Thorpe and Repatriation Commission
[2002] AATA 1247
•4 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1247
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/93
VETERANS' APPEALS DIVISION )
Re CLETUS GRAHAM BARRY THORPE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member)
Date4 December 2002
PlaceHobart
Decision The decision under review is varied and the Tribunal's determination is that Mr Cletus Graham Barry Thorpe should receive a disability pension at 100 per cent of the General Rate with effect from 13 January 1999; and (a) a special disability allowance at the rate applicable to Item 15 for blinded in one eye from the same date until 31 December 2001; and (b) the Extreme Disablement Adjustment from 31 December 2001.
[Sgd B W Davis]
Part-Time Member
CATCHWORDS
Veterans' Appeals - disability pension - general rate - special rate - extreme disablement adjustment - impairment - lifestyle - Veterans' Review Board - GARP (Guide to the Assessment of Rates of Veterans' Pensions).
Legislation
Veterans' Entitlements Act 1986 – s.22
REASONS FOR DECISION
4 December 2002 Associate Professor B W Davis AM (Part-time Member)
The Application
The applicant, Cletus Graham Barry Thorpe, seeks review of a decision made by a delegate of the Repatriation Commission on 23 August 2001, subsequently affirmed by a decision of the Veterans' Review Board (VRB) on 8 May 2002, whereby the applicant's pension was increased to 100% of the General Rate and special disability allowance at the rate applicable to Item 15 for blinded in one eye was granted.
All steps in this matter having been taken within the prescribed time limits, if successful in this appeal the earliest date that may be set by the Tribunal would be 14 January 1999.
As this appeal relates to assessment only, the standard of proof required is that set out in s120(4) of the Veterans' Entitlements Act 1986 ("the Act") i.e. the "reasonable satisfaction" standard.
The principal issue is whether the applicant's disabilities are of such a nature as to warrant him being granted the Extreme Disablement Adjustment provided for in s22 of the Act.
The respondent concedes that Mr Thorpe satisfies the requirements of ss22(4)(a)(I), (b) and (d) of the Act, with an impairment rating of 70 points, but does not concede that s22(4)(c) is met i.e. that the applicant has a lifestyle rating of at least 6 points. The respondent says this is a matter for the Tribunal to determine on the evidence.
BackgroundMr Thorpe served as an LAC fitter in the Royal Australian Air Force from August 1944 until August 1956 in Australia and Korea. His subsequent career was as a machinery salesmen, both as an employee and self-employed. Mr Thorpe has a number of accepted service related disabilities including the following:
Atrial filbrillation
Thyrotoxicosis
Chronic bronchitis and emphysema
Ischaemic heart disesase
Bilateral sensori-neural hearing loss
The VRB also accepted retinal detachment of the left eye as being war-caused with effect from 13 January 1999.
In making the determination of 23 August 2001 the delegate of the Repatriation Commission assessed overall impairment at 70 points and then having considered the total evidence available made a lifestyle rating as follows:
Personal relationships - 4
Mobility - 3
Recreational and community activities - 4
Domestic and employment activities - 5
By adding and dividing by 4, an overall lifestyle of 4 was obtained.
The combination of an impairment rating of 70 points and lifestyle rating of 4 points gave a pension assessment of 100 per cent of the General Rate. Having determined that the applicant was not eligible for the Intermediate or Special Rate of disability pension because of age and the long period out of the work force (since 1987), the delegate considered whether the Extreme Disablement Adjustment might apply. As the lifestyle rating was below 6 points this did not apply.
The delegate decided to increase the disability pension to 100 per cent of the General Rate with effect from 13 January 1999 and that a special disability allowance would be granted at the rate applicable to Item 15, for blinded in one eye, with effect from 13 January 1999.
In making its determination of 8 May 2002, the VRB relied upon a lifestyle questionnaire dated 15 August 2001, but noted there had been some deterioration in Mr Thorpe's condition. Mr Thorpe relied upon an advocate (Mr John van der Hook of the RSL Claremont, Tasmania), but the Board considered it necessary to speak to the veteran by conference phone about his lifestyle situation.
Having considered all evidence before it, the VRB made the following lifestyle ratings:
Personal relationships - 4
Mobility - 5
Recreational and community activities - 5
Domestic and employment activities - 4
When the lifestyle ratings were added and divided by 4, the combined rating was 4.75, rounded to 5 points, falling short of the 6 points required to qualify for the Extreme Disablement Adjustment (EDA). The Board according affirmed the decision under review.
The Hearing
At the hearing conducted at St Helens on 15 November 2002, Mr Thorpe was represented by Mr Jim Saddington, President of the Vietnam Veterans' Association of Australia (Eastcoast, Tasmania Branch). The respondent was represented by Mr M Castle.
Mr Saddington outlined Mr Thorpe's case, noting his many disabilities, claiming these were more severe than Mr Thorpe himself sometimes realised. Mr Thorpe's personal relationships were almost zero, since he lived alone apart from a helpful landlady and all relatives were in other states of Australia. He had trouble reading papers because of eye problems and limited mobility because of cramps in his legs after walking only short distances. He had breathing problems, could not bend or exert effort and was not in a position to drive, since it would be dangerous in his condition. Given that he resided in St Helens, no public transport was available. He used a walking stick as aid, even at home and household duties were limited to making his bed. He had been forced to give up gardening, bowls and fishing (unless specially aided). He had to rely upon others to attend an RSL meeting once a month.
Mr Saddington claimed that Mr Thorpe's condition had deteriorated during the past twelves months and considered that his overall lifestyle rating should be higher than previously assessed.
Mr Thorpe was sworn as a witness and gave evidence about his disabilities and lifestyle, agreeing with the presentation made by Mr Saddington on his behalf. His lack of mobility and transport meant there was little social contact and he sought to be alone, since people he met pitied his physical condition or made comment about him having to wear slippers in public or other aspects of his appearance. The last twelve months had been hard for him, as all activities and contacts were now proving much more difficult to maintain.
Counsel for the respondent questioned Mr Thorpe as to when he had ceased gardening, fishing and playing bowls. He responded that he had ceased any gardening approximately 8 months ago, there had been no fishing (which required assistance) for at least six months and he had given up bowls at least a year ago. He had driven once, in an emergency need to see a doctor and had then been admitted to hospital and operated on.
Mr Saddington affirmed that he had known Mr Thorpe a number of years and could confirm the applicant had not played bowls during the past year.
Counsel for the respondent noted that if Mr Thorpe succeeded in his application and was granted the Extreme Disablement Adjustment, there would be the question of when this should commence. He considered that as Mr Thorpe's situation was claimed to have worsened in the past twelve months, that would be appropriate period for any adjustment to commence.
DecisionThe sole issue before the Tribunal is whether the applicant's disabilities are of such a nature to warrant him being granted the Extreme Disablement Adjustment provided for in s22 of the Act. It is agreed that his impairment rating is 70 points, thus the query is whether his lifestyle rating is less than, equal to, or more than 6 points. The Repatriation Commission lifestyle rating in August 2001 was 4 overall, the VRB determination in May 2002 was 4.75 points, but there was now evidence Mr Thorpe's situation had deteriorated. The Tribunal is required to take all evidence into account and be guided by criteria specified in GARP (The Guide to Assessment of Rates of Veterans' Pensions).
In terms of personal relationships it is clear Mr Thorpe's assistance from his landlady and reliance upon friends to take him the monthly RSL meetings constitute virtually the only social contacts he has. This situation can be characterised as isolated, withdrawn, strained and of low quality, thus a rating of 5 plus is now appropriate.
It is also clear that Mr Thorpe's mobility is severely limited. Although he can drive a vehicle in emergency, his poor eyesight, cramps in legs and other maladies do not permit him walking any distance and render it highly dangerous for him to drive. He has to use a walking stick, even within his residence and living in St Helens no public transport is available. These very severe impediments to mobility indicate a rating of 6 is appropriate.
There are severe limitations on Mr Thorpe's recreational and community activities. He is now unable to take part in former recreational pursuits, he can only visit or go out if taken to and from any destination, he is reduced to a few passive activities such as TV and receiving visitors (if any), but his eyesight is so poor and his desire to avoid scrutiny such that even modest community activities are beyond him. Again a rating of 6 points is appropriate.
In terms of domestic activities he cannot bend or exert effort, gardening is beyond him and the sole domestic chore he appears capable of, is making his bed. It should be noted however, that he regards his landlady is extremely helpful, so the limits of his domestic capabilities may not be fully tested. They are probably low and one can characterise the situation as one where Mr Thorpe can only carry out very limited domestic chores and this would indicate a rating of 5 plus, probably 6.
Collectively this leads to a lifestyle rating of 23 points, which divided by 4 and rounded up gives a final result of 6 points, meaning that Mr Thorpe qualifies for the Extreme Disablement Adjustment. Given that the VRB review in May 2002 was that the lifestyle rating was only 4.75 points, it is clear there has been a dramatic shift in Mr Thorpe's circumstances in the last six months. This does accord with his own testimony and that of Mr Saddington. Accordingly, it would appear appropriate that award of the EDA should not commence in 1999, but rather at the start of year 2002.
Decision
The decision under review is varied and the Tribunal's determination is that Mr Cletus Graham Barry Thorpe should receive a disability pension at 100 per cent of the General Rate with effect from 13 January 1999; and (a) a special disability allowance at the rate applicable to Item 15 for blinded in one eye from the same date until 31 December 2001; and (b) the Extreme Disablement Adjustment from 31 December 2001.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: .....................................................................................
Administrative AssistantDate/s of Hearing 15 November 2002
Date of Decision 4 December 2002Representative for the Applicant Mr J Saddington (Vietnam Veterans' Assoc of Australia)
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Repatriation Commission
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