people’ and that ‘these remaining relationships are strained and of low quality’.

14. Mr Crowe, representing the respondent, submitted to the Tribunal that the applicant should be assessed at a rating of 4 as he meets the criterion of ‘markedly affected relationships’, as well as the added guidance of ‘most relations are unsatisfying, maintenance of usual relations with relatives, friends, neighbours and colleagues is difficult’ and that ‘much less time is spent socialising than was the case formerly’.

15. In his evidence to the Tribunal, supplementing his written statement,[3] Mr Stevens said he is divorced from his wife, that he only sees his eldest son infrequently, and that his only meaningful relationship is with his youngest son Eric, who lives with him as his carer.  He contended that he spends most of his time at home, either reading or watching TV.  He said that “I don’t see anyone except my son in the course of a normal day” and that “he enjoys his own company”.  Mr Stevens said that his son does most of the shopping and that he only goes shopping when it is necessary to buy minor food items from the local supermarket.

    [3]     Exhibit 2, Statement by Cyril Richard Glen Stevens, dated 14 October 2015.

16. Mr Stevens said his former friends no longer visit, in part because he has become “a bit abrupt”.  He said that he was on casual acquaintance terms with one of his neighbours, who unfortunately died on the evening before the hearing.  He said that he no longer plays golf or goes to the golf club because his former friends there “do activities that I used to but now cannot”.  He has also ceased going to football matches because “I don’t like crowds and don’t feel like doing it”.  Mr Stevens said the only time he otherwise goes out is to attend medical or dental appointments or other occasional specialist appointments.

17. Under cross-examination by Mr Crowe, Mr Stevens agreed that he was able to relate cordially to the manager and staff of the local supermarket, saying that he was on first-name terms with the manager and that “the girls are good and helpful”.  Mr Stevens also agreed that he regularly engaged with reception staff and his doctor at his local medical centre, and similarly with his dentist and other health professionals, including discussing his condition and making future appointments.  Mr Crowe also noted that Mr Stevens seemed reasonably confident and relaxed in appearing and speaking before the Tribunal, notwithstanding Mr Stevens’ assertion that inwardly “he was terrified”.

18. In answering questions from me, Mr Stevens said that he last attended an Anzac Day service three years ago and that he has not seen his former shipmates for probably 10 years.  He also said that he is not a member of the HMAS Sydney Association but is a member of the Naval Association at Port Adelaide, and that he recently renewed his membership to that association.  He said that he does not attend regular meetings of the Association but was there before Christmas for discussions regarding the making of a commemorative plaque for HMAS Banks.

19. Mr Stevens’ son Eric gave similar evidence to the Tribunal, supplementing his written statement.[4]  He said that he had lived with his father for four years, during which time his father had become “a bit of a hermit”.  He also said his father was “abrupt with people and others couldn’t relate” and that his father had “become difficult”.  He said his father’s condition had deteriorated in recent years and he worried that his father might take his own life.

    [4]     Exhibit 3, Statement by Eric Stevens, dated 2 December 2015.

20. After considering the evidence, I appreciate Mr Stevens’ assertion, corroborated by his son, that he has become increasingly reclusive.  However, I do not find evidence to support the contention that his personal relationships could be construed as ‘severely affected’ as a result of his accepted disabilities, nor that the relationships he does have could be construed as ‘strained and of low quality’.  Mr Stevens seems to have had a polite and civil relationship with his former neighbour, as he does with staff at the local supermarket and the various medical centres he periodically attends.

21. I also note that in appearing before the Tribunal, Mr Stevens displayed no evident difficulties in social interaction, engaging at some length in explanations to me of various issues relating to the manufacture of the commemorative plaques.  I accept his assertion that he has had no recent contact with his former shipmates.  However, his ongoing membership of the Naval Association and the fact that he had discussions with representatives regarding a plaque for HMAS Banks as recently as “before Christmas” (2015) suggest to me that he retains an ongoing interest in service-related matters, and that he gains some satisfaction from that relationship.

22. Accordingly, I agree with the respondent’s contention that Mr Stevens’ personal relationships should be assessed as ‘markedly affected’ and determine that his lifestyle rating for ‘personal relationships’, in accordance with Table 22.1 of GARP VI, should correctly be assessed as 4.

    Mobility

23. Both the applicant and the respondent agree that Mr Stevens’ lifestyle rating for ‘mobility’ should correctly be assessed as rating 5, that is, ‘major impediments to mobility’.  I agree with that assessment and accordingly determine that Mr Stevens’ lifestyle rating for ‘mobility’, in accordance with Table 22.2 of GARP VI, should correctly be assessed as 5.

    Recreational and community activities

24. Mr Miller contended that the applicant should be assessed at a rating of 6 for this component as he meets the criterion of ‘able to engage in only a very few satisfying recreational activities’, as well as the added guidance of ‘restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors’.

25. Mr Crowe submitted to the Tribunal that the applicant should be assessed at a rating of 5 as he meets the criterion of ‘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’, with the added guidance that ‘can only visit or go out if taken to and from a destination; finds doing a hobby … difficult to enjoy due to pain, suffering or loss of dexterity’.

26. In evidence to the Tribunal, Mr Stevens reiterated that his typical day involved reading, watching TV or playing with his dog, only leaving the house for occasional trips to the local supermarket or medical-related appointments.  He said that he stopped playing golf some years ago, as “I can’t do it”.

27. Mr Stevens said that he if needed to go to the local shops, he typically caught a bus, needing to walk some 50 metres to do so.  He said that he either went with his son to medical and specialist appointments or caught a taxi if his son was working.

28. Mr Stevens discussed at some length his interest in woodworking and the making of commemorative plaques.  He said that he no longer engages in that activity as his son has locked the backyard shed, fearful that his father will injure himself on the power tools, such as a woodworking lathe.  He said that he “would like to resume shield making” and is hoping “after his [forthcoming] shoulder operation that he can resume”.  He noted, though, that his doctor has advised against him doing woodworking. 

29. Under cross-examination, Mr Stevens agreed that he previously enjoyed playing darts but has had to discontinue it because of a shoulder injury.  He also said that he would likely struggle to retain sufficient balance because of his accepted disabilities relating to his knees and hip.  He similarly contended that his inability to safely use woodworking tools related both to his shoulder injuries and his ability to stand.  He also said that some of his current medications warn that ‘machinery should not be operated’ while taking them.  He could not specify the particular medications but thought it was probably Warfarin, which he takes for blood pressure relating to his heart condition.

30. Mr Crowe also questioned whether Mr Stevens had considered playing lawn bowls, noting that some people with disabilities play while seated.  Mr Stevens said he had not tried lawn bowls but thought he would be unable to play because “he couldn’t bend over and sometimes gets dizzy”.

31. In my questioning of Mr Stevens, he explained in detail some of the problems he had encountered in making moulds for plaques, talking specifically of a solution he had devised for removing excess material from the margins.  He also indicated that the proposed plaque for HMAS Banks did not eventuate because the other party decided not to go ahead.  In response to a question of whether he would have undertaken the work had he been so commissioned, Mr Stevens did not answer directly but discussed some of the technical challenges involved.  Nevertheless, I note that he went to a meeting at Port Adelaide specifically to discuss the proposal and that his explanation of the problems associated with the making of moulds was expressed in contemporary terms. 

32. Mr Eric Stevens corroborated his father’s largely passive lifestyle, saying he particularly worries that his father will fall when he (Eric) is absent at work.  Under cross-examination, Mr Eric Stevens said he locked the shed because he worried about his father’s ability “to control power tools, as he lacked muscle control and his mind is often elsewhere”.  He conceded that his father could possibly undertake some plaque manufacturing tasks and suggested he might be able to “sit and paint moulds”.  He further said that his father “hasn’t painted for the last six months because there is nothing left to paint”.  In response to a question from me, Mr Eric Stevens said that if his father was interested in continuing his woodworking hobby, he (Eric) would be happy to work collaboratively with his father in a supervisory role.  He said, though, that he thinks his father “over-estimates his abilities”.

33. After considering the evidence, I appreciate that the applicant’s ability to engage in recreational and community activities is constrained by his accepted disabilities, particularly in relation to his mobility.  I also note Mr Miller’s contention that Mr Stevens has “put on a brave face” regarding the issues he faces.  However, I do not find evidence to support his contention that Mr Stevens’ accepted disabilities restrict his lifestyle to ‘a few passive activities’.  I note that Mr Stevens is capable of independent travel by bus and taxi.  I particularly note the evidence of both Mr Stevens and his son regarding Mr Stevens’ ability and seeming willingness to continue undertaking some elements of his woodworking and plaque-making hobby.  I also note Mr Stevens’ explanation as to why he can no longer play darts or attempt to play lawn bowls, which seem to relate to a combination of accepted and non-accepted disabilities.

34. Accordingly, I agree with the respondent’s contention that Mr Stevens’ recreational and community activities should be assessed as a ‘greater reduction in the number and kind of recreational activities which can be undertaken’ and determine that his lifestyle rating for ‘recreational and community activities’, in accordance with Table 22.3 of GARP VI, should correctly be assessed as 5.

    Domestic and employment activities

35. As Mr Stevens is neither employed nor seeking employment, both parties agreed that ‘Employment Activities’ at Table 22.5 of GARP VI are not relevant, and that Mr Stevens should only be assessed in term of ‘Domestic Activities’ at Table 22.4.

36. For this component, Mr Miller contended that the applicant should be assessed at a rating of 6 as he meets the criterion of ‘able to carry out only very limited domestic activities, usually a restricted range of indoor activities’, as well as the added guidance of ‘may require supervision in carrying out such activities, for example, able to do very light tidying, dusting but unable to cook or prepare meals, [and] has difficulty standing to set table or wash dishes’.

37. Mr Crowe submitted to the Tribunal that the applicant should be assessed at a rating of 5 as he meets the criterion of ‘limitation of household activity to a small range of light tasks, for example, watering the garden but has difficulty in weeding or pruning, [and] able to do some light household duties but has difficulty bending to make beds or in putting out the rubbish bin; requires assistance with grocery shopping’.

38. In evidence to the Tribunal, Mr Stevens said that his son performs all of the outside maintenance of their home and most of the indoor household duties, including all washing of clothes and cleaning.  He said that he is able to prepare his own breakfast and that he will either skip lunch or have leftovers, which he might need to microwave.  He said that his son prepares the main dinner meal and does the dishes.  He said he does not do any gardening as he is “worried about falling over with no-one at home”.  He occasionally does some dishes but “can’t stand for any length of time”.  In response to a question from Mr Crowe, Mr Stevens said he does not cook because “I’m concerned about cutting myself … I also lose concentration”.

1. Mr Eric Stevens corroborated his father’s evidence.  In response to a question from Mr Crowe, he said that his father is not a good cook and, when he tried, “the food was not cooked properly”.  He said that some years ago, his father liked to BBQ but is “not sure why he now doesn’t”.

2. After considering the evidence, I appreciate that Mr Stevens’ accepted disabilities restrict his ability to undertake domestic activities, particularly those relating to standing and bending.  It is also evident that some of his limitations relate to non-accepted disabilities, while some also probably relate to choice and habit. In that regard, I commend Mr Eric Stevens for the support he is providing to his father, without which Mr Cyril Stevens’ day-to-day life would certainly be much more difficult.

3. I also think the distinction between rating 5 and 6 is minimal.  On balance, I accept the applicant’s contention that his ‘domestic activities’ should be assessed as ‘able to carry out only very limited domestic activities, usually a restricted range of indoor activities’ and determine that his lifestyle rating for ‘domestic activities’, in accordance with Table 22.4 of GARP VI, should correctly be assessed as 6.

   CONCLUSION

4. I have determined that the lifestyle ratings for Mr Stevens should be assessed as:

   (a)Personal relationships – 4

   (b)Mobility – 5

   (c)Recreational and community activities – 5

   (d)Domestic (and employment) activities – 6.  

5. These combine for a total of 20 which, divided by 4 in accordance with Step 4 of the ‘Calculation of lifestyle rating’ of GARP VI, results in a lifestyle rating of 5.  This is less than the lifestyle rating of 6 needed to qualify for payment of pension at the EDA rate in accordance with subsection 22 (4)(c) of the VE Act.

   DECISION

6. The decision under review is affirmed, that is, disability pension be continued at 100% of the general rate.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Lt Col R Ormston (Rtd) (Member)

.......................[Sgd].........................................

Administrative Assistant

Dated 10 May 2016

Date(s) of hearing	29 March 2016
Counsel for the Applicant	Mr J Miller
Advocate for the Applicant	Ms B Tapscott
Solicitors for the Applicant	Tindall Gask Bentley
Advocate for the Respondent	Mr A Crowe
Solicitors for the Respondent	Dept of Veterans' Affairs