Bowd and Repatriation Commission
[2004] AATA 226
•23 February 2004
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2004] AATA 226
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/391
VETERANS' APPEALS DIVISION ) Re JOHN WILLIAM BOWD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date23 February 2004
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' APPEALS – veterans' entitlements – Disability Pension – reasonable hypothesis – if applicant’s conditions of ischaemic heart disease, bronchitis and emphysema are war-caused – level of smoking attributable to operational service – decision affirmed
Veterans’ Entitlements Act 1986 ss 120, 120A
Kattenburg v Repatriation Commission, Federal Court, 11 April 2002, 412/2002
Statement of Principles Instrument No 38 of 1999
Statement of Principles Instrument No 73 of 1997
ORAL REASONS FOR DECISION
23 February 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 4 July 2000, insofar as it refused the applicant’s claim for payment of Disability Pension in respect of his conditions of ischaemic heart disease, chronic bronchitis, and emphysema. The Veterans’ Review Board affirmed the decision on 30 August 2002.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. Mr Ower appeared as counsel for the applicant, who gave oral evidence. Mr Crowe represented the Commission.
3. The applicant, who is 69 years of age, joined the Royal Australian Navy (the Navy) on 26 August 1957 at the age of 23, and served until 29 April 1966 when he was discharged on the grounds that he was physically unfit for naval service. His periods of operational service under the Far East Strategic Reserve (FESR) aboard HMAS Vampire (the Vampire) are as follows:
23 June 1960 to 29 June 1960 7 days
4 July 1960 to 8 July 1960 5 days
15 July 1960 to 22 July 1960 8 days
29 July 1960 to 31 July 1960 3 days
1 August 1960 to 16 August 1960 16 days
10 September 1960 to 10 October 1960 31 days
14 October 1960 to 5 November 1960 23 days
15 November 1960 to 30 November 1960 16 days
29 September 1961 to 3 November 1961 36 days
15 January 1962 to 25 January 1962 11 days
29 January 1962 to 24 February 1962 27 days2 March 1962 to 27 March 1962 26 days
Total 209 days
He also had a period of operational service in Vietnam aboard the Vampire from 25 January 1962 to 29 January 1962 (5 days). However, the first and last days overlap with FESR service above, and so this period adds only 3 days making the total 212 days.
4. The applicant maintains that his conditions relate to his operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard 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.
(2) …
(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.”
5. Section 120A of the Act provides:
“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.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(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.
…”
6. The hypothesis propounded by the applicant is that his conditions relate to his operational service, in that on the whole of the material, the stressors which he experienced during his operational service, contributed to his increased level of smoking, and connect his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the factors set out in clause 5, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
7. The relevant Statement of Principles for ischaemic heart disease is Instrument No 38 of 1999 (the Heart Disease SoP). The applicant contends that factor 5(f)(i) or (ii) of the Heart Disease SoP is satisfied:
“(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease;”
“Pack years of cigarettes or the equivalent thereof, in other tobacco products” is defined in the Statement of Principles as:
“… a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the “standard” cigarette pack contents) per day for a period of one calendar year, or
7 300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;”
8. The relevant Statement of Principles for chronic bronchitis and emphysema (the Emphysema SoP) is Instrument No 73 of 1997. The applicant contends that factor 5(b) is satisfied:
“(b)smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;”
“Pack year” is defined in the Statement of Principles as “7 300 cigarettes, or 1 460 cigars, or 7.3kg of pipe tobacco”.
9. The Commission concedes that the applicant smoked at least 5 cigarettes per day for a period of at least one year immediately before the clinical onset of ischaemic heart disease, but contends that he did not do so as a result of his operational service, and that factor 5(f)(i) of the Heart Disease SoP is not satisfied. The Commission concedes that the applicant smoked at least one pack year of cigarettes immediately before the clinical onset of ischaemic heart disease, but contends that he did not do so as a result of his operational service, and that factor 5(f)(ii) of the Heart Disease SoP is not satisfied. In addition the Commission concedes that the applicant smoked at least ten pack years of cigarettes before the clinical onset of chronic bronchitis and emphysema, but contends that he did not do so as a result of his operational service, and that factor 5(b) of the Emphysema SoP is not satisfied.
10. The Commission maintains that the four significant events to which the applicant attributes his increase in smoking occurred outside the period of operational service, and if he is linking an increase in smoking with the general stress of the boiler and engine rooms, there is no difference between these stresses on eligible service or not. In addition, if there was found by the Tribunal to be an increase in smoking because of operational service, this increase persisted for a short period until November 1962 or January 1963, when the applicant ceased smoking because of his eosinophilia, and some 3 to 4 months later took up the habit again, and any effect from operational service had come to an end.
11. The applicant was born in Victoria, and left school at the age of 16 to become a clerk with the Post-Master General’s Department. He served in the CMF as a National Serviceman from 1952 until July 1957. A month later, in August 1957, he joined the Navy. He was initially a stoker on the Vampire, and consequently spent much of his time in the engine, boiler and generator rooms. He became Leading Hand/Mechanical Engineer. After he was discharged, he joined Elder Smith. He worked then as a truck driver until 1972. He then became a mill supervisor, and worked for the Softwood Company until 1983 when he sustained a head injury, which resulted in double vision, and he has not worked since. He now lives with his wife in Mount Gambier.
12. The applicant stated in Exhibit A1 that he commenced smoking in approximately 1952, at the age of 18. At that stage he was a casual smoker, and the amount he smoked each day varied. Some days he would smoke cigarettes and other days he would not smoke at all. It depended on what he was doing – if he was working, and where he was. Generally he smoked about 5-10 a day, but it could be less or none at all. This habit continued during National Service. He said that he smoked more when he joined the Navy in 1957 because of the companionship, and because it was more stressful in the Navy, in the boiler room and engine room. He said that in October 1958 when he was at HMAS Penguin, he was still smoking no more than 10 cigarettes per day. By 23 June 1959 when he joined the recently commissioned Vampire, he says that he was smoking an average of 15 cigarettes per day.
13. The applicant gave evidence that his smoking increased to 20 cigarettes per day soon after he joined the Vampire because of the responsibilities involved in the engine and boiler rooms, being in charge of the machinery, watch keeping, the generator room, and other duties. By June 1960 when he commenced operational service, he was smoking 20 cigarettes per day, and by the end of operational service in March 1962, he says that he was smoking 25-30 cigarettes per day because of his two shipmates dying (Mr Plint and Mr Hoad); plus because of the stress in the boiler room, the flashbacks and steam leaks, being down underneath, and not knowing what was going on above, not getting much sleep, working 4 hours on, 8 hours off. He said in evidence, that there was no difference in these stressors whether they occurred during operational or other service, "It is still the same while you are down there".
14. The applicant said in evidence that he gave up smoking for about 2 to 3 months in 1963 when he suffered from eosinophilia, which caused swelling in the neck, arms and other parts of the body. He was hospitalised for some 5 weeks. The lack of cigarettes seemed to make no difference, so as soon as he was released from hospital he was back to smoking 25 cigarettes per day. He said in evidence that he continued to smoke at this level of 25-30 cigarettes per day during his remaining Naval service, and for the following 33 years until he ceased smoking in 1999.
15. The stressors the applicant relies upon in this matter were outlined by him when he was referred to Dr Ewer for a report in relation to a claim for anxiety disorder, which was accepted by the Commission subsequently, as a war-caused condition. Dr Ewer outlined these stressors in his report to the Commission of 19 May 2000 as follows:
“1.Mr. Bowd told me that a thirty-five year old, fellow Sailor had returned to his bunk after working a prolonged period of time. The man was in the bunk above Mr. Bowd. The two men were resting prior to going to have a meal break. The man’s arm slipped down and consequently Mr. Bowd pushed it back up. The arm fell down again. Mr. Bowd checked to see the man was all right and he discovered that he was dead. Mr. Bowd did not know the cause of death. He said that he felt anxious and in particular he said “it knocked the wind right out of me”.
2.Mr. Bowd told me that he was in Saigon in 1962. The Americans were bombarding Saigon with shells and bombs from aeroplanes. Mr. Bowd said that he was very frightened during this experience. He said “it put me right on edge”.. He feared for his life.
3.Mr. Bowd told me that the sailors aboard the Vampire were called to their action stations during a trip to Vietnam.
4.Mr. Bowd told me that he witnessed a number of “back-flashes” in the boiler room. These were frightening experiences which caused him anxiety. He also described a number of occasions when superheated steam leaked into the ship. Some sailors were burnt. This caused Mr. Bowd significant anxiety.
5.Mr. Bowd told me that the Vampire was caught in a severe storm. A fellow sailor almost slipped overboard. The man sustained a fractured pelvis. Mr. Bowd told me that he was very frightened during the storm and he estimated the waves were thirty feet high. Most of the lifeboats on the Vampire were smashed.
6.The following event occurred outside of Mr. Bowd’s operational service but it is relevant to his Naval career. In 1964 he was about to join the HMAS Voyager. However he was hospitalized with a condition which affected his skin. It also affected his eosinophils. Mr. Bowd was hospitalized for five weeks. Another sailor took his place on the Voyager. Mr. Bowd had known this sailor for many years. One month later, whilst Mr. Bowd was still in hospital, the Voyager collision occurred and the man was killed. Mr. Bowd felt guilty and he said “it should have been me on that ship”. Mr. Bowd still has the man’s metal comb at home. Mr. Bowd was further distressed because he knew fifteen other men who were killed on the Voyager.”
16. Turning to the stressors.
1.Death of Sailors
The sailor referred to was Mr Brian Plint, whose death is recorded officially as occurring at sea, of a probable heart, attack aboard the Vampire on 1 December 1961. His death did not occur during the applicant’s operational service. The applicant recalls the death of a second sailor, Mr Kenneth Hoad, who is recorded officially as collapsing and dying in a motor vehicle, while on leave, on 10 January 1960 [Exhibit R1]. This event was 6 months before the commencement of the applicant's operational service. These incidents did not occur therefore during operational service.
2.Shells and Bombs in Saigon
In his statement of 15 April 2003 [Exhibit A1], the applicant referred to this incident occurring in about March 1962, but no evidence was led at the Hearing in relation to this incident. In any event, I do not regard this alleged incident as a stressor linking his increase in smoking to his operational service.
3.Calls to Action Stations
No oral evidence was led in relation to this alleged stressor, and in any event calls to action stations, during operational service or during training exercises, are standard events in the life of a seaman. I do not consider this a stressor linking the applicant’s increased smoking to his operational service.
4. Backflashes in the Boiler Room
The applicant said in evidence that these are "fairly common events" while at sea. He recalls that there were three backflashes. The first, in about April 1961 - which is not during operational service, but was the most significant, as a sailor was injured. The second, in September 1961, on a date that he cannot remember. He has 2 days of operational service only in September 1961, 29 and 30 September. The third, about one month later in October 1961, which he thinks was on the way to Hong Kong, and during operational service. He said in evidence that no one was injured on either of these latter occasions.
In my view these are, in the applicant's own words, fairly common events, which in the circumstances described by him, do not satisfy the description of a stressor relevant to the increase in the applicant's smoking habit.
5. The Severe Storm
This storm, the applicant said in evidence, occurred on the return journey from New Zealand, and Angus McKinnon suffered a fractured pelvis. The applicant agreed in evidence that this incident did not occur therefore during operational service.
6. The Voyager
The Voyager incident occurred, as Dr Ewer stated, outside operational service.
17. The applicant said in evidence, that another disturbing event occurred when an American ship nearly ran into the Vampire, and that he was particularly fearful of being injured by super-heated steam escaping from the boiler under 650 pound pressure. He said however, that this latter fear was present at all times on the Vampire whether he was undertaking operational service or not.
18. It became clear in the course of the applicant's evidence that the most stressful events, the deaths of the two fellow seamen and the flashback in April 1961, which injured a seaman, occurred outside of his operational service, and that the remaining stressors, in relation to the boiler room, engine room and generator room were events that occur regularly in the course of a seaman's shipboard duty, with nothing to distinguish any significantly greater level of stress due to their occurrence on operational service. When the applicant's counsel asked him in the course of his examination-in-chief, why he attributed these events to operational service, he said that there was a Naval Association in Mount Gambier, and that there are five who served on the Vampire, and when they meet they talk about what happened. When asked whether there was any difference in these stressful events whilst on operational service, the applicant replied that one tries to help those in difficulties, "it is all stressful" and that you "cannot see much difference in it" when on operational service.
19. In the matter of Kattenburg v Repatriation Commission, Federal Court, 11 April 2002, 412/2002, Emmett J said at paragraphs 41 to 44:
“41 The second ground was formulated as follows:
"A "factor" in a Statement of Principles will be related to service if, for example, it was contributed to or aggravated by that service s196B(14)(d). In order to satisfy the Statement of Principles concerning intervertebral disc prolapse the Applicant had to meet the factor "smoking at least 20 pack years of cigarettes before the clinical onset of intervertebral disc prolapse". The Applicant's case was that he had smoked before his operational service but increased his smoking as a result of that service. The Tribunal erred by only having regard to the cigarettes smoked as a result of that service and not asking whether his total cigarette consumption had contributed to by his service."
42 An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that "factors must be related to any relevant service". That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
43 Thus, smoking at least thirty pack years of cigarettes will be related to relevant service rendered by a veteran (see para [9] above), if the smoking of that quantity of cigarettes:
* arose out of, or was attributable to, that service;
* was contributed to in a material degree by, or was aggravated by, that service; or
* would not have occurred but for the rendering of that service by the person.
Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran's service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.
44 The Tribunal did not approach the construction of SoP 130 of 1996 in that way. The Tribunal construed the SoP as requiring that the smoking of at least thirty pack years of cigarettes be wholly attributable to the service. The Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996. The second ground of appeal is therefore made out.”
20. On the applicant's evidence, he was a smoker before he enlisted in the Navy at the age of 23, in 1957, and his smoking increased initially, because of the companionship, and because it was more stressful in the Navy. It increased again later, on operational service, because of the stress of the responsibility of the engine room, the boiler room and the generator room. It is not in dispute, that the applicant for the relevant period, smoked the requisite number of cigarettes to satisfy factor 5(f) of the Heart Disease SoP, and factor 5(b) of the Emphysema SoP. The applicant maintains that the smoking of the requisite number of cigarettes was contributed to in a material degree by the operational service, or that it would not have occurred but for the rendering of the operational service.
21. I am satisfied on the evidence, and find as a fact, that the increase in the applicant's level of smoking during the course of his operational service, was not contributed to in a material degree by the service, nor that the increase would not have occurred but for the rendering of the service. Neither factor 5(f)(i) nor (ii) of the Heart Disease SoP is satisfied, nor is factor 5(b) of the Emphysema SoP. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. I am satisfied on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant's conditions of ischaemic heart disease, emphysema, and bronchitis were war-caused.
22. For these reasons, the Tribunal affirms the decision under review.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDate of Hearing 23 February 2004
Date of Decision 23 February 2004
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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