Baker and Repatriation Commission
[2005] AATA 733
•29 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 733
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/539
VETERANS' APPEALS DIVISION ) Re IRENE FLORENCE BAKER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO, Member Date29 July 2005
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] REAR ADMIRAL A R HORTON AO, Member
CATCHWORDS
VETERANS ENTITLEMENTS – application for War Widow’s pension – army service of David Otway Baker (the veteran) – operational service - veteran deceased – certification of cause of death due to multiple injuries – statement of principles – claim that veteran’s heart condition contributed to death – evidence of atherosclerosis – relevance of smoking – death not related to service – decision affirmed
Veterans’ Entitlements Act 1986 – sections 6, 7, 8, 11, 13(1), 30, 86, 120(1), 120(3), 120(4), 120A, 196B (2)
Statements of Principles – Instrument No 54 of 1994 – death from cuts, stabs, abrasions or lacerations
Instrument No 43 of 1994 – death from external bruises and external contusions
Instrument No 53 of 2003 as amended by Instrument No 9 of
2004 – Ischaemic Heart Disease
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Roscoe v Repatriation Commission [2003] FCA 1568
REASONS FOR DECISION
29 July 2005 REAR ADMIRAL A R HORTON AO 1. This is an application to review a decision of a delegate of the Repatriation Commission (“the Respondent”) dated 16 July 2001, affirmed on review by the Veterans’ Review Board (“VRB”) on 5 April 2004, that the death of Mr David Otway Baker (“the veteran”) was not related to service. The Applicant in this matter is Mrs Irene Florence Baker, widow of the veteran.
2. At a hearing before me on 10 June 2005, Mrs Baker was self represented. Mr Adam Halonkin, advocate, represented the Respondent. I took into evidence the documents provided by the Respondent pursuant to section 37 of the AdministrativeAppeals Tribunal Act 1975 (“the T documents”); documents titled DVA “H” File of 17 pages (Exhibit R1); NSW State Coroner’s Court Files (Exhibit R2); a report by Professor Michael O’Rourke, dated 18 August 2004 (Exhibit R3); the Respondent’s Statement of Facts and Contentions dated 30 January 2005 (Exhibit R4) and a letter from Dr J B Whaite dated 9 July 2004 (Exhibit R5). Mrs Baker gave oral evidence and was cross-examined by the Respondent. It was intended that Professor Michael O’Rourke give telephone evidence, but as he was unavailable, the hearing was adjourned, and resumed on 7 July 2005 for him to give oral evidence.
BACKGROUND
3. Mr Baker was born in Sydney on 31 July 1923. He served in the Citizen Military Forces, and later the Australian Imperial Force from 5 January 1942 until 14 January 1946. Much of that service was in New Guinea, initially with the 55/53 Battalion and then in supporting units. All of his service was operational service pursuant to section 6A of the Veterans’ Entitlements Act 1986 (“the Act”) and is eligible war service pursuant to section 7 of the Act.
4. On 29 June 1989, Mr Baker was fatally injured in a car accident whilst travelling as a passenger. On 2 July 1989, Dr Schwartz, medical practitioner, undertook an autopsy and concluded:
“In my opinion death had taken place about 2 days previously and the cause of death was:
1. Direct Cause: Disease or condition leading to death: (a) Multiple Injuries
Antecedent Causes: Morbid conditions, if any, giving rise to the above cause, stating the underlying condition last: (b) (c)
2.Other significant conditions contributing to the death but not relating to the disease or condition causing it: (None identified)”
A considerable number of scars and lacerations were observed during external examination. Internal examination noted atherosclerosis of the arteries and aortic ring and small scars on the posterior wall of the myocardium.
5. On 12 June 1990, Mrs Baker lodged a claim for War Widow’s pension. The thrust of her claim was that her husband suffered nerves and depression as a result of his operational service, which contributed to high blood pressure and leg cramps. She argued that the shock of the car accident may have caused a heart attack as the autopsy report identified scars on the left ventricle which indicated previous heart attacks. A smoking questionnaire accompanying Mrs Baker’s claim states that Mr Baker commenced smoking in 1942, that the habit increased due to nerves and that he smoked until his death.
6. In considering Mr Baker’s claim, the Respondent noted the report of Dr J B Whaite, General Practitioner, dated 1 June 1990, which stated that since Mr Baker first attended the practice in 1972, there was no record of any symptom or sign of heart disease. The Respondent found that heart disease, whilst present at the time of death in the Coroner’s report, did not contribute to Mr Baker’s death and the claim was refused.
7. A further claim by Mrs Baker, lodged on 4 July 1996, contended that Mr Baker’s heavy smoking habit affected his heart. This claim was rejected by the Respondent on the basis of the cause of death as identified in the Coroner’s report, the opinion of a Departmental Medical Officer and the opinion of Dr Whaite as noted in paragraph 5 above. It appears that in reaching that decision, the Delegate took no account of a later report by Dr Whaite dated 27 June 1996, which stated:
“At the time of Mr Baker’s death…he had multiple risk factors for ischaemic heart disease including hypertension, marked obesity and combined hyperlipidaemia. The fact that he was a heavy smoker … would also have contributed in a material degree to the coronary ischaemic changes ….
It is proposed that ischaemic heart disease was a significant factor in …failure to survive the injuries sustained…and this in turn was a direct effect of being a smoker…”
8. Mrs Baker lodged a third claim on 25 January 1999 stating that the late veteran suffered chest pains, which, she associated with his heavy smoking. She noted that he had difficulty walking, and severe leg pain. Again this claim was refused, the cause of death being considered as not related to service.
9. The claim before me was lodged on 4 June 2001. Mrs Baker opined in the claim that smoking and drinking during his wartime service, the effects of a wound suffered on the Kokoda Track, evidence of previous heart attacks identified by the scars on the myocardium, a nervous condition and high blood pressure, had all contributed to the death of her husband. On 5 February 2002, the Respondent refused this claim on the grounds that death was not related to service; on this occasion reference being made to the earlier noted report by Dr Whaite of 27 June 1996.
10. The VRB affirmed this decision on 5 April 2004. The circumstances of ischaemic heart disease (IHD) were considered under the provisions and factors enunciated in Statement of Principles Instrument No 53, as amended by Instrument No 9 of 2004, the VRB accepting that the material before it raised reasonable hypothesis, but that none of the factors could be related to Mr Baker’s service. The VRB concluded that if a heart condition had contributed to the death of Mr Baker, it would have been apparent at autopsy and noted according in the report. As to the multiple injuries, the VRB could find no link with the veteran’s service.
EVIDENCE
11. Mrs Baker met her late husband as a teenager prior to the war. They married in June 1945 when he was in Sydney for leave, prior to returning to New Guinea. Mrs Baker stated that her husband neither smoked nor drank prior to joining the army. After his return from service, he was initially employed as a shirt cutter before moving to Dairy Farmers as a plant operator, and later, a foreman. Mrs Baker said that her late husband retired in 1982 due to his poor health, which she related to blood pressure, shortness of breath and pains and aches in the legs. She had become aware of these health problems in about 1980.
12. She stated that her late husband had been routinely seeing a doctor (Dr Whaite and his predecessor in the practice prior to 1972) for many years in respect of his blood pressure (with a requirement every couple of months to obtain a prescription for medication) and his leg problems. Nonetheless, he was a stubborn person and was generally averse to seeking medical advice. She was not aware that he had seen any specialists in respect of a heart condition.
13. Mrs Baker postulated that her husband may have suffered an initial heart attack whilst he was serving in New Guinea, where he was wounded, and a second may have occurred some nine to 12 months prior to the accident when they were entertaining friends at home, and he became unwell and was assisted to bed. He did not see his doctor after that episode.
14. She confirmed that her husband started smoking during the war, and continued to do so until his death. She observed him to be noticeably slowing down before the accident, which she attributed to his age, but she agreed with the Respondent that such slowing could have been a result of a change of pace on retirement. As to his hypertension, he generally had no problems with his family or other people, but was stubborn and quick tempered.
15. Reference has been made to two reports by Dr Whaite. The first refers to blood pressure, gout and hyperuricaemia control by medication, but notes that there is no record of any symptoms or sign of heart problems. The second report, seven years after the death of Mr Baker, is somewhat at variance in that Dr Whaite identifies various multiple risk factors for such a disease, in conclusion proposing that ischaemic heart disease was a “significant factor” in his failure to survive the motor vehicle accident. A response from Dr Whaite (Exhibit R5) to a recent request by the Respondent for medical and clinical notes and any other material relating to Mr Baker’s medical conditions was to the effect that records have been culled and destroyed. Writing some 15 years after the death of Mr Baker, Dr Whaite went on to say that he had no new evidence or advice since his earlier submissions, and “I cannot recall whether this man had pre-existing ischaemic heart disease (I think not) and /or whether such condition had, in any event, been an accepted service-related condition.”
16. On 18 August 2004 (Exhibit R3), Professor O’Rourke responded to a list of questions posed by the Respondent. From the documents made available to him, he observes that “the Coroner noted the presence of intravenous line and ECG dots indicating Mr Baker had been attended by ambulance paramedics”. He notes he did not have access to details of ambulance attendance. Documents in this regard were subsequently obtained by the Respondent, but they contain no details of the circumstances in respect of Mr Baker, and accordingly, and with the agreement of both parties, they were not taken into evidence.
17. Professor O’Rourke noted the conclusion of Dr Schwartz that the cause of Mr Baker’s death was attributable to multiple injuries. He relevantly observed that she recorded:
“…multiple bruises, abrasions and lacerations. She also noted severe atherosclerosis in the circle of Willis at the base of the brain and also severe atherosclerosis of the coronary arteries and the aorta. The lumen of the coronary arteries however was patent. Small scars were noted on the posterior wall of the heart on sectioning the heart. There was also subendocardial haemorrhage on the posterior wall of the heart. …”
18. In his report, Professor O’Rourke relevantly addressed the issue of whether IHD was a factor in the death of Mr Baker:
“1-2. Mr Baker died on 29 June 1989 at the age of 65. His death certificate states the cause of death to be multiple injuries. (f.31) From your readings of the material available, do you confirm the certified cause of death?
Ans. Yes. I also note the presence of severe atherosclerosis and of nephrosclerosis. These conditions were co-existent but there is no suggestion that they contributed to death.
…
5. Did the late Mr Baker suffer from ischaemic heart disease?
Ans. I believe there is no evidence that Mr Baker suffered from ischaemic heart disease. Dr Whaite makes no reference to symptoms suggestive of ischaemic heart disease in his letters nor to any treatment for ischaemic heart disease. Dr Whaite did note risk factors for ischaemic heart disease, including heavy smoking, emanating from the time of service. Mrs Baker refers to chest and leg pains and breathlessness. There could have been other reasons for such symptoms other than ischaemic heart disease.
…
7. … Please comment on the assertion … that the late veteran has small scars on the posterior wall of the myocardium and that this is evidence of both [IHD] and of the late veteran suffering a heart attack at the time of the fatal car accident.
Ans. Small scars on the posterior wall of the myocardium could have been due to asymptomatic previous small myocardial infarcts. It is not uncommon to find such evidence of myocardial damage in persons with severe atherosclerosis. The autopsy showed no evidence of coronary artery obstruction. …The presence of scars does not represent any evidence of the late veteran suffering a heart attack at the time of the fatal car accident.
…
11. If Mr Baker’s [IHD] did contribute to his death, was it more than a negligible contribution?
Ans. From the material before me, I would have to say that had [IHD] contributed to death, it would have been a negligible contribution.”
19. In oral evidence at the resumed hearing on 7 July 2005, Professor O’Rourke confirmed that he had not seen any report on Mr Baker by ambulance paramedics, and surmised that reference in the Coroner’s report to the presence of intravenous line and ECG dots merely indicated an initial reaction by the paramedics. Professor O’Rourke deduced that these indicators led the paramedics to decide that no further action was warranted because of the condition of Mr Baker, and turned their attention to the other seriously injured people. Further, there was no record of any hospital treatment.
20. Professor O’Rourke affirmed his opinion that based on the documentation before him, there was no suggestion that atherosclerosis contributed to the death of Mr Baker. As to reference in the Coroner’s report to “the lumen of the coronary arteries however was patent”, Professor O’Rourke stated that the arteries being open, was evidence that a heart attack had not occurred at the time of the accident. He confirmed his opinion that there was no evidence of IHD, although he agreed with Dr Whaite that there were multiple risk factors present. Professor O’Rourke opined that had a condition of IHD been present, then Mr Baker would have satisfied the factors of the relevant Statement of Principles for IHD (Instrument No 53 of 2003 as amended by Instrument No 9 of 2004), in respect of his smoking habit, which could then be related back to his war service. However, in the absence of a diagnosed condition of IHD, that was not the case.
SUBMISSIONS
21. The position of Mrs Baker is that her late husband’s medical conditions of high blood pressure, shortness of breath, aches and pains in the legs and his heavy smoking habit which originated on service, were evidence that he had significant health problems. Further and as earlier addressed, she postulated that he had suffered two previous heart attacks as reflected by the scars on the posterior wall of the heart; one perhaps occurring during his service in New Guinea when he was wounded, the other being on the more recent occasion at home.
22. The Respondent contended that Mr Baker’s death resulted from multiple injuries resulting from the motor vehicle accident. It was contended that the evidence is insufficient for a finding, on the balance of probabilities that his death was caused by IHD. The Respondent contended that the relevant Statements of Principles are those relating to cuts, stabs, abrasions and lacerations (Instrument No 54 of 1994) and external bruises and external contusions (Instrument No 43 of 1994).
LEGISLATION AND CONSIDERATION
23. Subsections 120(1) and 120(3) of the Act are relevant to the determination as to whether the death of a veteran was war caused. The former requires that the Tribunal determine such unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The latter requires that the Tribunal will be so satisfied, if after consideration of all the material before it, if the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.
24. For the purposes of subsection 120(3), the Tribunal is bound by Section 120A of the Act which requires that where a Statement of Principles has been determined under subsection 196B(2) or (11) by the Repatriation Medical Authority in respect of a particular kind of injury, disease or death, the reasonableness of an hypothesis must be assessed by reference to that Statement of Principles. The Statements of Principle that might be relevant in this matter are Instrument No 53 of 2003, as amended by Instrument No 9 of 2004, in respect of IHD, Instrument No 54 of 1994 in respect of cuts, stabs, abrasions or lacerations, and Instrument no 43 of 1994 in respect of external bruises and external contusions.
24. Subsection 120(4) of the Act is also relevant to the determination of a matter and states
25. “Except in making a determination to which subsections (1) or (2) apply, 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.”
26. The claim before me is for pension under part 11 of the Act. Firstly, I must determine the cause of death under the provisions of subsection 120(4) (Roscoe v Repatriation Commission [2003] FCA 1568 refers), and then consider its relevance to the eligible war service of the veteran under subsections (1) and (3).
27. The evidence from the autopsy by Dr Schwartz as stated in the Coroner’s report is quite specific in that it gives the direct cause of death as multiple injuries resulting from the motor vehicle accident. Dr Schwartz observed severe atherosclerosis in the coronary arteries and aorta and branches in the abdominal region, but did not refer to these conditions as contributing to the death of Mr Baker. On the information available to him, Professor O’Rourke agreed with the certified cause of death, and whilst he has noted the presence of severe atherosclerosis, he found no evidence of heart disease. Further, his opinion is that whilst asymptomatic previous small myocardial infarcts could have resulted in the small scars on the posterior wall of the myocardium, those scars do not represent any evidence of a heart attack at the time of the accident. Indeed, that the lumen of the coronary arteries were open attests that no heart attack took place at that time.
28. The original report of Dr Whaite was prepared 12 months after the death of the veteran. It states “no record of any symptom or sign of cardiac ischaemia, decompensation or arrhythmia.” Dr Whaite’s report dated 17 June 1996, some six years later identifies multiple risk factors (factors that are agreed by Professor O’Rourke) and proposes that IHD be considered a significant factor in the failure by Mr Baker to survive the accident; that “proposal” is not based on symptoms or signs of a disease. I place little weight on the third report by Dr Whaite (in which he notes “I cannot recall whether this man had pre-existing ischaemic heart disease (I think not)…”) given that it was written 15 years after the death of Mr Baker and without access to clinical records.
29. Mrs Baker has referred to the various medical conditions of high blood pressure, hypertension, breathlessness and aches and pains in the legs that she observed in her husband since about 1980. The views of Mrs Baker, married to her late husband for 44 years, are very important in this matter. I accept her view that her husband was generally averse to seeking medical advice, but it is difficult to quantify the effects of these conditions on her husband. I take account of the view of Professor O’Rourke that these conditions might have resulted for reasons other than reflecting IHD. Again, the initial report by Dr Whaite refers to various medical conditions, but records hypertension as being under control from about 1983, and makes no reference to any ischaemic condition. On the evidence before me, and to my reasonable satisfaction, I must conclude that Mr Baker’s death resulted from the multiple injuries received in the motor vehicle accident in June 1989, as recorded by Dr Schwartz.
30. It follows that I must now determine in accordance with subsections 120(1) and (3) of the Act whether the death of Mr Baker, through multiple injuries, was war caused. A reasonable hypothesis has to be raised connecting death from multiple injuries with Mr. Baker’s relevant service. The High Court considered the proper application of section 120 of the Act in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 thus:
"The position may be summarised as follows:
(1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis"
31. The Full Federal Court held in Repatriation Commission v Deledio (1998) 83 FCR 82 that, in operational service matters such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim for a war-caused disability, namely:
"(i) The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(ii) If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(iii) If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
(iv) The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved".
Does the material point to a hypothesis?
32. As defined by the Full Court in Deledio (supra) I must consider all the material before me to determine whether that material points to a hypothesis connecting death with the circumstances of the service of Mr Baker. Whilst there is no fact finding at this stage, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the material points to a hypothesis. The report of the medical examination undertaken for the Coroner is quite specific that the cause of death of Mr Baker resulted from multiple injuries, the inference being that these occurred in the motor vehicle accident. No other relevant conditions were identified in that coronial examination that might relate back to his war service. In respect of that war service, which was completed some 45 year prior to the accident and his resulting death, there is no material before me that supports a hypothesis connecting that service and the cause of death.
33. The material before me does refer to the presence of atherosclerosis at the time of his death, and I accept the views of Dr Whaite and Professor O’Rourke that multiple risk factors were present. But neither Dr Whaite nor Professor O’Rourke consider Mr. Baker to have been suffering from IHD at the time of the accident. Finally, the material relating to Mr Baker’s war service does not contribute to the suggestion of a relationship with the cause of his death.
34. As I find that the material before me does not point to a hypothesis connecting death with the circumstances of the late veteran’s service, the application by Mrs Baker must fail. In reaching this decision, I well appreciate that Mr. Baker served for a number of years in New Guinea, and initially that he was wounded at the time of intense infantry action and that Mrs Baker has very strong views that his war service and subsequent life were very strong contributors to his death. But I have reviewed the circumstances de novo and applied the law as further interpreted in case law, and such a connection as postulated by Mrs Baker cannot be upheld.
35. The decision under review is affirmed, that is, that the death of Mr David Otway Baker was not related to service.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO
Signed: A. Krilis
AssociateDate/s of Hearing 7 July 2005
Date of Decision 29 July 2005
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Adam Halonkin
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