McNeany and Repatriation Commission [2000] AATA 84 (10 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 84

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1407

VETERANS' APPEALS DIVISION )

Re Vincent James McNEANY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date 10 February 2000

Place Sydney

Decision The decision under review is affirmed.

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

M T Lewis,

Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - disability pension assessment - whether applicant entitled for Extreme Disablement Adjustment - whether applicant meets lifestyle rating

Veterans' Entitlements Act 1986-s 22(4)(c)

REASONS FOR DECISION

10 February 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

1. This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 12 June 1997 which increased pension paid to Vincent James McNeany ("the Applicant") to one hundred percent of the General Rate with effect from 14 November 1996. The Applicant sought review by the Veterans' Review Board of that part of the Respondent's decision and the decision was affirmed. The Applicant then lodged this application for review. All applications for review were in time. The Applicant is seeking to have pension paid at the Extreme Disablement Adjustment pursuant to s 22 of the Veterans' Entitlements Act 1986 ("the Act").

2. The background to this claim is that on 14 February 1997 the Applicant lodged an application for increase and a claim for "shortness of breath". On 12 June 1997, in response to those applications, a delegate of the Respondent accepted the Applicant's chronic airflow limitation was due to war service and pension was increased to 100 percent of the General Rate with effect from 14 November 1996.

3. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant -

* Report of Dr M Baz, occupational physician, dated 12 April 1999 (exhibit A);

* Report of Dr DE Ross, cardiothoracic surgeon, dated 24 November 1998 (exhibit B).

The following documents were tendered as evidence on behalf of the Respondent -

* Report of Dr M. Burns, occupational physician, dated 19 July 1999 (exhibit 1);

* Decision of a delegate of the Respondent dated 17 February 1999 which accepted the Applicant's ischaemic heart disease as being war-caused, with effect from 18 August 1998 (exhibit 2).

The Applicant gave oral evidence at the hearing.

4. The Applicant suffers from the following war-caused conditions -

* Duodenal ulcer with partial gastrectomy and post-gastrectomy steatorrhoea

* Haemorrhoids

* Anxiety state

* Chronic airflow limitation

* Ischaemic heart disease

The condition "ischaemic heart disease" was accepted by a decision of the Respondent dated 17 February 1999, and the effective date of that condition was 18 August 1998 (exhibit 2).

legislation

5. The Applicant is seeking payment of disability pension at the Extreme Disablement Adjustment within the provisions of s 22 of the Act. Section 22(4) provides:

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 increased by 50% of the maximum rate set out in subsection (3).

6. In effect, the first criterion in s 22(4)(c) is satisfied as the assessment provided by both Dr Baz and Dr Burns is at least 70 impairment points. In respect of lifestyle assessment, both Dr Baz and Dr Burns assess 5 for Domestic Activities. Therefore, the only issue for the Tribunal to determine is the assessment for Personal Relationships, Mobility, and Recreational and Community Activities. The ratings at issue which relate to these factors are defined in the Guide to the Assessment of Rates of Veterans' Pensions fifth edition ("GARP") in the following terms -

Personal Relationships

5 - 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.

6 - Extreme difficulty in relation to anyone, for example:

* difficulties in relating because of psychosis; or

* social interaction limited to carer(s) due to confinement; or

* ability to communicate restricted due to stroke or other effect of accepted conditions.

Mobility

4 - Markedly reduced mobility:

* assistance 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.

5 - 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.

Recreational and Community Activities

4. 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).

5 - 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.

6 - 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.

evidence

Applicant

7. The Applicant served in the Royal Australian Navy from 1952 to 1958. This period included operational service in Korea from 17 July 1954 to 16 March 1955. After his discharge from the Navy he obtained employment with the Supreme Court of New South Wales as a Sheriff's Officer, and worked in a number of country towns in New South Wales. In 1964 he became quite ill and required surgery for a duodenal ulcer. He was in hospital for five months. He said that on his doctor's advice he was then transferred to Sydney to work. He was not happy with the work he was required to perform in Sydney and he started to haemorrhage from the stomach again. He was advised to look for a different position. About that time he took an overdose. The Applicant was posted to the Department of Housing as housing officer subsequently. Again, the work he was given there was menial and unsatisfactory. He felt he had no option but to resign from the New South Wales public service. He then obtained a number of jobs as a security officer. Later he obtained work in what was then known as the Postmaster General's Department. He said there was a lot of union discontent about that time. He became a union secretary but "couldn't take the pressure" and resigned. He was transferred to another location on grounds of ill health where he stayed for about six months, and subsequently left Telecom because of ill health. He took on "minor jobs" until he obtained work in a hotel snack bar. He said that he made a success of that job, and ultimately he became a contract caterer for two golf clubs. He did that work for about two years, until about 1972.

8. The Applicant said his first wife left him in September 1965, two days after his father died. He then became involved in a de facto relationship. Two children were born of that relationship. He said that because of his anxiety condition he became upset with the children, and eventually his de facto spouse "got tired of it and moved off and disappeared, took the two children with her". After that, he returned to live with his mother. He took odd jobs and obtained another security job about 1979. He left that job in 1982 following a collapse at work, as he was continually worried about his health. The Applicant said that after investigations in hospital he was told it was "probably just nerves".

9. The Applicant then obtained work as a hospital as a cook for some fourteen months. He was happy there. He then moved from Sydney to a position at Cooma as catering and staff supervisor at Cooma District Hospital in May 1984. He said that at that time his second wife had just arrived from overseas and they lived in a campervan in Cooma. He was involved in the accreditation of that hospital and was seconded to Queanbeyan where he did similar work for their accreditation. He was then promoted to a grade 7 position at the Griffith Base Hospital for six months and during that time they also obtained their accreditation. In late 1987 he was then promoted to the Tamworth Base Hospital as a catering officer grade 7, and within eighteen months he had become the regional catering adviser, a grade 10 position, responsible for eight hospitals. He said that over the period in this position he achieved considerable improvement in diet selection and menus, and he achieved accumulated savings of $1.2 million.

10. The Applicant said that until about 1987 his health was "fairly good". He then developed hypertension which he understood from his doctor occurred "because of the amount of work ... and travel". He also required a driver when he was travelling because of dizziness. He said he stopped playing golf about 1987/88 because of shortage of breath. He said he then "concentrated on work and family".

11. The Applicant said in 1992 there was a change of policy and structure in NSW health. The Applicant's evidence was that he was told that his image was not the persona that was required for the "new look they had for the hospitals". He said he started to become argumentative with his colleagues and departmental heads, and "I was at loggerheads with everyone". He was upset, he had difficulty sleeping and performed a minimum amount of work. He was asked to take a redundancy package because his employer could not see any future for him by remaining. His wife and step-daughter advised him to "stay and fight" but he said "I just couldn't be bothered". He said at that time he suffered from headaches and vomiting.

12. The Applicant said that while at Tamworth, although he did not have close friends there, he entertained acquaintances at week-ends - up to eighty persons over a week-end. He used these gatherings to try out new menus for his work. However, from late 1992 he said he could not be bothered to socialise any more. He said he blamed everybody for what was happening to him and he was not sleeping. He said his doctor advised him to change his environment and his job because of his hypertension. As well as hypertension and anxiety he was also suffering from rectal bleeding. He said he was "forced out" of Tamworth and then went to live on the Central Coast because there were a number of hospitals and nursing homes where he thought he might be able to work as a cook or a catering officer. At that stage he was aged 59 years. He said he was prepared to move elsewhere in order to obtain suitable work.

13. The Applicant said that after they moved to the Central Coast, his wife had to obtain work. He said that when he presented for work himself he lost his confidence, which in turn led to sleeplessness, headaches and nausea, and he "just withdrew". He said he used to "fly off" when little things upset him. In March 1999 he took another overdose.

14. The Applicant said he did not report his frequent reflux, heartburn and nausea, when interviewed by Dr Burns because he did not ask about those conditions. He described to the Tribunal symptoms of severe reflux, flatus and soiling. He said by 1994 he was unable to swallow, and consequently he had an osteoscope and a colonoscopy. He had some benign lesions removed at that time, but since then his symptoms have become worse.

15. The Applicant said Dr Burns had told him that he was not concerned about the difficulties he had with work - he was more interested in his lifestyle. The Applicant said he felt all his good work at the Tamworth hospital was negated. He was also concerned that his wife now has to work. He worries about there being no one to care for her. He is concerned he cannot mow the lawn and worries about the fact that he does not do more about the house while his wife is at work. He has disturbing dreams and when he wakes he loses the use of his left arm and has chest and stomach pains. He then becomes concerned about walking his wife, knowing that she has to work when she gets up.

16. The Applicant said arguments with his wife had become more frequent over the past few years. He said at home he slams doors and breaks crockery but he is not physically violent towards his wife. At times she goes out for a few hours while he calms down, but when she returns he may not speak to her for two or three days. He now does not feel he can socialise, and when his wife has people to visit he goes to his room.

17. The Applicant explained that he saw Dr Baz prior to having a stress test and echo cardiogram. The results of those tests showed a blockage on the right side of his heart which was not amenable to radical treatment. As a result he now has to continue to exercise but within limitations. He explained this has now reduced his walking since giving the history to Dr Baz.

18. The Applicant said he is now "very timid" and dislikes using public transport. He is concerned about having to walk up and down stairs at railway stations. He tries to avoid trains and people, and needs to have his wife with him for security. He explained that he left home at Erina on the Central Coast 5.30 am on the day of the hearing to attend the hearing at 10 am in order to avoid peak hour travel. He drives his wife to work one kilometre in a very quiet suburban area but he does not drive in peak traffic or in the city. He said that he drives his wife to work rather than having her drive herself because he fears youth vandalism in the car park. He does not drive beyond the Erina/Gosford area and uses the side streets.

19. The Applicant said he and his wife used to see a movie once or twice a week when they lived in the country, but later he started to withdraw from that. He said they used to come to Sydney quite a lot before he started getting headaches. He stopped coming to Sydney about 1993 because he gets upset and anxious in crowds.

20. The Applicant's attention was drawn to the report of Dr Burns (exhibit 1) where he concluded -

With regard to employment, I believe that Mr McNeany was forced to take voluntary redundancy in 1994 due to a reorganisation of the local Area Health Service. He has continued to apply for positions from 1994 to 1998 but has been unsuccessful. I questioned Mr McNeany and his wife about whether he would have been capable of performing these jobs if he had obtained one. Both of them believed that he would have been able to work and that in fact he was a good worker. I tend to agree with them. From my history and examination today, I believe that Mr McNeany would have been capable of working if he had been able to obtain work. I thus do not believe that his accepted disabilities alone have made him unemployable.

The Applicant said Dr Burns' questions were directed to the period when he came to the Central Coast and before the development of his heart condition. He said that Dr Burns' questions focussed on "the past tense" and he answered them as such.

21. The Applicant said he received psychiatric treatment from Dr McLean in 1998. He said that although Dr McLean had said that he did not need further psychiatric consultation, his local doctor insists he continues to need psychiatric treatment. However, the Applicant has not proceeded with an alternative psychiatric consultation further away from home because of his difficulty in travelling.

22. The Applicant said he has suffered badly from shortness of breath since 1986 or 1987. This limited his work capacity in Cooma and Tamworth. He also could not jog at that time. He said that he is now able to do less walking because of his heart condition than he did previously because of his lung condition. Previously, after he walked for a while he needed to stop to "get his breath back". At present, if he walks up stairs or walks too fast, not only does he suffer from shortness of breath but he also gets sweaty, goes very pale and develops a pain in the left side of his chest. He said that in addition to the limitations on his walking because of his heart condition, he is also unable to do up shoelaces, or pick up and carry weights. Furthermore, he said he is now frightened about physical exertion because of his heart condition. Previously he thought after the heart surgery that he would be well again. He considered his mobility was significantly worse as a result of his heart condition.

Dr M. Baz

23. Dr Baz, occupational physician, in her report dated 12 April 1999 (exhibit A) opined that the Applicant has been unfit for work since 1996. She also opined that his cardiac disease has not substantially altered his fitness for work. Dr Baz assessed an impairment rating of 73 up to August 1998, the effective date for the Applicant's ischaemic heart disease. Thereafter the impairment rating increased to 76 with the addition of ischaemic heart disease.

24. Dr Baz made the following lifestyle assessment -

Personal Relationships: 6 Mr McNeany describes very restricted interpersonal relationships and has difficulty even relating with his wife. He has infrequent contact with his daughter and no other social interaction.

Mobility: 5 He is unable to use public transport because of the anxiety disorder. He travels locally on his own but generally does not go out unless his wife accompanies him and cannot travel long distances by car.

Community and Recreational Activities: 6 He is restricted to a few passive activities such as watching TV and reading. He avoids his previously enjoyed activities and does not even enjoy visitors who come to the house.

Domestic Activities: 5 He can attend to light household chores and is not restricted to only supervised activities.

Total: 22 Average rounded up to 6.

Dr Baz considered these lifestyle ratings were applicable throughout the assessment period. She noted that the Applicant's anxiety state was the predominant condition restricting his lifestyle. She also said that inclusion of the ischaemic heart disease did not alter the lifestyle ratings.

Dr M. Burns

25. Dr Burns, occupational physician, in his report dated 19 July 1999 (exhibit 1) made an assessment rating of 71. That assessment included ischaemic heart disease but that condition was not assessed separately - it was included in the assessment for chronic airflow limitation.

26. Dr Burns made the following lifestyle assessment -

Personal Relationships. Mr McNeany has been married on two occasions. He has three children from his first marriage which ended in divorce in 1967. He has not been in contact with his children for many years as they live in the Northern Territory. He does have some conflict with his second wife but states that she is good to him. She also states that he is normally a fairly good natured individual. When he lived in Tamworth he had a range of acquaintances, most of whom were associated with his work. He would socialise with them in their own homes. He has never been interested in attending clubs and hotels.

Since he has moved to Erina in 1995 he has not made any new friends and has become socially isolated. I believe a personal relationships rating of 5 is appropriate.

Mobility. Mr McNeany reported that he came down from Gosford today by train. He doesn't like using public transport but he can if necessary. He states that he drives from home to the local shopping centre and takes his wife to work and brings her home each day. All of these trips are relatively short. He drives with his wife one way but drives the other way alone. He reports that his wife currently works in the local shopping centre. He states that he currently walks every day for 25 to 30 minutes. He has a flat path that he follows and will walk for two kilometres. I believe a mobility rating of 4 is appropriate.

Recreational and Community Activities. Mr McNeany reports that he has never had many outside activities when he worked for the area Health Service in Tamworth most of his outside activities were on liaison committees. Since he ceased work in 1994 he has not had much in the way of hobbies. He currently reads books, mainly recipe books. He also watches the television. He doesn't tend to go out to clubs and hotels but he has never done this. I believe a recreational and community activity rating of 5 is appropriate.

Domestic and Employment Activities. Mr McNeany reports that his wife currently works. He makes his own lunch, which is mainly sandwiches, and then cleans up afterwards. He occasionally dusts the house and does small amounts of vacuuming. He also hangs the washing out on the line and makes his bed. He occasionally mows the lawn even though he has been told not to. His wife reports that he also occasionally does cooking around the house. He has not worked since he took voluntary redundancy in 1994. He has, though, applied for numerous jobs but has been unsuccessful. I believe a domestic and employment activity rating of 5 is appropriate.

An average of his lifestyle affects ratings would be 4.57, which would be rounded up to 5.

submissions

27. It was submitted for the Applicant that in applying GARP in relation to lifestyle assessment, the Tribunal is required to identify the rating that best accommodates the Applicant's circumstances. It was also submitted that unless there is a clear and undeniable fit for one rank or another, then the Tribunal should choose the factor that favours the Applicant's position.

28. It was submitted for the Applicant that Dr Burns omitted to deal with a number of issues relating to the Applicant's accepted disabilities. For example, he did not deal with the effect on mobility and personal relationships arising from the Applicant's reluctance to leave his own house because of his concern about soiling and odour. This arose from his gastro-intestinal accepted disability. Nor did Dr Burns make reference to the Applicant's dreams and difficulty in sleeping. Furthermore, it was contended Dr Burns' evidence inferred the Applicant was disentitled because he drove the car for short distances. However it was submitted that Dr Burns did not inquire as to the reason why the Applicant drove the car locally, the reason being to avoid his wife having to leave the car where it could be vandalised or stolen when she goes to work. He cannot drive any further than that, and he has the car at home only for an emergency. Dr Burns noted the Applicant had previously played golf and was involved in swimming. He stopped those activities in 1987 because of his heart condition. It was submitted the Applicant's accepted disabilities stopped him from undertaking a lot of his activities and Dr Burns was quite wrong in his assessment.

29. In respect of Recreation and Community Activities, it was submitted for the Applicant that Dr Burns believed the Applicant did not have social activities in Tamworth. However that belief was not correct. He had a range of recreational activities there in addition to his employment. It was submitted that 6 was not an inappropriate assessment, although there was a case for his assessment being higher than 6 since he does not receive visitors. He was able to engage in only a very few satisfying passive recreational activities.

30. Both parties agreed the definitions in GARP for the various ratings for Recreational and Community Activities were "rather inappropriate" in describing the Applicant's situation. It was submitted for the Respondent that although the Applicant had a limited range of recreational and community activities, it was hard to distinguish between a rating of 5 or 6.

31. In respect of Personal Relationships it was submitted for the Applicant that although he is very vocal he is also very disturbed and limited in where he can go and whom he can see. He has extreme difficulty in relating even to his wife at times. It was submitted his difficulties relate primarily to his psychiatric disorder. His social interaction is virtually limited to interaction with his wife. It was submitted his circumstances fit more comfortably to a rating of 6 than 5.

32. In response, it was submitted for the Respondent that to achieve a lifestyle rating of 6 one needs to have extreme difficulty in relating to anyone. In the Applicant's case, his evidence was that his relationships were restricted and he had problems in his relationship with his wife. However the Applicant communicates with his wife, his step-daughter and occasionally with other people. He last entertained at home six months ago. It was submitted that the remaining relationships he has are strained and of low quality but he is not limited physically by way of a stroke or other condition that would preclude communication. Nor does he have difficulty communicating because of a psychosis. It was submitted that although his communication was severely affected by his accepted disabilities, a rating of 5 describes his personal relationships better.

33. In reply it was submitted for the Applicant that one's ability to communicate includes being able to express oneself and face people - it is not confined to a total inability to communicate.

34. In respect of Mobility it was submitted for the Applicant that although his heart condition limits his ability to use stairs he is not precluded from walking to the car or the train. Rather, his mobility problem arises from his inability to be with people. He will not travel where there are people, even when accompanied by his wife. At other times she has to accompany him. He is dependent on his wife to go anywhere other than the immediate vicinity of his home. His mobility is also affected by his problem of soiling and odour. It was submitted for the Applicant that his circumstances fit a rating of 5 better than 4.

35. In response, it was acknowledged for the Respondent that the Applicant has markedly reduced mobility. However he is able to cope with public or private transport with assistance, and is also able to cope with private transport for short periods on his own. It was submitted that one does not abandon the use of a rating of 4 because one does not use more than two forms of transport. The Applicant's minimal use of public transport is due more to his psychiatric condition than to his physical problems. It was submitted that to satisfy a rating of 5 one must be dependent on others or on mechanical devices such as wheelchairs. The Applicant is dependent on others at times but he is not totally dependent. He can use those forms of public transport when he needs to, if accompanied by his wife. He is restricted in the use of public transport. He is able to drive a car, albeit in a restricted setting, but that amounts to more than merely driving in an emergency. It was submitted for the Respondent that a rating of 4 was the most appropriate rating.

36. In reply, it was submitted for the Applicant that the Respondent's interpretation was inconsistent with the words as expressed in the definition provided in GARP. As it is written it implies that there is at least a regular or usual dependence. The Applicant is dependent on his wife because of his psychiatric disability. Similarly he is unable to use public transport without his wife and even then it is confined only to visits to doctors and to the Tribunal.

consideration of evidence and findings of fact

37. The Tribunal finds Dr Burns did not obtain a full or adequate history regarding relevant factors for the Applicant's lifestyle assessment, and therefore his assessment must be approached with caution. The Tribunal accepts Dr Baz has taken an adequate and accurate history. However, it is still necessary to consider carefully the ratings she has given for the three lifestyle factors at issue, as the Tribunal has some concern about her ratings.

38. The Tribunal will consider all the evidence, including the assessments undertaken by Dr Baz and Dr Burns, and the Applicant's own evidence, in making its assessment of the ratings which should be allocated to each of the factors at issue.

Personal Relationships

39. The Tribunal notes that the examples given in GARP for the 6 rating must amount to the Applicant experiencing extreme difficulty in relating to anyone. While he has difficulty in relating to his wife and step-daughter, the Tribunal does not find on the evidence that it could be described as "extreme" difficulty. He is able to maintain a meaningful relationship with them, notwithstanding that the relationship is a difficult one. The Tribunal finds that while the Applicant had obvious difficulty in relating to people, it is not so severe as one would find in a person suffering from a psychosis. Nor is his social interaction limited to a carer because of his confinement. The Tribunal accepts the submission for the Applicant that the Tribunal should choose the rating that best accommodates the Applicant's circumstances and that if there is not a clear and undeniable fit with one category then one should go to the next. The Tribunal finds the Applicant's relationships are severely affected, and he is able to relate only to his spouse and his step-daughter. Those relationships are strained and of low quality. The Tribunal finds that, in the words of the Applicant's representative, there is a "clear and undeniable fit" of the Applicant's circumstances with the description provided in 5. Accordingly, the Tribunal assesses a 5 rating for personal relationships.

Mobility

40. On the evidence the Tribunal finds that the Applicant has markedly reduced mobility. He requires the assistance of his wife to cope with public transport. He is able to use public transport only in non-peak traffic. He is unable to use public transport where he is required to climb a number of stairs because of his heart condition. That would restrict him in some but not all train travel, depending on his destination. He is able to drive a car and does so, but for very short distances only, and even then he is very restricted as to the route he takes. He is restricted in the use of at least two forms of public transport, both in respect of his difficulty in climbing stairs but also because he has to avoid crowds. However, with assistance he is able to use all forms of public transport when he can avoid crowds.

41. In the Tribunal's view the Applicant meets some but not all of the criteria listed in 5. The rating that best accommodates his circumstances is 4. The Tribunal is reasonably satisfied that 4 is the appropriate rating for mobility.

Recreational and Community Activities

42. The Tribunal accepts the submissions of the parties that the description of the criteria for 4 and 5 is "rather inappropriate" and in the circumstances of the Applicant it is hard to distinguish between the two. The Tribunal does not consider a rating of more than 5 to be appropriate on the evidence. Whether the rating is 4 or 5 is immaterial to the outcome in this case. Even if the Tribunal were to find that the Applicant should have a rating of 5 for this category, this would not enable him to achieve a lifestyle rating of 6. For that reason, the Tribunal does not propose to make a specific finding in respect of this category.

Lifestyle Rating

43. Having found that the Applicant's rating for personal relationships is 5, mobility is 4, recreational and community activities is 5 and domestic activities is 5, when rounded this provides a lifestyle rating of 5. Consequently, the second requirement in s 22(4)(c) of the Act has not been satisfied.

44. Therefore, the decision under review is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr M E C Thorpe, Member

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

Associate

Date/s of Hearing 23 July 1999

Date of Decision 10 February 2000

Counsel for the Applicant N/A

Solicitor for Applicant Judith Buss, Legal Aid Commission

Counsel for the Respondent N/A

Solicitor for the Respondent John Sylvestre, Department of Veterans Affairs