Collins and Repatriation Commission

[2003] AATA 335

Administrative

Appeals

Tribunal

 

DECISION AND RESONS FOR DECISION [2003] AATA 335

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V1999/272

Nº V2002/1238

VETERANS'      APPEALS      DIVISION

Re:         KENNETH CHARLES COLLINS

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             4 March 2003

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal sets aside the decisions under review and substitutes a decision that chronic bronchitis suffered by the applicant is war-caused and that the applicant is entitled to pension at the special rate, with effect from 1 March 2001. 

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS - veterans’ entitlements - smoking - chronic bronchitis - whether war‑caused - whether special rate applies 

Veterans’ Entitlements Act 1986 ss9, 24, 28, 120(1), 120(3), 120(4), 120A(3), 120B

Hendy v Repatriation Commission [2002] FCA 602

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

4 March 2003  G.D. Friedman, Member

1.      This is an application by Kenneth Charles Collins (the applicant) for review of decisions of the Veterans' Review Board (VRB) dated 15 January 1999 and 24 September 2002.  On 15 January 1999 the VRB affirmed a decision of the Repatriation Commission (the respondent) dated 23 July 1996 to refuse the applicant's claim for disability pension at the special rate.  On 24 September 2002 the VRB affirmed a decision of the respondent dated 18 June 2001 to refuse a claim for chronic bronchitis and bronchial asthma on the basis that the conditions were not war‑caused.  The following conditions have been accepted as war-caused: post traumatic stress disorder (PTSD), tension headaches, neurodermatitis, alcohol dependence and chronic pancreatitis.  Disability pension was assessed at 100 per cent of the general rate. 

2.      At the hearing of this matter on 4 March 2003, Mr D. De Marchi, solicitor, represented the applicant and Mr K. Herman, an advocate with the Department of Veterans' Affairs, represented the respondent.  The applicant only proceeded with the application in relation to chronic bronchitis.

3. The Tribunal received into evidence the documents filed under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T8 and T1‑T27), together with 7 exhibits (A1‑A7) tendered by the applicant and 8 exhibits (R1‑R8) tendered by the respondent.

BACKGROUND

4. The applicant was born on 3 February 1949. He completed the Junior Technical Certificate and left school at the age of 15 years, after which he served a four-year apprenticeship as a boilermaker/welder. He was selected for National Service and joined the Australian Army (the army) on 22 April 1970. From 4 March 1971 to 23 October 1971 the applicant served as an engineer in South Vietnam which constitutes operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act).  He was discharged on 9 December 1971. 

5.      After his discharge the applicant worked for Hammersley Iron in Western Australia for several months, and in 1975 Oakleigh City Council (the Council) employed him as a garbage collector for ten years.  In 1985 he ceased working because of PTSD, breathing problems and anxiety. He has not worked since.  He has been diagnosed as suffering from chronic bronchitis and asthma.

6.      On 17 March 1999 the applicant sought review of the VRB decision dated 15 January 1999, and on 14 November 2002 he sought review of the VRB decision dated 24 September 2002.

EVIDENCE

7.      In a written statement dated 29 September 2000 (Exhibit A5) the applicant said that since ceasing employment with the Oakleigh City Council he has been unable to work because of his accepted conditions.  In a smoking history dated 16 July 2001 (Exhibit R8) the applicant said that he was a non-smoker before joining the army, and commenced smoking during service in Vietnam because of the stress of service, affordability of cigarettes, and because all the other men smoked.   He said that he was smoking one packet of twenty cigarettes per day in Vietnam, and upon discharge was still smoking twenty cigarettes per day, which increased to two to three packets per day within three years of discharge.

8.      In a smoking history dated 4 March 2003 (Exhibit A7) the applicant said that since 1972 he has stopped smoking several times, but was still smoking.

9.      In oral evidence the applicant described his experiences in Vietnam and said that in 1971 while stationed at Nui Dat he was required to clean out an Armoured Personnel Carrier in which a number of Australians had been killed.  He also referred to incidents in which a friend was killed in a vehicle accident and another friend was seriously injured when he stepped on a land mine.  The applicant told the Tribunal that while working as a garbage collector he was constantly shaking and coughing.  He stated that he was afraid of loud noises, he suffered from stress, headaches, skin rashes, loss of concentration and engaged in anti-social behaviour, particularly towards Vietnamese people.  He also referred to breathing problems and tightness in his chest.

10.     In cross-examination the applicant agreed that a number of doctors and the VRB had questioned him about his cigarette consumption, but explained that he knew he was smoking excessively and felt embarrassed, so he answered a few a day or else understated the actual figure.  The applicant stated that he believed that if he stated the correct level of consumption his application for pension would be refused.  He said that some of the statements made by him, including statements that he was a non-smoker, were correct at the time they were made because he was undergoing surgery or other medical treatment.

11.     In relation to the smoking histories the applicant told the Tribunal that since his service in Vietnam he has smoked twenty cigarettes per day.  He said that even at the time of his attendance at the VRB he was never told that his understatement of cigarette consumption was hindering his application for pension.  He assured the Tribunal that he had given an oath at its hearing and was telling the truth.

12.     In relation to his employment with the Council, the applicant stated that he had been suspended several times for his behaviour and his attitude, particularly towards Vietnamese people.  He stated that in 1985 stress and his other conditions prevented him from continuing with his employment.  The applicant said that he would not be able to return to his former occupation as a boilermaker, as he lives in a small town and his physical and psychological conditions, together with his prescribed medication, prevent him from seeking other employment.  He also said that he is unable to carry out basic household tasks because of breathlessness and stress, and has difficulty in walking.

13.     In a statutory declaration dated 19 February 2000 (Exhibit A4) Mr M. Sanders stated that he worked with the applicant for about ten years as a garbageman’s mate and found him very difficult to work with.  Mr Sanders said that the applicant would come to work under the influence of alcohol and would be very abusive.  He described the applicant as a very moody and troubled man, and made the job very difficult.

14.     In a written report dated 13 June 2000 (Exhibit A3) Dr I. Parkin, consultant psychiatrist, stated:

If we remove all the other disorders and look purely at the issue of his Post-traumatic Stress Disorder then I believe that that by itself would be enough to prevent him from working…There is the issue that his lung disorder and his breathing occurred at a time when he finished work.  However there were also significant psychological factors going on at the time and symptoms which were pivotal in him leaving work.

15.     In a written report dated 13 February 2002 (Exhibit A1) Dr E. Cole, psychiatrist, stated: 

He did not smoke or drink until March 1971 when his friend was burned.  He still smoked thirty a day and had tried to give up without success…I believe that his accepted conditions of anxiety state and tension headaches alone would prevent him from working more than eight hours a week.

16.     In a written report dated 23 December 2002 (Exhibit A6) Dr J. Burdon, consultant respiratory physician, stated: 

Mr Collins told me he started smoking in the Army…I am aware that there has apparently been some inconsistency in Mr Collins’ account of this smoking habit over the years…However the history as given to me indicates a long history of smoking started during the period in Vietnam during Army service.  Whilst it is a little difficult to be absolutely sure of the amount of cigarette smoking it is clear that Mr Collins has a pack year history of at least 35 pack years to the present day.  If the smoking history as laid out in the Veterans’ review Board V01/0927 is accepted as the true smoking history then it is clear that Mr Collins would have smoked approximately 10 pack years by 1978 when he told me his symptoms began.  This would satisfy the SOP for chronic bronchitis and emphysema Item 5(iv), Item 2(c) already being satisfied

17.     In a written report dated 10 July 2001 (Exhibit R7) Dr L. Walton, consultant psychiatrist, stated:

The veteran reports very substantial social withdrawal, apparently largely driven by his anxiety…The veteran is not working but, in my opinion, that is not principally because of the psychological factors, although his mood disturbance and excessive alcohol intake do constitute a significant incapacity for work.

CONSIDERATION OF THE ISSUES

18.     The process of deciding whether the applicant's condition is related to war service was laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process.

19. The first step requires the Tribunal to consider all the material before it and determine whether the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force.. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact.

20.     Mr De Marchi submitted that the material points to a hypothesis connecting the condition of chronic bronchitis with the circumstances of the particular service rendered by the applicant, and that the hypothesis fits within the template and is reasonable.  He said that the applicant was a credible witness, whose explanation for the discrepancies in the history of cigarette consumption given by him at various times was plausible, and that there was little doubt that his consumption satisfied the requirements of the legislation.  He said that, on this basis, and taking into account the medical evidence, the relevant factor in the SoP for chronic bronchitis was satisfied, that the hypothesis was reasonable, and that the applicant satisfied the third and fourth steps of Deledio.

21.     Mr Herman referred to the inconsistencies in the accounts given by the applicant concerning the level of cigarette consumption, the date of commencement of smoking and the admission by the applicant that he had not been truthful to medical professionals or the VRB.  Mr Herman submitted that the Tribunal should prefer the documentary evidence of actual smoking and should conclude that the evidence as a whole does not point to or raise a hypothesis that fits the relevant SoP, and therefore that the condition was not war-caused.

22.     With respect to whether pension should be paid at the special rate, Mr De Marchi referred the Tribunal to the evidence of the applicant’s behaviour and attitude in his employment.  He said that the applicant’s chest condition, shortness of breath and bronchitis, together with PTSD were the major reason for the inability of the applicant to work for at least eight hours per week.  Mr De Marchi referred the Tribunal to Hendy v Repatriation Commission [2002] FCA 602 and submitted that on the evidence from Dr Parkin and Dr Walton the applicant satisfied the criteria in s24 of the Act as he had a willingness to work but was unable to do so.

23.     Mr Herman submitted that the evidence showed that one of the major reasons for the applicant’s decision to cease work for the Council in 1984 was the effect of chest surgery, which led to difficulty in breathing..  He said that the breathing difficulties experienced by the applicant might be attributable to periodic asthma attacks rather than chronic bronchitis, so that the cessation of employment and the inability to resume working were not, wholly or substantially, due to war-caused disabilities.

24.     Mr Herman also submitted that the Tribunal should take into account the medical reports which concluded, among other things, that the applicant has been diagnosed with asthma which Mr Herman stated is separate from chronic bronchitis.  He said that asthma may have an effect on the applicant's breathing, which contributed to the applicant’s inability to continue in his employment with the Council, and also to an inability to work or to find work in his previous field as a welder or in any other field.  He also referred to the applicant’s age, limited work skills, long-term unemployment and the fact that the applicant lives in a small town in rural Victoria. 

25.     In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

26.     The Tribunal has considered the steps in Deledio and finds that the applicant suffered from chronic bronchitis.  After taking into account all relevant material, the Tribunal finds that the material points to a hypothesis connecting the applicant's condition with the circumstances of the particular service rendered by the applicant. Therefore, the applicant satisfies the first step. 

27.     In respect of the second step, the Tribunal finds that SoP Nº 73 of 1997 concerning chronic bronchitis and emphysema was in force and is relevant.

28.     In respect of the third step, the Tribunal notes that factor 5(b) of the SoP requires:

Smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;

Paragraph 7 of the SoP defines pack-year as 7300 cigarettes or 1460 cigars, or 7.3kg of pipe tobacco.

29.     The Tribunal has had an opportunity to observe the applicant in the witness box.  The Tribunal takes into account his explanation that he understated his consumption of cigarettes over a long period due to embarrassment, and why he maintained the understatement before the VRB.  The Tribunal also takes into account his statement that he was not aware of the effect that understating his cigarette consumption would have on his application both before the respondent and the VRB.

30.     The Tribunal accepts the applicant’s evidence in relation to his cigarette consumption and his explanation for understating the actual consumption.  The Tribunal accepts that the applicant made a number of attempts to stop smoking, and that in fact on several occasions he did so for brief periods, particularly before medical procedures.  So that when he told a doctor: I'm a non-smoker, technically that was accurate, even though in the context of his overall smoking he was not being completely honest with the doctor. 

31.     For these reasons the Tribunal accepts the applicant’s evidence about his overall cigarette consumption and finds that he smoked at least twenty cigarettes per day, or at least ten pack-years before the clinical onset of chronic bronchitis.  Therefore, the applicant satisfies factor 5(b) of the SoP.  This means that the contention fits within, and is consistent with, the template, satisfying the third step from Deledio

32.     In the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact.  There is no material before the Tribunal which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of chronic bronchitis was war-caused.  Therefore, the Tribunal finds that the applicant's chronic bronchitis was war‑caused in accordance with the Act and, accordingly, the fourth step is satisfied.

33. In relation to the assessment of the rate of pension, the Act provides for a special rate of pension for a veteran who satisfies the criteria laid down in s24:

24(1)   This section applies to a veteran if:

(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a)either:

(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d)section 25 does not apply to the veteran.

(2)      For the purpose of paragraph (1) (c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

Section 28 of the Act provides that:

28      In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a)the vocational, trade and professional skills, qualifications and experience of the veteran;

(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;

(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).

34.     In the Tribunal’s view the applicant's written and oral evidence, concerning his difficulty breathing at the time he ceased to work with the Council, indicates that the breathing difficulties cannot necessarily be attributed predominantly to any problems caused by chest surgery.  The problem of breathing difficulties should be considered in its context.  It may well be that on previous occasions when he was asked why he left the Council he said that he had a shortness of breath.  It may also be that he said that after the operation he had a shortness of breath.  It is equally likely that the applicant had breathing problems for quite a long time and that those breathing problems were a major contributing factor to his cessation of employment.

35.     In view of the Tribunal’s finding in relation to chronic bronchitis, which has been identified in various medical reports as causing the shortness of breath, on the balance of probabilities breathing difficulties resulted from the applicant’s heavy smoking over a considerable period of time.  This was a significant factor in his inability to continue working for the Council.

36.     The Tribunal agrees that the authorities are clear that a commonsense and practical approach need to be taken to matters such as this. The Tribunal takes into account the submission by Mr Herman that the applicant's age, his medical history, the effects of asthma and the passage of time have played a major role in his cessation of employment and his inability to locate employment, rather than the war‑caused conditions.  However, given the Tribunal’s findings about the applicant's cessation of employment as being largely or to a significant degree being caused by his shortness of breath, which is a result of a combination of post traumatic stress disorder and chronic bronchitis, it follows that, despite what the Tribunal considers to be a reasonable view taken by the applicant that he desired to work at all times, he was prevented from working.

37.     The Tribunal accepts the applicant’s evidence that he was unable to find suitable work in any field in which he was fit to work, because of the incapacity that he suffered, from the effects of the post traumatic stress disorder, which prevented him from concentrating or having the sufficient energy to carry out the tasks of any paid employment, and from the effects of the chronic bronchitis caused breathlessness.

38. For these reasons, the Tribunal does not accept the submission from Mr Herman and prefers the submission from Mr De Marchi that the provisions of s24 have been satisfied on the balance of probabilities. Payment of pension at the special rate is therefore appropriate.

DECISION

39.     For the reasons given orally at the hearing, the Tribunal sets aside the decisions under review and substitutes a decision that chronic bronchitis suffered by the applicant is war-caused and that the applicant is entitled to pension at the special rate, with effect from 1 March 2001.

I certify that the thirty‑nine [39] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  4 March 2003

Date of decision:  4 March 2003
Advocate for applicant:                Mr D. De Marchi
Solicitor for applicant:                  De Marchi & Associates

Advocate for respondent:            Mr K. Herman, Department of Veterans’ Affairs