Condon and Repatriation Commission

[2007] AATA 1647

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1647

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200400215

VETERANS' APPEALS DIVISION		)
Re		MURIEL PATRICIA CONDON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date8 August 2007

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

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

J G SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – non-operational service – Widow's Pension – claim that death from cerebrovascular accident was war-caused – consideration of Statement of Principles – suggestion that late veteran's accepted disabilities resulted in "an inability to undertake more than a mildly strenuous level of physical activity" – decision affirmed

Veterans’ Entitlements Act 1986 ss 120(4), 120B(3)

Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Smith (1987) 15 FCR 327

Kattenberg v Repatriation Commission [2002] FCA 412

Statement of Principles Instrument No 53 o 1999
Statement of Principles Instrument No 31 of 2002
Statement of Principles Instrument No 58 of 2003

REASONS FOR DECISION

8 August 2007   Mr J G Short (Member)     

1.      On 1 October 2003 Mrs Muriel Condon lodged a claim for entitlement to Widow’s Pension suggesting that the death of her husband, Mr Ronald Condon, on 22 August 2003 at the age of 83 years, was war-caused.  It was contended that Mr Condon died from a cerebrovascular accident. 

2.      Mr Condon’s accepted disabilities were osteoarthritis of the left ankle and knee and post compound fracture of the left ankle.

3.      On 3 February 2004 the respondent (the Commission) refused the claim and on 8 June 2004 the Veterans’ Review Board (the VRB) affirmed that decision.  On 6 July 2004 Mrs Condon lodged an appeal to this Tribunal.

issues before the tribunal

4.      I have to decide whether the late veteran’s accepted disabilities caused his death.  If so, Mrs Condon would be entitled to the Widow’s Pension. 

background

5.      Mr Ronald Condon, was born on 25 August 1919 and died on 22 August 2003 at 83 years of age.  Mr Condon performed valuable war service from 12 February 1944 until 27 May 1946.  For the purposes of the Veterans’ Entitlements Act 1986 (the VE Act) his service is regarded as non-operational service.

legislative background

6. As the late veteran had not performed operational service as defined in s 6A of the VE Act, the determination of whether his death was war-caused is to be made by applying s 120(4) of the VE Act. This provision requires the Commission (and now this Tribunal) to decide the matter to its reasonable satisfaction; see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205.

7.      In assessing a claim by reference to reasonable satisfaction, I adopt the interpretation of the expression “reasonable satisfaction” used by the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 (Northrop, Beaumont and Spender JJ). That is to say that it equates with the civil standard of proof which may be expressed as the “balance of probabilities”. Under s 120B of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has issued a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the criteria for reasonable satisfaction are assessed in accordance with that SoP.

applicant’s contention

8.      The applicant contended that Mr Condon died from the effects of a stroke (cerebrovascular accident) and that his death could be related to his accepted disabilities through satisfaction of factor 5(d) of Statement of Principles Instrument No 53 of 1999, as amended by Instrument Nos 31 of 2002 and 58 of 2003, relating to cerebrovascular accident.  Factor 5(d) reads as follows:

“5.     The factors that must exist before it can be said that, on the balance of probabilities, cerebrovascular accident or death from cerebrovascular accident is connected with the circumstances of a person’s relevant service are:

…

(d)an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of cerebrovascular accident; or

…”

9.      “An inability to undertake more than a mildly strenuous level of physical activity” is defined in paragraph 8 of the relevant SoP as meaning:

“… the presence of an incapacity which prevents any physical activity greater than 3 METS, where a ‘MET’ is a unit of measurement of the level of physical exertion.  1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate. (A MET approximates to the energy required to rest quietly in bed.  A 70 kg man would use about 3 METS when walking at 4 km per hour.)”

10.     It was agreed between the parties that if the late veteran did have an inability to undertake more than a mildly strenuous level of physical activity for at least 7 years immediately before the clinical onset of cerebrovascular accident, then it would be reasonable to accept that his accepted disabilities (relating to his lower limbs) made a material contribution towards that inability (see Kattenberg v Repatriation Commission [2002] FCA 412). It was also agreed between the parties that the clinical onset of cerebrovascular accident was in the year 2000. On the evidence before me, I make findings consistent with these agreed contentions.

evidence of mrs muriel condon

11.     Mrs Condon told the Tribunal that she did not have a specific memory relating to dates when certain events occurred.  She said however that her late husband had been a keen golf and bowls player and was particularly keen on gymnastics.  She said that he was significantly disabled by his left ankle injury and that his health declined progressively until his death in 2003.

evidence of mr brian condon

12.     Mr Brian Condon is the late veteran’s son.  He also recalled that his father had been a keen golf and bowls player.  He said that he and his father would make the 15 minute walk to Football Park to watch the Port Adelaide Power football team play and that this activity ceased in about 1997 following a fusion operation (1996) of his father’s left ankle.  In a written statement, Mr Brian Condon indicated that it was the operation to “freeze the ankle” which resulted in an inability to balance and left the left leg an inch shorter than the other.  He indicated that this was what prevented the late veteran from continuing with his golf.  It was pointed out to Mr Condon that the fusion operation was performed in 1996 and that Mr Condon had previously indicated that his father had ceased playing golf in about 1990.  Mr Condon suggested that this apparent discrepancy might be explained by a distinction between ceasing to play competitive golf (club competitions on a Saturday) perhaps in about 1990, but continuing to play practice rounds, perhaps 9 holes, until 1996. 

13.     Mr Condon also recalled his father modifying his gold swing after his hip replacement operation.  He could not recall whether this was the first operation in 1985 or the second, on the same hip, in 1993.  He said that his father never used a golf cart.  He always walked the course.  However he frequently used the seat attached to the buggy.  Mr Condon said that his father was very keen on physical activity.  He had always enjoyed gymnastics and when he could no longer coach gymnastics, he served as a judge. 

14.     Mr Condon was referred to his father’s Lifestyle Report dated 3 January 1990.  In that report, the late veteran indicated that he was still active with “regular exercises in sitting and lying positions”.  He also indicated that his difficulties were caused by standing and limited movement and that he had given up bowls due to pain caused by stepping out and down to deliver a bowl.  Mr Brian Condon said that right up until the time his father entered a nursing home, he continued to perform a regime of push ups and sit ups.  He said however that his ability to perform these activities declined.  He was unsure how many push ups or sit ups the late veteran was eventually able to perform.  He also said that his father would walk (using one crutch) 40 times around the backyard and that this also continued until he entered the nursing home.  Mr Condon thought that this may have been his father’s understanding of medical advice to exercise his joints.

evidence of dr john meegan, occupational physician

15.     Dr Meegan is an experienced occupation physician and referred to his medical report dated 6 March 2007.  He confirmed that he had never met the late veteran, but had read the T documents.  He understood the late veteran to have undergone a left ankle fusion in 1996 and to have had a number of other non-accepted disabilities.  He expressed the view in his report that the late veteran’s lower limb disabilities, particularly his left ankle fusion, would have confined him to sedentary activities. 

16.     Dr Meegan said that his experience had primarily been in the area of work ability.  He explained that his reference to the veteran being confined to sedentary activity reflected a distinction between work activities.  He said that work could be divided into three categories, heavy, light and sedentary work.  He considered that a person with a lower limb problem which did not allow squatting or kneeling for long periods, would fit the sedentary category.

17.     Dr Meegan said that in his day-to-day practice he did not have any cause to consider the concept of METS.  Dr Meegan was referred to page 23 of the Guide to the Assessment of Rates of Veterans’ Pensions, Fifth Edition (GARP) which contains a Cardiorespiratory Impairment: Activity Levels (with energy expenditure in METS) table.  Dr Meegan said that this was a better table to use than the one he had used in drawing his report, which was more concerned with working capacity.  Dr Meegan noted that some activities listed at the 3 to 4 MET level included machine assembly and light gardening.  He also noted that most of the examples listed under that category involved some use of the lower limbs.  After considering examples of activities which would generate 2 to 3 and then 3 to 4 MET activity levels, Dr Meegan said that if he were considering a younger man with no upper body limitations but just the lower limb restrictions experienced by the late veteran, it would be possible to undertake a regime of exercises which would equate to a greater than 3 MET activity level.  He said that there was no distinction between an activity level achieved through upper or lower body activity.  He said however that it would have been unusual for a person in the veteran’s position to have undertaken such activities.  He concluded by saying that whilst it was theoretically possible to have undertaken these activities, he did not think it would have been practical to do so.

consideration of evidence

18.     The parties have agreed, and on the evidence before me I am reasonably satisfied, that if the late veteran had an inability to undertake more than a mildly strenuous level of physical activity, then his accepted disabilities would have provided a material contribution towards that circumstance and consequently factor 5(d) of the relevant SoP would be satisfied.  Further, providing that circumstance obtained for a period of seven years immediately before the year 2000 (the agreed date of the clinical onset of cerebrovascular accident), the claim would succeed.

19.     Mrs Condon’s counsel argued that it was open to find on the evidence that as the late veteran was very keen on physical exercise, any physical activity he undertook in 1993 and thereafter, could be safely assumed to be the maximum level of physical activity he was capable of undertaking.  Counsel referred to Mrs Condon’s evidence of a man with a significant disability declining over a period leading to a cerebrovascular accident in 2000 and eventual death from cerebrovascular accident in August 2003.  Counsel also referred to Dr Meegan’s report and to his evidence provided at the hearing. 

20.     The evidence has provided an understanding of the late veteran as a man who was very keen on sports, including bowls, golf and particularly gymnastics.  His accepted disabilities related to his lower limbs and the most restrictive of these appears to have been his left ankle injury which eventually required fusion in 1996.  The late veteran also suffered from a degeneration of his hip with an initial replacement in 1985, repeated in 1993.  The time at which the late veteran ceased playing bowls appears to have been about 1990.  His own statement was to the effect that he did so because of an inability to step down to deliver the bowl.  There was some uncertainty concerning the date when the late veteran ceased playing golf.  Mr Brian Condon said that it may be that his father ceased playing competitive club golf on Saturday mornings in about 1990, but continued to play practice rounds, perhaps limited to 9 holes, until about the time of his left ankle fusion.  Mr Brian Condon’s written statement referred to the loss of balance from the left ankle fusion as a major factor contributing to his father’s inability to continue playing golf.  I note that the left ankle was fused in 1996, that is three years into the seven year period over which I must consider whether the late veteran continued to experience an inability to undertake more than a mildly strenuous level of a physical activity. 

21.     I also note that until about 1997 the late veteran was, although with some difficulty, able to continue to walk for approximately 15 minutes to Football Park to attend football games.  In a Lifestyle Report dated 3 January 1990, the late veteran referred to a “definite but gradual deterioration of ankle and knee in last twelve months eg pain and mobility”.  He indicated that on his podiatrist’s advice he had changed his walking shoes and included an inbuilt flexible sole made from wet suit material and that “this has really helped my walking ability, as it has had a cushioning affect on my ankle”.  In this report the late veteran also referred to wading and swimming in salt water (weather permitting) in an effort to keep fit and an ability to perform light gardening.  He was unable to do heavy gardening as his “leg becomes sore”.  The same document includes the veteran’s statement that he was still active with “regular exercises in sitting and lying position”.  I regard the veteran’s Lifestyle Report in 1990 as helpful as painting a picture of a man keen to maintain a level of fitness.  It also suggests that his reduced mobility related to lower limb pain and restriction of movement.  It was his lower limbs which caused him to give up bowls due to “pain caused by stepping out and down to deliver bowl”. 

22.     The Lifestyle Report was completed in 1990 and the first relevant year for consideration of the existence of circumstances prescribed at factor 5(d) of the SoP is 1993.  I accept that the late veteran’s disabilities were degenerative.  However, in the light of the evidence, I have reached the view that the late veteran, at least until the time of his left ankle fusion in 1996, is more likely than not to have continued to achieve activity levels expressed in METS at least equivalent to, and probably greater than, the activity levels described under the 3 to 4 MET level in the table provided in chapter 1 of GARP.  That is, activity levels equivalent to activities such as “tidying house, welding, cleaning windows, vacuuming, sedate cycling, shifting chairs, light gardening, hanging out washing and making bed”.  This is not to say that the veteran did any of these last mentioned activities.  However, I am reasonably satisfied that until at least and probably beyond 1996, through activities including his  adapted physical exercise regime of sitting or reclining push ups and sit ups (described by the late veteran in 1990 and explained by Mr Brian Condon to have continued to some extent until he entered a nursing home), the late veteran did undertake more than a  mildly strenuous level of physical activity or at least retained an ability to undertake more than such a level of physical activity.  In these circumstances I am reasonably satisfied that factor 5(d), in this case requiring an inability to undertake more than a mildly strenuous level of physical activity after 1993, is not satisfied.

23.     I have had regard to all of the evidence and am not satisfied that any of the other factors prescribed in factor 5 of Instrument No 53 of 1999, as amended, exists in this case.  I affirm the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ..........J Coulthard...........................................
  Associate

Date of Hearing  7 June 2007
Date of Decision  August 2007
Counsel for the Applicant         Mr G Hemsley
Solicitor for the Applicant          Graeme D Hemsley, Barristers & Solicitors

Advocate for the Respondent   Mr A Crowe

DVA