Blunden and Repatriation Commission

[2003] AATA 1340

Administrative

Appeals

Tribunal

 

 

DECISION AND REASONS FOR DECISION [2003] AATA 1340

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No N2002/1651

VETERANS' APPEALS  DIVISION		)
Re		RONALD CHARLES BLUNDEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date23 December 2003

PlaceSydney

DecisionThe Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 27 September 2001 as affirmed by the Veterans' Review Board on 6 September 2002 to refuse the Applicant, Mr Blunden’s claim that his ischaemic heart disease was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.

[Sgd] Ms G Ettinger

Senior Member

CATCHWORDS

Veteran - ischaemic heart disease - cause – smoking  - dates of cessation of smoking - decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 - ss 9, 120B, 70(5)(b), 120(4), 196B(14)

Repatriation Medical Authority, Statement of Principles Instrument No.38 of 1999

CASE LAW

Repatriation Commission v Deledio (1998) 83 FCR 82

Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

23 December 2003      Ms G Ettinger - Senior Member

1.       The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Repatriation Commission dated 27 September 2001 (T2), as affirmed by the Veterans’ Review Board (“VRB”) decision of 6 September 2002 (T15), to reject the Applicant Mr Ronald Blunden’s claim that his ischaemic heart disease was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986. I noted also the preliminary VRB hearing of 2 April 2002 (T12) which was adjourned to make further inquiries and resumed on 6 September 2002 to make its final decision.

2.       The Applicant, Mr Blunden was represented by Mr C Colborne, of counsel, and the Respondent by its advocate, Mr M Ryan.

ISSUE BEFORE THE TRIBUNAL

3. The issue for consideration by the Tribunal was whether the ischaemic heart disease suffered by the Applicant was war-caused pursuant to section 9 of the Veterans’ Entitlements Act1986. 

LEGISLATIVE CONTEXT

4.       The relevant legislation in this matter was the Veterans’ Entitlements Act1986 (“the Act”) in particular sections 9(1), 13(1), 120B, 120(4) and 196B(14).

5. Section 9 of the Act provides as relevant:

“War-caused injuries or diseases

(1)Subject to this section, 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;

…”      

6. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. As relevant, section 13(1) of the Act follows.

“13 Eligibility for pension

(1)      Where:

(a)      the death of a veteran was war-caused; or

(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;

the Commonwealth is, subject to this Act, liable to pay:

(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or

(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;

in accordance with this Act.”

7. As Mr Blunden had performed operational service, as defined in section 6 of the Act, from 5 November 1941 to 6 June 1946, the standard of proof applicable to assess whether his condition of ischaemic heart disease was war-caused, was that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act:

“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.

…”

8. Section 120A of the Act also applied because Mr Blunden’s application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority (“RMA”), Statements of Principles (“SoPs”) produced pursuant to section 196B of the Act applied.

“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1)  This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

(b)a claim under Part IV that relates to:

(i)     the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii)     the hazardous service rendered by a member of the Forces.

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or

(b)has declared that it does not propose to make such a Statement of Principles.

(3)  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.

Note:       See subsection (4) about the application of this subsection.

(4)  Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)the kind of injury suffered by the person; or

(b)the kind of disease contracted by the person; or

(c)the kind of death met by the person;

as the case may be.”

9.       I noted that the relevant SoP at the time of the Repatriation Commission decision was Instrument No.38 of 1999.  The relevant factor in relation to this matter was factor 5(e) which states as follows:

“Factors

5.        The factors that must as a minimum exist before it can be said that a

reasonable hypothesis has been raised connecting ischaemic heart

disease or death from ischaemic heart disease with the circumstances

of a person’s relevant service are:

…

(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,

(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or

(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or

(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation;

…”

10.     It was agreed by the parties, and I accepted that the date of effect should the application be successful, would be 22 March 2001.

EVIDENCE BEFORE THE TRIBUNAL

11. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following other Exhibits. 

ITEM	DATE	NAME
Fax from Dr AJ du Toit	9 July 2003	Exhibit A1
Statutory Declaration of Ronald Charles Blunden	18 February 2003	Exhibit A2
T-Documents T1-T17, pp 1-80	Exhibit R1
Report of Dr Donald Curran	6 May 2003	Exhibit R2
Clinical Notes of Dr Eli Weiner (3 pages)	Various	Exhibit R3
Clinical Notes of Dr James Healey	Various	Exhibit R4
Clinical Notes of Dr Albert Du Toit and Dr James Healey	various	Exhibit R5
Veterans Review Board transcript	2 April 2002	Exhibit R6

12.     The Applicant Mr Blunden gave oral evidence by telephone link. He was unable to attend in person due to his health, as noted in a medical certificate of 9 July 2003 of Dr A du Toit, (Exhibit A1).

EVIDENCE OF MR RONALD CHARLES BLUNDEN - THE APPLICANT 

13.     Mr Blunden, whose date of birth is 1 November 1922 gave evidence by telephone link before the Tribunal. Mr Blunden said that he was in the Australian Army from November 1941 to June 1946. He gave evidence of the stressful time he experienced in New Guinea, and of how he commenced smoking due to stress and peer pressure. He said that he obtained cigarettes from those who did not smoke.

14.     Mr Blunden said that he would still love to smoke but could not because he was very ill. He said that he smoked 20 – 30 cigarettes a day and that after 1994/5 he never really ceased, but would sneak cigarettes in the garage.

15.     Mr Blunden could not explain why various doctors had recorded different dates of cessation of smoking for him, saying that he did not tell doctors or hospitals much.

SUBMISSIONS AND CONCLUSIONS 

16. In coming to the correct and preferable decision, I had to take into account the evidence, both written and oral, the case law and legislation to decide whether Mr Blunden’s ischaemic heart disease was war-caused pursuant to section 9 of the Act. As the claim was lodged after 1 June 1994, I had to apply section 120B of the Act, and the relevant SoP, Instrument No.38 of 1999.

17.     I noted that Mr Blunden whose date of birth is 1 November 1922, served his country in the Australian Army on operational service, which was between 5 November 1941 and 6 June 1946.  Accordingly the standard of proof was according to the reasonable hypothesis. 

18.     I put on record our appreciation which was also acknowledged by the Respondent of the fine service Mr Blunden gave his country during World War II.

application of principles in repatriation commission v deledio(1998) 83 FCR 82

19.     The Tribunal is bound to apply the law as enunciated by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) where it was held that:

“… the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person [is] as follows:

1The 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.

2If 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.

3If 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.

4The 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.”

20.     With respect to determining when a hypothesis is reasonable, I noted Heerey J's approach in Deledio (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):

“…

Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i)        contrary to proved or known scientific facts,

(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)      (since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or

(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”

21.     I turned then to decide whether, applying the principles set out in Deledio (supra), the material before me raised an hypothesis connecting Mr Blunden’s condition of ischaemic heart disease with his war service. It was the onset, conformity with the relevant SoP, and the decision whether the ischaemic heart disease was war-caused pursuant to the legislation, which were in issue.

22.     I noted that the diagnosis of ischaemic heart disease was not in issue, and accepted that the onset was on 31 March 2001.

23.     In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Blunden’s claimed condition of ischaemic heart disease with his war service, I considered all the material before me, including the oral evidence and medical reports. I was mindful that there was a great deal of material regarding Mr Blunden’s smoking in the documents. This included:

·      The assertion that Mr Blunden commenced smoking because of his stressful war service in New Guinea which led to his ischaemic heart disease commencing on 31 March 2001;

·     Mr Blunden’s statement about his smoking (Exhibit A2 and his oral evidence), and his smoking questionnaire completed on 30 September 1997 (T4) in which stated that he had given up smoking in 1947 due to deterioration in his health;

·     Further evidence of Mr Blunden that he had smoked until approximately 1998, giving up due to ill health;

·     Evidence of Mrs Blunden and that of their daughter (T12/55 & 56), stating that the Veteran ceased smoking in 1998;

·     Hospital records with regard to the Veteran’s smoking;

·     Medical reports of Dr J Healey and Dr A du Toit and others.

24.      I was mindful that no fact finding arises at this stage.  Accordingly, taking into account all the evidence me, I found that the whole of the material raised an hypothesis linking Mr Blunden’s ischaemic heart disease, the onset of which was in March 2001, with his smoking which he claimed commenced on war service.

25.     I moved then to consider the appropriate SoP, Instrument No.38 of 1999, to decide whether Mr Blunden could meet the tests in the relevant factor 5(e). The factors raised in the SoP are of course those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised linking the Veteran’s condition with the circumstances of his service.  As relevant, factor 5(e) follows:

“Factors

5.        The factors that must as a minimum exist before it can be said that a

reasonable hypothesis has been raised connecting ischaemic heart

disease or death from ischaemic heart disease with the circumstances

of a person’s relevant service are:

…

(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,

(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart diseasehas occurred within five years of cessation; or

(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or

(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation;

…”

26.     I noted Mr Blunden’s evidence that he did not smoke at all until he went into the Army, and that he then smoked all he could get during his time in New Guinea, including the rations of non-smoking friends. His evidence was that he then smoked 20 or more cigarettes a day on and off for years, including giving evidence about getting into trouble about smoking at work in a butcher’s shop after the War, and incurring the anger of his wife with regard to smoking to the extent that he smoked clandestinely in the garage, and indeed chewed tobacco so that she would not smell tobacco on his breath. 

27.     I considered the various dates of cessation which Mr Blunden claimed, and which appeared in the documents before me, including his reasons for the conflicting information he gave his doctors at hospital admission and in the smoking questionnaire.

28.     I noted Mr Blunden’s evidence regarding the amounts he smoked, also obtaining the rations of those who did not smoke, and the fact that tobacco was issued by the Navy.  It had previously been accepted, and I also accepted that Mr Blunden ceased smoking before the onset of his ischaemic heart disease in March 2001. However to satisfy factor 5(e) of the SoP, he must have been smoking one to five pack years of cigarettes or related products to 1996, five to 20 pack years of cigarettes or related products to 1986 or at least 20 pack years of cigarettes or related products to 1981.

29.     The evidence regarding the dates of cessation was quite inconsistent. I noted as follows:

·     Mr Blunden’s statement about his smoking dated 18 February 2003 (Exhibit A2), in which he mentioned smoking at least 20 cigarettes a day, ceasing temporarily in 1947 due to illness and recommencing until he made a new year’s resolution in 1994 to cease.

·      Mr Blunden’s oral evidence that the information recorded in his smoking questionnaire completed on 30 September 1997 (T4) in which stated that he had ceased smoking in 1947 was “ridiculous”, and incorrect.

·     Further evidence of Mr Blunden that he had smoked until approximately 1998, giving up due to ill health;

·     Evidence of Mrs Blunden and that of their daughter (T12/55 & 56), stating that the Veteran ceased smoking in 1998;

·     Hospital records with regard to the Veteran’s smoking;

·     Clinical notes of Dr E Weiner (Exhibit R3) “stopped smoking at age 60”;  Dr Weiner at T7/23 “smoked for 35 years commencing at age 18 when joined the army …”

·     Medical reports of Dr J Healey and Dr A du Toit “no smoking habit”  (Exhibit R5) and others;

30.     I considered whether the assertions of the Applicant that the stressful war service in New Guinea and peer pressure, caused his smoking habit and cessation within the terms of Instrument No.38 of 1999, and the development of his ischaemic heart disease were contrary to known scientific facts or otherwise fanciful.

31. Having considered all the the evidence, the dates of commencement and cessation of smoking, and factor 5(e) of Instrument No.38 of 1999, I concluded that on a reading of the various documents listing the dates of cessation, a reasonable hypothesis was raised pursuant to section 120(3) of the Act, linking Mr Blunden’s smoking habit with his ischaemic heart disease (manifested in 2001), and his war service. I accepted that the hypothesis fitted the template in factor 5(e) of Instrument No.38 of 1999 in that the amounts smoked, and the dates of cessation caused the hypothesis to fit.

32. I then applied section 120(1) of the Act, noting that the claim would succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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.

33.     I moved then to assess the evidence and submissions with respect to Mr Blunden’s smoking habit, the amount smoked and the dates of commencement and cessation. I accepted that Mr Blunden’s smoking habit commenced during his war service, recognising that he was very young, and that war, and particularly operational service, was stressful.

34.     I was mindful of Mr Blunden’s excuses for giving inconsistent information regarding cessation, namely that he never told his doctors much at all, and that on hospital admissions he always said that he did not smoke. I acknowledge Mr Blunden’s distress and illness may at various times have contributed to the inconsistent answers he gave.

35.     However, as to some of the particular inconsistencies:

·     Mr Blunden told me in his oral evidence that the information recorded in his smoking questionnaire completed on 30 September 1997 (T4) in which he stated that he had ceased smoking in 1947 was “ridiculous”, and incorrect.

·     That notwithstanding Mr Blunden gave evidence about a 1994 new year’s resolution to cease smoking, his wife and daughter dated the cessation at 1998.

·     Clinical notes of Dr E Weiner (Exhibit R3) “stopped smoking at age 60”; Dr Weiner at T7/23 “smoked for 35 years commencing at age 18 when joined the army …”  (was it at age 53 or 60?);

·     Medical reports of Dr J Healey and Dr A du Toit “no smoking habit”  (Exhibit R5) and others;

·     The triage record of admission into Sutherland Hospital Emergency Department on 30 March 2001 (T8/30) where the records indicated Mr Blunden used to smoke “40 y ago”.

·     Dr J Healey in a letter dated 9 April 2001 (Exhibit R4), in which he noted that Mr Blunden ceased smoking 40 years ago.

36.     In assessing the evidence I gave greater weight to documents such as the 1997 questionnaire, than documents created for purposes of Tribunal or VRB Hearings such as the statements of Mrs Blunden and her daughter Mrs Sheppard at T12. I noted that Mrs Blunden stated that she met her husband in 1949, so could not have known of his activities back in 1947.

37.     I also accorded substantial weight to the statement of treating doctors such as Dr du Toit, who stated at Exhibit R5 that he had been treating Mr Blunden since 1975, and who in my view, would have known with some accuracy if the Veteran smoked. I noted further clinical notes of Dr du Toit dated 22 March 2002 (Exhibit R5), where he had stated: “no smoking habit”.  

38.     There were further inconsistencies in the dates for cessation of smoking  nominated by Dr Weiner as noted above, ((Exhibit R3) “stopped smoking at age 60”;  Dr Weiner at T7/23 “smoked for 35 years commencing at age 18 when joined the army …”), and the records of hospital admissions which were likely to be more accurate than evidence prepared for purposes of hearings.

39. Thus, there were facts disproving the reasonable hypothesis, and I was satisfied beyond reasonable doubt, from the material before me regarding the dates of cessation of smoking by Mr Blunden, that the causal connection with his ischaemic heart disease could not be made, and that the condition was therefore not war-caused pursuant to section 120(1) of the Act.

40.     Therefore, as a result, the application must fail and the reviewable decision be affirmed.

DECISION

41. The Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 27 September 2001 as affirmed by the Veterans' Review Board on 6 September 2002 to refuse the Applicant, Mr Blunden’s claim that his ischaemic heart disease was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:          L Bonouvrie

Associate

Date of Hearing  29 July 2003

Date of Decision  23 December 2003
Counsel for the Applicant          Mr C Colborne

Advocate for the Respondent Mr M Ryan