CARMEL ONORATO and REPATRIATION COMMISSION - [2012] AATA 759

[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, Member

Date 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.
.......................[Sgd].........................
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] AATA 759
Decision Date: 1 November 2012

CaseChat Overview and Summary

Carmel Onorato and the Repatriation Commission were the parties involved in this case, which was heard by the Administrative Appeals Tribunal. The dispute centred on whether the death of Mr Onorato, a war veteran, was caused by his war service. The Federal Court had previously remitted the case back to the Tribunal for reconsideration. The Tribunal was required to decide if the evidence supported a hypothesis that Mr Onorato’s death was war-caused, and if the hypothesis was reasonable and consistent with the applicable Statement of Principles (SoP).

The Tribunal considered the evidence provided, which included medical reports and witness statements. The key issue was whether the evidence supported a hypothesis connecting Mr Onorato’s death to his war service, as required by the legislation. The Tribunal applied the tests established in Repatriation Commission v Deledio to determine if the hypothesis was reasonable and if the death was war-caused. This involved examining if the hypothesis was consistent with the applicable SoP and if it could be said that the death was not war-caused beyond reasonable doubt.

The Tribunal found that the evidence did support a reasonable hypothesis that Mr Onorato’s death was war-caused. The Tribunal could not be satisfied beyond reasonable doubt that his death was not caused by his war service. Consequently, the Tribunal set aside the previous decision and found that Mr Onorato’s death was indeed war-caused. The Tribunal also determined that the effective date of this finding was 3 August 2008.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2010/2625
Re	CARMEL ONORATO
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member Dr I Alexander, Member
Date	1 November 2012
Place	Sydney