Bell and Repatriation Commission

[2007] AATA 1720

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1720

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2005/1442

VETERANS’ APPEALS DIVISION		)
Re		MARGARET BELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal   Dr Ion Alexander, Member

Date 31  August 2007

PlaceSydney

Decision

 1.  Mr Bell’s death was not war caused and therefore Mrs Bell is not eligible to receive a pension.

2.  The reviewable decision of the Veterans’ Review Board is affirmed.

......................(Sgd)........................

Dr Ion Alexander
  Member  

CATCHWORDS

Veterans’ affairs - Widow’s pension - Whether husband’s death war-caused - Inability to undertake physical activity greater than 3 METS – decision under review is affirmed.

Legislation

Veterans’ Entitlements Act 1986

Cases

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

31 August 2007  Dr Ion Alexander, Member

INTODUCTION

1.        Mrs Margaret Bell claims that she is eligible to receive a pension on the grounds that her husband, Charles Bell, was a veteran and that his death was war caused under S13 (1)(a) of the Veterans’ Entitlement Act 1986 (“the Act”).

2.        There is no dispute that Mr Bell was a veteran who had relevant operational service and who died on 15 November 1988 at the age of 66 years as a result of Ischaemic Heart Disease (“IHD”).

3.        It is agreed between the parties that the clinical onset of his IHD was in October 1972.

4.        The Repatriation Commission and subsequently the Veterans’ Review Board have determined that Mr Bell’s death was not war-caused thereby denying Mrs Bell a pension.

5.        Mrs Bell has sought review of this decision by the Administrative Appeals Tribunal (“the Tribunal”).

ISSUES

6.        As per the caseof Repatriation Commission v Deledio (1998) 49 ALD 193 (“Deledio”), the Tribunal must determine the issues in the following order:

Step 1: Is there material before the Tribunal that points to a hypothesis connecting Mr Bell’s death with his operational service?

7.        It was agreed by both parties that there is material before the Tribunal that points to a hypothesis.

8.        The hypothesis is that as a result of Mr Bell’s operational service he had an inability to undertake any physical activity greater than three METS for at least five years immediately before the clinical onset of his IHD.  

9.        I note that the Guide to the Assessment of Rates of Veterans’ Pensions, (“GARP”) defines one MET as “the energy expenditure associated with the consumption of 3.5 mL oxygen per kilogram of body weight per minute” and that “Table 1.1 lists various activities grouped according to their energy expenditure in METs.”

10.      Furthermore it was agreed between the parties that the hypothesis could be more narrowly stated namely that as a result of his operational service Mr Bell had an inability to undertake any physical activity as a painter and decorator greater than three METS during period from October 1967 to October 1972.

11.      In doing so the representatives of both parties agreed that the only issue in dispute is the level of physical activity that Mr Bell was able to undertake in relation to his work activities during the stated five year period.

Step 2: Is there a Statement of Principles (“SoP”) in force?

12.      The SoP concerning IHD Instrument No. 53 of 2003, as amended by Instrument No. 9 of 2004 is in force.

Step 3: Is the hypothesis reasonable?

13.      The hypothesis fits with the template in that it is consistent with the SoP particularly with regard to factor (5) (h) and therefore I find it to be reasonable.

What are the relevant facts?

14.       It was agreed between the parties that there was only one relevant factual issue in dispute namely whether Mr Bell had an inability to undertake physical activity at work as a painter and decorator that was greater than three METS during the five years prior to the onset of his IHD.

15.      Furthermore Counsel for Mrs Bell conceded that if there is evidence that Mr Bell was performing any activity at work that was greater than three METS then his client could not succeed.

16.      Mrs Bell provided a statement and also gave oral evidence by telephone.

17.      She indicated that her husband “had his own painting and decorating business” until “he retired when he was about 60 years of age, which was around 1982” she further stated that; “In the earlier years, Charles was in business with his brother and his brother did most of the physical work.”

18.       I note that in a statement in support of a claim for medical treatment and pension in 1982 Mr Bell had written that he was a self employed painter and decorator from 1948 to 1982.

19.      Apart from Mrs Bell stating that in the late 1960s or early 1970s her husband “was forced to hire an assistant to help with a lot of the more physical work’’. Mrs Bell’s evidence did not provide any indication as to Mr Bell’s physical activities while he was at work during the five years prior to 1972.

20.      Mrs Margaret Deighton, the daughter of Mr and Mrs Bell provided two statements and also gave oral evidence by telephone.

21.      I note that during the five year period (1967 – 1972) in question Mrs Deighton was a teenager aged 14 to 19 years and was living at home until she left in 1972.

22.      In response to questions from the Tribunal in relation to the period prior to 1972 she indicated that her father was working in the business as a painting contractor with his brother and that most of the time he worked full days for five days per week.

23.      Mrs Deighton also stated that her father was active in the business and was not restricted to “paper work” he actually painted houses internally and externally. She explained that she was aware of the kind of work her father was doing because she would occasionally visit him at work on her way home from school.

24.      Mrs Deighton admitted that her father’s work activity changed but only in the 1970s after his heart attack and also prior to his retirement.

25.      In January 1974 following his heart attack Mr Bell was seen by Dr Huxtable. In a letter written to Mr Bell’s general practitioner Dr Huxtable notes that Mr Bell “is a painter by trade and is kept fairly busy”.

Step 4: Is the Tribunal satisfied beyond reasonable doubt that Mr Bell’s death was not war caused?

26. In order to decide whether Mr Bell’s death was war caused section 120 of the Veterans’ Entitlements Act 1986 requires that I must be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

27.      The evidence before me points to a conclusion that in the five years prior to 1972 Mr Bell was working in his own business as a painter and decorator and that he actively participated in all the activities one would normally associate with such a business. 

28.      The evidence from his daughter clearly indicates that during this period Mr Bell actually painted houses internally and externally.

29.      In the GARP the table in Chapter One, Cardiorespiratory impairment which: “results from conditions that affect the function of the heart and lungs”, provides numerous examples of physical activities and the energy expended by these activities in METs.

30.      The energy expended in “painting outside of house” is noted to be four-five METs.

31.      This leads me to conclude that during the relevant period Mr Bell was able to and in fact did undertake physical activity greater than three METs.

32.      I find that there is no evidence before me to support a conclusion that during the five year period prior to 1972 Mr Bell had an inability to undertake physical activity at work greater than three METs.

33.      Therefore I find that I am satisfied beyond reasonable doubt that Mr Bell’s death was not war caused.

34.      In passing I note that the GARP table listing examples of activities and the levels of energy expenditure of those activities in METs, is a table that is meant to provide a measure of cardiorespiratory impairment and not a list of impaired activities.

DECISION

35.      Having regard to all the evidence before me, I am satisfied beyond reasonable doubt that;

(1). Mr Bell’s death was not war caused and therefore Mrs Bell is not eligible to receive a pension.

36.      (2). The decision of the Veterans’ Review Board is affirmed.

I certify that the   preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ............Felicia Daniele............................................
  Associate

Date/s of Hearing: 31/7/2007   
Date of Decision: 31/8/2007     
Counsel for the Applicant: Mr Craig Colborne     
Solicitor for the Applicant: Stacey Hahn   
Counsel for the Respondent: N/A 
Solicitor for the Respondent: Tim O’Reilly