Furber and Repatriation Commission - [2000] AATA 362

DECISION AND REASONS FOR DECISION [2000] AATA 362

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N99/631

VETERANS' APPEALS DIVISION       )
           Re      MARIE FURBER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date8 May 2000
PlaceSydney

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal sets aside the decision under review and in substitution therefor decides that the death of the veteran was war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 and that the applicant is thereby entitled to War Widow's Pension as from 12 April 1997.
  (Signed)
  J.A. KIOSOLGOUS
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – War Widows' Pension – whether death war-caused – relevant SoP considered – reasonable hypothesis – range of activities veteran could undertake – assessment of evidence and medical evidence
Veterans' Entitlements Act 1986 ss.8, 120, 120A
Statement of Principles No. 38 of 1999
Repatriation Commission v Deledio (1998) 27 AAR 144

REASONS FOR DECISION

8 May 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mrs Marie Furber for review of a decision of the Veterans' Review Board dated 1 February 1999 (T33) affirming a decision of a delegate of the respondent dated 6 November 1997 (T27) that the death of the applicant's husband (the veteran) was not service related. The applicant is aged 77 years and was born on 26 November 1922. She did not attend the hearing due to health reasons.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T59), together with 17 exhibits, 15 lodged by the applicant (Exhibits A1-A15) and 2 lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant's son, Mr K. Furber, and Dr M. Miller, Consultant Physician. The applicant was represented by Mr C. Whitelaw of counsel, and the respondent by Mr P. Godwin, a departmental advocate.
The issue before the Tribunal is whether or not the veteran satisfies factor 5(h) of the Statement of Principles No. 38 of 1999 (the SoP) for Ischaemic Heart Disease (T36).
history of the application
The veteran gained operational war service with the Australian Army between 9 May 1942 and 18 April 1946. The veteran died on 11 April 1997, at which time he had bilateral pes cavus with claw toes and subluxation of metatarso-phalangeal joints which were accepted as war-caused disabilities.
The applicant lodged a claim for War Widow's Pension on 2 October 1997 (T23) claiming that the veteran's death caused by ischaemic heart disease was a causal factor in his death and that such was therefore war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 (the Act). On 6 November 1997 a delegate of the respondent rejected the claim (T27). This was affirmed by the Veterans' Review Board on 1 February 1999 (T33/93) which stated (inter alia) in its reasons for decision:
" …
The Board noted that:

according to a Departmental Medical Office bilateral pes cavus with claw toes and subluxation of metatarso-phalangeal joints was present prior to enlistment (M file, folio 72).
the cause of the condition was congenital.
the service documents, as referred above, show that the veteran was not involved in marching from enlistment until May 1942, and until July 1944, when he was reclassified because of the congenital deformity. The veteran stated in January 1985 he "seldom did any marching during service." (M file, folio 74)
It seemed to the Board that the veteran's inability to undertake "moderate or vigorous physical activity" was related to the congenital deformity of his feet.
…"

legislation

Sub-sections 120(1) and 120(3) and section 120A of the Act set out the standard of proof as being a reasonable hypothesis connecting the veteran's death to his operational war service, according to the relevant SoP. The Tribunal must be satisfied beyond reasonable doubt that the hypothesis connecting the war service to the veteran's death is not reasonable in order to reject the claim.
Factor 5(h) of the relevant SoP (T36) provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service are:
…
(h)an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease; or
…"
Factor 8 of the SoP sets out the relevant definition in relation to factor 5(h):
"…
"an inability to undertake more than a mildly strenuous level of physical activity" means 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.);
…"
The date of effect, were the applicant to succeed, is 12 April 1997.
mr k. furber's evidence
Mr K. Furber is the son of the applicant and the veteran. He told the Tribunal that he was present in the family home during the 1980s and is therefore in a position to comment upon the veteran's activities.
He stated that the veteran did some of the gardening but that he would do the heavy work. He told the Tribunal that he would mow the lawn nine times out of ten and that his father would do so with difficulty, and would never completely trim the edges. He further stated that it was a fair sized yard that would take some time to mow.
He stated that the veteran's feet were always his worst incapacity and that this, his cataracts and prostrate problems were greater disabilities than his back condition.
He told the Tribunal that the veteran's main outing was to play bowls, and that he would often complain about sore feet after playing. He stated that the veteran mainly engaged in activities which allowed him to be seated.
medical evidence
dr p. martin
Dr P. Martin, the veteran's treating general practitioner, prepared a medical assessment dated 25 November 1987 (T47) in which he stated (inter alia):
"…
2. Mobility
Foot condition severely limits him greatly around house, yard and going out.
…
6. Leisure Activities
Unable to go to outdoor activities to watch or participate, gave up bowls – due to feet.
…"
In a further assessment dated 3 November 1989 (T53), he stated (inter alia):
"…
All movement is difficult – tends to be unsteady and may fall if not enough care taken."
Dr Martin stated in another assessment dated 17 December 1991 (T58) (inter alia):
"…
Can only go out with taxi/car door to door
Slow in all transfers and unsteady causing falls.
…"
In a report dated 16 March 1998 (Exhibit A4) he stated (inter alia):
" …
From 1976 to 1983 Mr Furber was unable to walk at 5 kph. He shuffled slowly over short distances, ding [sic] no house work, light gardening or shopping.
He was only able to sit doing his stamps or other sedentary activities.
Hence between 1983 and 1988 Mr Furber was unable to do 3 MET energy expenditure."

dr d. chapman

Dr D. Chapman, Orthopaedic Surgeon, treated the veteran from 1976 to 1987 and prepared numerous reports dating back to 1979. In a report dated 17 February 1984 (T38) he stated (inter alia):
"…
In summary, this man has had painful feet for many years. … I got the impression at the time that his symptoms were restricting his general physical activities."
In a report dated 26 February 1987 (T44), Dr Chapman stated (inter alia):
"…
It seems to be increasing to the extent that his daily activities are becoming very circumscribed …
…"
Dr Chapman stated in a report dated 2 July 1987 (T15/36A) stated (inter alia):
"… He had some trouble with his foot a couple of weeks ago after the chiropodist pruned away a bit too much skin but this has now healed and he pronounces himself satisfied with his foot. This is the first time he has been symptom free in years.
…"
In his more recent report dated 24 March 2000 (Exhibit A11) Dr Chapman stated (inter alia):
"…
I continued to observe him on and off over the years, … . During that time the condition of his feet steadily deteriorated. …
There is no doubt in my mind that this man's physical activities were significantly restricted for at least five years prior to the onset of ischaemic heart disease in 1988, and that he satisfied Factor 5(h) of the Statement of Principles concerning ischaemic heart disease.
This being the case, it would seem to me to be a reasonable hypothesis that Mrs Furber's husband's accepted disability, was a material factor contributing to his mobility, or lack of it."

dr m.g. miller

Dr M.G. Miller, Consultant Physician, prepared a report dated 8 November 1999 (Exhibit A13) in which he stated (inter alia):
"In my opinion Mr Furber's accepted disability of Bilateral Pes Cavus with Claw Toes and Subluxation of the Metatarso-phalangeal Joints satisfies the Statements of Principles for Ischaemic Heart Disease, Instrument Number 38 of 1999, factor 5(h) in that there was an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease and that there is a reasonable hypothesis that his ischaemic heart disease relates to war service. …"
In oral evidence in support of his report, Dr Miller stated that he continued to believe the SoP to be satisfied and that the activities set out in the Guide to the Assessment of Rates of Veterans' Pensions (GARP) 5th ed, Scale 1.1 are only examples and do not define crucial factors such as how fast, what rate or how such activities are to be performed.
He stated that he believes that the veteran could not do any activity (such as walking) that would allow him to protect himself from heart disease. In his opinion, the activities of the veteran, as outlined to various doctors and in Mr K. Furber's evidence, fell within the 2-3 METs range. Further, in his opinion, all medical evidence confirms that the veteran was not able to participate in activities which could be considered to be above the 3 METs range.
applicant's submissions
Mr Whitelaw submitted, on behalf of the applicant, that there is an overwhelming amount of evidence that supports the hypothesis raised connecting factor 5(h) of the SoP to the veteran's death. In his submission there is no medical evidence contradicting the hypothesis.
He submitted that the level of evidentiary satisfaction according to the principles in Repatriation Commission v Deledio (1998) 27 AAR 144 is very high, in that the Tribunal must be able to find that the evidence of fact is capable beyond reasonable doubt of disproving the hypothesis.
He submitted that Dr Miller was fully appraised of the situation and is highly qualified to provide an opinion on this issue. In his submission there was nothing to contradict Dr Miller's opinion that the hypothesis is reasonable.
respondent's submissions
Mr Godwin submitted, on behalf of the respondent, that there is evidence that the veteran was able to do gardening, walk to the shops, mow the lawn on occasions, and play bowls. He further submitted that the veteran's other conditions must also be taken into account as to the limitations on the veteran's mobility. He contended to the Tribunal that the combination of these factors suggested that the veteran was capable of activity at levels greater than 3 METs.
In his submission there is no objective evidence of the veteran having no ability to exercise between 1983 and 1988. He sought to draw a distinction as to the standard of proof between the finding of fact which needs to be made as to whether the SoP is met and the standard required in terms of the hypothesis.
discussion and findings
The Tribunal has only briefly set out the submissions put to it by each of the parties, but takes all submissions and evidence as a whole into account in reaching its decision.
The Tribunal notes that there is no dispute, and the Tribunal so finds it to be the case that there is a hypothesis raised connecting the veteran's death to the circumstances of his service, that there is a SoP in force, and that the hypothesis is a reasonable one.
The issue before the Tribunal comes under the last factor outlined in Deledio, which is the stage at which the Tribunal is required to make findings of fact. There was some dispute as to the standard the Tribunal should apply in making such findings. Deledio makes it clear that there is no onus of proof in these proceedings (p156/157 and p160). It is a question of fact, to be decided upon the evidence before the Tribunal. In making findings of fact the Tribunal is to use the approach outlined by Heerey J and adopted by the Full Federal Court in Deledio (inter alia at page 158):
"…
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
…"
In order to make its findings of fact therefore, the Tribunal is required to be satisfied that either the facts as to the veteran's mobility inconsistent with the applicant's hypothesis as advanced by Mr Godwin can be established beyond reasonable doubt; or, that the facts as to the veteran's mobility consistent with the hypothesis as advanced by Mr Whitelaw can be disproved beyond reasonable doubt.
In the Tribunal's opinion, the range of activities relied upon by Mr Godwin could be said to accord with activities listed in the GARP activity levels table in the 3-4 METs range. There are no activities put before the Tribunal which it would consider warrant the description of being activities within the 4-5 METs range. As Dr Miller noted in his evidence, the difficultly for the Tribunal, is that the table does not address the frequency or duration of such activities in order that they would produce 3-4 METs.
It is possible that some of the activities contemplated in the 3-4 METs range, if performed in certain ways and within certain time parameters could fall within either the 2-3 METs or the 4-5 METs range. Factor 8 of the SoP is quite clear in its reference to "greater than" 3 METs (ie at least 4 METs), and the Tribunal cannot be satisfied on the evidence before it, given Dr Miller's comments in respect of the GARP table and nature of the activities described, that any such activities could be said, beyond reasonable doubt, to be of at least 4 METs. From the evidence of Mr K. Furber, who the Tribunal found to be entirely credible, and the documentary evidence before it, the Tribunal considers that it is not an unreasonable conclusion that the veteran was not capable of undertaking more than mildly strenuous physical activity. As Dr Miller stated, the greater preponderance of the medical evidence suggests that the veteran was restricted to mild physical activity. Whilst it may be the case that on occasion the veteran undertook more strenuous activities, such as lawn mowing, as described to the Tribunal by Mr K. Furber, the nature of such activities could not be said, beyond reasonable doubt, to be of such a nature that they would have produced greater than 3 METs.
Whilst the evidence of a range of activities undertaken by the veteran and advanced by Mr Godwin may be able to satisfy, on the balance of probabilities, that the applicant was undertaking activities of more than 3 METs, the Tribunal remains of the opinion, and so finds that it has not been established beyond a reasonable doubt that the veteran was undertaking activities greater than 3 METs.
There may well have been other conditions suffered by the veteran which affected his mobility, however it is clear that the veteran's feet were the primary cause of his loss of mobility, and there is a direct, evident chain of causation between this and his death.
Accordingly, the Tribunal is not satisfied beyond reasonable doubt that the death of the veteran was not war-caused, on the basis that a reasonable hypothesis can be sustained, SoP factor 5(h) being satisfied.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the death of the veteran was war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 and that the applicant is thereby entitled to War Widows' Pension as from 12 April 1997.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  31 March 2000
Date of Decision  8 May 2000
Counsel for the Applicant        Mr C. Whitelaw
Solicitor for the Applicant         Dibbs Crowther & Osborne
Counsel for the Respondent    Mr P. Godwin
Solicitor for the Respondent    DVA