Betty Carnell and Repatriation Commission
[2012] AATA 257
•3 May 2012
[2012] AATA 257
Division Veterans' Appeals Division File Number(s)
2010/3318
Re
Betty Carnell
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Miss E A Shanahan, MemberDate 3 May 2012 Place Melbourne The decision of the Veterans' Review Board made on 1 July 2010, which rejected Mrs Carnell claim for benefits under the Veterans' Entitlements Act 1986 (Cth), is affirmed.
.....[sgd J W Constance]........................
Deputy President J W Constance
CATCHWORDS
VETERANS' AND MILITARY COMPENSATION – Royal Australian Air Force – whether the veteran's death was war-caused – herpes zoster – clinical onset – Statement of Principles No. 27 of 2007 – hypothesis not consistent with Statement of Principles – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Veterans Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120(6), 120A(3) and 120A(4)
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Robertson and Repatriation Commission [1998] AATA 127, (AAT 12666, 2 March 1998)
SECONDARY MATERIALS
Statement of Principles No. 27 of 2007
REASONS FOR DECISION
Tribunal: Deputy President J W Constance
Miss E A Shanahan, Member
Date: 3 May 2012
INTRODUCTION
Mrs Carnell is the widow of the late Mr Carnell who died on 25 August 2008. From June 1941 until January 1947 Mr Carnell served as a member of the Royal Australian Air Force and in that time rendered operational service in the South Pacific.
In 2008 Mrs Carnell claimed benefits under the Veterans’ Entitlements Act 1986 (Cth) on the basis that her late husband’s death was “war-caused”. The Repatriation Commission rejected this claim and on 1 July 2010 the Veterans’ Review Board affirmed the Commission’s decision. Mrs Carnell has now applied to the Tribunal to review the Board’s decision.
For the reasons which follow the decision under review will be affirmed.
MATERIAL BEFORE THE TRIBUNAL
Mrs Carnell’s evidence
Mrs Carnell provided a statement dated 4 August 2010[1] and gave evidence.
[1] Exhibit A1
Mr and Mrs Carnell married in 1945.
Following his service in the Air Force Mr Carnell developed numerous skin cancers. He had a number of these surgically removed, including two removed from his right posterior thorax 20 cm above his belt line, in 1996.
On 9 December 1996 Mrs Carnell accompanied her husband to see his general practitioner’s locum who diagnosed his suffering herpes zoster, commonly known as shingles. On returning home from this visit Mrs Carnell observed the herpes zoster rash across the left side of Mr Carnell’s abdomen.
For a period of up to four weeks before the diagnosis was made Mr Carnell complained of pain in his back.
Soon after the diagnosis of herpes zoster Mr Carnell developed post-herpetic neuralgia, as a result of which he suffered severe pain in his back. This pain continued for the rest of his life. He took strong medication to relieve the symptoms of this condition.
On 19 August 2008 Mr Carnell fell at his home, striking his head and fracturing his hip. He was admitted to hospital and underwent operative treatment to repair the damage to his hip. He died in hospital on 25 August 2008 following a heart attack.
Evidence of Mr David Carnell
Mr David Carnell is the son of the late Mr Carnell. He provided a statement dated 15 June 2011[2] and gave evidence.
[2] Exhibit A2.
In his statement Mr Carnell said, in part:
I believe that my father may have been suffering pain from the shingles well before they were in fact diagnosed by Dr Bennie. This is because he never properly articulated the precise nature of his symptoms other than to make it clear to me that he had general acute pain in the area of the mid back and waist to the groin from around the time that the skin cancers were surgically removed.
My father had suffered low chronic back pain for many years but it was of a different nature to the acute pain referred to above.
The late Mr Carnell was very unwell after the surgery to remove the lesions from his back which took place on 3 September 1996. He had complained to his son of suffering back pain prior to his having been diagnosed as suffering from herpes zoster. Mr David Carnell said that the period during which his father began to complain of back pain prior to 9 December 1996 was at least two-four weeks, if not longer.
Shortly after 9 December 1996 Mr David Carnell observed the rash from the herpes zoster to be on his father’s back as well as his abdomen.
Report of Dr Collins, Consultant Forensic Pathologist
Dr Collins considered various medical reports, Mr Carnell’s death certificate and the reasons for the decision of the Veterans’ Review Board.
In his report dated 30 December 2010[3] Dr Collins stated in part:
I agree with the opinion expressed by both Dr D’Souza and Prof. Cade that, inter alia, post-herpetic neuralgia would be a likely contributory factor to the fall by the late veteran and associated left femoral neck fracture, which has been identified as the primary cause of death.
In this regard, it appears that the Veterans’ Review Board held the view that this medical condition contributed to the death of the late veteran …
If it were accepted that the post-herpatic neuralgia did play a contributory role then, in my view, there is a reasonable hypothesis connecting the late veteran’s death with his war service as follows:
Service-related skin conditions -> removal of such a skin lesion in appropriate location on late veteran’s trunk -> development of herpes zoster -> post-herpetic neuralgia therapeutic treatment of which contributed to fall and fractured left neck of femur (primary cause of death).
[3] Exhibit A3.
Evidence of Professor Cade
Professor Cade is a Principal Specialist in Intensive Care. He reviewed material relating to the late Mr Carnell. He provided four reports[4] and gave evidence.
[4] Exhibits R1-R4 inclusive.
In the opinion of Professor Cade, the medication being taken by Mr Carnell to control his chronic severe post-herpetic neuralgia was likely to have been one of the factors which contributed to his fall.
From a consideration of the diagram appearing in Dr Bennie’s clinical notes, the herpes zoster rash tracked around the level of the eighth thoracic nerve. Typically the rash goes from the midline of the front to the midline of the back, curving upwards. It appeared to involve the right T8 dermatome.
Surgery to remove a lesion from Mr Carnell’s posterior thoracic wall was surgery involving the dermatomes affected by herpes zoster or a contiguous dermatome of the 8th intercostals nerve.
Acute herpes zoster comes over a few days and gradually fades over successive weeks. There is a very brief period (a day or so) during which a person may be suffering the pain of herpes zoster before the rash appears.
Professor Cade expressed the following opinion:
It would be quite strange if the herpes zoster had had an onset in November or even earlier, and was still florid on 9 December, and then suddenly fading a few days later, in the middle of December.[5]
Clinical notes of Dr Bennie, General Practitioner[6]
[5] Transcript 31.1.11, p-44.
[6] Exhibit R5.
The notes kept by Dr Bennie for 9 December 1996 (recorded by a locum) state, in part:
Abdo herpes Zoster rash
- pain entirely related shingles ->Zostrix 800mg5x7/7
Digesic
The notes include a diagramatic representation of the site of the rash which shows the site of the rash as the right side of Mr Carnell’s abdomen.
The notes for 12 December 1996 record, in part:
Telephoned – feeling quite a lot better- using Zostrix on rash some pain still even with Digesic.
The notes for 16 December 1996 record, in part:
O/E shingles rash – blisters healing.
Report of Professor Donnan, Professor of Neurology
On 10 January 1997 Professor Donnan reported to Dr Barter, in part:
Thank you for asking me to see this 76 year old chap who came with his wife today. As you indicated, he developed pain in early December in the lower abdominal region and this soon developed into right T9 shingles.
…
Neurological examination was entirely normal, excepting for the right T9 rash which extended from just above the umbilicus anteriorly in a T9 distribution to the midline posteriorly.
…
He does appear to have post herpetic neuralgia secondary to his right T9 shingles.[7]
[7] Exhibit R7 p.A10.
Other material
Other material before me which we have taken into account:
(a)clinical notes of Cotham Private Hospital (Exhibit R6);
(b)clinical notes of Epworth Eastern Hospital (Exhibit R7);
(c)extract from ICD-10-AM Tabular List of Diseases relating to Herpes Zoster (Exhibit R8);
(d)document headed “Herpes Zoster” (Exhibit R9);Transcript of proceedings before Veterans’ Review Board 1 July 2010 (Exhibit R10);
(e)documents filed in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
LEGISLATIVE BACKGROUND
War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be “war‑caused”. The relevant parts of that section are:
“9 War‑caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”
Standard of proof
Section 120 relevantly provides:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease; or
(c)that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
Reasonable hypothesis and a Statement of Principles
Subsection 120A(3) provides:
“For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.”
APPLYING THE LAW
In Repatriation Commission v Deledio[8] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service such as this:
“1. 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.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP [Statement of Principles] 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.
3. If a 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.
4. 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.”
[8] (1998) 83 FCR 82 at 97
ISSUES FOR DETERMINATION
We have to determine the following issues.
1)Did Mr Carnell render “operational service” and if so, when?
2)Within the meaning of s 120A(4) of the Act, what was the “kind of death” met by Mr Carnell?
3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
4)If such an hypothesis is raised, is there a relevant Statement of Principles in force?
5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?
6)If so, are we satisfied beyond a reasonable doubt that the death of the late Mr Carnell was not war-caused?”
DETERMINATION OF THE ISSUES
Issue 1: Did Mr Carnell render operational service and if so, when?
The Commission has conceded that Mr Carnell rendered operational service in the period June 1941 to January 1947. We are satisfied that this is a proper concession.
Issue 2: What was the kind of death met by Mr Carnell?
The parties agree that herpetic neuralgia was a contributing but not the primary cause of death as recorded on the death certificate.[9] We are satisfied that this agreement is appropriate. Further we are satisfied that the immediate cause of death was the complications which arose from Mr Carnell’s hospitalisation following his fall, namely respiratory failure and pneumonia as recorded on the death certificate.
Issue 3: Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
[9] Section 37 documents p.33.
In past matters the Tribunal has adopted the following definition of “hypothesis” from The Concise Oxford Dictionary:
“a proposition made as basis for reasoning, without assumption of its truth; supposition made as a starting point for further investigation from known facts”.[10]
[10] Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615.
In deciding this issue we must consider all the material, not only that which supports the hypothesis: Repatriation Commission v Deledio[11].
[11] (1998) 83 FCR 82 at 97.
Taking into account all the material before us we determine that the material does point to a hypothesis which connects Mr Carnell’s death with the circumstances of his operational service. The hypothesis, as propounded on behalf of Mrs Carnell, is that:
oon 3 September 1996 Mr Carnell underwent surgery to his lower back to remove a skin lesion, being an accepted war-caused condition;
oas a result of the surgery Mr Carnell developed herpes zoster;
othe existence of herpes zoster caused Mr Carnell to develop post-herpetic neuralgia in early 1997;
oas at 19 August 2008 Mr Carnell was taking strong medication to alleviate the post-herpetic neuralgia;
oon 19 August 2008 the effects of the medication contributed to the fall, whereby Mr Carnell was injured such that he required hospitalisation and operative treatment;
oMr Carnell died as a result of the sequelae of the fall.
There is nothing in the material before us that prevents the determination of the hypothesis set out above.
Issue 4: Is there a relevant Statement of Principles in force?
There is no dispute that Instrument No. 27 of 2007 “Herpes Zoster” is in force and relates to the cause of death of Mr Carnell.
Issue 5: Is the hypothesis consistent with the template within the Statement of Principles and therefore a reasonable one?
Clause 9 of the Statement of Principles provides:
“death from herpes zoster” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s herpes zoster.
The Statement of Principles provides that at least one of a number of factors must be related to the relevant service rendered before it can be said that a reasonable hypothesis has been raised connecting death from herpes zoster with that service. The only relevant factor in this case is in paragraph 6(d) which provides:
having trauma, including surgery, involving the … dermatome affected by herpes zoster or a contiguous dermatome … within the eight weeks before the clinical onset of herpes zoster.
The meaning of “clinical onset” as used in the Statements of Principles was considered by the Tribunal in Re Robertson and Repatriation Commission[12]:
“…… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …
[12] [1998] AATA 127, (AAT 12666, 2 March 1998)
The material before us, being the evidence of Professor Cade, points to the clinical onset of the herpes zoster being no more than a few days before the rash was recorded by Dr Bennie’s locum on 9 December 1996. As a result, the hypothesis put forward on behalf of Mrs Carnell is not consistent with the Statement of Principles in that, on the material before us, the trauma of surgery (which occurred on 3 September 1996) did not occur within the eight weeks before the clinical onset of the herpes zoster.
Even on the hypothesis put forward, that the pain associated with the onset of the herpes zoster began three-four weeks before 9 December 1996, there is still no material pointing to an onset within the eight week period. In any event, we do not consider that material simply pointing to a complaint of back pain would be sufficient to allow a doctor to say that the disease was present at the time Mr Carnell first reported pain to Mrs Carnell.
As the hypothesis fails to fit within the template the hypothesis is not reasonable and Mrs Carnell’s claim must fail.
CONCLUSION
The decision of the Veterans’ Review Board made 1 July 2010, which rejected Mrs Carnell claim for benefits under the Veterans’ Entitlement Act 1986 (Cth), will be affirmed.
I certify that the preceding 46 (forty six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Miss E A Shanahan.
.....[sgd]...................................................................
Personal Assistant
Dated 3 May 2012
Date of hearing 31 August 2011 Counsel for the Applicant Ms L Martin Advocate for the Applicant Ms L Gillett Solicitors for the Applicant Williams Winter Counsel for the Respondent Mr G Purcell Solicitor for the Respondent Mr E Nyhof, departmental advocate
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