Bird and Repatriation Commission
[2010] AATA 171
•12 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 171
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4517
GENERAL ADMINISTRATIVE DIVISION ) Re Margaret Bird Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member Jill Toohey and Dr Max Thorpe Date12 March 2010
PlaceSydney
Decision The Tribunal affirms the decision under review. ..................[sgd]............................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - War Widow's Pension – whether death related to operational service – hypertension – ischaemic heart disease – evidence does not suggest alcohol use related to service – decision under review affirmed.
Veterans Entitlements Act 1986
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
12 March 2010 Senior Member Jill Toohey and Dr Max Thorpe Background
1. Frederick Bird served in the Royal Australian Air Force from June 1942 to November 1945. He died on 21 June 2007. His widow, Margaret Bird, claims a war widow’s pension on the ground that the stress of his service led to excessive drinking which in turn led to hypertension and, eventually, to his death. The respondent disputes that Mr Bird’s death was related to his service.
2. Mr Bird served in New Guinea and so the whole of his service is operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).
3. According to his death certificate, the cause of Mr Bird’s death was:
Part I
(a) Myocardial infarction, hours
(b) Renal Failure, weeks
(c) Multiple Myeloma, yearsPart II
Renal calculi, years
Atrial fibrillation, years
Amyloidosis, years
4. It is not in dispute that the kind of death suffered by Mr Bird was ischaemic heart disease. However, the respondent contends that he did not suffer from hypertension as Mrs Bird claims; that, even if he had hypertension, it was not on account of his drinking; and that, even if it was, his drinking was not related to his service.
The issues
5. By s 13 of the Act, Mrs Bird will be entitled to a widow’s pension if her husband’s death was “war-caused” within the meaning of s 8(1). The relevant criterion in this case is whether Mr Bird’s death “arose out of, or was attributable to”, any eligible war service rendered by him.
The standard of proof
6. As Mrs Bird’s claim arises out of her husband’s operational service, the standard of reasonable hypothesis applies: s 120(1) and s 120(3). We have to determine whether the hypothesis that Mr Bird’s hypertension was related to his service is reasonable because it conforms to a relevant Statement of Principles (SOP). If it does not, then the hypothesis will not be reasonable and the claim will fail. If the hypothesis conforms to a relevant SOP, we must then consider whether we are satisfied, beyond reasonable doubt, that Mr Bird’s hypertension was not war-caused.
7. The steps to be followed in making our determination are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. No finding of fact arises in determining whether or not a reasonable hypothesis exists. It is only in determining whether we are satisfied, beyond reasonable doubt, that a condition was not war-caused that any fact-finding arises.
Statements of Principles
8. Mrs Bird relies on the following SOPs:
No 89 of 2007 Ischaemic Heart Disease
Factor 6(a) - having hypertension before the clinical onset of ischaemic heart disease
No 35 of 2003 Hypertension as amended by No 3 of 2004 and No 11 of 2008
Factor 6(b) – consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension
Did Mr Bird have hypertension
9. There is no dispute, and we are satisfied on the basis of Mr Bird’s death certificate, that his kind of death was ischaemic heart disease.
10. Mrs Bird contends that her husband suffered from hypertension and that it played a material role in his death. The respondent disputes that Mr Bird had hypertension. Whether he had that condition is a matter of fact to be determined on the balance of probabilities.
11. Mrs Bird gave evidence before the Tribunal as well as before the Veterans Review Board (which affirmed the respondent’s decision). Her son, Trevor Bird, gave evidence before the Board, but not before us.
12. Mrs Bird gave evidence that her husband had high blood pressure from the early 1990s. She recalls him taking medication for high blood pressure, she thinks once a day, but she cannot recall its name. According to the written reasons of the Veterans Review Board, Trevor Bird also recalled his father taking medication for blood pressure, although he could not recall for how long.
13. Professor Michael O’Rourke, cardiologist at St Vincent’s Hospital in Sydney, reviewed medical records and other documents concerning Mr Bird. The documents included clinical notes of Dr Warwick Wickham, Mr Bird’s general practitioner from 1991 to 2007, and from Port Macquarie Base Hospital including notes and reports from Dr Kevin Alford, Mr Bird’s treating cardiologist.
14. In a written report and in oral evidence, Professor O’Rourke concluded there was no evidence in the documents before him that Mr Bird suffered from hypertension. Professor O’Rourke could find nothing in Mr Bird’s treatment history to suggest he was being treated for hypertension. He noted that Mr Bird had been prescribed Ramipril, a drug that is prescribed for elevated blood pressure as well as for cardiac failure. However, based in particular on Dr Wickham’s notes, Professor O’Rourke concluded that Mr Bird had been prescribed Ramipril for cardiac failure rather than for blood pressure.
15. Further, Professor O’Rourke found nothing in Mr Bird’s numerous blood pressure readings to indicate hypertension. He thought only one, a reading of 150/70, was above normal and was “highish”. However, he said, a persistent and permanent high reading is required before hypertension can be diagnosed; a single reading of 150/70 would not amount to hypertension.
16. Professor O’Rourke also noted that, according to a report from Dr Alford, Mr Bird had denied any history of hypertension and, further, that alcohol did not appear anywhere as a clinical feature in relation to any of his medical conditions.
17. Dr Tim Anderson, occupational physician, also examined Mr Bird’s medical and other records. While he could not be sure that Mr Bird had hypertension, he thought that possibility could not be discounted. He agreed with Professor O’Rourke that only one of Mr Bird’s numerous blood pressure readings appeared high. However, he thought that was to be expected, given that he was taking Ramipril, which would have the effect of lowering his blood pressure, regardless of the condition for which it had been prescribed. Dr Anderson acknowledged that Ramipril may be prescribed for other conditions but, as Mr Bird’s medical records did not indicate why he was taking Ramipril, Dr Anderson thought hypertension could not be discounted.
18. Dr Anderson also noted that Dr Wickham referred on two occasions to Mr Bird being treated for hypertension. In a letter in August 2007 to a veterans’ advocate, Dr Wickham stated:
Mr Bird was being treated with (sic) hypertension prior to his death….
19. Dr Wickham made a similar reference in a letter in April 2008 to another advocate, in which he wrote:
Although [Mr Bird] had a past history of hypertension…
20. We note that, on both occasions, Dr Wickham also stated that Mr Bird’s hypertension could not be related to his war service.
21. Professor O’Rourke maintained that these statements were not borne out by other evidence, in particular from Mr Bird’s treating cardiologist, Dr Alford. In fact, Dr Alford stated in one report that Mr Bird had denied a history of hypertension. However, Professor O’Rourke noted that an echo-doppler study of Mr Bird’s heart conducted in July 2003 showed “marked thickening of the left ventricular walls” which Dr Alford noted “is sometimes seen in long term hypertension …”. Professor O’Rourke agreed that this thickening could be consistent with hypertension.
22. It is difficult to know what to make of the references to hypertension in Dr Wickham’s letters. However, he was Mr Bird’s treating general practitioner for many years and we cannot dismiss his clear statements to the effect that Mr Bird suffered from hypertension. Nor should we dismiss the possibility that Mr Bird had been prescribed Ramipril for hypertension.
23. Taking into account the references in Dr Wickham’s letters to Mr Bird’s hypertension, that thickening of the ventricular walls may be consistent with hypertension, that Mr Bird had been prescribed Ramipril, and given the evidence of Mrs Bird (and Trevor Bird before the Veterans Review Board) that he took medication for high blood pressure, we are satisfied, on the balance of probabilities, that Mr Bird suffered from hypertension before his death.
Was Mr Bird’s hypertension connected to his operational service
24. For the hypothesis contended for by Mrs Bird to be made out, there must be material before us capable of supporting it.
25. Factor 6(b) in the SOP for hypertension requires the consumption of the specified amount of alcohol at the time of the clinical onset of hypertension.
26. Mrs Bird contends that her husband’s drinking was of such long-standing that it is reasonable to conclude it was at the required level at the onset of his hypertension. However, there is no evidence before us about the date of clinical onset of Mr Bird’s hypertension. We have only a report from Dr Wickham that it was “long-standing” and that Mr Bird was being treated for it at the time of his death. Nor have we any evidence about the amount of alcohol Mr Bird was consuming at the time of the onset of hypertension.
27. Mr Bird’s service records show that he enlisted in the Royal Australian Air Force in June 1942 at the age of 18. He spent approximately six months in Darwin working on airfield construction, during which time there were several Japanese bombing raids. From July to October 1944, and from May to October 1945, he was in New Guinea, where he was worked on airfield construction.
28. Mr and Mrs Bird met in 1957 and married in 1959. He did not talk to her a great deal about his service. She knows he was engaged in airfield construction in Darwin and New Guinea, she thinks as a “general hand”. While she recalls him saying a few things such as that service was “stressful”, Mrs Bird could not recall specifically anything that he said in this regard. She thinks it was “a bit scary” at times when Japanese forces were not far away. She thinks living conditions in both Darwin and New Guinea were “pretty rugged” because conditions were basic and the men lived in tents.
29. Mrs Bird told us that her husband had never been away from his family before enlisting and she thinks he started drinking then because things were stressful, and for companionship.
30. Mrs Bird told us that, when they met, her husband was a lovely, considerate person; they would socialise a lot, always going to balls and dances. She recalled that the men would go outside to get beer from the boots of their cars and said it seemed to be something they all did. She told us she did not know a lot about her husband’s drinking but he was an honest person, including about his drinking. He always drank beer; he drank in company and seldom at home although in later life, they would have red wine at home in the evening.
31. During their marriage, Mr Bird would go to the local hotel or club two or three times a week, and on the weekend when he played bowls. Mrs Bird joined him in the late 1970s after their children had grown up and she took up bowls. She recalls him sometimes coming home happy, sometimes upset; he could always still walk but would sometimes be “a bit wobbly”. He had been known to drink up to 10 schooners of beer in an evening.
32. In an alcohol questionnaire completed in September 2007, Mrs Bird indicated that her husband started drinking about four schooners of beer two to three times each week in 1943 due to “separation from family and friends”. There is no reason to doubt her belief but the basis for this statement is not clear and appears to be speculation. Mrs Bird gave evidence that she never knew much about her husband’s drinking and that he seldom drank at home. She estimates that, just prior to his death, he was drinking four schooners of beer on two days each week and two x 100ml of wine every day.
33. Dr Wickham’s clinical notes include a health assessment checklist completed in April 2001. Mr Bird told Dr Wickham at that time that he drank 30 to 40 grams of alcohol two to four times a week and that he would have six or more standard drinks “monthly or less”. When Dr Wickham completed the same form in April 2002, Mr Bird reported that he drank 20 grams of wine “5+ times per week” and never drank six or more standard drinks. Mrs Bird does not dispute any of these amounts; she believes her husband would have been honest with anyone else about his drinking, as he was with her.
34. Mrs Bird told us that her husband’s drinking would increase at times, depending on what was happening. For instance, when times on their farm were busy, he might not drink at all for two weeks; at other times he would drink more, if things stressed him, for instance if something went wrong on the farm or someone near him died. She thought these fluctuations would have been common before their marriage as well although the basis for this is not clear. There is nothing to suggest that there was any connection to Mr Bird’s wartime experiences in these fluctuations.
35. It was submitted for Mrs Bird that Darwin was subjected to numerous bombing raids in the time her husband was there and that he would naturally have found the experience very stressful. Dr Anderson thought it very likely that a young man, exposed to the stresses of work near Japanese bombing raids, and to a drinking culture in the air force, would take up drinking. He could not say for sure, but he could not discount the possibility that Mr Bird’s drinking was related to his service and thought it very likely that it was.
36. It appears, from the written reasons of the Veterans Review Board, that Trevor Bird had tried to find out from family and old friends about his father’s drinking in the twelve years between his discharge and his marriage, but he had been unable to learn anything. He surmised that his father would have been close to bombing, because the Japanese would have targeted airfields, but his father “had not recounted any specific incidents, concerns or stresses”. There is nothing to suggest that the reasons do not accurately reflect what Trevor Bird told the Board.
Conclusion
37. We are satisfied that Mr Bird suffered from hypertension. There is no evidence before us about the clinical onset of his hypertension.
38. The evidence is inconclusive as to when Mr Bird started drinking. It is possible that he started drinking while engaged on service but no one can say for sure. Despite their best efforts, Mrs Bird and her son have been unable to find out anything about when Mr Bird started drinking. All we know is that, by the time Mr and Mrs Bird met, 12 years after he was discharged, he would drink. There is no evidence pointing to whether or not he drank at the level required by the SOP at the clinical onset of his hypertension.
39. The evidence about the level of Mr Bird’s drinking suggests that he was a moderate, social drinker. However, even if the material before us indicated that he drank at the required level, it does not point to a connection with his service.
40. The evidence does not point to a causal connection between Mr Bird’s drinking and his service. The evidence does not point to the fact that Mr Bird found service particularly stressful. There is nothing in his conduct during their marriage that Mrs Bird can point to that indicates that he found service stressful or that linked it to his drinking. If he drank more when things were stressful, Mrs Bird’s evidence was that the stressors were unrelated to his service.
41. We are not satisfied that a reasonable hypothesis connecting Mr Bird’s death with his service is raised by the material before us. We affirm the decision under review.
I certify that the 41 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: ............[sgd]..................................................................
Diana Weston AssociateDate of Hearing 22 February 2010
Date of Decision 12 March 2010
Representative for the Applicant Mr Andrew Kemp, Kemp & Co. Lawyers
Counsel for the Applicant: Mr Julian Siggins
Representative for the Respondent: Ms Jane Warmoll, AGS
0
2
0