Smith and Repatriation Commission

[2003] AATA 139

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V00/1338

VETERANS' APPEALS  DIVISION		)
Re		MARY SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date13 February 2003

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd)  Joan Dwyer

Senior Member

VETERANS’ AFFAIRS – claim to have death of veteran accepted as defence-caused – death from intracerebral haemorrhage – whether connection with service raised through “inability to undertake more than a mildly strenuous level of physical activity” as a result of disc prolapses and laminectomy – definition of that concept in SoP requiring reference to activities greater than 3 METS ‑ decision affirmed

PRACTICE AND PROCEDURE – difficulty applying METS Table designed for cardiorespiratory impairment to activities prevented or restricted due to back pain – question whether appropriate to focus on ability to undertake any one activity from 4-5 METS range which veteran could perform, rather than on general incapacity due to back prolapses and resulting reduction in ability to undertake physical activity

Veterans' Entitlements Act 1986 ss 70(1), (5), 120(4) and 120B(3),

Statement of Principles Instrument No. 8 of 1999

Statement of Principles Instrument No. 53 of 1999

Statement of Principles Instrument No. 131 of 1996

Statement of Principles SoP Instrument No. 93 of 1997

Repatriation Commission v Gorton [2001] FCA 1194

Harris v Repatriation Commission (2000) 62 ALD 174

Arnott v Repatriation Commission (2001) 32 AAR 445, 63 ALD 575

McKenna v Repatriation Commission (1999) 29 AAR 70

Roncevich v Repatriation Commission [2002] FCA 1458

REASONS FOR DECISION

13 February 2003 Mrs Joan Dwyer, Senior Member             

BACKGROUND

1.       This is an application by Mrs Smith for a review of a decision refusing her claim for a widow’s pension under the Veterans' Entitlements Act 1986 (“the Act”) in respect of the death of her husband, Garry Smith, who died on 9 November 1998. The decision under review is the decision of the Repatriation Commission made 3 February 1999 and affirmed by the Veterans’ Review Board on 28 August 2000.

2.       The death certificate indicated the cause of death as follows (T20 p141):

Intracerebral Hemorrhage [sic] – 3 days;

Metastatic Adenocarcinoma of Esophagus [sic] to Liver, Retroperitoneal Nodes – 1 year

3.       The submission made on behalf of Mrs Smith was that her husband’s  death at the age of 47, from an intracerebral haemorrhage was defence-caused.  She submitted that he had a defence‑caused inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of the cerebral haemorrhage.  The basis for that submission was that Mr Smith had a double intervertebral disc prolapse, which had been accepted as defence-caused from 2 May 1989, and which restricted his ability to engage in physical activity.

4. Mr Turner, an advocate with the Returned & Services League of Australia, appeared for Mrs Smith. Mr Rudge, an advocate with the Department of Veterans’ Affairs, appeared for the…