Blain and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 702
•9 September 2016
Blain and Repatriation Commission (Veterans’ entitlements) [2016] AATA 702 (9 September 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2014/2034
Re
Anne Blain
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 9 September 2016 Place Brisbane The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veteran deceased – claim for compensation by war widow – hypothesis connecting the death of the veteran with the circumstances of the service rendered – Statement of Principles concerning Diabetes Mellitus (Instrument No. 89 of 2011 as amended by Instrument No. 27 of 2016) in force – Statement of Principles does not uphold a hypothesis that the diabetes condition is related to service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 13, 14, 120, 120A, 196B
CASES
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Deledio (1998) 83 FCR 82
Forrester v Repatriation Commission [2013] FCA 898
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Dell and Repatriation Commission (1986) 5 AAR 253
Bushell v Repatriation Commission (1992) 175 CLR 408
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v McKenna (1998) 52 ALD 72
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1981) 147 CLR 635
Woodward v Repatriation Commission (2003) 131 FCR 473
Collins v Repatriation Commission (2009) 177 FCR 280
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
SECONDARY MATERIALS
Statement of Principles concerning Diabetes Mellitus (Instrument No. 89 of 2011 as amended by Instrument No. 27 of 2016)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
9 September 2016
INTRODUCTION
Ms Anne Blain (“the applicant”) was a dependent of the late Mr Milton Blain (“the veteran”) who served in World War II. I have to determine if the claim of the applicant for a war widow’s pension should be granted.
At the time that final submissions were made by the parties the Repatriation Medical Authority (“RMA”) had not concluded an investigation into passive smoking and diabetes mellitus and so the claim of the applicant could not then be determined.[1] After the conclusion of the investigation the RMA issued an amendment to the Statement of Principles (“SoP”) concerning Diabetes Mellitus (Instrument No. 27 of 2016) and the parties were afforded an opportunity to make further submissions. The applicant did not make further submissions. The Repatriation Commission (“the respondent”) maintained that there is insufficient material establishing a connection to eligible operational service rendered by the veteran to meet the amended SoP.
[1] Veterans’ Entitlements Act 1986 (Cth) s 120A(2).
BACKGROUND
The death certificate records that the veteran passed away in 2010 when he was 86 years of age. The certified causes of death were listed as:[2]
(a) Apnoea
(b) Aspiration pneumonia
(c) Progressive supra nuclear palsy.
[2] Exhibit A, T-Documents, T9.
On 30 July 2010 the applicant lodged a claim for a war widow’s pension.[3]
[3] Exhibit A, T-Documents, T5.
On 6 December 2010 a delegate of the respondent rejected her claim.[4] On 1 April 2014 the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate.[5] The applicant now seeks review of the decision by this Tribunal.
[4] Exhibit A, T-Documents, T15.
[5] Exhibit A, T-Documents, T2.
LEGISLATIVE FRAMEWORK
Section 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service. Section 6A of the Act provides the requirements for operational service. The veteran served in the Australian Army from 24 June 1942 until 30 August 1946. As the veteran served outside of Australia the whole of his service constitutes “eligible war service” in the form of operational service.[6]
[6] Veterans' Entitlements Act 1986 (Cth) ss 6A, 7.
Section 8 of the Veterans' Entitlements Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. Relevantly, this provision applies where, under s 8(1)(b) of the Act, “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.
Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) of the Act provides that the term “dependant” is defined to include a “widow”.
Section 5E(1) of the Act defines a “war widow” to include a woman who was legally married to a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.
As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying subs 120(1) and (3) of the Act.
Subsection 120(1) of the Act provides that where a claim 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.
Subsection 120(3) of the Act also provides:
(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.
Statement of Principles
Section 196A of the Act provides for the establishment of the RMA which is an independent medical body that issues Statements of Principles (“SoP”) based on sound medical-scientific evidence. The SoP sets out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.[7]
[7] Veterans' Entitlements Act 1986 (Cth) s 196B(2). See also, Woodward v Repatriation Commission (2003) 131 FCR 473 at 491.
Section 196B(2) of the Act provides that if the RMA:
… is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
A SoP is binding on the respondent and various review bodies, including this Tribunal.[8]
[8] Woodward v Repatriation Commission (2003) 131 FCR 473 at 491.
The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being “related to… service” is expounded in s 196B(14). This provides, relevantly, that a factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service;
In the case of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This is achieved by the application of s 120A(3) of the Act, which 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.
CONSIDERATION
It was held in Repatriation Commission v Bawden (2012) 206 FCR 296 at 304-305 that I am required to consider the applicant’s claim in accordance with Repatriation Commission v Deledio (1998) 83 FCR 82. (“Deledio”). In Deledio, the Full Court of the Federal Court of Australia provided at 97-98 guidance to this Tribunal on the four steps to consider:
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 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.
3. 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.
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.
In Forrester v Repatriation Commission [2013] FCA 898, Mortimer J observed at [26] that in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 Allsop J (as he then was) pointed out at [31] that the second sentence in the second paragraph is incorrect and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.
Step 1 of Deledio
I am required to ascertain whether the material which is in evidence points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. It has been said that “an hypothesis is no more than a supposition or conjectural explanation of an ultimate fact”.[9] In Forrester v Repatriation Commission [2013] FCA 898, Mortimer J pointed out at [30] that “whether material ‘points to’ or ‘supports’ a hypothesis is, of its nature, a matter which can be determined by inference or assumption”. This comment was made in reliance on Elliott v Repatriation Commission (2002) 73 ALD 377 at 379.
[9] Repatriation Commission v Stares (1996) 66 FCR 594 at 601.
There is in my view a hypothesis connecting the death of the veteran with the circumstances of the service rendered by him. The applicant has put forward the hypothesis that the veteran’s death was caused by diabetes which was war-caused. There is no issue that there is a hypothesis that the exposure of the veteran to tobacco smoke during his service caused him to develop diabetes.
Step 2 of Deledio
I am required to ascertain whether there is a SoP in force issued by the RMA under ss 196B(2) or (11) of the Act.
There is an in force SoP concerning Diabetes Mellitus (Instrument No. 89 of 2011 as amended by Instrument No. 27 of 2016).
Step 3 of Deledio
In assessing whether a raised hypothesis is “reasonable”, the High Court of Australia in Byrnes v Repatriation Commission (1993) 177 CLR 564, has held that a reasonable hypothesis is raised when “the material points to some fact or facts (“the raised facts”) which support the hypothesis”.[10] Furthermore, the High Court remarked that in relation to this step at 571:
The position may be summarized as follows: (1) First, sub-s. (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.
[10] Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569, citing Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
Since 1 June 1994, in accordance with s 120A(3) of the Act, a decision-maker must refer to the relevant SoP issued by the RMA to assist in establishing whether an applicant's hypothesis is reasonable, for the purposes of the Act. Therefore, this Tribunal as a decision-maker is required to ascertain if it has material before it which fits the template for the relevant SoP. It was held in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255 that the material must pose a credible proposition, not too remote or improbable. It must be: [11]
... more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
[11] East v Repatriation Commission (1987) 16 FCR 517 at 533.
Accordingly, the evidence must “point to” or “support” the hypothesis and not merely be “left open” as a possibility.[12] The High Court of Australia held in Bushell v Repatriation Commission (1992) 175 CLR 408 at 416 that a reasonable hypothesis exists where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service”.
[12] Gilbert v Repatriation Commission (1989) 86 ALR 713 at 721; Repatriation Commission v Bey (1997) 79 FCR 364.
In Repatriation Commission v McKenna (1998) 52 ALD 72, Goldberg J emphasised at 80 that “it is fundamental to any enquiry under ss 120 and 120A of the Act to identify what is the relevant hypothesis”.
The hypothesis that is put forward by the applicant is that the veteran’s death was ultimately caused by diabetes which was war-caused and that the causal chain is that the veteran’s progressive supranuclear palsy was accelerated in its progress and worsened by a cerebrovascular event in 2007 which in turn was caused by diabetes.
The Tribunal is required to determine the “kind of death” that is applicable to the veteran. The expression “kind of death” refers to the medical cause or causes of death.[13] The Federal Court of Australia has held that there may be more than one cause of death.[14] The applicant contends that “the veteran’s kind of death was progressive supranuclear palsy which condition was accelerated in its progress and worsened by a cerebrovascular event in 2007 (which in turn was caused by diabetes)”. I accept this contention as progressive supranuclear palsy is a certified cause of death. The respondent accepts that progressive supranuclear palsy was a kind of death.
[13] See, Repatriation Commission v Hancock [2003] FCA 711 at [8]-[9] per Selway J.
[14] Repatriation Commission v Law (1981) 147 CLR 635 at 648; Collins v Repatriation Commission (2009) 177 FCR 280 at 289-290.
The respondent accepts the contention of the applicant that the cerebrovascular event was caused by diabetes having regard to factor 6(t) of the relevant SoP for Cerebrovascular Accident (Instrument No. 65 of 2015) which refers to a veteran “having diabetes mellitus at the time of the clinical onset of cerebrovascular accident”.
The applicant has relied upon the previous factor 6(b)(iv) in the SoP for diabetes mellitus which provides:
for type 2 diabetes mellitus only,
(iv) being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 10 000 hours before the clinical onset of diabetes mellitus, where the last exposure to that atmosphere occurred within the five years before the clinical onset of diabetes mellitus; or.
Factor 6(b)(iv) in the SoP for diabetes mellitus now provides:
for type 2 diabetes mellitus only,
(iv) being exposed to second-hand smoke for at least 5 000 hours before the clinical onset of diabetes mellitus, where the last exposure to second-hand smoke occurred within the 15 years before the clinical onset of diabetes mellitus; or
The applicant has quite properly recognised that it is difficult to be precise about the veteran’s level of smoking. The applicant in their submissions has put forward that the veteran had exposure to up 3,000 hours of cigarette smoke during his service. The VRB decision estimates that the veteran was exposed to 2000 to 3000 hours of passive smoke.[15] This is based on the assumption of Mr Kearney that the level of exposure was three hours per night on an average of five nights a week for the 50 months of service. This calculation was made having regard to the previous factor 6(b) which refers to a “visible tobacco smoke haze” such as would be found in clubs and pubs.
[15] Exhibit A, T-Documents, T2 at p. 8.
The present factor 6(b)(iv), upon which no submission was made by the applicant, differs from the previous factor: it is not restricted to a “visible tobacco smoke haze” but now extends to “second hand smoke”. In Deledio v Repatriation Commission (1997) 47 ALD 261 Heerey J pointed out at 275 that a claimant does not have an onus to prove all the facts raised by a hypothesis. Indeed, the applicant does not bear any onus of proof.[16] In any event, at this stage of the Deledio analysis there is no fact finding.
[16] Veterans’ Entitlements Act 1986 (Cth) s 120(6).
The applicant has contended in their post hearing submissions that “the evidence points to [the veteran] having been exposed to approximately 2,000 or 3,000 hours of passive smoking during his service”. I am prepared to assume that the level of second hand smoke that the veteran was exposed to during his service is much greater than 3,000 hours as smoking was permitted in barracks, canteen and in a mess.[17] It is not unreasonable to assume that the veteran would have been exposed to at least 100 hours of second hand smoke each month in these locations so that the veteran was “exposed to second-hand smoke for at least 5 000 hours” as required by the SoP.[18]
[17] T21, p.68.
[18] Statement of Principles concerning Diabetes Mellitus (No. 89 of 2011 as amended by Instrument No. 27 of 2016) at 6(b)(iv).
The applicant gave evidence which I certainly accept as truthful that the veteran was exposed to cigarette smoke in confined places over the course of 21 years in his post-military environment. Reliance was placed by the applicant on Kattenburg v Repatriation Commission [2002] FCA 412 where it was recognised at [43] that smoking after service may be related to relevant service if smoking would not have occurred but for the rendering of that service. However, in this application there is no material before me which would satisfy clause 5 of the SoP which requires that a factor must be related to service. There is no material before me that service contributed to this post-service exposure to tobacco smoke.[19]
[19] See also, Veterans’ Entitlements Act 1986 (Cth) s 196B(14). Cf Repatriation Commission v Knight (2012) 202 FCR 451 at 455.
I consider that the material before me does not satisfy factor (b)(iv) in cl 6 of the diabetes mellitus SoP. Whilst it is reasonable to assume that the veteran was exposed to 5,000 hours of second hand smoke during his service, his last exposure to second-hand smoke during his service did not occur within the 15 years before the clinical onset of diabetes mellitus. Dr Diefenbach, who treated the veteran for six years, considered that diabetes was a “played a very significant role in the development of [the veteran’s] cardiac problems”.[20] In giving evidence Dr Diefenbach confirmed the opinions in his report dated 21 June 2010.[21] In that report Dr Diefenbach indicated that the veteran was diagnosed with diabetes mellitus, type 2 from the mid-1990s approximately.[22] There is no other material before me which points to the veteran having diabetes mellitus, type 2, at an earlier time.
[20] Exhibit A, T-Documents, T20.
[21] Exhibit A, T-Documents, T10.
[22] Ibid at p. 35.
The SoP, either before or after its amendment, does not uphold a hypothesis that the diabetes condition is related to service as considerably more than 15 years had elapsed from the last day of service and the mid-1990s. The application was adjourned to enable a search to be made of available hospital records but no records of relevance have been found. Having regard to s 120B(3) of the Act I cannot be reasonably satisfied that the material before me points to a reasonable hypothesis that the death of the veteran is connected with the circumstances of his service to his country.
DECISION
I affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD .................................[sgd].......................................
Dated 9 September 2016
Date(s) of hearing 13 April 2015; 8 October 2015 Date final submissions received 13 July 2016 Counsel for the Applicant Mr A Harding Solicitors for the Applicant Mr J Cockburn, Cockburn Legal Solicitors for the Respondent Mr B Williams, Department of Veterans’ Affairs
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