Brecht and Repatriation Commission

[2003] AATA 1164

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1164

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/271

VETERANS' APPEALS DIVISION		)
Re		ALAN HENRY RUPERT BRECHT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date19 November 2003

PlaceCanberra

Decision The decision under review is set aside and the tribunal decides that Mr Brecht qualified for a Disability Pension in respect of his ischaemic heart disease as of 29 December 2000.  The matter is remitted to the Repatriation Commission for it to provide an assessment of the appropriate rate of pension.

...............................................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS -

Veterans’ Entitlements Act 1986 ss 20(1), (2), (3), 120(1), (3), (4), (5), (6), 120A(1)(a), (3), (4), 177(1)(2)(a), (b)(i), 196B(1), (2), (14), 196D

Bull v Repatriation Commission (2001) 66 ALD 271

Cornelius v Repatriation Commission [2002] FCA 750

Deledio, Repatriation Commission v (1998) 49 ALD 193

Fogarty v Repatriation Commission [2003] FCAFC 136

Gorton, Repatriation Commission v (2001) 33 AAR 370

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Smith, Repatriation Commission v (1987) 74 ALR 537

Williams, Repatriation Commission v [2001] FCA 1195

REASONS FOR DECISION

19 November 2003 Michael Sassella, Senior Member           

RESULT

1.      The tribunal has decided that Mr Brecht’s ischaemic heart disease is a war-caused disease and that his pension is to be adjusted with effect from 29 December 2000.  His rate of pension from that date is to be assessed by the Repatriation Commission.

BACKGROUND

2.      Mr Alan Henry Rupert Brecht (“the applicant”) is in receipt of a Disability Pension payable under the Veterans’ Entitlements Act 1986 (“the Act”)[1] and is paid 30% of the general rate.  Bilateral sensori-neural hearing loss and non-melanotic malignant neoplasm of the skin (BCC) are diseases he has which have been accepted as war-caused diseases (ex TD1/1)[2].  Mr Brecht wanted ischaemic heart disease also accepted as war-caused.  This should have the effect of increasing his rate of pension.  However, the Repatriation Commission (“the respondent”) rejected his claim in respect of ischaemic heart disease (T2) and the Veterans’ Review Board (“VRB”) agreed with the Repatriation Commission (T16).  Mr Brecht has appealed to the Administrative Appeals Tribunal (“the tribunal”) against this rejection.

[1] See Schedule 1 of these reasons for relevant statutory provisions.

[2] A list of exhibits is at Schedule 2.

ISSUES

3.      In order that Mr Brecht may qualify for Disability Pension for his ischaemic heart disease in connection with his operational service the tribunal must be satisfied in respect of the following issues:

(a)Did Mr Brecht make a valid claim for a pension or increased pension?

(b)If the answer to (a) is yes, if Mr Brecht’s claim is successful what is the date of effect of any favourable tribunal decision?

(c)If the answer to (a) is yes, what is the correct diagnosis of Mr Brecht’s condition?

(d)Did Mr Brecht engage in operational service so that the reasonable hypothesis proof standard applies?

(e)If the answer to (d) is yes, is there a hypothesis linking his condition to his operational service?

(f)If the answer to (e) is yes, is there a relevant Statement of Principles (“SoP”)?

(g)If the answer to (f) is yes, does the hypothesis accord with the requirements in the SoP?

(h)If the answer to (g) is yes, is the tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war-caused disease?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A) Did Mr Brecht make a valid claim for a pension or increased pension?

4. Mr Brecht made an informal claim for Disability Pension in respect of a heart attack on 20 April 1998 (T4). Section 20(2) of the Act recognises the effectiveness of an informal claim provided a formal claim is lodged within three months of notification that a formal claim is required. Mr Brecht lodged his formal claim on 29 June 1998 (T5). That was a valid claim. The question above is therefore answered in the affirmative.

(B) If the answer to (a) is yes, if Mr Brecht’s claim is successful what is the date of effect of any favourable tribunal decision?

5. The tribunal finds that the date of effect of any decision in favour of Mr Brecht will be 29 December 2000. This follows from s 177(2)(b)(i) of the Act. Mr Brecht did not apply to the tribunal within three months of receiving notice of the VRB’s decision (the period was eight months). Section 177(2)(b)(i) in such a case determines that the date of effect is the day six months prior to the date of application to the tribunal. The application to the tribunal occurred on 29 June 2001.

(C) If the answer to (a) is yes, what is the correct diagnosis of Mr Brecht’s condition?

6.      Matters of diagnosis are decided according to the reasonable satisfaction of the decision-maker.  The Federal Court in Repatriation Commission v Smith (1987) 74 ALR 537, 547 held this to equate to the civil standard of balance of probabilities. The full Federal Court in Fogarty v Repatriation Commission [2003] FCAFC 136, at paragraphs 34 and 35, explained how diagnosis is a matter of reasonable satisfaction. The respondent accepts that Mr Brecht suffers from ischaemic heart disease on the balance of probabilities (ex R1). Professor McLeod confirmed that diagnosis (ex R6). Dr D M Coles, a cardiologist, agrees (ex A5).

(D) Did Mr Brecht engage in operational service so that the reasonable hypothesis proof standard applies?

7.      The tribunal finds that Mr Brecht rendered operational service in the Royal Australian Navy (“the Navy”) during the following periods:

·     24 September 1958 – 6 November 1958;

·     20 November 1958 – 8 December 1958;

·     19 August 1966 – 8 September 1966 (T2; ex R1).

8. According to s 120(1) of the Act, if Mr Brecht’s ischaemic heart disease is found to relate to his operational service, the tribunal must determine that the disease was war-caused unless the tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

9. This is amplified and explained in s 120(3) of the Act. That provision requires a finding of satisfaction beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war-caused disease where a decision-maker, after consideration of the whole of the material before it, is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the veteran’s operational service.

(E) If the answer to (d) is yes, is there a hypothesis linking his condition to his operational service?

10.     The tribunal finds that there is such a hypothesis.  The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his or her claim that a disability was war-caused.  The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.

11.     The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant.

12.     The second step is to ascertain whether there is a relevant SoP in force. 

13.     The third step is to form an opinion as to whether the hypothesis raised is reasonable.  If the hypothesis is consistent with the template in the SoP it will be reasonable.  The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant’s service.  I will be applying the Deledio (above) steps in analysing this case.

14.     The hypothesis connecting the disease with the circumstances of the particular service rendered by the applicant advanced for Mr Brecht is that Mr Brecht was exposed to an atmosphere with a visible smoke haze in an enclosed space for at least 1,000 hours because of the requirements of his duties while in operational service.  The clinical onset of his ischaemic heart disease was in 1969, ie within five years of Mr Brecht’s last exposure to visible tobacco smoke haze in an enclosed space (ex A1). 

(F) If the answer to (e) is yes, is there a relevant Statement of Principles (“SoP”)?

15. Section 120A of the Act provides for the application of any relevant SoPs, as does Deledio (above) in paragraph 12.  The SoP relevant to the determination of this matter is, prima facie, SoP 53/2003 concerning ischaemic heart disease[3]..  If the hypothesis fails in relation to the 2003 SoP then the SoP in force at the time of the primary decision (20 August 1998 – T2), SoP 140/96[4] as amended by SoPs 77/97[5] and 37/98[6] can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).

[3] If the answer to (f) is yes, does the hypothesis accord with the requirements in the SoP?

16.     The hypothesis has been fashioned to comply with factor 5(g) of SoP 53/2003 which requires immersion in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1,000 hours before the clinical onset of ischaemic heart disease, provided the last exposure to that atmosphere did not end more than five years before the clinical onset of ischaemic heart disease.  Paragraph 4 of that SoP requires that satisfaction of factor 5(g) must relate to Mr Brecht’s operational service.

17. Superficially then the hypothesis on the record complies with the SoP requirements. However, s 120(3) requires a decision-maker to consider “the whole of the material” before him, her or it. The hypothesis may appear fanciful, impossible, incredible, too remote or too tenuous in view of that material (Bull v Repatriation Commission (2001) 66 ALD 271).

18.     Documentary material before the tribunal included the following.  In ex A2 Mr Brecht addressed the matter of clinical onset of his ischaemic heart disease.  He said that in 1969 he felt chest pain that caused considerable discomfort.  He was on a ship with no medical attendant so he sought no treatment.  At the time he thought the problem was muscular or a digestion problem.  He now thinks it may have been the onset of angina..  He had no further heart symptoms until 1972.

19.     In 1972 he experienced severe chest pain.  He saw the ship’s doctor.  A myocardial infarct was diagnosed.  In 1987 he had further heart problems which led to coronary artery bypass surgery. 

20.     In ex A2 he also addressed the passive smoking issue.  He said that in the Navy many men smoked heavily.  There was no natural ventilation between decks in the warships.  His duties in radio communications at these times meant long hours on watch in the confined spaces of tiny radio offices.  He referred to a blue-white haze that was prevalent and inescapable.  The same conditions pertained in the mess deck and ward room.  He said that as most men smoked while on duty the exposure was constant throughout the whole period of operational service.  During periods when not in radiocommunications work Mr Brecht estimated exposure to the smoke haze for 15 hours a day.  Mr Brecht relied on operational service periods on the HMAS Quickmatch in the first two periods of operational service and service on the HMAS Parramatta for the 1966 period of operational service. 

21.     Mr J L Short JP and Retired Commander K A Swain provided statements in support of Mr Brecht’s propositions regarding the prevalence of smoke in the atmosphere on ships of the same type as those on which Mr Brecht served (ex A6, A7). 

22.     Retired Captain H A Josephs provided a series of research reports, many based on his own experience in the same or similar ships, refuting much of the material presented by Messrs Brecht, Short and Swain (ex R2, R3, R4, R5).  There was agreement between them all that the Quickmatch had been acquired from the British Royal Navy and was equipped to serve in the North Atlantic, not in tropical climes such as the Australian Navy patrols.  The Quickmatch was ventilated by fan assisted air reticulated through pipes and emerging through louvred vents.  That was augmented by air scoops and port holes.  There was agreement that the prevalence of smoking was high on these ships, some 75% of Navy sailors smoked.  Messrs Brecht, Short and Swain spoke of an atmosphere heavily polluted with smoke much of the time.  This was said to be exacerbated in the radio rooms frequented by Mr Brecht.  Captain Josephs on the other hand offered a more generous assessment of the effectiveness of the ventilation arrangements.

23.     There was agreement also that the Parramatta was air conditioned but there was disagreement between the four regarding the effectiveness of that air conditioning in coping with the smoke problem. 

24.     What to make of this is not, however, a great problem.  The hypothesis founders on the material concerning the date of clinical onset of Mr Brecht’s ischaemic heart disease.  I have already indicated Mr Brecht’s view that an event in 1969 represented the date of clinical onset.  Unfortunately he is supported in this by neither Professor O’Rourke nor Dr Coles.  Dr Coles initially supported the hypothesis.  In ex A4 he saw naval service as a likely initiating factor in Mr Brecht’s coronary artery disease no matter when it occurred.  In ex A5 he said that it is “difficult to prove that [Mr Brecht’s] pain in 1969 was not due to myocardial ischaemia”.  However, Dr Coles gave oral evidence for the tribunal and was told of the legal requirements relating to clinical onset.  The Federal Court in Cornelius v Repatriation Commission [2002] FCA 750 at paragraph 26-28 endorsed the proposition that the onset of a disease (here ischaemic heart disease) should be assessed by identifying the point at which the applicant displayed symptoms that would have enabled a clinician to diagnose that disease. Dr Coles conceded that the date of onset would have to be 1972 when this test is applied.

25.     Professor O’Rourke was never convinced that the 1969 pains experienced by Mr Brecht were other than gastric in origin. 

26.     The SoP requires that the ischaemic heart disease had its clinical onset no later than five years after the veteran’s last exposure to the tobacco smoke haze in operational service.  The end of operational service was 8 September 1966.  The material before the tribunal must support the notion that clinical onset occurred by 8 September 1971 in order that the hypothesis complies with the SoP requirements.  In view of the material from Dr Coles and Professor O’Rourke that part of the hypothesis positing a clinical onset as early as 1969 is fanciful, impossible, incredible, too remote or too tenuous. 

27. I might therefore find that there is no hypothesis in this case that is upheld by the current SoP as required by s 120A(3) of the Act. This would have the effect that I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the ischaemic heart disease is a war-caused disease (s 129(1), (3) of the Act, as interpreted in Deledio (above)).  The answer to (g) would therefore be no.

(H) If the answer to (g) is yes, is the tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war-caused disease?

28.     This question does not arise as the answer to (g) was no.

29.     In view of the above analysis the tribunal might find that Mr Brecht’s ischaemic heart disease is not a war-caused disease.

An alternative SoP

30.     This is a matter, however, where the SoP in force at the time of the primary decision may avail the applicant.  Factor 5(f) of SoP 140/96 required that the veteran suffered immersion in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 20 hours a week, for a period or periods of time totalling at least five years (or for at least 5,200 hours), provided that that exposure, if ended, did not end more than 15 years before the clinical onset of ischaemic heart disease.  The ischaemic heart disease having had its onset in 1972 it is permissible to take account of any hypothetical exposure to cigarette smoke haze even if that ended as early as 1957.  The hypothesis posits exposure as part of operational service up until late 1966.

31.     It thus becomes necessary to consider the material on the incidence of smoke haze on the relevant ships.  Mr Brecht’s statement (ex A2) summarised the exposure:

·     Throughout operational service there was no natural ventilation between decks.

·     His duties in radio communications required long hours on watch in confined spaces in tiny radio offices.

·     A blue-white haze was prevalent and inescapable.

·     There was limited ventilation in the mess deck or ward room and a blue-white haze was present there also. 

·     As most men smoked in off duty periods during the day and at night the exposure to cigarette smoke was constant during operational and other seagoing service. 

·     On the Quickmatch he was rostered on duty for two separate periods of four hours each day.  During other hours in daytime he was engaged in husbandry duties between decks.  Exposure to cigarette smoke was 10 – 12 hours a day on the Quickmatch, 15 hours if recreation time in the mess decks is included.

·     On the Parramatta exposure was slightly less.  When not on duty in the radio office he worked on the ship’s bridge where there was natural ventilation.  Exposure to cigarette smoke was for about 12 hours a day including off-duty time in the wardroom.

·     Exposure was reduced by about 20% during non-operational periods. 

32.     Mr Short (ex A6 and oral evidence) referred to inadequate ventilation in ships of the Quickmatch class.  He referred especially to the mess decks.  These were 30 feet by 40 feet with a seven feet ceiling.  30 or 40 could congregate there at one time.  More often than not the atmosphere below deck was filled with a blue haze after 4.00 pm.  He cited similar conditions in the bridge wireless office where he worked.  As regards the Parramatta, he served on that ship in 1961-1962.  It was air conditioned but the system was inadequate until modifications were carried out.  In the mornings, he said, ratings were stuffy headed and puffy eyed.  Captain Josephs (ex R5) was critical of this material.  He said that the suggestion that more often than not the atmosphere was filled with a blue haze implied that sufficient smokers were in the mess decks to maintain such an atmosphere for 24 hours a day.  He saw this as untenable.  He saw it as unlikely that the same conditions applied in the bridge wireless office on a continuous basis.  As regards the Parramatta, Captain Josephs thought there would be little value in Mr Short’s impressions from 1961 when Mr Brecht served in the Parramatta in 1966. 

33.     Retired Commander Swain served on neither the Quickmatch nor the Parramatta, but did serve on the HMAS Stuart, HMAS Torrens and HMAS Yarra, frigates in the same class as the Parramatta (ex R2/attachment 3).  He said (ex A7) that a majority of ship’s personnel smoked.  He remembered cigarette smoke present in mess decks, junior and senior cafés and wardrooms.  He said it was ludicrous to suggest the ships’ air conditioning expelled all the passive smoke.  He said ships were often in refit without generators.  Personnel lived on board without any forced air during refit. 

34.     Captain Swain said that during the screening of movies of an evening in the individual mess, when the lights were out and the film commenced the “cigarette smoke between camera and screen was horrendous to witness”.  Personnel often (unsuccessfully) requested smokers to quit smoking during the movie.  He affirmed that in the ‘60s and ‘70s all ships’ messes invariably contained residual smoke.  In oral evidence Captain Swain said that such conditions applied for 18 to 20 hours a day.

35.     Captain Josephs (ex R4) refuted much of this.  He noted that the comments could not apply to the Quickmatch, a different class of frigate.  He disagreed that ventilation systems were substantially ineffective or that people were immersed in an atmosphere of visible smoke haze for lengthy periods.  He refused to accept Captain Swain’s description of occurrences during movie screenings.  The majority of personnel were smokers and would not have complained of such a smoky atmosphere.  He was unimpressed by the remarks concerning refit periods.  Personnel were granted long leave in these periods so that the ship’s company was commonly reduced by half.  Postings often occurred during refits.  Short leave was also granted.  Air was still circulated, albeit with some down time, powered by shore-based supplies.

36.     Captain Josephs provided an extensive report (ex R2), much of it agreed to by the applicant (ex A3).  The main points made were:

·     As a non-smoker who served in a similar capacity to Mr Brecht on range of Navy ships (but not the Quickmatch or Parramatta) Captain Josephs could not recall ever being inconvenienced or discomfited by others’ smoking at sea or in mess decks, ward rooms or work spaces.

·     Until mid-1965 Australian Navy ships tended to be procured from the British Royal Navy or were designed from templates used by the British.  This meant they were equipped to deal with cooler, less humid climatic conditions than the tropical conditions commonly experienced in the Australian Navy.  The ships were not air conditioned.  They provided a hot, uncomfortable experience for ships’ companies. 

·     Between decks the ventilation was the same in all ships.  It was trunked, forced air and serviced all mess decks, cabins and offices.  Air entered via adjustable louvres.  The air temperature was the ambient temperature.  The ventilation kept air “on the move”.  In addition there were port holes serving every cabin and mess deck.  These were kept open depending on weather, navigation and action states.  Air scoops were attached to maximise the inflow of air.  In ex A3 Mr Brecht said that the trunked ventilation system was often unserviceable.  He said also that the port holes and scoops were not highly effective. Retired Captain L G Fox who was electrical officer on the Quickmatch (ex R3) disagreed.  He said that the ventilation system on the Quickmatch was relatively new and that keeping it in working order was a high priority. 

·     On the Quickmatch the only air conditioning was in the operations room.  Captain Josephs identified this and like ships as ships built for Royal Navy service and as uncomfortable in tropical or semi-tropical climates. 

·     Retired Captain L G Fox, who had experience on the Quickmatch, provided a statement (ex R2/attachment 4) for Captain Josephs regarding ventilation on the Quickmatch.  Much of the above was based on this document.  However, it is worth noting that he saw air purity as never much of an issue.  The issue was the high temperatures in the tropics that made working and living uncomfortable.

·     In the main wireless office where Mr Brecht worked much of the time the doors were kept shut for security reasons.  Adequate ventilation was desirable for the integrity of the radio equipment.  There was a large number of louvres to ensure the entry of trunked air.  Usually two or three operators were working at the one time.  A radio supervisor, Commodore Thomson was quoted as saying he had not noticed cigarette smoke as a particular problem but heat (partly from the equipment) was.  Another retired commander agreed with this (ex R2, paragraph 27).  Mr Brecht would have spent about 50 hours a week in this office when at sea and less when in harbour.  Captain Josephs suggested that it was doubtful that cigarette smoke from two or three smokers in a room where ventilation was ensured would be continuous enough for the requirements in this case.

·     The mess decks were open spaces between decks extending the width of the ship with scuttles at both sides.  Water-tight doors were left opened to assist air movement.  The mess decks were said to be seldom full to capacity.  Mr Brecht suggested that they were usually 75% full. 

·     Smoking was discouraged from 10.00 pm to 6.00 am, “the silent hours”..  It was discouraged when the men were in their hammocks.  In ex A3 Mr Brecht challenged some of this stating that some men stayed up in the mess after 10.00 pm and that smoking in hammocks was more the rule than the exception.  In ex R3 Captain Josephs indicated that those in hammocks were near the air louvres and were well placed to direct them so as to disperse any smoke. 

·     During ship husbandry work in the morning some may have smoked but not such as pollute the local atmosphere.  In ex A3 Mr Brecht responded that there was visible haze while this work was occurring. 

·     In the afternoon a large number of sailors were in mess decks but many also chose recreation or exercise in the open air on upper decks.  In ex A3 Mr Brecht disagreed.  He said that work continued in the same way in the afternoon as in the morning.  He said that only those “employed topside” would have avoided a smoky environment.  He said he did not work topside.

·     In the evenings time was usually spent in the mess deck and there was the greatest exposure to smoke. 

·     Conditions in the Parramatta were much improved with air conditioning. 

·     Mr Brecht saw less smoke on the Parramatta because he did his radio work on the bridge.  There was natural ventilation.  However, Mr Brecht in ex A3 said he visited the wireless often and there was visible smoke haze.  Captain Josephs pointed out (ex R3) that Mr Brecht would not have had to spend much time in the office on these visits. 

37.     Considering all of this material I must ask whether it is fanciful, impossible, incredible, too remote or too tenuous to accept a hypothesis that Mr Brecht experienced immersion in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 20 hours a week, for a period or periods of time totalling at least five years.  I have taken account of Captain Josephs’ material relating to Mr Brecht’s likely exposure to smoke haze.  Mr Brecht has suggested exposure for some 15 hours a day.  Such a level is not necessary, of course, as the SoP requires only 20 hours a week (or just under three hours a day on average).  I consider that the material in its totality permits me to form the opinion that the part of any hypothesis suggesting exposure for three hours a day is reasonable. 

38.     A possible problem is the requirement that this occur for five years.  While it might be thought that this requires a hypothesis permitting exposure for 5,200 hours in operational service, the Federal Court in Kattenberg v Repatriation Commission (2002) 73 ALD 365 clarified at page 374 that it is not necessary, in a SoP factor such as that here in contention, that all of the required activity occurs in the period of operational service. It is sufficient, in accordance with s 196B(14) of the Act, if the required exposure to smoke haze was contributed to in a material degree by the operational service or that it would not have occurred but for the rendering of that service.

39.     The applicant’s favoured hypothesis is that he was exposed to smoke haze in his periods on the Quickmatch for considerably more hours a day than the SoP requires.  His exposure on the Parramatta was said to be somewhat less.  His total period of operational service was only 53 days.  In ex A2 (paragraph 9) Mr Brecht said that his exposure to smoke haze during non-operational periods was very little different because the ship routines were much the same.  The hypothesis therefore can be taken to suggest that he experienced exposure for five years, 53 days of which occurred in operational service.  It is my opinion, although not free from doubt, that an exposure for 53 days would constitute a material contribution to a required period of exposure of five years.

40.     Clause 4 of SoP 140/96 requires that factor 5(f) is related to Mr Brecht’s operational service.  The hypothesis did suggest this.  Mr Brecht was a non-smoker exposed, according to the hypothesis, to smoke haze as an unavoidable incident of his Navy service.

41.     The tribunal finds, therefore, that the hypothesis raised is reasonable as it is consistent with the SoP requirements. 

42.     Step 4 in the Deledio decision (above) requires that I consider whether I am satisfied beyond reasonable doubt that the ischaemic heart disease was not war-caused or that a required SoP factor was not met.  I have considered the material on the ventilation of Navy ships and on the prevalence of smoke haze.  I would have some difficulty accepting the applicant’s case on the balance of probabilities as Captain Josephs and his advisers make some compelling points, however I do not find myself satisfied beyond reasonable doubt that there could not have been such a level of smoke haze for the mandated period.  This is partly because Captain Josephs was not on the same ships as Mr Brecht and those he quotes who were on the same ships may not have worked in the same locations on the ships.  Mr Brecht’s ischaemic heart disease is therefore taken to have been war-caused.

DECISION

43.     The decision under review is set aside and the tribunal decides that Mr Brecht qualified for a Disability Pension in respect of his ischaemic heart disease as of 29 December 2000.  The matter is remitted to the Repatriation Commission for it to provide an assessment of the appropriate rate of pension.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

Signed:         .......................................................................................
  Associate

Date of hearing  18 February 2003
Date of final submissions         10 June 2003
Date of decision  19 November 2003
Counsel for the applicant          Mr Paul Crabb
Solicitor for the applicant          Capital Lawyers, Canberra
Advocate for the respondent     Mr Stephen Modder
Solicitor for the respondent     Department of Veterans' Affairs

SCHEDULE 1 – RELEVANT LEGISLATION

Provisions in the Veterans’ Entitlements Act 1986 relevant to the decision are as follows:

Dates of effect that may be specified in respect of grant of claim for pension

20       (1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.

(2)       Where:

(a)       a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14 (3) (a);

(b)       the person subsequently makes a claim for the pension in accordance with a form so approved:

(i)        at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with a form so approved; or

(ii)       within 3 months after the person had been so notified; and

(c)       a pension is granted to the person upon consideration of that claim in accordance with a form so approved;

the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.

(3)       Nothing in this section empowers the Commission to specify as a date that a determination of a claim under subsection 19(3) takes effect in respect of a person who has made a claim for a pension under section 14, a date before the date that the person became eligible to be granted the pension.

…

Standard of proof

120     (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.

(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note:   This subsection is affected by section 120B.

(5)       Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a)       an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b)       a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c)       the death of a person is war-caused or defence-caused; or

(d)       a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(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.

…

Reasonableness of hypothesis to be assessed by reference to Statement of Principles

120A    (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;

…

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.

…

(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.

…

Effective dates of certain determinations relating to payment of pension or seniors health card

177 (1) This section is in addition to, and not in substitution for, any of the provisions of section 43 of the Administrative Appeals Tribunal Act 1975 in their application to proceedings for a review by the Administrative Appeals Tribunal of a reviewable decision.

(2)       Where the Administrative Appeals Tribunal, upon application made under subsection 175 (1) for a review of a decision of the Commission that has been affirmed or varied by a decision of the Board or a decision of the Board made in substitution for a decision of the Commission, grants a pension (not being a service pension or income support supplement) or attendant allowance, or increases the rate at which a pension (not being a service pension or income support supplement) is to be paid, the Tribunal may approve payment of the pension or of attendant allowance, or payment of the pension at the increased rate, as the case may be:

(a)       if the application is made within 3 months after service on the applicant of a document setting out the terms of that decision of the Board—from a date not earlier than the earliest date as from which the Board could, if it had granted a pension or attendant allowance or increased the rate of the pension, have approved payment of the pension or attendant allowance, or payment of the pension at an increased rate, as the case may be; or

(b)       in any other case:

(i)        if the review relates to a claim in accordance with section 14—from a date not more than 6 months before the date on which the application under subsection 175 (1) was made; or

…

Functions of Authority

196B    (1)       This section sets out the functions of the Repatriation Medical Authority.

Determination of Statement of Principles

(2)       If the Authority 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

(b)       peacekeeping service rendered by members of Peacekeeping Forces; or

(c)       hazardous service rendered by members of the Forces;

the Authority 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.

Note 1: For sound medical-scientific evidence  see subsection 5AB (2).

…

(14)     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; or

(c)       it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:

(i)        to a place for the purpose of performing duty; or

(ii)       away from a place of duty upon having ceased to perform duty; or

(d)       it was contributed to in a material degree by, or was aggravated by, that service; or

(e)       in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:

(i)        but for the rendering of that service by the person; or

(ii)       but for changes in the person’s environment consequent upon his or her having rendered that service; or

(f)        in the case of a factor causing, or contributing to, a disease—it would not have occurred:

(i)        but for the rendering of that service by the person; or

(ii)       but for changes in the person’s environment consequent upon his or her having rendered that service; or

(g)       in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:

(i)        but for the rendering of that service by the person; or

(ii)       but for changes in the person’s environment consequent upon his or her having rendered that service.

…

Disallowable instrument

196D A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

SCHEDULE 2 - EXHIBITS

The tribunal had access to the following documents which were accepted into evidence:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T20) provided by the respondent.

Exhibit A1 – Applicant’s statement of facts and contentions, 8 April 2002.

Exhibit A2 – Applicant’s statement, 24 November 2001.

Exhibit A3 – Applicant’s response to exhibit R2, 23 May 2002.

Exhibit A4 – Report by Dr D M Coles, cardiologist, 26 November 2001.

Exhibit A5 – Report by Dr Coles, 14 January 2002.

Exhibit A6 – Letter dated 2 September 2002 from Mr J L Short JP to applicant’s solicitor.

Exhibit A7 – Letter dated 25 August 2002 from Mr K A Swain to applicant’s solicitor.

Exhibit R1 – Respondent’s statement of facts and contentions, 21 August 2002.

Exhibit R2 – Report by Retired Captain H A Josephs, 27 February 2002.

Exhibit R3 – Report by Captain Josephs, 20 July 2002.

Exhibit R4 – Report by Captain Josephs, 12 September 2002.

Exhibit R5 – Report by Captain Josephs, 27 September 2002.

Exhibit R6 – Report by Professor M F O’Rourke, cardiologist, 18 January 2002.

Exhibit R7 – Report by Professor O’Rourke, 7 August 2002.

Exhibit R8 – VRB transcript, 30 August 2000.

Exhibit R9 – Applicant’s service medical records.