CARMEL ONORATO and REPATRIATION COMMISSION
[2012] AATA 759
•1 November 2012
[2012] AATA 759
Division VETERANS' APPEALS DIVISION File Number
2010/2625
Re
CARMEL ONORATO
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, MemberDate 1 November 2012 Place Sydney The Tribunal sets the decision under review aside and in substitution finds that Mr Onorato’s death is war-caused. The date of effect is 3 August 2008.
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Ms G Ettinger, Senior Member
Catchwords
Veterans’ Entitlements – widow’s pension – operational service – claim that the veteran’s death was war-caused – remittal from Federal Court - decision under review is set aside – Tribunal finds that Applicant’s death was war-caused.
Legislation
Veterans’ Entitlements Act 1986 ss 8, 13, 120
Statement of Principles concerning Anxiety Disorder No. 101 of 2007
Statement of Principles concerning Hypertension No. 35 of 2003
Statement of Principles concerning Ischaemic Heart Disease No. 89 of 2007
Cases
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Onorato v Repatriation Commission [2011] FCA 1507
Onorato and Repatriation Commission [2011] AATA 535
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
1 November 2012
SUMMARY
Mrs Carmel Onorato made a claim for a widow’s pension on the basis that her husband’s death was related to his war service. Both the Repatriation Commission and the Veterans’ Review Board found that Mr Joseph Onorato’s death was not related to service. His widow sought review at the Tribunal. The matter was heard in 2011, and appealed to the Federal Court which remitted it for rehearing. It was reheard in full before the same Members, and the Reasons for Decision follow. Mr S Feredoes of counsel represented Mrs Onorato before us, and Ms R Henderson of counsel appeared for the Repatriation Commission.
We noted there was no disagreement between the parties that Mr Onorato suffered ischaemic heart disease, and that, it was a significant cause of his death. In order to try and establish that the veteran’s death was related to his war service, Mr Feredoes submitted that the Applicant relied on the anxiety disorder which she claimed that her husband suffered as a result of stressors he experienced while rendering operational service. Mr Feredoes submitted that the anxiety disorder Mr Onorato suffered was the cause of the veteran’s hypertension which in turn caused the ischaemic heart disease which the parties agreed Mr Onorato suffered.
Ms Henderson, on the other hand, submitted that Dr L Blows, a psychiatrist, was the only doctor who examined Mr Onorato in connection with any anxiety he suffered. She submitted Dr Blows diagnosed a minor level of anxiety, and did not recommend any treatment. The Respondent’s argument was also that notwithstanding any anxiety Mr Onorato may have suffered, he continued to function well throughout his life and work. Ms Henderson submitted that Dr Dinnen had not had the opportunity of examining Mr Onorato, and had prepared his report from the report of Dr Blows.
We noted that Mr Onorato, served Australia on operational and eligible service between 21 January 1942 and 10 April 1946. He died on 2 August 2008 at the age of 90 years, having been born in Naples in 1918. He came to Australia in 1935. Mr and Mrs Onorato married in 1956.
We found that Mr Onorato’s kind of death was ischaemic heart disease and that it was war-caused pursuant to section 8(1) of the Act. Our reasons follow.
THE ISSUES BEFORE THE TRIBUNAL
The Tribunal must consider whether Mr Onorato’s death was war-caused pursuant to section 8(1) of the Veterans’ Entitlements Act 1986 (the Act).
There was no disagreement between the parties that the veteran suffered hypertension with a date of onset in 1970, and ischaemic heart disease from 2006, which was a significant cause of his death.
THE LEGISLATIVE ENVIRONMENT
The relevant legislation in this matter is the Veterans’ Entitlements Act 1986 (the Act). Section 8 of the Act sets out when an injury or disease is taken to be war-caused. It can be found to be war-caused if, amongst other things, the veteran’s death resulted from an occurrence that happened while the veteran was rendering operational service; the death arose out of, or was attributable to his eligible war service; or the veteran’s death was due to a disease that he would not have contracted, but for his having rendered eligible war service.
Where a veteran’s death is war-caused, a pension is payable by way of compensation to the widow or other relevant dependent (section 13(1) of the Act).
The Repatriation Medical Authority (RMA) provides that if there is sound medical-scientific evidence that indicates that a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (SoP) (section 196B of the Act) in respect of that condition. The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service.
The relevant SoPs in this matter are Instrument No. 101 of 2007 concerning Anxiety Disorder, Instrument No. 35 of 2003 concerning Hypertension, and Instrument No. 89 of 2007 concerning Ischaemic Heart Disease. All the abovenamed Instruments have been amended; however, the amendments are not material to the claim before us.
The date of effect in this matter is 3 August 2008.
As Mr Onorato served on operational service, the determination of whether his death was war-caused must include the application of sections 120(1) and 120(3) of the Act.
EVIDENCE
The witnesses who gave oral evidence at the hearing and provided statements were Mrs Onorato (Exhibit A3), her son Ven Onorato (Exhibit A4), Associate Professor R Haber, a consultant physician, (only paragraphs 1, 7, & 8 of Exhibit A7), and Dr A Dinnen, a psychiatrist (Exhibit A8), who gave his evidence by telephone. Other medical evidence included clinical notes of Dr H Eisenberg, a physician (Exhibit A5), medical records from the H file (Exhibit A6), the report of Professor M O’Rourke, a cardiologist (Exhibit R2), and notes of Dr Cook, general practitioner (Exhibit R3). The T-documents also included reports of Dr L Blows, the psychiatrist who examined Mr Onorato in May 2003. We also had before us a report of Writeway Research Service Pty Ltd as Exhibit A1, and a letter objecting to certain parts of the report, (Exhibit A2).
APPLICATION OF THE LAW
The Applicant died on 2 August 2008. His death certificate stated as follows:
Cause of Death and Duration of last illness:
(I) (a) Respiratory arrest, minutes
(b) Inhalational pneumonia, days
(II) Renal failure secondary to hypertensive nephrosclerosis, Ischaemic heart disease; years.
Because Mr Onorato served on operational service, in order to decide this matter we must apply the tests as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
The hypothesis
The hypothesis raised in this matter is that Mr Onorato developed an anxiety disorder as a result of the stressors encountered in his operational service, being the occasion when Mr Onorato came across a Japanese officer who had committed suicide by slitting his wrists and throat, and also through being bullied by the use of racist language used against him during his war service. The hypothesis is that the anxiety disorder which Mr Onorato developed as a result of the stressors caused or contributed to Mr Onorato’s hypertension, which in turn contributed to his condition of ischaemic heart disease and death from ischaemic heart disease.
The stressors
Before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant services, the person must have experienced a category 1B stressor within the five years before the clinical onset of anxiety disorder, or experienced a category 2 stressor within the one year before the clinical onset of anxiety disorder: Factor 6 of Instrument No.101 of 2007. In order for a reasonable hypothesis to be raised in this case, the occurrences that Mr Onorato experienced must fit within this template. The stressors are described in the paragraphs above, and the stressors as related to Mr Onorato’s service were described by Drs Blows and Dinnen, and his family.
Dr Blows recorded that Mr Onorato told him he found the military service interesting, and not an unpleasant experience except for guard duty where he had to escort Japanese, German and Italian prisoners, and found some of them to be frightening. On occasions he took POWs to Cowra prisoner-of-war camp, which he found to be an unnerving experience. Dr Blows recorded that: No incidents occurred however that was an actual danger to himself, and he was never fired upon.
Dr Blows recorded Mr Onorato being horrified on discovering a Japanese officer who had committed suicide, dead in the toilet, and also feeling fearful on hearing screaming coming from the hospital while on Tower Guard Duty.
Dr Blows also recorded that Mr Onorato became distressed and tearful recounting how a two stripper bombardier called him a dictator dago bastard.
Dr Dinnen opined that Mr Onorato’s anxiety disorder arose out of the stressful incidents he experienced during service (being the incident with the Japanese officer and the racial slurs). Dr Dinnen noted that Mr Onorato had said to Dr Blows that this remained a traumatic memory. He noted that Dr Blows had described insomnia, irritability, bad dreams and shakes.
Mrs Onorato stated that her husband was affected by his war memories, including having come across the Japanese officer who had killed himself, and being called a dago. She said that in regard to the latter, her husband complained to the superior officer, and received an apology. He was later friendly with the person who had made the comment.
Mr Ven Onorato, one of Mr Onorato’s sons, also gave evidence about his father seeing the Japanese officer, and being taunted racially. He corroborated his mother’s evidence that those events continued to affect his father after that war.
Mr Onorato’s anxiety
As to Mr Onorato suffering psychiatric illness; Dr Blows examined him in 2003 when he was 85 years old, concluding that he suffered a minor level of anxiety. Dr Blows noted that Mr Onorato had no family history of anxiety or depression, drank alcohol moderately, and was a non-smoker. Dr Blows commented that Mr Onorato had a good marriage, four children, and a long and successful working life. He noted this consisted of being a craftsman cutting timber for De Havilland, an assembly line worker with General Motors Holden for five years, working in a fruit shop, and lastly working with a printing machine for tickets at a race course.
Dr Blows also stated in his findings:
My interview revealed the following symptoms that indicate an anxiety disorder.
Mr Onorato was suffering from time to time some recurrent bad dreams recalling the two detailed unpleasant incidents during his war service.
… he experiences some tremors and shakes.
There are moments of irritability with his wife.
He has mild half hourly periods of night time insomnia.
Dr Blows referred to DSM-IV. He stated that: The symptoms suggest a generalised anxiety disorder, ie irritability, muscle tension (tremor) and sleep disturbance, which just meets the criteria of ‘C’ but there are no symptoms to met [sic] ‘A,B,D,E’ in the DSM criteria of generalised anxiety disorder. Dr Blows also said that he assessed Mr Onorato for depression, and found no depression disorders.
Dr Blows concluded that Mr Onorato suffered a minor level of anxiety. He has minimal disability as a result of that anxiety. … I considered all the various varieties of anxiety disorders. To the extent that he does suffer a degree of anxiety, I found that the symptoms are most likely to be a result of his war service as their origin is traced directly to the events he reported.
Mr Feredoes submitted that Dr Blows did not have the witness statements of Mrs Onorato and Mr Ven Onorato in coming to the opinion regarding Mr Onorato’s anxiety. Ms Henderson submitted that Dr Blows did have Mr Onorato in front of him, as well as his son Tony when he assessed the veteran.
Dr Dinnen who did not meet the veteran (as he died in 2008), prepared a report dated 13 January 2011 based on existing documentation, in particular the report of Dr Blows. He found Dr Blows’ assessment of Mr Onorato very thorough Dr Dinnen said that he found Dr Blows’ report very detailed, and relevant to forming his own opinions.
Dr Dinnen referred to the incident involving the Japanese officer which Mr Onorato had witnessed, and also referred to the report of the racial slur Mr Onorato reported to Dr Blows. Dr Dinnen also opined that the tremors, shakes, and nightmares Mrs Onorato reported her husband experienced, were indicative of anxiety state not otherwise specified, and applying DSM IV, clinically significant. He concluded that the veteran suffered from a mild chronic anxiety state, being anxiety state not otherwise specified, from the time of his war service.
Dr Dinnen opined that Mr Onorato would have benefited from seeing a general practitioner in order to help him manage the disorder, and help with problems sleeping. In his oral evidence, Dr Dinnen discussed what he meant by significant, which he said was clinically identifiable, or prominent.
Clinical onset
Dr Blows opined as follows as to onset: To the extent that he does suffer a degree of anxiety, I found that the symptoms are most likely to be a result of his war service as their origin is traced directly to the events he reported.
Dr Dinnen considered that the clinical onset of Mr Onorato’s anxiety disorder was as a result of the stressors Mr Onorato had encountered during his operational service. Dr Dinnen stated that he agreed with Dr Blows’ observation that Mr Onorato’s symptoms are most likely to be a result of his war service as their origin is traced directly to the events that he reported.
Dr Dinnen opined as follows as to onset: a mild chronic anxiety state from the time of his war service, the onset being the incident of coming across the Japanese officer who had committed suicide.
Relevant SOPs to be applied
As there are relevant SOPs in place, being Instrument No.101 of 2007, Instrument No.35 of 2003 and Instrument No. 89 of 2007, these must be applied.
Anxiety disorder: Instrument No.101 of 2007; Factors 6(a)(iii) and (v).
Clause 3 of Instrument No. 101 of 2007 includes the following:
Kind of injury, disease or death
…
(b)For the purposes of this Statement of Principles, “anxiety disorder” means generalised anxiety disorder, anxiety disorder due to a general medical condition; or anxiety disorder not otherwise specified; and
…
“anxiety disorder not otherwise specified” means a psychiatric disorder (derived from DSM-IV-TR) with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood.
This definition of anxiety disorder excludes the other anxiety spectrum disorders: posttraumatic stress disorder, acute stress disorder, phobia obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
…
Factor 6 of Instrument No. 101 of 2007 includes the following:
6.This factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(a) …
(iii) Experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
(v) Experiencing a category 2 stressor within one year before the clinical onset of anxiety disorder; or
…
Clause 9 of Instrument No. 101 of 2007 includes the following:
(a) …
“a category 1B stressor” means one or more of the following severe traumatic events:
…
(b) viewing corpses or critically injured casualties as an eyewitness;
…
“a category 2 stressor” means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to fee on-going distress, concern or worry:
…
(c)Having concerns in the work or school environment including: … experiencing bullying in the workplace or school environment;
…
To ascertain whether an hypothesis is consistent with a factor in the SOP, requires an examination of the totality of the material. At this stage, we must consider all the evidence whether or not the material supports the hypothesis. Every essential element of the factor must be pointed to by that material.
Whether the hypothesis conforms to the template in the SOP
A reasonable hypothesis involves more than a mere possibility (Repatriation Commission v Bey (1997) 79 FCR 364). When determining whether an hypothesis raised is reasonable, the Tribunal should consider whether it is contrary to proved or known scientific facts, obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or inconsistent with (not upheld by) an applicable SoP per the test for reasonableness formulated by Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 (at 275) and cited with approval by the Full Court in Deledio at 96. Further, as stated by Emmett and Allsop JJ in Bull v Repatriation Commission [2001] FCA 1832 at [17]; (2001) 66 ALD 271 at 276, citing with approval the analysis of the Full Court in East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
We are mindful that the factor which must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting Mr Onorato’s anxiety disorder with the circumstances of his service, (SOP No.101 of 2007), is Factor 6. Factor 6 states that the following must as a minimum exist before it can be said that a reasonable hypothesis has been raised, either experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder, or a category 2 stressor within the one year before the clinical onset of anxiety disorder.
Mrs Onorato claims that finding the deceased Japanese officer who had committed suicide, points to conforming with the template in the SOP in that the veteran experienced a category 1B stressor, viewing corpses or critically injured casualties as an eyewitness. The names Mr Onorato was called, she submits, point to conforming with the template in the SOP in that he experienced a category 2 stressor which was having concerns in the work or school environment … experiencing bullying in the workplace.
The Respondent on the other hand, submits that there is no material which points to the clinical onset of an anxiety disorder either within the five years after experiencing a Category 1B stressor or the clinical onset of an anxiety disorder within one year of experiencing a Category 2 stressor.
A consideration of the stressors the veteran experienced, and the medical evidence of Drs Blows and Dinnen points to the clinical onset of an anxiety disorder meeting Factors 6(a)(iii) and (v) of Instrument No.101 of 2007. In the terms of Eastv Repatriation Commission, the hypothesis is more than a possibility and not fanciful, and is pointed to by the facts. Thus the hypothesis can be found to be reasonable.
All that remains is to consider whether the Tribunal can be satisfied beyond reasonable doubt that Mr Onorato’s anxiety was not war-caused.
Whether the Tribunal can be satisfied beyond reasonable doubt that Mr Onorato’s anxiety disorder was not war-caused
In considering whether we can be satisfied beyond reasonable doubt that Mr Onorato’s anxiety disorder was not war-caused, we were mindful that both Drs Blows and Dinnen opined that Mr Onorato suffered anxiety, although Dr Blows characterised it as a minor level of anxiety. Dr Blows went on then to detail Mr Onorato suffering a particularly distressful experience which arose when he came across the Japanese officer who had committed suicide, and the occasion when Mr Onorato was racially bullied. He stated: To the extent that he does suffer a degree of anxiety, I found that the symptoms are most likely to be a result of his war service as their origin is traced directly to the events he reported. Dr Dinnen also related the onset of anxiety which he said was anxiety disorder not otherwise specified to the time at which Mr Onorato experienced the stressors as described above. He opined that Mr Onorato’s disorder being clinically significant, was also prominent.
Dr Blows described what Mr Onorato suffered, which was corroborated by his widow and Mr Ven Onorato, being recurrent bad dreams recalling the abovenamed events, tremors and shakes, irritability, and insomnia.
Ms Henderson submitted that Dr Blows, whom Dr Dinnen agreed had reported comprehensively and thoroughly, (and whose report he had used to formulate his own), was the only psychiatrist who had assessed Mr Onorato. Dr Blows had concluded that Mr Onorato suffered only a minor level of anxiety, which he could not diagnose as generalised anxiety disorder, and which caused Mr Onorato no incapacity. She submitted that Mr Onorato did not therefore suffer a clinically significant disorder as diagnosed by Dr Dinnen.
Ms Henderson submitted that on Mrs Onorato’s evidence, the veteran would wake for approximately half an hour on occasion, and go back to sleep without taking medication. Ms Henderson argued also that Mr Onorato had a full working life, and that he was not restricted in that by whatever minor level of anxiety he suffered.
Ms Henderson submitted that Dr Blows’ report was to be relied upon, and that Dr Dinnen’s evidence was unreliable in that he interpreted what he had obtained from Dr Blows as Mr Onorato suffering a clinically significant anxiety disorder not otherwise specified, and interpreted that as being prominent.
She submitted that the Tribunal could not therefore be satisfied beyond reasonable doubt that Mr Onorato suffered a diagnosable, clinically significant anxiety disorder which was war-caused.
We noted that Mr Onorato did not seek treatment for his anxiety, and continued to work throughout his life, although he suffered the recurrent bad dreams, recalling the events we have recognised as stressors experienced during his service, tremors and shakes, irritability, and insomnia.
We are mindful that Dr Blows was the only psychiatrist who assessed Mr Onorato, and noted his opinion. We are however satisfied with Dr Dinnen’s opinion that this did not exclude his diagnosis of anxiety state not otherwise specified which was clinically significant, with the onset during service.
We could not be satisfied beyond reasonable doubt that Mr Onorato did not suffer a clinically significant anxiety disorder which arose as a result of the stressors he experienced, as claimed. We noted that Drs Blows and Dinnen both opined that the anxiety disorder arose as a result of, and at the time of Mr Onorato’s war service. Accordingly we could not be satisfied beyond reasonable doubt that Mr Onorato’s anxiety disorder was not war-caused.
We then moved to a consideration of Mr Onorato’s hypertension and ischaemic heart disease.
Hypertension: Instrument No.35 of 2003
The hypothesis is as stated in the paragraphs above. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of Mr Onorato’s operational service is Factor 5(n) of the SoP Instrument No.35 of 2003. That factor states that he must have been suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension.
Drs Blows’ and Dinnen’s opinions regarding Mr Onorato’s anxiety have been stated above. Dr Blows stated that Mr Onorato suffered a minor level of anxiety… I considered all the various varieties of anxiety disorders. To the extent that he does suffer a degree of anxiety, I found that the symptoms are most likely to be a result of his war service as their origin is traced directly to the events he reported.
Dr Dinnen came to the conclusion that the veteran suffered from a mild chronic anxiety state, being anxiety state not otherwise specified, from the time of his war service. He considered that the veteran’s anxiety disorder was clinically significant, and that Mr Onorato would have benefited from seeing a general practitioner in order to help him manage the disorder, and help with problems sleeping. In his oral evidence, Dr Dinnen discussed what he meant by significant, being clinically identifiable, or prominent.
The parties agreed that the clinical onset of hypertension was in 1970 as diagnosed by Dr Cook (Exhibit R3). Other reports regarding hypertension were the note of Dr Eisenberg which recorded Mr Onorato suffering hypertension in 1975, and a note in the H file stating in 1989 that he had a history of hypertension. Professor O’Rourke reported in 2011 that Dr Cook diagnosed hypertension in 2003, and that Mr Onorato had been receiving treatment for it since the 1980s.
Factor 5(n) of the SoP Instrument No.35 of 2003 states that Mr Onorato must have been suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension. The clinical onset of Mr Onorato’s anxiety was held by Drs Blows and Dinnen to be during operational service at the time Mr Onorato experienced the stressors discussed above.
A consideration of Mr Onorato’s situation indicates it fits the template, in the SoP Instrument No.35 of 2003. Accordingly, a reasonable hypothesis has been raised connecting hypertension with the circumstances of Mr Onorato’s operational service.
After a consideration of the evidence, we could not be satisfied beyond reasonable doubt that Mr Onorato was not suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension in 1970.
Ischaemic Heart Disease: Instrument No. 89 of 2007
The hypothesis is as stated in the paragraphs above. The factor 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 Mr Onorato’s operational service is Factor 6(a) of the SoP Instrument No.89 of 2007. That factor states that he must have been suffering hypertension before the clinical onset of ischaemic heart disease.
The parties agreed that the onset of Mr Onorato’s hypertension was from the time it was first diagnosed in 1970. The parties also agreed that Mr Onorato suffered ischaemic heart disease from 2006 as confirmed by Associate Professor Haber (Exhibit A7) and Dr Eisenberg (Exhibit A5).
Accordingly Mr Onorato’s situation fits the template, and a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of Mr Onorato’s operational service.
We could not be satisfied beyond reasonable doubt that Mr Onorato was not suffering from hypertension, (which he had been suffering from 1970), before the clinical onset of ischaemic heart disease in 2006.
Whether the Tribunal can be satisfied beyond reasonable doubt that Mr Onorato’s death was not war-caused
We are mindful of the diagnoses of Drs Blows and Dinnen that Mr Onorato suffered anxiety from the time of his operational service, and as a result of experiencing the stressors described above. Dr Blows thought he suffered a mild chronic anxiety, but also described the veteran reacting with distress when he described the stressors on which the claim has now relied.
Both Drs Blows, and Dinnen noted that Mr Onorato suffered irritability, muscle tension, and sleep disturbance. This was corroborated by the widow and Mr Ven Onorato,. We noted that Dr Blows did not find that sufficient to make the diagnosis of generalised anxiety disorder. Dr Dinnen diagnosed anxiety state not otherwise specified, and we are satisfied that notwithstanding Mr Onorato did not have treatment for his anxiety disorder, the evidence of Mrs Onorato convinces us the anxiety disorder manifested itself in her husband’s behaviour, dreams and insomnia. We note Dr Dinnen’s opinion that Mr Onorato would have benefited from medical assistance for his anxiety disorder, and that, notwithstanding his irritability at home, insomnia, bad dreams and other manifestations, it would not necessarily have interfered with his work life.
We have relied upon the agreement of the parties that Mr Onorato suffered hypertension from 1970. The notes of Dr Eisenberg indicate that he suffered ischaemic heart disease from 2006. We have found that the hypothesis was reasonable in terms of Instruments No.101 of 2007, No.35 of 2003, and No.89 of 2007. We were satisfied that ischaemic heart disease was a significant cause of Mr Onorato’s death, and also find that his kind of death was ischaemic heart disease.
Applying section 120(1) and (3) of the Act, we could not be satisfied beyond reasonable doubt that Mr Onorato’s death was not war-caused.
DECISION
The Tribunal sets the decision under review aside and in substitution finds that Mr Onorato’s death is war-caused. The date of effect is 3 August 2008.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr I Alexander, Member. ........................[Sgd]...........................
Associate
Dated 1 November 2012
Date of hearing 11 October 2012
Date of decision 1 November 2012
Solicitors for the Applicant Kemp & Co Lawyers
Counsel for the Applicant Mr S Feredoes
Solicitors for the Respondent Australian Government Solicitors
Counsel for the Respondent Ms R Henderson
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