Poynton and Repatriation Commission - [2001] AATA 266

DECISION AND REASONS FOR DECISION [2001] AATA 266

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/546

VETERANS' APPEALS DIVISION       )
           Re      MARGARET POYNTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date23 March 2001
PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in substitution decides: (i) Mr Poynton's death was war-caused; and (ii) war widow's pension is payable to Mrs Poynton with effect from 18 March 1999.

(Sgd) Joan Dwyer
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether death from myocardial infarct is a war-caused death – whether war-caused knee condition resulted in 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 – decision set aside

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

23 March 2001 Mrs Joan Dwyer, Senior Member

This is an application for review of a determination of the Repatriation Commission made on 22 June 1999 (T13) and affirmed by the Veterans' Review Board on 13 April 2000 (T2), which found that the death of the veteran was not a war-caused death. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits tendered during the hearing.
Mr Chancellor of Counsel appeared for the applicant and Mr Hall, an advocate with the Department of Veterans' Affairs, appeared for the respondent. Mrs Poynton gave evidence. Evidence on her behalf was given by her sons Mr Michael Poynton and Mr Howard Poynton.
I will not go through the steps set out in Repatriation Commission v Deledio (1998) 49 ALD 193 at p206. I have to consider whether the material before me has raised a reasonable hypothesis that the death of Mr Poynton was a war caused death. Because it was a death from a heart condition I need to look at the Statement of Principles ("SoP") for Ischaemic Heart Disease, Instrument No. 38 of 1999.
The hypothesis raised on behalf of Mrs Poynton is that because of his war caused knee condition Mr Poynton had "an inability to undertake more than a mildly strenuous level of physical activity for at least five years immediately before the clinical onset of ischaemic heart disease" (factor 5(h) in the SoP). There is some question as to whether that clinical onset was in August 1987, or just before the veteran died in October 1988. It probably does not make a significant difference.
The evidence of Mr Michael Poynton, Mr Howard Poynton and Mrs Poynton, is that the veteran's knee condition prevented him continuing to run the large farm, Wombelano, which had been his life's occupation, to such an extent that in 1979 that property was sold with a considerable amount of distress for the veteran and for his family. The evidence establishes that Mr Poynton's ability to undertake strenuous levels of physical activity was deteriorating from about 1970, when Mr Howard Poynton remembers a change in his role in regard to the hay carting. It continued to deteriorate up until 1978 or 1979 when the decision was made to sell the large property which was over 1,000 acres. Mr Poynton's ability to undertake strenuous levels of activity continued to deteriorate after the move to a smaller property of approximately 100 acres at Tylden.
I am satisfied that after the early years on the new property say, 1980, 1981 and 1982, the veteran was not able to, and did not undertake more than a mildly strenuous level of physical activity. From arrival at Tylden Mr Poynton had an inability to undertake a sufficiently strenuous level of activity to farm that property on his own, even though it was a much reduced level of activity to that which had been required at Wombelano. Within two or three years of moving to Tylden, the evidence was that Mr Poynton's knee had deteriorated so that instead of being able to undertake a moderately strenuous level of activity, he had "an inability to undertake more than a mildly strenuous level of physical activity."
It was only the facts that Mr and Mrs Poynton had such helpful sons, and that those sons did not have other commitments, that meant that the farm was able to continue to be viable. The sons came to the farm almost each weekend and did all the jobs their father could not do. But, as Mr Chancellor pointed out, Mr Poynton also adopted methods which reduced the level of physical activity which was required in order to keep the farm viable. He used a tractor to get around the farm, rather than a motor bike or walking; he used a ride-on mower for the mowing; he fitted up spray fittings to water the garden; and he did his weeding mainly with herbicides or by using black plastic to prevent the weeds growing.
The evidence certainly raises a hypothesis that fits within the SOP. Thus that hypothesis is reasonable. The definition of "an inability to undertake more than a mildly strenuous level of physical activity" in clause 8 of the SoP is as follows:
"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 enery required to rest quietly in bed. A 70 kg man would use about 3 METS when walking at 4 km per hour.)
The evidence is that in the relevant period, the five years before 1987 or 1988, Mr Poynton was not able to walk at four kilometres an hour. He walked only for short distances and at a slower speed than that. Mr Poynton was not able to push a light power mower from the time they moved to Tylden. That is why his son, Howard Poynton did the mowing. There is no suggestion that he could do any of the activities in which he might have engaged, set out in the relevant METS table in the Guide to the Assessment of Rates of Pension, ("GARP"), such as hoeing and stacking firewood, at Tylden in approximately 1983. He probably was able to carry one log of firewood from wherever it was stacked to put it on the fire, but he certainly did not do any stacking of firewood.
As I have said, the evidence does raise a reasonable hypothesis. The next question is whether I can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death was war caused. The reason why the respondent has taken the matter as far as it has, is because of the documents which the veteran himself prepared, and the medical documents in exhibits R1 and R2. In a sense one either accepts the impression of his activities which Mr Poynton, senior, gave, or one accepts the evidence of Mr Michael Poynton, Mr Howard Poynton and Mrs Poynton.
They all gave evidence today. I am satisfied that they are giving a true and honest account of Mr Poynton's abilities, and that Mr Poynton senior's self esteem and pride and determination to be seen as a man who was providing for his family, and who was leading a useful life, made him over estimate his involvement in the farm activities. I find that while he was indeed involved in them, and he was supervising them, most, if not all, of the physical effort came from his sons or from other labour. I find that those statements that he made can be understood in that way. I accept the evidence of the sons.
The point that is of some concern is whether I can find that the veteran did have "an inability to undertake more than a mildly strenuous level of physical activity", when he restricted himself to farm activities without trying less demanding forms of exercise. Farm activities were the only activities in which he had been engaged all of his life. If he had been a totally different sort of man, and if he had told people what his problems were, maybe a doctor might have suggested arm exercises with dumbbells, or something like that. But I do not think that I am required in interpreting this beneficial legislation, to engage in an imaginative exercise about what Mr Poynton might have done, if he had been a different sort of man, and if he had been used to, in a sense, the self indulging activity of doing exercise for exercise sake, rather than doing exercise to run a farm and bring in an income for the family and maintain his self esteem.
The decision under review will be set aside. In substitution I will decide:
(i)Mr Poynton's death was a war-caused death; and
(ii)war widow's pension is payable to Mrs Poynton with effect from 18 March 1999.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  23 March 2001
Date of Decision  23 March 2001
Counsel for the Applicant        Mr Chancellor
Solicitor for the Applicant         Williams Winter Higgs
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr Hall