Arnold and Repatriation Commission
[2002] AATA 227
•5 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 227
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/689
VETERANS' APPEALS DIVISION )
Re ANDREA ELIZABETH ARNOLD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member
Date5 April 2002
Place Sydney
Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: 1. Mrs Arnold has a war-caused condition of secondary cardiomyopathy and is qualified to receive a Disability Pension from and including 4 November 1999. 2. The assessment of the correct rate of Disability Pension is remitted to the Repatriation Commission for calculation.
..............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - Eligible War Service – Secondary Cardiomyopathy – Alcohol Consumption.
LEGISLATION
Veterans' Entitlements Act 1986 – ss 120(4), 120B
AUTHORITIES
O' Brien v Repatriation Commission (1984) 1 FCR 472
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Bendy (1989) 18 ALD 144
Borrett v Repatriation Commission [2000] FCA 1829
Re Repatriation Commission and Wicking (1987) 13 ALD 431
Re Burns and Repatriation Commission (AAT 10119, 7 April 1995)
REASONS FOR DECISION
5 April 2002 Ms SM Bullock, Senior Member
Dr PD Lynch, Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Andrea Elizabeth Arnold of a decision of the Veterans' Review Board ("the Board") made on 26 November 1999 (T15). The Board's decision affirmed a decision of the Repatriation Commission dated 27 April 1999 (T2), which decided that Mrs Arnold's claim for cervical spondylosis, thoracic spondylosis and secondary cardiomyopathy should be refused. Prior to the hearing in this matter, the Tribunal was advised that Mrs Arnold was not pursuing her claims for cervical spondylosis and thoracic spondylosis.
A hearing was held before the Tribunal in Sydney on 21 August 2001. Mrs Arnold provided oral evidence and was represented by Mr C Colborne of Counsel. The Respondent was represented by Ms T McConnell, Departmental Advocate. Oral evidence was also provided by Mrs Arnold's son, Mr John Richard Arnold; Mrs June Dowling, a friend; Dr D Leitch, General Practitioner; Dr M G Miller, Consultant Physician; and, Associate Professor R P Mattick, Clinical Psychologist.
The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents ", T1 -T18) and the following exhibits:
EXHIBIT NUMBER DESCRIPTION DATE
Exhibit A1 Letter from Applicant to Mr B Williams, Vandanega Roberts, Solicitors 4 October 2000
Exhibit A2 Statement of John Richard Arnold 15 August 2001
Exhibit A3 Statement of Mrs June Dowling 15 August 2001
Exhibit A4 Report of Dr M Baz, Occupational Physician 6 March 2001
Exhibit A5 Report of Dr M G Miller, Consultant Physician 15 August 2001
Exhibit A6 Report of Dr D Leitch, General Practitioner 20 August 2001
Exhibit A7 Repatriation Commission Guideline, CM 5030, "Guideline For Claims Assessors On Smoking And Alcohol Related Conditions And Military Service"
Exhibit R1 Report of Associate Professor R P Mattick, Clinical Psychologist 13 July 2001
Exhibit R2 Clinical Notes of Dr D Leitch, General Practitioner Various
Issues
The issues in this matter are whether or not :
a) Mrs Arnold's alcohol consumption is service-related; and if so,
b) Does Mrs Arnold have a service-related secondary cardiomyopathy condition and specifically, do Mrs Arnold's circumstances satisfy Factor 5(b) of Statement of Principles Instrument Number 20 of 1998 concerning Cardiomyopathy, which states:"(b) for women, drinking at least 250 kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy; or…
…
"secondary cardiomyopathy" means a non-inflammatory disorder of heart muscle, being described as dilated, restrictive or hypertrophic in type, in which the pathological process involves solely the myocardium, or the myocardium and the endocardium, and which is the result of a known agent, disease process or condition, attracting ICD code 086.0, 425.5, 425.7, 425.8 or 425.9;…"
Service history
Mrs Arnold served in the Australian Army from 27 October 1941 until 10 January 1946. This service constitutes eligible war service for the purposes of the Act.
Legislation
A determination in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act").
Section 120 of the Act deals with the standard of proof to be applied in certain circumstances. Specifically, subsection 120(4) of the Act provides:
"(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B"
In making a decision in this matter, the Tribunal is also required to apply section 120B of the Act. The Tribunal must decide matters to its reasonable satisfaction in accordance with any Statements of Principles issued by the Repatriation Medical Authority (RMA) or any relevant declarations or determinations under the Act. As is noted in the Board's decision, the RMA is an independent medical body that issues Statements of Principles based on sound medical-scientific evidence. The Statements of Principles set out the factors relating to service that must exist in order to establish a causal connection between particular diseases, injuries or death and service. The statements are binding on decision-makers at all levels, including the Tribunal. As detailed earlier, the relevant Statement of Principles in this case is Instrument Number 20 of 1998 concerning Cardiomyopathy.
background
The following material is provided by way of background and the information contained herein is not disputed.
Mrs Arnold was born on 3 October 1920 (T11, p34).
Mrs Arnold was engaged on 13 December 1944 and married on 11 January 1945. She separated from her husband in 1947/1948 and subsequently divorced in 1950.
Mrs Arnold has one child, John Richard Arnold, who lives in Armidale, New South Wales.
On 11 September 1987, Mrs Arnold was admitted to hospital for a coronary angiogram and she was diagnosed on that day as having the condition of cardiomyopathy (T10, p33A). The admission notes record alcohol consumption of 45 grams per day (T10, p33B).
On 1 April 1999, Mrs Arnold lodged a claim for Disability Pension with the Department of Veterans' Affairs (the Department) for the conditions of cervical spondylosis, thoracic spondylosis and "heart problems" (T11), which the Department later diagnosed as secondary cardiomyopathy. On the claim form, Dr G R Bellamy, Cardiologist, diagnosed her heart condition as cardiomyopathy (T11, p38). Accompanying the claim was a report from Dr Bellamy, dated 9 March 1999, which noted that on examination, Mrs Arnold smelt of alcohol and she:
"…still drinks at least four glasses of wine a day and I suspect she adds in a couple of glasses of scotch to this when she can afford it. I suspect that she may even drink more than this.
…
My impression of this lady is that she has quite severe dilated cardiomyopathy and I suspect alcohol has had a role to play with this problem and continues to play a role in her deterioration. I think it is unlikely that she will reduce her alcohol significantly… I think I made it clear to her today that her condition is very serious and she could have further episodes of syncope or sudden death." (T11, p44)On 27 April 1999, the Commission refused Mrs Arnold's claim for cervical spondylosis, thoracic spondylosis and secondary cardiomyopathy. Specifically in relation to secondary cardiomyopathy, the subject of this review, the Commission noted that Mrs Arnold's smoking history did not meet the requirements of the Statement of Principles. In relation to Mrs Arnold's alcohol consumption, the delegate noted that while she had a history of alcohol consumption on service, this was not causally related to service (T2, p10).
On 18 June 1999, Mrs Arnold lodged an application for review to the Board of the Commission's decision (T13) and on 26 November 1999, the Board affirmed the Commission's decision (T15) finding that Mrs Arnold's alcohol consumption was not related to her service and therefore her circumstances did not satisfy the relevant Statement of Principles.
On 4 May 2000, Mrs Arnold lodged an application for review to the Tribunal (T1).
evidence of mrs arnold
Mrs Arnold told the Tribunal that she enlisted in the Australian Army in Hobart when she was 21 years old. She had previously undertaken nursing training at Royal Hobart Hospital, following which the senior nurses went to war. At that time, Mrs Arnold was a nurse's aide.
Mrs Arnold stated that she was an only child and her mother did not like her consuming alcohol and told her so. Mrs Arnold further stated that she had to adhere to the social graces. Occasionally, she would have a gin and tonic and estimated that she probably drank twice per week from the age of about 16 years to 18 years.
Mrs Arnold believed that she served in the Army in Hobart for approximately 18 months to two years. In Hobart, along with the other women, she would consume alcohol. There were many parties and social outings either on base, in the Mess or, later when serving in Queensland, excursions to Lake Eacham or Lake Bareen. On such occasions, they would often take a portable gramophone and the food and alcohol. Depending on where and when her duty was, Mrs Arnold recalled that she may have had "a few snorts" before work and a few drinks at dinner. In Hobart, Mrs Arnold thought she might have consumed about four beers per day.
Early in service, Mrs Arnold was Secretary to the Commanding Officer at Anglesea. There was encouragement or peer pressure to drink and when she became busy or stressed, Mrs Arnold would consume alcohol.
In North Queensland at Rocky Creek, which is between Atherton and Mareeba, where Mrs Arnold later served for a period of three years, the women lived in tents at the 2/1 Australian Convalescent Depot. At this time, Mrs Arnold was performing clerical duties. In her letter to her solicitors (Exhibit A1), Mrs Arnold wrote that she drank a great deal and consumed various types of alcohol, including gin, whisky or beer. Mrs Arnold described another alcoholic beverage, the "Sergeants' brewing concoction" of "whisky with Kiwi boot polish, metho and some other ingredients they had obtained from the RSP". Mrs Arnold stated that they would only drink this when "desperate". During the period of service in Queensland, Mrs Arnold estimated that she would consume 12 or more drinks per day.
Mrs Arnold stated that she drank a great deal of alcohol in Queensland compared to Hobart because there was a lot of time, it was hot and there was a "shortage of women". Mrs Arnold stated that most of the time in Queensland, she was "high", but not "away with the pixies". The women would not only drink on outings, but in the Mess or in the three-person tent, where they usually drank gin and tonics. The Tribunal was informed that Mrs Arnold had the practice of hiding the gin bottles in the watermelon patch until they were needed.
The Tribunal was informed of an incident which occurred on one of the outings in Queensland. Mrs Arnold had been listening to jazz music on the portable gramophone, when a male soldier "man-handled" her. Mrs Arnold described how this soldier attempted to assault her, but fortunately she was able to run away into the bushes. This incident put Mrs Arnold off officers and gentlemen for many years, she told the Tribunal. She recalled later being found crying by one of the other women. Mrs Arnold was comforted and had a few stiff drinks to try and calm herself down. Mrs Arnold concluded that this event may have precipitated her subsequent heavier consumption of alcohol. Mrs Arnold believed that her drinking was worse in the Atherton Tablelands in Queensland because she was very busy, sometimes feeling stressed but also upset over the incident with the officer.
On service, Mrs Arnold mostly bought her own alcohol. She enjoyed and still enjoys drinking with her friends. She often did not stop drinking when they stopped. She also consumed alcohol off duty in the evenings, sometimes in her tent or at the Mess and on the weekend. Mrs Arnold told the Tribunal that she indulged in alcohol because she enjoyed it and it helped with stress. Mrs Arnold did not consider that alcohol consumption impacted on her duties.
Mrs Arnold was discharged from the Army at Brighton Barracks in Hobart. After discharge, she moved to Sydney and lived with her "in-laws" for approximately 12 months. She missed not being able to drink as much with these living arrangements. Mr and Mrs Arnold then rented a flat in Bondi. Her husband would not allow her to work. Mrs Arnold then cared for her mother-in-law. In Bondi, Mrs Arnold was consuming alcohol daily, but could not estimate the quantities involved. Later, the family moved to a farm in Central Tilba, New South Wales where she stayed for about one and a half years. By this stage, her son was approximately two years old. During this period of her life, Mr Arnold would leave the family for three or four days at the time. Mrs Arnold was still drinking alcohol, but had to work very hard. She was often very frightened being alone as her nearest neighbours were quite a distance away.
The family next moved to Riverstone. Mrs Arnold stated that Mr Arnold was continuing to beat her. She was "thrashed black and blue" and decided to move out of the family home with her son and return to Bondi to live with her mother. Mrs Arnold described herself at this time as being very distressed as was her little boy. Mrs Arnold's mother took her to the doctor and she was treated. She recovered in Bondi and later obtained employment. Her son, John, attended Bellevue Hill Public School. Mrs Arnold stated that she spent the next 25 years at Bondi from 1945 until 1970 and then 18 years in Alexandria. For the past 12 years, Mrs Arnold has been living in Shoal Bay, New South Wales.
Mrs Arnold described herself as being stressed when living in Bondi. She was working in two jobs, one in an office and the other as a waitress. She consumed alcohol on a daily basis after work. Mrs Arnold had also worked at RSL taxi cabs, undertaking two shifts. She would then drink scotch to relax. Mrs Arnold stated that for her, alcohol was like blotting paper, soaking up the tension.
It was possible, Mrs Arnold conceded, that her alcohol consumption may have reduced slightly after her Queensland service. Her alcohol consumption, she believed, depended on her circumstances. Factors such as finances, her living and work circumstances and her stress levels were all relevant. There was no doubt however that during times of stress such as her husband's absence or the beatings, that her alcohol consumption would increase. Mrs Arnold concluded that her increased alcohol consumption did not only relate to the difficulties she had with her husband, because she was drinking heavily when on service in Queensland.
Mrs Arnold stated that she had told Dr D Leitch, her General Practitioner for ten years, and Dr Bellamy, Cardiologist, about her alcohol consumption, but was very embarrassed about the quantities she consumed. She therefore understated the quantities of alcohol consumed when talking to these and other medical practitioners. Mrs Arnold told the Tribunal that a more accurate alcohol consumption was approximately eight drinks per day. Sometimes her friends might come to her house and they would drink tea or coffee while she would drink white wine.
Mrs Arnold acknowledged that in her claim for Disability Pension for heart problems, she had linked the condition to smoking. Mrs Arnold stated that she really had no idea what the cause of her heart problems was, but she had been advised by Mr King, an RSL Advocate, that her smoking caused her heart problems. However, when Mrs Arnold was referred to Cardiologist, Dr N C Patel in October 1987, he had advised her to cut down both her drinking and smoking.
Mrs Arnold remembered her two and a half hour interview with Associate Professor R Mattick, Clinical Psychologist. She did not recall telling Associate Professor Mattick that she drank from age 16 years, but noted that as a young girl at parties, she would perhaps drink a couple of sherries, but that was the extent of it. At age 18 years, she enjoyed alcohol and would drink on Friday nights. Before joining the Army, she had consumed beer and if she was out with friends, each person would buy their own drinks – "Dutch Shout ".
Mrs Arnold had told Associate Professor Mattick that she was " mad ". By this she had not meant that she was suffering from a psychiatric condition or was insane but more eccentric or lively. She told the Tribunal that she thought Associate Professor Mattick had a sense of humour, but his literal interpretation of her comment perhaps indicated that he did not.
Mrs Arnold stated that she had a drinking habit and had no intention of giving up alcohol. It was all she had in life and she believes, "I'm pickled with alcohol ". Mrs Arnold noted that alcohol had become such a feature of her life from service, that she even consumed alcohol when she was pregnant with John and despite having little money at that time.
After Mrs Arnold left her husband, she was working and looking after her son and her mother. She consumed large quantities of alcohol because she was "stressed out ". During this period she estimated she was consuming eight drinks per day and depending when her shifts were, she could consume alcohol before work and certainly afterwards.
The Tribunal was told that Mrs Arnold finds it difficult to talk about her alcohol consumption and to bare her soul. It was embarrassing to be faced with her own faults. Mrs Arnold acknowledged that there were inconsistencies in the documents concerning her alcohol consumption. This was most probably because of her difficulty in facing up to the level of alcohol she consumed when questioned by various professionals about her alcohol history. It was also very difficult to remember quantities of alcohol consumed so long ago. Mrs Arnold stated that she did not think that she would have to recall what she drank and when.
Mrs Arnold told the Tribunal that she continued to drink in the 1960s, 1970s 1980's and continues to this day. When asked whether it was possible that she was not telling the truth about the high level of her alcohol consumption, Mrs Arnold stated that she would not have made the effort of attending the Tribunal if she had a high alcohol intake pre-service. She concluded that prior to joining the Army, she would go out occasionally with friends. There were no Friday night drinks until later when she was 18 years old. Mrs Arnold told the Tribunal that her mother, aunt and uncle did not like or allow drinking because it was not ladylike, but circumstances were different in the Army.
evidence of mr john richard arnold
In his statement of 15 August 2001 (Exhibit A2), Mr Arnold noted that he lived with his mother and maternal grandmother until March 1965 in a flat in Bondi, New South Wales. Mr Arnold left home when he was 18 years old. Mr Arnold trained as a school teacher and taught from March 1983 until May 2000 with the New South Wales Department of Education and Training.
Mr Arnold noted that his mother was a heavy drinker from as far back as he could remember. He recalled that up until he was ten years old, his mother visited nightclubs often three or four times per week. Mr Arnold described his mother as a " practising alcoholic " and also recalls his mother drinking at home alone after work, consuming a bottle of either sweet or dry sherry in an evening. Mrs Arnold would often just have an alcoholic drink as her evening meal rather than eating at the family table. Mr Arnold told the Tribunal that his mother preferred scotch whisky when she could afford it and it was not unusual for her to consume a bottle of whisky in three hours, become a "dribbling drunk" and then pass out. Mrs Arnold would have no memory of such events when she woke up at 5:30 AM the following morning. Mr Arnold stated that he never saw his mother go to work drunk and believed that Mrs Arnold could consume a great deal of alcohol before it obviously affected her. Mr Arnold also recalled that his mother would return home from work at about 11 PM and drink until 2 AM. He would be aware that she was home, even at that late hour and knew she was consuming alcohol because it was his job to take out the cartons of empty wine, sherry or whisky bottles.
There were occasions when Mrs Arnold would hold a party at Bondi which was well attended by friends and neighbours. On such occasions, copious amounts of alcohol were consumed by not just Mrs Arnold, but the party revellers. Mr Arnold did not agree that the large consumption of alcohol was as a result of having many parties attended by large groups of people. Mr Arnold observed that it was not unusual for Mrs Arnold to drink a bottle of whisky in two hours on such occasions.
Mr Arnold told the Tribunal that until he was 15 years old, his mother had a standing fortnightly order with a liquor store for two mixed dozens of alcohol comprising claret, and sweet and/or dry sherry. Mr Arnold was required to dispose of the cartons full of empty bottles. From the time he could remember until he left home, Mr Arnold observed his mother consuming alcohol everyday. Mr Arnold could not tell the Tribunal when his mother's heavy alcohol consumption commenced, reiterating that memory of his mother when he lived with her was that she was always heavily consuming alcohol. Mr Arnold noted:
" For many years my mother's drinking worried me because it was self destructive behaviour and she was a wonderful person. I finally decided that there was nothing that I could do to change her behaviour and left her to her own devices. " (Exhibit A2)
Between 1977 and 1987, Mr Arnold could not recall how often he visited his mother as he had left home by this time. Since leaving home, Mr Arnold has maintained continual contact with his mother and believes that she continues to drink at least to the degree she was drinking before he left home. If there has been a change in her alcohol consumption, it is from drinking claret to white wine as this is cheaper than either claret, sweet or dry sherry or whisky. When Mr Arnold visits his mother at Shoal Bay, he has observed her on occasions, once again drinking a bottle of whisky in three hours.
Mr Arnold thought that he probably told his mother that she was drinking too much. He opined that his mother is basically an unhappy person and her drinking pattern and demeanour were part and parcel of his growing up. He stated that his mother never asked him for money to buy alcohol.
Mr Arnold has spoken to Dr Leitch about his mother's heavy alcohol consumption. He believes that Dr Leitch tried to treat her with zinc but Mrs Arnold refused to take this supplement .
evidence of mrs june dowling
In her statement dated 15 August 2001 (Exhibit A3), Mrs Dowling stated that she had known Mrs Arnold for ten years since 1991 and they were very close friends. They were both ex-servicewomen but had not served together. Mrs Dowling and Mrs Arnold have daily telephone contact and now meet once per week to go to lunch. If Mrs Arnold and Mrs Dowling meet with other friends for lunch, it is widely known that if the lunch does not end quickly, Mrs Arnold will become inebriated and difficult to manage. Previously, Mrs Arnold and Mrs Dowling would meet more frequently and often did their shopping together, three or four times per week. On such occasions, Mrs Arnold would purchase alcohol. This contact can no longer occur as Mrs Dowling is unable to drive the car due to her poor eyesight. Mrs Dowling stated that she knows that Mrs Arnold continues to buy alcohol because she has it delivered from the shop near her home.
Mrs Arnold has told Mrs Dowling that "I know I am an alcoholic" . Mrs Dowling is aware that Mrs Arnold consults Dr Leitch and Dr Bellamy. Mrs Arnold has told Mrs Dowling that she does not tell the doctors of the true extent of her alcohol consumption because she is embarrassed. Mrs Arnold told Mrs Dowling that she knew that the doctors would double the amount of alcohol she stated that she consumed.
Mrs Dowling provided the Tribunal with an example of the current level of Mrs Arnold's alcohol consumption. Recently, Mrs Arnold was to assist Mrs Dowling at a garage sale held by Mrs Dowling. Mrs Arnold was supposed to be helping, however she was observed by Mrs Dowling's daughter to be helping herself to whisky and was of no assistance at all.
Mrs Dowling herself drinks a bottle of wine over four hours. Mrs Dowling stated that Mrs Arnold drinks more than this. Mrs Dowling offered the opinion that her friend is dependent on alcohol. Mrs Dowling stated that Mrs Arnold's breath frequently smells of alcohol. The two women often talk by telephone at night and Mrs Dowling frequently ends the conversation quickly because it is obvious that Mrs Arnold has had too much to drink and communication is difficult.
medical evidence
Dr M G Miller, Consultant Physician
Dr Miller provided a report dated 15 August 2001. Dr Miller had not examined Mrs Arnold but spoke to her on the telephone and also with her General Practitioner, Dr Leitch. Dr Miller had been provided with a copy of the T documents.
Dr Miller had a history from Mrs Arnold of commencing drinking when she joined the Army. Alcohol was relatively inexpensive and there was pressure to drink with her friends, Mrs Arnold told Dr Miller. She and the other women in the tent would usually buy a bottle of gin which was consumed in three days.
Dr Miller had a history provided by Mrs Arnold of her drinking to relieve stress. She had informed Dr Miller of an incident which occurred towards the end of the war when an officer attempted to sexually assault her. Dr Miller reported that when Mrs Arnold told him the officer attempted to assault her and tear her clothes off, she had broken away from him and hidden in the bushes. Mrs Arnold further reported to Dr Miller that she was found crying by a friend and proceeded then to have a number of "stiff drinks" that night.
The history given to Dr Miller led him to conclude that during the ten years before the diagnosis of cardiomyopathy in 1987, Mrs Arnold was drinking regularly and heavily to "reduce pressure". At that time, she admitted that she was drinking between eight to ten drinks of spirits per day and that these were larger than a " normal " drink.
Dr Miller noted from Dr Leitch's clinical notes in 1994, a recording that Mrs Arnold's alcohol consumption was greater than 60 grams per day. Dr Miller also noted Dr Patel's follow-up letter of 8 October 1987, in which he wrote:
"Mrs Arnold has been drinking alcohol somewhat excessively and I wondered if cardiomyopathy is associated with ethanol abuse." (Exhibit R2, p79)
When Dr Miller called Mrs Arnold on the telephone at about 5.00PM, she told him she had already consumed three glasses of wine at lunch, three brandies in milk and hoped to have more alcohol that night. Mrs Arnold stated that on the previous day she had had at least eight alcoholic drinks. Mrs Arnold told Dr Miller that she always minimises the amount of alcohol consumed when discussing this with other people, including doctors. In his report, Dr Miller concluded:
"…From the history that I obtained from Mrs Arnold, and from the medical reports, I agree entirely with her cardiologists and consider, on the balance of probabilities, that the cardio-myopathy (sic) is a complication of her longstanding alcohol abuse…
…
I have no doubt that Mrs Arnold suffers from Alcohol Dependence. She gave me the history that she has a need for increased alcohol consumption to achieve relaxation, finds that the effect of the same amount of alcohol has a diminished effect, has a history of shakiness and agitation on ceasing alcohol and resumes taking alcohol to prevent this….." (Exhibit A5)Dr Miller opined that Mrs Arnold meets the Factor 5(d) of the Statement of Principles for Alcohol Dependence or Abuse, Instrument Number 77 of 1998 which deals with experiencing a severe stressor. The stressor is the attempted assault at the picnic by an officer. Dr Miller also referred to the Repatriation Commission Guideline CM 5030 and concluded that Mrs Arnold used alcohol during her eligible service as a causal effect of that service, particularly using it as a form of self-medication for the stress resulting from her being the subject of attempted sexual assault. In Dr Miller's opinion, Mrs Arnold's alcohol dependency has been complicated by a severe alcoholic cardiomyopathy which he considers relates to her war service, satisfying the Statement of Principles for Cardiomyopathy, Instrument Number 20 of 1998, Factor 5(b).
At hearing, Ms McConnell noted for Dr Miller that Mrs Arnold had a history of consuming alcohol before service. Dr Miller still concluded that while Mrs Arnold may have had minimal consumption of alcohol pre-service, other factors on service such as stress-induced alcohol consumption, peer pressure, availability and use of alcohol to self-medicate provided a causal link between service and an alcohol consumption habit. Dr Miller noted that Mrs Arnold used alcohol in the Army for the above-mentioned reasons and also used it when stressed post service, such as having to deal with her marital situation and later being a sole parent.
Dr Miller further opined that Mrs Arnold appears to be able to tolerate alcohol well with minimal effect on her presentation.
Dr D Leitch, General Practitioner
Dr Leitch noted that Mrs Arnold had been a patient at the practice since 1988. He has been treating her for ten years. He stated that both he and Dr Bellamy, Cardiologist, consider that the cause of Mrs Arnold's cardiomyopathy is her alcohol consumption. There is no other cause that has been hypothesised nor likely, Dr Leitch opined. He would be consulted by Mrs Arnold approximately three or four times per year for prescriptions and has on some of these occasions smelt alcohol on Mrs Arnold 's breath. Over the time he has been treating Mrs Arnold, she has told him that she drinks five to six drinks per day. However, Dr Leitch believes that the level of alcohol consumption is much greater than that. Dr Leitch stated that in recent times, he had actually thought that Mrs Arnold might have reduced her alcohol consumption. Dr Leitch has now revised this opinion when he spoke to her more recently. Dr Leitch believes that the more likely level of consistent alcohol consumption is seven to eight drinks daily.
Dr Leitch was told by Mrs Arnold that her drinking had continued since service. When the issue of the link between alcohol and cardiomyopathy became apparent, Dr Leitch undertook a pre-diagnosis history and he is sure that Mrs Arnold meets the daily seven standard drinks required to satisfy the relevant Statement of Principles.
Dr Leitch told the Tribunal that he had spoken to Mr Arnold a number of times about Mrs Arnold but did not recall the exact content of their conversation.
Dr Leitch was asked whether or not he thought that Mrs Arnold's liver function tests would have revealed more damage to her liver given the belief that she was drinking at least seven standard drinks of alcohol per day if not more. Dr Leitch commented that the test results did not necessarily exclude her having an alcohol problem, particularly given her constitutional make-up. Dr Leitch concluded that from his observation of Mrs Arnold, the documentary evidence including opinions and test results has convinced him that Mrs Arnold was drinking between seven to eight alcoholic drinks per day.
Associate Professor R P Mattick, Clinical Psychologist
Associate Professor Mattick is the Director of Research at the National Drug and Alcohol Research Centre, University of New South Wales and Associate Professor at the University of New South Wales in the Faculty of Medicine. Associate Professor Mattick provided a report dated 13 July 2001 (Exhibit R1).
Mrs Arnold told Associate Professor Mattick of being "attacked" by an officer who attempted to assault her and she had run away hysterical. Associate Professor Mattick noted that Mrs Arnold commented that this event did not necessarily cause any ongoing problems because she is quite a strong person.
In terms of Mrs Arnold's drinking history, Mrs Arnold had stated that she first drank at age 16 years at family parties consuming perhaps a glass of sherry once every three weeks until she was 18 years old.
Associate Professor Mattick stated that he would have seen thousands of patients over the years. The reports he has seen concerning Mrs Arnold have been quite brief and he is concerned about the generalisations in various reports concerning alcohol consumption. Associate Professor Mattick further noted a minor error in Dr Leitch's report in terms of test results. Dr Leitch's report did not leave Associate Professor Mattick satisfied about the true level of Mrs Arnold's alcohol consumption.
Comparing Dr Miller's and Dr Leitch's reports, Associate Professor Mattick noted that those doctors' reports vary. Dr Miller assessed eight to ten standard drinks per day, which is higher than Dr Leitch who assessed seven to eight standard drinks of alcohol per day. Associate Professor Mattick reiterated that he is troubled by the lack of precision in these reports and he specifically noted that he had clarified with Mrs Arnold the size of the container she drank from and used to measure her "nips" of alcohol. The Tribunal noted her evidence that she used a normal wine glass size which has a capacity of 100 or 120 mls. The scotch glass she used was substantially greater than scotch glasses used in hotels.
Associate Professor Mattick conceded that Mrs Arnold may have underestimated or understated her alcohol consumption. It is a well-established fact that many people with alcohol problems tend to understate their alcohol consumption, Associate Professor Mattick stated. Associate Professor Mattick assessed that Mrs Arnold consumed 16 kilograms and at most 20 kilograms of alcohol per year.
In relation to stressors experienced by Mrs Arnold on service, Associate Professor Mattick stated that she did not mention anything apart from the attack of the officer who attempted to sexually assault her. Associate Professor Mattick did not think that Mrs Arnold was particularly upset by the incident. She had been physically abused by her husband and this was very distressing for her.
Associate Professor Mattick thought that Mrs Arnold was a very resilient person, particularly noting that she had raised her son alone. On psychological testing, Mrs Arnold's results showed slightly high levels of anxiety and low results on the "Beck" depression test. Referring to the diagnostic tests undertaken by Dr Leitch, Associate Professor Mattick noted that the enzyme test results did not necessarily help in forming a view about Mrs Arnold's level of alcohol consumption.
Associate Professor Mattick noted that he did not take pre-service calculations of Mrs Arnold's alcohol history, but he believed that between the ages of 16 and 21, Mrs Arnold probably drank .7 kilograms of alcohol per year. At paragraph 10.5.5 of his report, Associate Professor Mattick concluded that Mrs Arnold's alcohol consumption would be 50 grams at most per day. This level of consumption would have her consuming less than 18 Kilograms of alcohol per year. Allowing for Mrs Arnold's understatement of consumption in what she told Associate Professor Mattick, he estimated that Mrs Arnold's consumption would at most be 20 kilograms of alcohol per year. Associate Professor Mattick noted that six middies of beer per day would equate to 60 grams of alcohol. If Mrs Arnold drank six middies of beer per day or a bottle of wine per day, then over ten years she would have consumed 219 kilograms of alcohol. To reach the level of 250 kilograms of alcohol over a ten year period, as is required by the relevant Statement of Principles, Mrs Arnold would have to drink seven standard drinks per day.
From her history, Associate Professor Mattick further concluded that Mrs Arnold's alcohol consumption had peaks and troughs. He thought it unlikely that Mrs Arnold drank to the level of 250 kilograms over any ten year period. In so concluding, Associate Professor Mattick noted that Mrs Arnold is very slight and he would have expected that at that level of alcohol consumption, she would have been intoxicated and there would have been obvious consequences of drinking to that level. To the contrary, Mrs Arnold had worked in two jobs and was involved in the care of her son and mother who were both dependent on her. Associate Professor Mattick, conceded however that Mrs Arnold's liver function tests were not conclusive of whether or not she had an alcohol abuse/dependency problem.
Submissions
Mr Colborne submitted that the two fundamental issues in this matter are whether or not Mrs Arnold's alcohol consumption is related to service and if so, does she satisfy the relevant Statement of Principles concerning Cardiomyopathy.
Mr Colborne took the Tribunal through the evidence relating to alcohol consumption which he concluded is "all over the place". On 8 October 1987, Dr N C Patel, Consultant Physician and Cardiologist, noted that a cardiac catheterisation examination showed normal coronary arteries with dilated poorly functioning left ventricular, in keeping with cardiomyopathy and noted Mrs Arnold has been drinking alcohol "somewhat excessively". Dr Patel wondered if cardiomyopathy was associated with alcohol abuse (Exhibit R2,p79). On 24 March 1988, Dr Patel noted that Mrs Arnold should keep a close watch on her alcohol consumption. In June 1990, Dr Leitch noted 5 grams of alcohol per day but in July 1991, noted he had discussed Mrs Arnold's alcohol use with her (Exhibit R2, p8). Mr Colborne noted that in October 1990, there was a further discussion with Mrs Arnold concerning alcohol (Exhibit R2, p9).
Mr Colborne referred the Tribunal to the report from Dr Bellamy to Dr Leitch, dated 4 July 1994 (Exhibit R2,p72), which noted that Mrs Arnold drank "a bit of alcohol" but she used to drink more heavily in the past. Mr Colborne also noted Dr Leitch's clinical notes for May 1994, in which it was recorded that Mrs Arnold was consuming greater than 60 grams of alcohol per day and that this had been discussed with Mrs Arnold (Exhibit R2, p11). Dr Bellamy had also noted on 9 March 1999 (T12), Mrs Arnold's deterioration and that she was drinking at least four glasses of wine per day plus a couple of glasses of scotch when she could afford it. Dr Bellamy added that Mrs Arnold may drink more than that. On 4 May 1999, Dr Bellamy further reported that Mrs Arnold was trying hard to reduce her alcohol intake. Dr Bellamy was encouraging her to reduce alcohol as "this is part of the whole problem with her heart" (Exhibit R2,p62). On 5 November 1999, Dr Bellamy reported that Mrs Arnold was drinking at least 50 to 60 grams of alcohol per day and this amount "is a lot less than she was drinking" (Exhibit R2,p60).
Mr Colborne further noted for the Tribunal that in January 2000, Dr Leitch recorded that Mrs Arnold did not want to change her alcohol intake and on her "Health Summary Sheet " as at 5 April 2001, he recorded that she drinks six standard drinks per day (Exhibit R2,p2).
Referring to Mrs Arnold's evidence, Mr Colborne submitted that Mrs Arnold was consuming two dozen bottles of claret or sherry every two weeks. While others might have visited the family if a party was held, Mr Colborne submitted that Mrs Arnold drank the majority of alcohol. That level of consumption of alcohol puts Mrs Arnold within the limit required by the relevant Statement of Principles, Mr Colborne contended.
Mr Colborne submitted that Mrs Arnold's evidence is that she was consistently drinking excessive amounts of alcohol and that she understated this to various medical and other professionals. Dr Leitch, Dr Bellamy, Dr Patel and Dr Miller all suspected that Mrs Arnold was under-reporting and certainly hold the strong view that Mrs Arnold's alcohol consumption provided a causal connection to her cardiomyopathy, Mr Colborne further submitted. Mr Colborne contended that Mrs Arnold's evidence to the Tribunal was consistent with that provided by Dr Leitch.
Referring to June Dowling's evidence of recent times, Mr Colborne submitted that this certainly supports a high level of alcohol intake. Mr Colborne contended that the Tribunal should be reasonably satisfied that for at least ten years before the diagnosis of cardiomyopathy, Mrs Arnold was drinking between six to eight glasses of alcohol per day. Mrs Dowling's evidence confirms that of Dr Leitch, Dr Bellamy and Mr Arnold that Mrs Arnold has been drinking excessively for many years arising out of her service and that the stress arising out of service and work have contributed.
Mr Colborne referred the Tribunal to the Repatriation Commission Guideline CM 5030, "Guideline for Claims Assessors on Smoking and Alcohol Related Conditions and Military Service" (Exhibit A7) at paragraph 2, which noted that there was no agreement by the Commission that the temporal connection of service life with alcohol consumption is enough to establish "habit" as the cause of alcohol use. The Guideline further noted that arguments put to delegates concerning causation which are outside the Guideline, must still be considered for substance and medical and scientific support. Mr Colborne noted that the Guideline is not a legislative instrument.
When Associate Professor Mattick referred to Mrs Arnold experiencing a "stressor", he was talking about this in the context of the Statement of Principles concerning Psychoactive Substance Abuse or Dependence. Mr Colborne noted that the relevant Statement of Principles concerning Cardiomyopathy does not require as a factor having either alcohol dependence or abuse. Mr Colborne submitted that in this matter, the stress experienced by Mrs Arnold on service, either by way of the attack by the officer or being stressed because of other factors such as her husband's treatment of her or being a sole parent did not have to be to the level of a stressor as defined in the Statement of Principles concerning Psychoactive Substance Abuse or Dependence.
Furthermore, the Tribunal needs to be satisfied that service was a cause for the alcohol consumption, not necessarily the main cause but a contributing cause beyond the level of "de minimus". The Tribunal was referred to Law v Repatriation Commission (1980) 29 ALR 64 and the Full Federal Court decision in Repatriation Commission v Law (1980) 31 ALR 140 which support the contention that something arising out of or attributable to service does not require that the causal relationship is a direct, dominant or the sole cause but requires a less proximate causal relationship. It may be that there are a number of causes but it is sufficient that the causal connection claimed also contributed. Mr Colborne submitted that Mrs Arnold's exposure to alcohol in the service environment is sufficient cause to find a service-related alcohol consumption. There was however, a combination of factors in service contributing to Mrs Arnold establishing an alcohol consumption habit, namely peer pressure, availability and stress. In this regard, Mr Colborne further referred the Tribunal to the alcoholic brews made by the Sergeants and the attitude of the officers encouraging consumption of alcohol. Mrs Dowling had spoken about the service environment and the encouragement provided to members to consume alcohol.
Mr Colborne contended that although Mrs Arnold consumed alcohol at age 16, this was in very small amounts and it is noteworthy that Mrs Arnold came from a very strict family upbringing which did not encourage the consumption of alcohol. It was on service in Queensland however, that Mrs Arnold, age 21 years, in the very hot climate, with peer pressure to consume alcohol and a stress-induced increase in alcohol consumption, that Mrs Arnold increased her drinking to six standard drinks per day. The attempted sexual assault then further influenced her drinking, although it may not have played a prominent part. Mr Colborne noted Mrs Arnold's evidence, "I can't blame him for it all, I had started drinking already in the service." Mrs Arnold was overworked on service and stressed, Mr Colborne submitted. While this is not a stressor as defined, this is not required as all that is necessary is that the stress experienced on service contributed to Mrs Arnold's use of alcohol to alleviate that stress.
Referring to Associate Professor Mattick, Mr Colborne submitted that his evidence was limited to what Mrs Arnold had told him. The last paragraph of Associate Professor Mattick's report indicates his suspicion that she was not reporting completely about her alcohol consumption. Associate Professor Mattick's report is not consistent with the overwhelming evidence from treating doctors Dr Patel, Dr Bellamy or Dr Leitch. In addition, the evidence of Mrs Dowling, Mr Arnold and Mrs Arnold herself provides a consistent picture of excessive alcohol intake to the level required by the relevant Statement of Principles, Mr Colborne contended.
Accordingly, Mr Colborne submitted that there is a relationship between Mrs Arnold's service and her high alcohol consumption, related through the change of her environment and circumstances on service in addition to there being peer pressure, availability of alcohol and a certain level of stress arising out of service. The Tribunal should be reasonably satisfied on the balance of probabilities that Mrs Arnold had a service-related alcohol consumption and that the level of consumption in any of the ten years prior to the diagnosis of cardiomyopathy in 1987, was at least seven standard drinks of alcohol per day. This would meet the required level of consumption in the relevant Statement of Principles.
Mr Colborne submitted that the documentary evidence indicates that Mrs Arnold admitted to drinking at least six standard drinks of alcohol per day but in evidence to the Tribunal, she said that she understated her alcohol consumption. The expert evidence, including that of Associate Professor Mattick, is that it is very common for people with excessive alcohol consumption to understate or under-report their alcohol consumption. Certainly Dr Bellamy and Dr Patel consider this as highly likely. Associate Professor Mattick was very suspicious of Mrs Arnold's reporting of her alcohol consumption to the extent that he indicated in his report that he would have liked to have further interviewed her.
Ms McConnell for the Respondent submitted that the standard of proof applicable to this matter is that of reasonable satisfaction which is a stricter standard of proof than that of the reasonable hypothesis.
Considering Mrs Arnold's medical history, Ms McConnell noted that the relevant Statement of Principles does not require consideration of alcohol consumption past the date of diagnosis, which in this case is 1987. Therefore, the Tribunal should confine its attention to any ten year period up until 1987.
Dr Leitch's history starts in the late 1980's. He therefore is not be able to comment on Mrs Arnold's history prior to commencement of his becoming her General Practitioner.
Mrs Dowling has only recently met Mrs Arnold since she moved to Shoal Bay and this was considerably well after 1987. Mrs Dowling did not observe Mrs Arnold drinking on service or before 1987 and therefore her evidence is not helpful.
Considering the Repatriation Commission Guideline on Alcohol and Smoking (Exhibit A7), Ms McConnell submitted that it has no legal status. It is a guide and should not be used as an assessment screen. Ms McConnell further submitted that the Guide is not indicative of how the Department assesses quantities of alcohol. Ms McConnell contended that Mrs Arnold had a well established drinking habit prior to age 21 when she joined the Army. Mrs Arnold was in fact consuming alcohol at age 16, which increased at age 18 and was well entrenched by the age of 21 when Mrs Arnold joined the Army. Ms McConnell submitted that the evidence indicated that Mrs Arnold was drinking on two occasions per week before service.
In relation to the alleged sexual assault on service, Ms McConnell submitted that Mrs Arnold did not say this was the main cause for her drinking and that in fact by 1944, when this incident took place, Mrs Arnold's alcohol consumption was well established. Mrs Arnold's evidence was not that she drank on service in the context of stress but rather she stated she enjoyed the taste, the company and the conversation associated with alcohol consumption. It is not correct to say, Ms McConnell submitted, that Mrs Arnold consumed alcohol because of stress. Mr Arnold's evidence was that his mother thought that her Army life was the best time of her life.
If the Tribunal found that Mrs Arnold did have a service-related alcohol consumption habit, Ms McConnell contended that her alcohol consumption did not meet the requisite quantity required by the Statement of Principles.
Associate Professor Mattick had to rely on what Mrs Arnold told him, Ms McConnell submitted. The evidence was that there were significant periods of reduction in alcohol consumption, for example, when Mrs Arnold could not afford to purchase alcohol or she was too busy. Associate Professor Mattick is an expert and his opinion about Mrs Arnold is based on his knowledge of alcohol consumption patterns over Mrs Arnold's entire life. He took a careful and detailed history, Ms McConnell submitted. There is contradictory evidence concerning Mrs Arnold's alcohol consumption and Mrs Arnold relies on her being too ashamed or embarrassed to reveal the true level of consumption. The Respondent submits however that Mrs Arnold was frank with Associate Professor Mattick and this evidence should be preferred.
Referring to Dr Miller's evidence, Ms McConnell submitted that this should not be placed higher than the evidence of Associate Professor Mattick because Dr Miller did not examine Mrs Arnold face-to-face. Dr Miller reported only on the documents and a telephone call.
Dr Baz and Dr Leitch both saw Mrs Arnold after 1987, and were relying on histories. In relation to the evidence of Mr Arnold, he left home in 1965, aged 18 years. He was not able to directly observe his mother at home for all of the relevant period, Ms McConnell submitted.
Turning to the relevant Statement of Principles, Ms McConnell noted that Mrs Arnold never drank on duty and mostly drank in the company of others. There were picnics and many other social activities. Ms McConnell submitted that the Tribunal must determine whether or not these activities were part of service, including the assault. Referring to the deeming provisions, Ms McConnell submitted that Mrs Arnold drank in the company of others when she was off duty. Ms McConnell contended that Mrs Arnold did not drink because she was stressed, but rather because she enjoyed drinking. The causal relationship between alcohol consumption and service is therefore very doubtful. Ms McConnell concluded by noting that there is no material to point to alcohol dependence or abuse.
Even if the Tribunal were to find a causal relationship between alcohol consumption and service, Ms McConnell submitted that, relying on Associate Professor Mattick's expert opinion, Mrs Arnold did not meet the requisite quantity of alcohol to satisfy Factor 5(b) of the relevant Statement of Principles concerning Cardiomyopathy.
Findings
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions, the legislation and case law.
The Tribunal finds that Mrs Arnold attempted to provide as accurate information as possible. There are clearly discrepancies in the evidence concerning the level of alcohol consumption Mrs Arnold has provided to various doctors, psychologists and decision-makers. The Tribunal does not find that there is any attempt on Mrs Arnold's part to deceive, but that Mrs Arnold does not like talking about her alcohol consumption. As is noted by Dr Bellamy, Dr Leitch and conceded by Associate Professor Mattick, and as reported in the research in this area, it is very common for people who are heavy consumers of alcohol, to under-report their alcohol consumption. Mrs Arnold's evidence to the Tribunal confirmed this.
The Tribunal considers that the first issue it must determine before considering the relevant Statement of Principles concerning Cardiomyopathy, is whether or not Mrs Arnold's alcohol consumption is service-related. The Tribunal has gained some guidance from Repatriation Commission v Law (1980) 31 ALR 140, in which the Full Court of the Federal Court discussed section 101 of the Repatriation Act 1920, which holds relevance for the current legislation, dealing with incapacity or death and the terms "arising out of " or "is attributable to" war-service. It was noted that:
"In s 101(1)(b) the words "arising out of" require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause".
…
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s101 (1)(b), it is sufficient to show "attributability" if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made."In O'Brien v Repatriation Commission (1984) 1 FCR 472, the Court noted that if Mr O'Brien's stress was occasioned during a period of war when he was separated from his wife who was experiencing considerable difficulty, then this was attributable to his war service. Law v Repatriation Commission (supra) was cited with approval in that case.
It is not sufficient, in the Tribunal's view, to suggest that just because Mrs Arnold drank more heavily on service that she had a service-related alcohol consumption. There are a number of factors which must be considered. It is accepted by the Tribunal and agreed by Mrs Arnold that she did consume alcohol before service. On Mrs Arnold's evidence, which the Tribunal accepts, she did so in a very small amount and under the watchful and strict eyes of her mother and other family members. When she joined the service at age 21, Mrs Arnold was quite probably drinking more than at age 16, but the Tribunal does not find that this is conclusive of her having a well-established alcohol consumption pattern. However, on service there was a different environment, the ready availability of alcohol and considerable peer pressure to drink. The Tribunal also accepts that an attempt was made to sexually assault Mrs Arnold. The Tribunal can find no reason not to believe Mrs Arnold. Therefore, the Tribunal finds that in Mrs Arnold's circumstances, she consumed greater amounts of alcohol because of the circumstances of her service and indeed used alcohol to relieve her stress. The Tribunal is reasonably satisfied that Mrs Arnold had an established alcohol consumption habit as a result of her service and not something else. That is, service provided the environment, peer pressure to drink in circumstances where there was a culture of drinking and stress, the combination of which led to her rapid increase in her alcohol consumption to the point of an alcohol consumption habit. The Tribunal notes in Repatriation Commission v Bendy (1989) 18 ALD 144, which dealt with whether or not Mr Bendy's service in Darwin caused the diseases of solar hyperkeratosis and basal cell carcinoma:
"Events may be a contributing cause of an injury or incident if they are events in the absence of which the injury or evidence {sic] would not have occurred, or would not have occurred as and when it did…
Of course, the causes of a disease may involve complexities not present in the causes of an injury or incident, when parameters of time and location may provide guidance…An issue of contributory cause should be approached in a practical, commonsense way. Nevertheless, if, as in present case, it could not be said of the war service that, without it, the disease would not have developed, then it may be difficult to conclude that the war service was a contributing cause thereof…"The Tribunal considers that the principle to be noted is the reference to materiality which serves to make it clear that the contribution required is a contribution of a causal nature.
The Tribunal also notes that while some of Mrs Arnold's drinking occurred out of duty hours, it finds that Mrs Arnold was required to live on the base, particularly in Queensland and she was therefore exposed to all that such an environment entailed. In so concluding, the Tribunal notes Re Repatriation Commission and Wicking (1987) 13 ALD 431 and Re Burns and Repatriation Commission (AAT 10119, 7 April 1995).
The Tribunal notes the Respondent's submission that Mrs Arnold drank post-service because of stress dealing with her marital problems and the physical abuse of her husband as well as working in two jobs. In Borrett v Repatriation Commission [2000] FCA 1829, the fact in that case that Mr Borrett may have consumed alcohol post-service for non-service related reasons such as pressure of work, maintaining goodwill with clients or as a means of relaxation, was found by the Court not to be inconsistent with an alcohol consumption habit established on service. Therefore, the Tribunal finds that in all of Mrs Arnold's circumstances, she has a service-related alcohol consumption habit which continued throughout her life.
The Tribunal turns to consider the specific condition of cardiomyopathy and in doing so, is satisfied that the diagnosis of cardiomyopathy was made in 1987. Considering the various medical reports in this matter, the Tribunal is further satisfied with the diagnosis as made by the Repatriation Commission in its decision of 27 April 1999 that the condition suffered by Mrs Arnold is secondary cardiomyopathy. The relevant Statement of Principles is Instrument Number 20 of 1998 concerning Cardiomyopathy with the applicable factor being Factor 5(b). This factor requires that for women, at least 250 kilograms of alcohol must be consumed within any ten year period before the clinical onset of secondary cardiomyopathy. The Tribunal has already found that Mrs Arnold has a service-related alcohol consumption habit. To achieve this level of consumption, Mrs Arnold would need to consume at least seven standard drinks of alcohol per day in any ten year period.
Dr Leitch, in Mrs Arnold's Health Summary of 2001, estimates that she was drinking at that time six standard drinks per day. There is also noted that in recent times she has reduced her alcohol, however other medical notes indicate that Mrs Arnold underestimates or understates her alcohol consumption. Mrs Arnold has conceded that she has done this in the past and the Tribunal accepts this evidence, not just on Mrs Arnold's evidence, but on the reports of Dr Patel, Dr Bellamy, Dr Leitch and Dr Miller. Associate Professor Mattick also indicated his suspicion that the quantities of alcohol consumption stated by Mrs Arnold may have been inaccurate.
It is extremely difficult so many years after the event, to arrive at an estimate of Mrs Arnold's alcohol consumption during any ten year period from service until 1987, the date of the diagnosis of her claimed condition. Difficulties arise because of such factors as the passing of time and the fading of a person's memory. What decision-makers must do is make a determination based on all the information available in the individual circumstances of the case. In this case, there is clearly inconsistent reporting of quantities of alcohol consumption. There is consistency however in the reports of Dr Patel, Dr Leitch and Dr Bellamy (all treating doctors), and Dr Miller, that Mrs Arnold consumes alcohol to excess and that there is a causal relationship between the alcohol consumption and cardiomyopathy. While Ms McConnell asserts that these doctors are reporting after 1987, in the Tribunal's mind, there is no reason to doubt that at the time these doctors made their reports or clinical notes, Mrs Arnold was following an alcohol consumption pattern which had existed for more than thirty years. Furthermore, Dr Patel, a treating doctor, was reporting contemporaneously with the diagnosis of Mrs Arnold's cardiomyopathy and Dr Bellamy, also a treating doctor, soon after.
In relation to Associate Professor Mattick's evidence, he noted concerns that other doctors' evidence was not as precise in its details of alcohol consumption as he would like. He also noted he would have liked the opportunity to re-interview Mrs Arnold, conceding that people do have a tendency to understate their alcohol consumption. Associate Professor Mattick is obviously very suitably qualified to provide opinions on such matters, but in the circumstances of this case, the Tribunal prefers the weight of evidence of the treating doctors as supported by Dr Miller's opinion.
The Tribunal notes that Mr Arnold has a clear recollection of his mother having a fortnightly order of two dozen bottles of either sherry and/ or claret. Mr Arnold had to clear the empty bottles away and the Tribunal is satisfied that Mr Arnold provided truthful evidence. The Tribunal is also satisfied that the consumption of the majority of this large quantity of alcohol was undertaken by Mrs Arnold and not neighbours or party-goers. While Mr Arnold cannot recall when he first became aware of his mother's significant alcohol consumption, in his conscious memory from childhood, it was occurring for at least ten years before he left home when he was aged 18 years.
Mrs Dowling's evidence, although confined to the more recent years since Mrs Arnold's relocation to Shoal Bay, is still useful in providing a picture of someone who consistently consumes alcohol to a high level - a pattern which, on all the evidence, has not just sprung up, since Mrs Arnold commenced living in Shoal Bay.
Based on all of the documentary and oral evidence, the Tribunal concludes that from the end of service until the present, Mrs Arnold has been consuming alcohol to the level of at least seven standard drinks per day and probably, during various periods, to a level of eight or nine standard drinks per day. Given this finding, the Tribunal is reasonably satisfied that Factor 5(b) is met. The Tribunal therefore determines that on the balance of probabilities, Mrs Arnold's secondary cardiomyopathy is connected with the circumstances of her service and she is entitled to a Disability Pension with effect from and including 4 November 1999.
Accordingly, in all the circumstances and for the reasons outlined above, 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:
1. Mrs Arnold has a war-caused condition of secondary cardiomyopathy and is qualified to receive Disability Pension from and including 4 November 1999.
2. The assessment of the correct rate of Disability Pension is remitted to the Repatriating Commission for calculation.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr P D Lynch, Member
Signed: .....................................................................................
Ms Jessica Purches, AssociateDate of Hearing 21 August 2001
Date of Decision 5 April 2002
Counsel for the Applicant Mr C ColborneSolicitor for the Applicant Mr B Williams, Vardanega Roberts, Solicitors
Advocate for the Respondent Ms T McConnell, Departmental Advocate
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