Green and Repatriation Commission [2000] AATA 399 (22 May 2000)

Last Updated: 25 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 399

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N99/647

GENERAL ADMINISTRATIVE DIVISION )

Re EDWARD ERNEST GREEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date 22 May 2000

Place Sydney

Decision 1. In so far as it relates to entitlement for claimed disabilities, the decision under review is affirmed. 2. The decision is however varied by fixing the rate at 70% of the general rate. 3. The commencement date of the variation is to be 1 January 2000.

..............................................

BJ McMahon

Deputy President

VETERANS' AFFAIRS - disability pension - assessment - whether entitled to increase of General Rate - whether appropriate lifestyle rating given

Veterans' Entitlement Act

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

1. The applicant lodged a claim for disability pension and medical treatment on 31 May 1996 in respect of certain named disabilities. Some were accepted and some were rejected as war-caused diseases. The applicant's disability pension under the Veterans' Entitlements Act was increased to 60% of the general rate with effect from and including 29 February 1996. This decision was affirmed by the Veterans' Review Board on 11 March 1999.

2. Mr Green then made application to this Tribunal for review of the refusal to grant entitlement to the rejected disabilities. In the course of negotiations, the entitlement claims were withdrawn. The remaining issue in this application relates to the appropriate assessment of the rate of the applicant's disability pension.

3. The respondent accepts an impairment rating of 35 as calculated by Dr Baz in her report of 8 February 2000, tendered on behalf of the applicant. Whereas, however, the applicant contends for an incapacity rate of 70%, the respondent sought to defend its conclusion of a rate of 60%. No claim was made by the applicant for the special rate. The difference between 60% and 70% of the general rate can be accounted for by the two contending points of view relating to lifestyle rating.

4. A report of Dr Burns was tendered on behalf of the respondent. He concluded that the appropriate rating was 2 for lifestyle. However, the respondent's advocate affirmed that in accordance with Departmental practice, it would accept the current rating of 3. Dr Baz assessed a lifestyle rating of 4. The question to be decided is which, if either, of the lifestyle rating assessments is to be preferred. If Dr Baz's view is accepted, a further question arises as to the appropriate commencing date of the higher pension. Medical practitioners may offer opinions as to the appropriate rating to be allotted within the various tables within the Guide. In relation to lifestyle, however, assessment depends largely on the evidence of the applicant and the way in which that evidence is to be treated. The application of lifestyle criteria is largely the result of a subjective approach to the relevant lifestyle evidence rather than one based upon medical opinions.

5. Mr Green's disabilities can be divided into three groups as follows:

Accepted Disabilities

Malaria

Chronic Airflow Limitation

Bilateral Tinnitus

Ischaemic Heart Disease

Non-Accepted Disabilities

Cervical Spondylosis

Lumbar Spondylosis

Nerves

Psychoactive Substance Abuse or Dependence

Hyperlipidaemia

Dementia

Osteoarthrosis of the Left Ankle and Foot

Osteoarthrosis of the Left Hip and Right Hip

Limitations and other disabilities

Difficulty with Memory Recall and Short Term Memory

Mild Disturbance of Medium to Long Term Memory

Rectus hernia

Idiopathic Cardiomyopathy

Moderate to Severe Left Ventricular Dysfunction

Sleep Apnoea

Skin Bruising and Disfigurement

Thoracic Spondylosis

Generalised Osteoarthritis

Pes Plano Valgus Deformity of both feet

Hallux Valgus Deformity of both feet

Gout

6. It was the respondent's contention that Dr Baz's report was flawed in her assessment of the lifestyle rating. Whilst accepting that she had reduced the assessment of impairment ratings, where there had been an interaction between accepted and non-accepted disabilities, it was contended that there had not been a corresponding allowance made for effects of non-accepted disabilities upon the lifestyle rating enjoyed by the applicant.

7. Neither Dr Burns nor Dr Baz was called to give evidence. Their reports, therefore, are unchallenged although the two practitioners have approached their tasks in different ways. Dr Baz has taken each of the tables in chapter 22 of the Guide to the Assessment of Rates of Veterans' Pensions 5^th edition, and has followed the orthodox course of assessing ratings under each heading and subsequently combining them in the manner set out in the Guide.

8. Dr Burns arrived at a lifestyle rating of 2 after reviewing the history which he took under the four lifestyle headings, without making clear how that final figure was arrived at. He then used the so-called shaded area in the conversion table to arrive at the end result of 50% for which he contended. The respondent has already indicated that it would accept a higher impairment rating and thus would defend an incapacity rate of 60%. It was conceded by the respondent's advocate that Dr Burns had in fact referred to outdated spirometer readings, taken in July 1996 rather than more recent readings closer to the date of his report in September 1999. It was conceded that if these more recent readings had formed the basis of Dr Burns' opinion, it is likely that he too would have arrived at an incapacity rate of 60%.

9. The only oral evidence given was that of Mr Green. It was given freely and somewhat breathlessly by telephone, as Mr Green was too ill to travel to the Tribunal. I formed the view that his straightforward answers were honest and truthful and I have no difficulty in accepting all of the evidence he gave.

10. It is clear that his disabilities which caused the greatest incapacity and the greatest disturbance to his lifestyle are chronic airflow limitation and ischaemic heart disease. He had been out of hospital only for a few days, having been confined there for two weeks on account of pneumonia, angina and breathlessness. Over the last three years, he has been an in-patient at St George Hospital on four occasions for the same causes. The "other disability" of cardiomyopathy would made some contribution to this general condition. It has, however, been taken into account by Dr Baz in the difficult exercise of separating out accepted disabilities from non-accepted disabilities, in their contributing effect to lifestyle diminution.

11. From Mr Green's evidence, there appears to have been a marked decline in his health since he saw both Dr Baz and Dr Burns in November 1999. So far as his personal relationships are concerned, they are now confined to visitors to his house. He lives at home with his wife and son, who must accompany him whenever he leaves the house. He has no other contact with other members of the family because he is unable to travel. His time is spent at home reading and listening to the radio. Lack of continuing relationships with relatives, friends and neighbours is directly related to his breathlessness, although there is some contribution from anxiety and memory loss.

12. His mobility has been particularly restricted. There is a bus stop some 500 metres from his home. To reach it, however, he needs to stop frequently for breath. The passing traffic fumes also interfere with his breathing difficulties. Travelling by taxi (as he has done on rare occasions for medical examinations requested by the respondent) is difficult because of his need for the use of a nebuliser and also because of bladder pressure brought about by side effects of medication taken for his heart disease.

13. He had recreational and community activities in the past which revolved largely around the local bowling club. He has given up going to the club because of the smoking that takes place there and because of his breathlessness. He last went to the club at the end of 1999 but had to leave immediately because of these factors. He also does not go to restaurants anymore because of smoking by other patrons. He has given up drinking alcohol since he gave up going to the club. Although he is limited by his muscular skeletal disabilities, the principal impediments to a continuation of his recreational activities are his breathing problems. When he becomes agitated (as he does when he finds that he is frustrated) this merely worsens his breathing problems.

14. He is quite limited in what he can do around the house. He is unable to make the bed. He can wipe up dishes but takes a long time to do so because he has to sit and rest quite frequently because of his breathlessness. He is able to water the garden only at the same extended pace. Because of the fact that he must use a nebuliser at least 5 times per day for a quarter of an hour at each session, he does not move around the house very much. He spends a considerable amount of time lying down. He believes that helping to set the table is about all he can now do around the house. He is quite unable to mow lawns, do shopping or do repairs, all of which were activities which he formerly carried on and which he described to both Dr Baz and Dr Burns. He cannot put out the garbage. Indeed, he has been told to lift nothing heavier than one kilogram. This would include a hammer.

15. The disabilities which previously affected his life to some extent, namely the spondylosis and osteoarthritis are no longer limiting factors. They do not prevent him from doing tasks which he previously did because he is afflicted by breathlessness before even beginning to feel the musculo skeletal pains. For example, for his osteoarthritis of the left ankle, he would once bandage the joint, but as he now does not go anywhere, it is not necessary to follow this procedure and he is therefore not handicapped by that disability.

16. Similarly, the minor disabilities such as memory impairment do not cause any distress as he is not called upon to remember anything. When he receives medical advice he writes it down, which seems a wise course in any event.

17. On this evidence, I would agree with Dr Baz that the rating for personal relationships should be 4. They have been markedly affected by the fact that he is unable to visit and must depend upon others coming to him if the relationship is to be maintained.

18. I would also agree with the assessment of 4 for mobility. Mr Green requires assistance to cope with public or private transport. He leaves the house usually for medical appointments and is either driven by his son or accompanied by him on public transport. Even so, he suffers marked discomfort in any form of travel.

19. I would agree with the assessment of 4 for community and recreational activities. The change from a life in retirement which had revolved around the bowling club, to a life which is spent largely on a bed, indicates a great reduction in the kind of recreational activities which can be undertaken.

20. Similarly with domestic activities, a rating of 5 is appropriate because of the extreme difficulties experienced by Mr Green in carrying out those activities.

21. Although he suffers from a range of disabilities, both non-accepted and non-claimed, the evidence clearly is that his lifestyle is principally effected by the two active accepted disabilities. When the non-accepted disabilities are taken into account, the extent of Mr Green's affectation would be much greater. This is a fact that was noted by Dr Baz.

22. I also accept her distinction between the applicable ratings in 1996 and the current applicable ratings. It seems to me that the marked deterioration in Mr Green's health in the last five months has put beyond doubt the appropriate rating which ought to be applied in the calculation of his pension. If there was any question concerning the generosity of approach of Dr Baz in November 1999, it is clear that in May 2000, her assessment may now be viewed as conservative. On my assessment of Mr Green's evidence, there can be no doubt that a lifestyle rating of at least 4 is appropriate, which would, when converted with the agreed impairment rating, result in an incapacity rate of 70%. The evidence, however, is not sufficient to allow one to say comfortably that this was the appropriate rate in 1999. I will therefore affirm the decision under review in so far as it relates to the entitlement claims. I will vary the decision under review so that the rate of pension will be 70% of the general rate. The commencement date of the variation should be 1 January 2000.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed: .....................................................................................

Dominika Rajewski, Associate

Date of Hearing 9 May 2000

Date of Decision 22 May 2000

Representative for the Applicant Jodie Buchanan

Representative for the Respondent Richard Wallis