Colacino and Repatriation Commission
[2008] AATA 416
•21 May 2008
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.
6. The Respondent made written submissions dated 14 February 2008 which were before me along with the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (T-documents), documents obtained by the Applicant from the National Archives of Australia with regard to Mr Colacino’s war service, and a report of Mr B O’Keefe, a researcher, dated 29 May 2007.
7. I found that the kind of death was not heart disease, neither the result of a smoking and drinking habit which Mr Colacino acquired due to stressful war service, but as found by the Coroner, namely:
“Mediastinol haemorrhage and compression injury to the chest resulting from a motor vehicle accident.”
8. I found that Mr Colacino’s death was not due to a war-caused condition or conditions, so Mrs Colacino’s claim must fail. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
9. The first issue to be decided is:
· The characterisation of the “kind of death” suffered by Mr Colacino, mindful that there may have been more than one “kind of death”;
· Whether the conditions Mrs Colacino claims her husband suffered, being a heart condition, smoking and alcohol abuse or alcohol dependence, were the cause of his death;
· This will be followed by deciding whether Mr Colacino’s death was war-caused pursuant to the Veterans’ Entitlements Act 1986 (“the Act”).
THE LAW
10. Pursuant to section 8(1) of the Act, the Commonwealth is liable to pay a pension where the death of a veteran is war-caused.
11. The standard of proof for determining “kind of death” is to the reasonable satisfaction of the Tribunal, pursuant to section 120(4) of the Act (Repatriation Commission v Cooke (1998) 90 FCR 307, Budworth v Repatriation Commission (2001) 63 ALD 422 and Benjamin v Repatriation Commission (2001) 70 ALD 622.
“120Standard of proof
…
(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.
…”
12. The claim is subject to section 120A because it was made after 1 June 1994. As there are relevant SoPs, section 120A(3) also applies.
13. However, the “kind of death” is the first issue in this case, as it was in the case of Repatriation Commission v Hancock (2003) 37 AAR 383, from which the quotations below come. Justice Selway said in that case:
“In order to ascertain whether a SoP applies, it is necessary to identify the … ‘kind of death’ suffered by the veteran: see s 120A(2) and s 120A(4) of the Act”.
14. His Honour also said:
“… there may be multiple medical conditions that cause a particular death. For example, in this case it is obvious that the primary medical condition that caused death (was) … small bowel adenocarcinoma. However, if Dr Betty is correct then there may have been another medical cause, at least in the sense of a medical cause which expedited the death. This was osteoarthrosis of both knees. It was necessary that both of these be considered”. (paragraph 8).
CHARACTERISATION OF THE “KIND OF DEATH” IN MR COLACINO’S CASE
15. We noted that Mr Colacino served in the Australian Army from 12 February 1943 to 9 September 1946, and that this constituted eligible service pursuant to the Act.
16. Mr Colacino died instantaneously, on 1 August 1986 at the scene of a motor vehicle accident, on his way home from a club. There were no witnesses and no other vehicle involved. The death certificate (T4), does not have a cause of death as the report of the Coroner had not been received at the time. However the Coroner’s report (T5), indicates he died from:
“Mediastinol haemorrhage and compression injury to the chest resulting from a motor vehicle accident.”
17. Mr Colacino’s blood alcohol reading on death was 0.119 g per 100 mls of blood (T5).
18. Mrs Colacino indicated in her statement that her husband had been treated for a heart condition by Dr Chambers of Berry. Unfortunately due to the effluxion of time, there is no evidence available to support that, as the office of Dr Chambers wrote on 30 May 2006 stating that it had no records relating to Mr Colacino.
19. I noted however, that the Report of Death to the Coroner, (T5), prepared by Senior Constable Attenborough stated as follows:
“The deceased was driving motor vehicle west on Kangaroo Valley Road Berry when he apparently suffered a heart attack .... the deceased was treated by ambulance officers and Dr Chambers of Berry at the scene but failed to respond and was certified deceased at 5.35 pm 1.8.86.
The deceased had been under treatment from Dr Chambers for a heart condition.”
20. The Respondent in its submission urged the Tribunal to give no weight to the Senior Constable’s report on the basis:
“It is not a medical opinion and is in conflict with the medical evidence. The Respondent notes that Dr B. K. Chambers has no records relating to Mr Colacino. The Respondent submits there is no evidence before the Tribunal to support a claim that the ‘kind of death’ was related to the late veteran’s war service.”
21. I have considered the report of Senior Constable Attenborough, and concur with the Respondent that the police officer had no medical basis upon which to make the statement that Mr Colacino had suffered a heart attack. I accept from the evidence of Mrs Colacino that Dr Chambers was treating her husband, but, noting that the practice of Dr Chambers has no medical records relating to Mr Colacino, I regrettably have no medical evidence regarding any heart disease Mr Colacino may have suffered upon which I am able to rely (T11). In particular, there is no medical evidence that Mr Colacino suffered a heart attack on 1 August 1986.
22. I have also noted that 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).
23. Mrs Colacino also stated that her husband had volunteered for Army research into malaria during World War II, and that he assumed he was treated with various experimental drugs in the effort to find a cure or protection from malaria. I am satisfied from the evidence that Mr Colacino was involved in the malaria research, and noted at T4/15 a commendation for Mr Colacino “in recognition of your valuable contribution to the War Effort by voluntarily submitting yourself to experiments in Army Medical Research.”
24. Mrs Colacino said that for many years after his discharge, Mr Colacino’s bed linen was stained, and he believed it had been due to the ingestion of drugs related to the research. Mrs Colacino reported that throughout their marriage which took place after the Veteran’s return from war service, he experienced what he called “the shakes”, and relied on Bex powders to cope. She stated that: “He became almost paranoid if he found himself in a position where there were mosquitoes. He had developed a dread of them.” Mrs Colacino also stated that: “To deny the fact that his life was affected by his experiences of malaria – equating in unwise reliance on alcohol, nicotine and pain-killers is akin to equating same with ‘just a little bit of small-pox’ – which is equally fatuous.”
25. I noted that a report of Mr O’Keefe dated 29 May 2000, as well as a document at T3 dated 20 August 1946, confirmed that Mr Colacino was a volunteer for the malaria trials, commencing on 19 October 1945, that he contracted malaria, and that the Army documented he was treated with Paludrine, the standard treatment for that illness in the 1950s, 1960s and early 1970s. Mr O’Keefe also stated that: “Apart from its potency against malarial parasites, Paludrine was notable for its lack of side-effects … In Vietnam, Australian soldiers took 200 mg of Paludrine per day, an amount that was still five times the dosage Mr Colacino received.”
26. I am satisfied that the Applicant was involved in malaria research, and accept the Respondent’s submission that there is no evidence before me which can satisfy me that Mr Colacino’s death was caused by being involved in the malaria research trials. There is no medical evidence before me to satisfy me that any effects of the participation in the malaria research was an integral part in the Veteran’s “kind of death”.
27. Mrs Colacino, in her submission to the Tribunal stated: “To deny the fact that his life was affected by his experiences of malaria – equating in unwise reliance on alcohol, nicotine and pain-killers is akin to equating same with ‘just a little bit of small-pox’ – which is equally fatuous.” She also wrote in her claim to the Department of Veterans’ Affairs dated 1 July 2005, at T6: “I believe that my husband’s service related smoking caused his heart problem.”
28. In replies given to a questionnaire regarding her husband’s drinking habits, Mrs Colacino stated that he drank two glasses of wine daily with evening meals, that he drank beer socially every day after retirement, and that at sea he would drink when not on duty. She added that: “I don’t know if my husband drank prior to enlistment. I doubt that he did, one to lack of money and his sporting interests. I believe he began drinking during service which was very stressful. He tried to stop drinking once but only lasted 2 days. He used alcohol to help him sleep & calm his nerves. I believe he learnt to do this following stressful incidents on service….” (T11, 6 April 2006).
29. The Respondent submitted that there is a lack of objective evidence of service related alcohol abuse or alcohol dependence.
30. Mrs Colacino completed a smoking questionnaire on 13 April 2006 (T11/49), in which she stated that she believed her husband commenced smoking on service due to the stressful nature of that service. She stated: “I think it is unlikely that he smoked prior to service because of his physical pursuits. .. If he did smoke it would have increased significantly during service as he told me that he used cigarettes to help him cope with the stress.”
RESPONDENT’S SUBMISSIONS
31. The Respondent made written submissions referring to the legislation and the kind of death Mr Colacino suffered, indicating that it relied on the Veteran’s death certificate (T14), the Coroner’s report (T17), the Department of Health blood analysis (T23) and the Report upon the Examination of the Dead Body (T21).
32. The Respondent submitted that there is no evidence before the Tribunal that Mr Colacino’s death was caused by being involved in the malarial research trials, and that this was not an integral part in his “kind of death” (Hayes v Repatriation Commission [2005] FMCA 125.)
33. The Respondent referred in its submissions to Fitzgerald v Penn (1954) 91 CLR 268, submitting that in determining the “kind of death”, the Tribunal must identify the real or operative cause of death as opposed to the final stage in the process of dying, that is whether a particular illness or disease can fairly and properly be considered the cause of death.
34. The Respondent also referred in its submissions to Repatriation Commission v Towns (2003) 38 AAR 77 where Justice Tamberlin commented about the width of the expression “kind of death”. I noted that his Honour said that:
“It does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring ‘suddenly’ or in a particular location or set of circumstances. The expression ‘kind’ does not mandate a determination of the precise medical causation of the death.”
35. His Honour gave examples of characterisation such as death at sea, or a death where there had been exposure to the elements. He construed the Tribunal to have found in Repatriation v Towns, that death was due to natural causes.
36. The Respondent also referred to Hayes v Repatriation Commission [2005] FMCA 125 where McInnes FM considered whether it is correct to say a condition could contribute to death. The Respondent stated as follows:
“He (McInnes FM) distinguished the discussion of ‘material contribution’ in the case of Treloar v Australian Telecommunications (1990) 12 AAR 535. He pointed out that Treloar’s case was not concerned with the consideration of a medical cause of death and dealt with different legislation that involved ‘material contribution’ to death, a concept not raised in the provisions of the case.
The Respondent notes that the Tribunal followed a similar approach to that suggested by McInnes FM in Martyn v Repatriation Commission [2006] AATA 895. The members sitting on that case were ‘mindful’ that in regard to cause of death, a material contribution is not relevant, but rather, to be relevant, a condition has to be an integral part of the ‘kind of death’. The members added that they relied on Hayes in this respect.”
THE TRIBUNAL’S CONCLUSIONS REGARDING THE “KIND OF DEATH” MR COLACINO SUFFERED
37. I have noted that the Coroner found Mr Colacino died as a result of the following:
“Mediastinol haemorrhage and compression injury to the chest resulting from a motor vehicle accident.”
38. I rely on the Veteran’s death certificate (T14), the Coroner’s report (T17), the Department of Health blood analysis (T23) and the Report upon the Examination of the Dead Body (T21).
39. I noted that Mr Colacino’s blood alcohol reading on death was 0.119 g per 100 mls of blood, but that there was no medical opinion that he had suffered a heart attack, or that the level of alcohol in his blood caused the fatal accident (T5). Unfortunately there were no witnesses present.
40. I am not satisfied that Mrs Colacino’s claim that her husband suffered a heart attack can be sustained. Unfortunately due to the effluxion of time, there is no evidence available to support that assertion, and the office of Dr Chambers wrote on 30 May 2006 stating that it had no records relating to Mr Colacino.
41. I was mindful that the Report of Death to the Coroner, (T5), prepared by Senior Constable Attenborough stated that Mr Colacino “apparently suffered a heart attack”. I have considered the report of Senior Constable Attenborough, and concur with the Respondent that the police officer had no medical basis upon which to make the statement that Mr Colacino had suffered a heart attack. I accept from the evidence of Mrs Colacino that Dr Chambers was treating her husband, but, noting that the practice of Dr Chambers has no medical records relating to Mr Colacino, I regrettably have no medical evidence regarding any heart disease Mr Colacino may have suffered upon which I am able to rely (T11).
42. In that regard, I have also noted that the Medical Report upon Examination of the Dead Body of Mr Colacino by the Coroner recorded that the heart and coronary vessels appeared to be normal (T5/21).
43. I have considered Mr Colacino’s participation in malaria trials during his service, and note Mrs Colacino’s comment on the effects upon her husband. She said that for many years after his discharge, Mr Colacino’s bed linen was stained, and he believed it had been due to the ingestion of drugs related to the research. Mrs Colacino reported that throughout their marriage which took place after the Veteran’s return from war service, he experienced what he called “the shakes”, and relied on Bex powders to cope. She stated that: “To deny the fact that his life was affected by his experiences of malaria – equating in unwise reliance on alcohol, nicotine and pain-killers is akin to equating same with ‘just a little bit of small-pox’ – which is equally fatuous.”
44. I relied on a report of Mr O’Keefe dated 29 May 2000, and Mrs Colacino’s evidence and accepted that Mr Colacino was a volunteer for the malaria trials, commencing on 19 October 1945, that he contracted malaria, and that the Army documented he was treated with Paludrine, the standard treatment for that illness in the 1950s, 1960s and early 1970s. I also noted Mr O’Keefe statement that: “Apart from its potency against malarial parasites, Paludrine was notable for its lack of side-effects … In Vietnam, Australian soldiers took 200 mg of Paludrine per day, an amount that was still five times the dosage Mr Colacino received.”
45. However I am satisfied with the Respondent’s submission that there is no evidence before me which can satisfy me that Mr Colacino’s death was caused by being involved in the malarial research trials. There is no medical evidence before me to satisfy me that any effects of the participation in the malaria research was an integral part in the Veteran’s “kind of death”.
46. Mrs Colacino also wrote in her claim to the Department of Veterans’ Affairs dated 1 July 2005: “I believe that my husband’s service related smoking caused his heart problem.” In replies given to a questionnaire regarding her husband’s drinking habits, Mrs Colacino stated that he drank two glasses of wine daily with evening meals, that he drank beer socially every day after retirement, and that at sea he would drink when not on duty. She added that: “I don’t know if my husband drank prior to enlistment. I doubt that he did, one to lack of money and his sporting interests. I believe he began drinking during service which was very stressful. He tried to stop drinking once but only lasted 2 days. He used alcohol to help him sleep & calm his nerves. I believe he learnt to do this following stressful incidents on service….” (T11, 6 April 2006). There was no further evidence regarding any of Mr Colacino’s drinking habits, and I accepted the Respondent’s submission that there is a lack of objective evidence of service related alcohol abuse or alcohol dependence.
47. Mrs Colacino also completed a smoking questionnaire on 13 April 2006 (T11/49), in which she stated that she believed her husband commenced smoking on service due to the stressful nature of that service. She stated: “I think it is unlikely that he smoked prior to service because of his physical pursuits. .. If he did smoke it would have increased significantly during service as he told me that he used cigarettes to help him cope with the stress.” There was no objective or supporting evidence to convince me that smoking contributed to Mr Colacino’s “kind of death”.
48. Having considered the evidence and the submissions of both parties, I was satisfied to the requisite standard pursuant to section 120(4) of the Act that there was no evidence Mr Colacino’s participation in malaria research during his eligible service had been the cause of his “kind of death”. There was no evidence before me to satisfy me that Mr Colacino suffered heart disease which was an integral of his “kind of death”, or that his smoking or any alcohol abuse or alcohol dependence were a “kind of death” as claimed by Mrs Colacino.
49. I am satisfied that Mr Colacino’s “kind of death” was as stated by the Coroner,
“Mediastinol haemorrhage and compression injury to the chest resulting from a motor vehicle accident.”
WAS MR COLACINO’S DEATH WAR-CAUSED
50. In coming to a decision whether Mr Colacino’s death can be linked with his service, I am required to apply the relevant SoPs. To the best of my knowledge no relevant SoPs have been promulgated which deal with mediastinol haemorrhage and compression injury to the chest which is the “kind of death” I have found Mr Colacino suffered. Accordingly the correct approach to be adopted is in the application of the principles set down in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.
51. The information available to me raises two hypotheses linking Mr Colacino’s death with his service. Mrs Colacino submitted that the stressful nature of her husband’s involvement in medical experimentation during his war service caused him to smoke and drink. She submitted that the smoking habit led to the heart condition he developed which was treated by Dr Chambers. She posited that the heart attack caused the fatal motor vehicle accident on 1 August 1986 in which Mr Colacino was involved.
52. In the alternative, the stressful nature of service including her husband’s involvement in medical experimentation caused him to drink, which led to a war-caused drinking habit, contributing to the accident which caused his death.
53. As I have already noted above, I was satisfied from the evidence that Mr Colacino’s death was caused by mediastinol haemorrhage and compression injury to the chest. I could not be satisfied from the evidence, and there was no medical evidence to support the assertion that Mr Colacino’s kind of death was from heart disease, neither was there sufficient evidence that alcohol or smoking played a part. Mr Colacino’s blood alcohol reading on death was 0.119 g per 100 mls of blood (T5) which is mid-range. There was no opinion or evidence before me that this condition caused him problems handling the motor vehicle he was driving which caused the fatal accident.
54. As to heart disease; the relevant SoP would be Instrument No.54 of 2003 as amended Instrument No.10 of 2004. A new SoP has been promulgated, being Instrument No.89 of 2007. The factor relevant to Mr Colacino has not changed, and would be as follows:
“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; or”
55. Mrs Colacino’s statement was that her husband’s interests included sports which require physical fitness such as dancing, and ice hockey which appear incompatible with smoking before service. His involvement with medical research, in particular malaria research point to stressors in his service. Information before the VRB indicated that in 1949 Mr Colacino was smoking 40 cigarettes a day, and was classified as a heavy smoker.
56. As to heart disease; the conflicting evidence was that of the Coroner who reported that the heart and coronary vessels appeared normal, whereas Mrs Colacino’s evidence was that Dr Chambers was treating her husband for heart disease, as also mentioned by Senior Constable Attenborough in his report at T5. No inquest held. The office of Dr Chambers, when contacted after the VRB adjourned its hearing for that purpose in 2006, was unable to supply records about Mr Colacino (T11).
57. I find that there is insufficient evidence to satisfy me on the balance of probabilities, and on which to base a finding that Mr Colacino experienced stress during his service by way of participating in malaria research as claimed, which as a result led to a war-caused drinking and smoking habit. Further there is insufficient evidence to satisfy me that the Veteran’s death was linked either to his drinking or smoking habits. Unfortunately the effluxion of time means that there is no medical evidence regarding whether Mr Colacino suffered a heart condition, and no medical opinion that he may have suffered a heart attack which caused the fatal accident. In that regard I give little weight to the report of Senior Constable Attenborough.
CONCLUSIONS
58. I am satisfied that the material before me determines that Mr Colacino’s “kind of death” was, as found by the Coroner, to be:
“Mediastinol haemorrhage and compression injury to the chest resulting from a motor vehicle accident.”
59. The “kind of death” Mr Colacino suffered does not raise a connection between his death and his service. I am satisfied therefore that Mr Colacino’s death was not service related. Therefore Mrs Colacino’s claim must fail.
DECISION
60. The decision under review is affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger
Signed:
AssociateDate of Hearing Decided on the papers
Date of Decision 21 May 2008
Solicitor for the Applicant Self-represented
Advocate for the Respondent Chris Keher, Repatriation Commission
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