Collins and Repatriation Commission [2011] AATA 888

[2011] AATA 888

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 888

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2921

VETERANS’ APPEALS DIVISION		)
Re		WENDY ANNE COLLINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  The Hon R J Groom AO (Deputy President)

Date 14 December 2011

Place Hobart

Decision  The decision under review is affirmed.

[Sgd Hon R J Groom]

Deputy President

CATCHWORDS

VETERAN’S ENTITLEMENTS – War widow’s pension – cause of death – renal failure – whether material points to hypothesis linking cause of death with service – whether other factors contributed to cause of death – whether hypothesis reasonable – whether Tribunal satisfied beyond reasonable doubt that Veteran’s death not war caused – decision under review affirmed.

Veterans’ Entitlements Act 1986, s 8, 13, 120, 196B

Repatriation Commission v Delidio (1998) 83 FCR 82

Bushell v Repatriation Commission (1992) 175 CLR 408

Collins v Repatriation Commission (2009) 177 FCR 280

Repatriation Commission v Wedekind [2000] FCA 649

REASONS FOR DECISION

14 December 2011 The Hon R J Groom AO (Deputy President)

INTRODUCTION

1. On 17 June 2008 Mrs Collins lodged a claim for a widow’s pension under the Veterans’ Entitlements Act 1986 (“the Act”).

2.      The claim was refused by the Repatriation Commission and on a review also by the Veterans’ Review Board (“VRB”).  Mrs Collins now asks this Tribunal to review the VRB decision which was made on 26 March 2009.

3. Mrs Collins is the widow of the veteran the late Mr Donald John Collins who died on 17 March 2008 at the age of 87. Mr Collins rendered service in the Royal Australian Navy from 23 April 1941 to 2 March 1946. It is not in contention in these proceedings that the whole of that period of service was “operational service” and “eligible war service” for the purposes of the Act.

4. Mrs Collins contends that Mr Collins’ death was “war-caused” and therefore as the veteran’s widow she is entitled under the Act to receive a widow’s pension.

THE LEGISLATION

5. Section 13 of the Act provides that when the death of a veteran was “war-caused” the Commonwealth is liable to pay a pension “by way of compensation” to the dependants of the veteran. The term “dependants” includes the widow of the veteran.

6. Section 8(1)(b) of the Act relevantly provides that the death of a veteran shall be taken to have been “war-caused”:

“… if the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”

7. There are unique provisions in the Act which facilitate proof of the relationship between a veteran’s death and his war service when the death is said to relate to operational service.

8. If a veteran’s death is related to operational service section 120(1) of the Act directs the decision maker to determine that the particular death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

9. Section 120(3) of the Act provides as follows:

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.

10.     The requirements of section 120 are to be applied in accordance with the four stages of analysis as prescribed by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.

11. If a Statement Of Principles (“SOP”) has been issued by the Repatriation Medical Authority then any relevant SOP guides the decision maker in deciding whether a reasonable hypothesis has been raised connecting the death to the circumstances of service (see section 196B of the Act).

12. Where there is no SOP for the relevant cause or causes of death it falls to the Tribunal to consider all the material before it in order to determine whether that material points to a reasonable hypothesis connecting a cause of death with the circumstances of the late veteran’s particular service. (see Bushell v Repatriation Commission (1992) 175 CLR 408).

13.     It is necessary for the Tribunal to now determine the cause or causes of the veteran’s death. 

CAUSE OR CAUSES OF DEATH

14. Meaning of the word “death” and also the phrase “kind of death” for the purpose of the Act were considered by the Full Federal Court in Collins v Repatriation (2009) 177 FCR 280. In that case the Court held that the word “death” in the Act is a reference to the medical cause or causes of death. It further held that there may be more than one medical cause of death.

15. The question of the cause or causes of death is to be determined to the Tribunal’s reasonable satisfaction in accordance with section 120(4) of the Act.

16.     In this case the direct cause of death as stated in the death certificate (T documents pg 42) was:

“Renal failure”.

The “approximate interval between onset and death” is certified as “12 months”.  The certificate refers to diabetes (15 years) prostate cancer (two years) cerebro-vascular accident (“CVA”) (six months) as “antecedent causes”.

17.     After considering all of the material before it the Tribunal is satisfied to the standard required that the medical cause of Mr Collins’ death was the cause certified in the death certificate as the cause “directly leading to death”, namely “renal failure”.  It is common ground between the parties that renal failure was indeed the cause of the veteran’s death.

DOES THE MATERIAL POINT TO AN HYPOTHESIS CONNECTING MR COLLINS’ DEATH WITH HIS SERVICE IN THE NAVY?

18.     A central issue in this application is that when Mr Collins was a teenager he suffered acute nephritis (inflammation of the kidneys) and was hospitalised for a period of approximately six months.  (For the purposes of this decision the Tribunal accepts that the period of hospitalisation was six months although it notes that in an earlier VRB decision on 10 May 2001 it was reported to have been “six weeks” (T documents pg 26).  The reference to “six weeks” was probably a mistake.  In the medical history sheet (T documents pg 10) it is noted as follows:

“Nephritis as a child 1935 was hospitalised 6/12”.

19.     The hypothesis relied upon by Mrs Collins is that the circumstances of her late husband’s service caused an aggravation of the pre-existing nephritis, which ultimately lead to his chronic renal failure which the Tribunal has found to be the cause of death.

20.     Mrs James, on Mrs Collins’ behalf, has referred to several factors alleged to have occurred during Mr Collins’ service which it is submitted caused a worsening of the nephritis.  These included hypertension, exposure to solvents, alleged episodes of syncope and also damaged caused to Mr Collins’ kidneys by his excessive consumption of alcohol which it is claimed was itself caused by the veteran’s operational service. 

21.     It is contended on behalf of Mrs Collins that the syncope (fainting) episode which occurred in 1941 was not properly investigated and may have been a symptom of renal failure (T documents pg 63).  As mentioned in the case appraisal report by Tribunal Member Ms E A Shanahan, Mrs Collins believes there were several syncopal episodes.  Mrs James submitted that this is a basis for a further hypothesis of a failure to obtain appropriate medical treatment.

22.     In the concluding paragraph of her written submission received by the Tribunal on 9 September 2010 (Exhibit A10), Mrs James said:

“Although there are no available records of the period 1946-1963 it is contended that the renal disease first suffered by this man prior to enlistment did not resolve even though it could have gone into remission.  Recurrences even of a mild nature are not uncommon (ie influenza which he had prior to leaving Tasmania).  The conditions under which he served were severe and likely to worsen any underlying disease and would have been present in the intervening period until the 1963 diagnosis.  Having regard to the nature of the disease in question it is further contended that this establishes the link between service and diagnosis.”

23.     The question the Tribunal must now determine is whether there is material “pointing” to the hypothesis that Mr Collins’ pre-existing nephritis was aggravated by the abovementioned service-related factors contributing to his renal failure and eventual death.  At this stage of the process the Tribunal is merely considering whether there is some support for this hypothesis or theory in the evidence before it without requiring proof of alleged facts.

24.     It is agreed by the parties, and the Tribunal so finds, that there is no Statement of Principles for “renal failure” nor is there any relevant determination or declaration relating to that medical condition.  It is therefore necessary to now consider all of the material before the Tribunal in order to determine whether that material points to this hypothesis connecting the relevant cause of Mr Collins’ death to the circumstances of his operational service.  If it does then the next question will be whether the hypothesis is reasonable.

25.     As has been mentioned Mr Collins served in extremely dangerous and difficult conditions for much of his service in the navy.  He was on board HMAS Hobart when it was torpedoed.  Mr Collins was in the stoker’s mess when the torpedo struck and was fortunate not to have suffered serious injurious or even death.  He was also on HMAS Australia in waters close to the Philippines when Japanese kamikaze aircraft struck the ship.  As Dr Henry Brigden said in his report of 15 September 1999 (T documents pg 19):

“No reasonable person could doubt that being on HMAS Hobart when it was under attack would have been severely stressful … “.

26.     Dr Dane Sutton provided a report dated 6 June 1963.  He added the following comment to his report:

“Impression

Not a well substantiated claim but he must have had renal damage while in services”.  (T documents pg 12).

27.     Dr Brigden stated in his report of 30 August 1999:

“Nephritis (or glomerulonephritis) is a not uncommon condition, which not infrequently goes into a chronic phrase with hypertension …”.  (T documents pg 18).

28.     Dr Ratcliff, who became a psychiatrist but, of course, also had the benefit of general medical training said in a letter dated 9 August 2000:

“I would recommend you seek authorative advice as to whether a reasonable hypothesis can be made regarding his hypertension, linking it to exacerbation of pre-existing renal disease during service.”

Dr Ratcliff was raising the possibility of such a link but did not himself offer an opinion on that issue and merely suggested that further advice be obtained.

29.     Dr Mark Lanteri, a specialist nephrologist called by the respondent, expressed the view in his report of 8 September 2010, and in his oral evidence, that Mr Collins naval service did not contribute to renal failure although he does readily acknowledge that elevated blood pressure levels can contribute to renal damage.  This view is consistent with the comments expressed in the pamphlet from Kidney Health Australia which was tendered in evidence (Exhibit A7).

30.     It is established on the evidence that Mr Collins gave dedicated service as a stoker working in ships’ engine rooms in dangerous, hot and unpleasant conditions.  The history of HMAS Hobart when Mr Collins was serving on that ship indicates that the dangers he faced during his war time service.  As has been mentioned, the ship was hit by a Japanese torpedo and suffered serious damage, causing a number of deaths and other casualties.  It is plain that Mr Collins was serving in the most stressful of circumstances.

31.     In his oral evidence Dr Lanteri said:

“Well I suppose being in very stressful circumstances like that your blood pressure can go up as a response to the stress and that is not good for your kidneys.  Outside of that normally just being hot and thirsty and stressed it doesn’t normally cause kidney damage but I suppose that would be one possibility”.  (Transcript pg 32).

32.     Dr Lanteri added:

“Yes, stress can contribute to high blood pressure.”

33.     After considering the evidence before it the Tribunal concludes that there is some material, albeit of a very limited nature, which points to the general hypothesis advanced on behalf of Mrs Collins that there may be a connection between the renal failure suffered by Mr Collins and his operational service in the Royal Australia Navy. 

34.     Mrs James referred briefly to “diabetes” in her closing address.  There is however no material pointing to a link between diabetes and Mr Collins’ service.  There is also no evidence pointing to a link between “prostate cancer” or “CVA” and his naval service.

35. It is not sufficient, of course, to merely raise an hypothesis. The hypothesis advanced must also be “reasonable” within the meaning of section 120(3) of the Act.

36. As was confirmed by the Federal Court in East v Repatriation Commission (1987) 16 FCR 533 an hypothesis:

“… must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.”

37.     The Tribunal finds that the specific hypothesis that the very dangerous and stressful nature of Mr Collins’ service caused him to suffer high blood pressure which, in turn, aggravated his pre-existing nephritis eventually leading to his death in 2008, is reasonable and satisfies the test in East. 

38.     It further finds however that other particular contentions advanced on behalf of the applicant namely that Mr Collins suffered from dehydration, had episodes of syncope (the written material includes only one episode which occurred on 19 December 1941), was exposed to some solvents during service, and also that he drank alcohol to excess and that those factors caused damage to his kidneys and contributed to his ultimate death are too remote and tenuous to satisfy the test for reasonableness.

39.     There is simply insufficient material before the Tribunal to satisfy it that the alleged episodes of syncope, suffering from dehydration, and exposure to solvents were factors contributing to his renal failure.  There is an absence of factual information establishing that those circumstances actually existed, but also an obviously lack of medical evidence supporting a link between those particular circumstances and the cause of Mr Collins’ death.

40.     With respect to Mr Collins’ drinking habits there is again a lack of both factual information and medical evidence.  In his report of 9 August 2000 Dr Ratcliff said that “Mrs Collins’ statement is significantly at variance with the history given by her husband.  For example, he explicitly denied any difficulty with drinking, even for a brief time” (T documents pg 31).

There is evidence from Mrs Collins and some of the veteran’s friends that Mr Collins was drinking to excess but there is plainly a lack of cogent evidence connecting his consumption of alcohol to service, nor is there any direct medical evidence linking Mr Collins’ excessive consumption of alcohol to the renal failure which eventually took his life. 

41. As mentioned earlier, the issue of an “inability to obtain appropriate clinical management” was raised in submissions by Mrs James. It was said that the syncope episode in 1941 was not properly investigated as Mr Collins was required to return to his ship and resume active service. The suggestion was that this incident may have been evidence of hypertension and an underlying kidney problem. But there is no evidence that Mr Collins was suffering from a kidney condition when he entered the navy, nor during his service or on discharge. For this factor to be relevant there must then be in existence a disease which was not managed appropriately. As will be explained the Tribunal finds that the chronic kidney disease which eventually lead to Mr Collins’ death from renal failure was not present during service, but emerged much later in his life. A sufficient basis for this contention is therefore plainly absent in this case (see Repatriation Commission v Wedekind [2000] FCA 649).

42.     It follows that the only hypothesis which the Tribunal concludes is reasonable is the suggested link between pre-existing nephritis, high blood pressure during service and renal failure.  It is necessary therefore to go to the next stage of the Deledio process to further consider the evidence.

IS THE TRIBUNAL SATISFIED BEYOND REASONABLE DOUBT THAT MR COLLINS’ DEATH WAS NOT WAR-CAUSED?

43.     It is clear that every effort has been made by Mrs James on behalf of Mrs Collins to establish a sufficient link between the circumstances of Mr Collins’ service and his death from renal failure.  However the problem for the applicant is, as indeed it was before the VRB, a lack of supporting medical and factual evidence.

44.     The brief opinions expressed by Drs Ratcliff, Brigden and Sutton are of limited value in the circumstances of this application. 

45.     The only medical expert called to give at the hearing was Dr Lanteri.  The Tribunal finds Dr Lanteri, a specialist in the field of renal medicine, to be a well-qualified and persuasive medical witness. 

46.     Dr Lanteri expressed the opinion that it was most likely that Mr Collins had suffered from glomerulonephritis as a teenager.  He said that this was “inflammation of the glomerulus which is the filtering apparatuses inside the kidney”.  (Transcript pg 29).  He expressed the opinion that such a condition tends to resolve.  Dr Lanteri said “… once the germ is gone it’s burnt out.”  (Transcript pg 32).

Dr Lanteri made it clear that in his view renal failure suffered by Mr Collins was not related to the earlier episode he suffered as a teenager.

47.     Dr Lanteri said that if such a condition had caused any on-going damage to the kidneys then evidence would be found “in the urine or the blood tests or the blood pressure.  I didn’t see any evidence of that.”  (Transcript pg 32).

48.     In addition Dr Lanteri expressed the opinion that dehydration, syncope episodes, solvents and Mr Collins’ alcohol intake did not cause long term damage to the kidneys.

49.     But most importantly, after examining the medical records of Mr Collins’ which were made available to him, Dr Lanteri said that in 1963 at the age of 42 Mr Collins’ “urinalysis was unremarkable …”.  He said “I couldn’t find anything which indicated serious kidney problems before the age of 42.”  This was many years after Mr Collins ceased his service in the navy.

50.     Dr Lanteri said that readings taken some 27 years later in 1990 were consistent “… with a mild degree of renal damage” (Transcript pg 26).

A further reading seven years later on 29 April 1997 indicated  much more significant kidney damage.  Dr Lanteri said that the 1997 reading:

“I think you could say that by 1997 there was definite evidence of kidney damage.  As with that level again it’s not severe but it’s at least moderate and it definitely would confirm that he had kidney damage by 1997.”  (Transcript pg 26).

51.     The following explanation was provided by Dr Lanteri on the progression  of Mr Collins’ kidney condition:

“… In 1941 at the age of 20 his blood pressure was essentially normal and the urine appearance was normal.  His serum creatinine, many years later, was still normal.  I think the evidence was that even though he had this possible condition requiring admission in his teenage years, he had recovered from that and he appeared to have normal kidney function up until a lot later in his life.”

52.     With respect to blood pressure there is evidence of a reasonably normal reading in 1941 but by 1963 it was “markedly elevated”.  High blood pressure was evident later in life and according to Dr Lanteri “was more likely to have contributed to renal damage than to have been caused by it”.  (Transcript page 28)

CONCLUSION

53.     The Tribunal concludes that Mr Collins suffered nephritis as a teenager and spent six months in hospital.   However he recovered from that condition.  He clearly experienced dangerous and stressful conditions during his war-time service in the Royal Australian Navy.  There is no evidence of an ongoing kidney problem during service.  Obviously there is no evidence of any aggravation of such a problem.  Any increase in blood pressure during service was of a temporary nature as explained by Dr Lanteri and it did not cause permanent damage to Mr Collins’ kidneys.  The Tribunal again reiterates that there is no evidence of fact nor any persuasive medical opinion supporting the contentions that dehydration, solvents, syncopal episodes or alcohol consumption contributed to Mr Collins’ kidney problems and renal failure.

54.     After considering all of the evidence the Tribunal is satisfied beyond reasonable doubt that Mr Collins was not suffering a chronic renal condition during his service in the Royal Australian Navy, that he developed high blood pressure and kidney damage much later in life and that the circumstances of his service did not contribute to the renal failure which eventually caused his death at the age of 87.

55.     The Tribunal is therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the veteran was war-caused.

DECISION

56.     The decision under review is affirmed.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)

Signed:  C Maguire - Associate

Date/s of Hearing  18 October 2011 
Date of Decision  14 December 2011
Advocate for the Applicant       Mrs G James 
Counsel for the Respondent     Mr G Purcell
Solicitor for the Respondent      Repatriation Commission