Colacino and Repatriation Commission

[2008] AATA 416

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 416

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1280

VETERANS' APPEALS DIVISION		)
Re		MAURINE COLACINO

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date21 May 2008

PlaceSydney

Decision The decision under review is affirmed.

..............[sgd]................................

Ms G Ettinger   Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – cause of death – Eligible Service – death of the Veteran on impact in motor vehicle accident – widow of Veteran claiming that death was due to conditions arising out of war service - no evidence to link any heart disease, smoking or alcohol abuse or alcohol dependence to the death - decision under review affirmed.

Veterans’ Entitlements Act 1986 ss 8(1), 9, 120, 120A,120(4)

Repatriation Commission v Cooke (1998) 90 FCR 307

Budworth v Repatriation Commission (2001) 63 ALD 422

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Hancock (2003) 37 AAR 383

Hayes v Repatriation Commission [2005] FMCA 125

Fitzgerald v Penn (1954) 91 CLR 268

Repatriation Commission v Towns (2003) 38 AAR 77

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

21 May 2008Ms G Ettinger, Senior Member

BACKGROUND  

1.      Mrs M Colacino is the widow of the Veteran, Mr A Colacino who died on 1 August 1986 at the age of 70 years. He died instantaneously, in a motor vehicle accident, on his way home from a club. No witnesses and no other vehicles were involved. The Coroner’s report indicates he died from:

“Mediastinol haemorrhage and compression injury to the chest resulting from a motor vehicle accident.”

2.      The Medical Report upon Examination of the Dead Body of Mr Colacino by the Coroner noted that the heart and coronary vessels appeared to be normal (T5/21).

3.      Mrs Colacino applied to the Department of Veterans’ Affairs to have her husband’s death declared as being due to a war-caused condition which she said was heart disease. Mr Colacino had eligible war service from 12 February 1943 to 9 September 1946.

4.      Mrs Colacino’s claim was refused by both the Department of Veterans’ Affairs, (T2, 8 July 2005), and following that, the Veterans Review Board (VRB) (T12). The VRB had adjourned its first hearing on 17 March 2006 in order to seek further medical evidence from Mr Colacino’s doctor, Dr Chambers, and then made its final decision on 18 August 2006.  Mrs Colacino then appealed the decision to this Tribunal. She asked to be excused from attending the hearing because of her age and state of health. The Tribunal agreed to that course of action after obtaining consent from both parties to have the matter decided on the papers.

5.      Mrs Colacino’s statement indicated that she attributed her husband’s death to a heart attack, and his heart disease to have been the result of a smoking and drinking habit which he acquired due to stressful war service, in particular his voluntary participation in malaria research.