Cowan and Repatriation Commission
[2007] AATA 1928
•6 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1928
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/313
| VETERANS' APPEALS DIVISION | ) | ||
| Re | MONA COWAN | ||
Applicant
| And | REPATRIATION COMMISSION |
Respondent
DECISION
| Tribunal | Dr EK Christie, Member |
Date6 November 2007
PlaceBrisbane
| Decision | The decision under review is set aside. In substitution, a decision is made that streptococcal pneumonia is a “service-related” disability and that the circumstances of death were war-caused. Mrs Cowan is entitled to receive a war widow’s pension with date of affect from 15 July 2004. ………[Sgd..………… |
CATCHWORDS
VETERANS' AFFAIRS – benefits and entitlements - war widow's pension - diagnosis of chronic obstructive pulmonary disease - accepted body of medical knowledge - reasonable hypothesis – Deledio principles - war-caused death
Veterans’ Entitlements Act 1986 ss 120(1), 120(3)
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
East v Repatriation Commission (1987) 74 ALR 518
Horne v Repatriation Commission (1996) 24 AAR 127
Critch v Repatriation Commission (1996) 43 ALD 574
Stares v Repatriation Commission (1996) 66 FCR 594
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Whetton (1991) 24 ALD 690
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Jackman v Repatriation Commission [1997] FCA 564
Parat v Repatriation Commission [2000] AATA709
Robertson v Repatriation Commission (1999) 50 ALD 668
Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION
| November 2007 | Dr EK Christie, Member |
This is an application by Mona Cowan to review a decision of the Veterans’ Review Board (“the VRB”) made on 11 April 2006. The VRB decided that the death of her late husband, William Cowan, was not war-caused.
In reaching its decision, the VRB concluded, on the evidence before it, that:
“The Board carefully examined all of the material before it and is reasonably satisfied that the veteran died from streptococcal pneumonia, secondary to his dementia. He suffered from asthma which, according to Dr Hickey, “would have played only a small role in his death.” Nevertheless, for the claim for a war widows’ pension to succeed the asthma must be causally related to service.”
At the hearing, Mona Cowan was represented by Mr A Harding of Counsel instructed by Terence O’Connor, Lawyers. The Repatriation Commission was represented by Mr M smith, a Departmental Advocate.
At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
The general facts were not in dispute and may be stated briefly. The late veteran rendered eligible war service (operational service) in the Australian Army in the South-West Pacific from 26 August 1943 to 30 October 1946.
Mr Cowan passed away on 17 November 2004. The cause of death, as certified on the Death Certificate, was Pneumonia (streptococcal) (T4, Folio 18).
The late veteran’s accepted and rejected disabilities were:
a. Service-Related Disabilities: Nil
b. Non-Service-Related Disabilities: Death
Issues To Be Decided
The primary issue for the Tribunal to decide was whether the late Mr Cowan’s death, was caused as a direct result of operational service.
Mona Cowan (the late veteran’s widow and applicant) gave evidence at the hearing. Dr Maurice Heiner and Dr Barry Hickey, both thoracic physicians, gave expert medical evidence on behalf of the applicant and respondent respectively.
At the end of the hearing and with the consent of the parties, the Tribunal issued a Direction for the parties to provide further medical information as to the accepted body of knowledge for the diagnosis of chronic obstructive pulmonary disease.
Statutory Requirements and Case Law
Section 120(1) of the Veterans’ Entitlement Act 1986 (“the Act”) provides that, where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran:
“the Commission shall determine … that the injury, disease or death of the veteran was war caused …unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
Section 120(3) of the Act provides that in applying subsection (1):
“the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining … that the injury, disease or death was war-caused …if the Commission, after consideration of the whole of the material before it des not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person.”
Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four stages as follows:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) 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 that person 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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” (Emphasis added).
In Repatriation Commission v Hancock [2003] FCA 711, Selway J identified a further problem involving necessarily at least two extra steps before step one of the “Deledio methodology”:
“The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation, on balance of probabilities. In this case those pre-conditions were that [the applicant’s spouse] was a veteran, that the respondent was his widow and that [the veteran] had died. Secondly, in order to ascertain whether a SoP applies it is necessary to identify the ‘kind of injury' or the ‘kind of death' suffered by the veteran: see s 120A(2) and (4) of the Act. With most injuries and probably even most diseases this will usually be obvious enough (which is probably why the step was not mentioned in Deledio). But in cases such as the present, the identification of the ‘kind of death' is the critical step in the analysis. In determining the ‘kind of death', proof is on balance of probabilities.”
The evidence before the Tribunal indicates that this issue is a problem for the application for review and so justifying the additional step to Deledio. The evidence required was the subject of the Tribunal’s Direction at the hearing.
In relation to the standard of proof in this regard, in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, the Court held:
“The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4) and not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war caused. All other matters were to be dealt with the reasonable satisfaction standard in s 120 (4)” [Emphasis added].
where the requirements for proof in accordance with the standard in subsection 120(4), as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564, were:
“The AAT had to determine, to its reasonable satisfaction… Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’.
A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
The plain meaning of “hypothesis” was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
“A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption.”
In Horne v Repatriation Commission(1996) 24 AAR 127, Hill J decided that assumptions were permissible and that facts may be inferred. Support for this proposition was to be found by the decisions of Critch v Repatriation Commission(1996) 43 ALD 574 at 579 and 583 and Stares v Repatriation Commission (1996) 66 FCR 594.
In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-570, Mason CJ, Gaudron and McHugh JJ said:
“An assumed fact cannot arise in the abstract. Obviously it is a fact that is reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis. Using these criteria ensures that the assumed fact is ‘raised’ by the material and can be relied upon as a relevant matter and therefore a ‘raised fact’ in forming an opinion as to the reasonableness of the hypothesis.”
Furthermore, their Honours stated:
“The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.”
In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”
In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is:
“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”
and:
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (‘the raised facts’) which supports the hypothesis and if the hypothesis can be regarded as reasonable if the facts are true.”
Furthermore, the High Court in Bushell said (at 415):
“As we have pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its function’s under s. 120(3) the Commission cannot have regard to the medical or scientific materials which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.”
In Connors v Repatriation Commission[2000] FCA 783 at para. 14, Kenny J rejected a submission made by Counsel that “no individual part or parts of the hypothesis need be supported by facts raised in or by evidence”.
As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, said:
“The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
Earlier, in Repatriation Commission v Whetton (1991) 24 ALD 690, the Full Federal Court held:
“(vi) The legal principle that the Tribunal had the ultimate question of deciding the standing of the hypothesis raised and should not be deflected from that task by the opinion of experts did not mean that the Tribunal was excused from understanding and making findings upon expert evidence relevant to the question it had to decide. It meant rather that the Tribunal must not abdicate its own function.
(vi) … the correct approach (s 120) was that a finding must be made in favour of an applicant unless the applicant’s case could be rejected beyond reasonable doubt or that the material before the Tribunal did not raise a reasonable hypothesis as required under the statute.” [emphasis added]
Consideration and Findings of Fact
There is divergent medical opinion as to the nature of the late veteran’s medical condition between Dr Heiner and Dr Hickey.
Consequently, an additional step is required before the “Deledio methodology” can be applied in order to identify the “kind of injury” or “kind of death” suffered by the veteran : Repatriation Commission v Hancock [2003] FCA 711.
In Deledio v Repatriation Commission (1997) 47 ALD 261 Heerey FCJ made the following observations on expert medical evidence in relation to sections 120 and 120A of the Act:
“The concept of “sound medical-scientific evidence” introduced by the 1994 amendments is a standard not unlike the Frye test [Frye v United States 293 F 1013 ‘expert opinion evidence needed to conform to methods and principles which had received widespread acceptance in a particular field of knowledge’]. In this respect at least, the Parliament has accepted the Baume Committee’s criticism of “doctor shopping”.
The divergent expert medical opinion relates to the nature of the disease that could be categorized as chronic obstructive pulmonary disease (“COPD”).
The medical opinion diverged in terms of Dr Hickey’s diagnosis that chronic bronchitis was the only component of the airflow obstruction suffered by the late veteran. In contrast, Dr Heiner’s diagnosis was that emphysema was a component of the airflow obstruction, in addition to chronic bronchitis.
Both Dr Heiner and Dr Hickey acknowledged that asthma was also an additional component.
In response to the Tribunal Direction as to the accepted body of thoracic medical knowledge on COPD, Dr Heiner filed a document from the medical on-line series “Up To Date” (Vol 15.1, 18 January 2006). Dr Hickey acknowledged this world-wide reference source was an accepted body of knowledge on COPD. This document draws on a report prepared by a panel of medical experts: The Global Initiative for Chronic Obstructive Lung Disease (“The GOLD Report”).
The following materials have been extracted from the GOLD Report as they are relevant considerations to evaluate the conflicting medical evidence:
(i)COPD is defined as :
“A disease state characterized by airflow limitation that is not fully reversible. Airflow limitation is usually both progressive and associated with an abnormal inflammatory response of the lungs to noxious particles or gases.”
Airflow obstruction is the result of both small airway disease (obstructive bronchiolitis) and parenchymal destruction (emphysema). The relative contributions of each vary from person to person, and can be accompanied by partially reversible airways hyperreactivity.
Earlier definitions have also focused on the terms emphysema, chronic bronchitis, and asthma, which are not included in the definition provided above.
Chronic bronchitis is a clinical diagnosis defined by the presence of chronic productive cough for three months in each of two successive years in a patient in whom other causes of chronic cough have been excluded.
Emphysema is a pathological term describing the abnormal permanent enlargement of airspaces distal to the terminal bronchioles, accompanied by destruction of their walls without obvious fibrosis; there is no fibrosis visible to the naked eye. Emphysema is frequently present in patients with moderate and severe COPD.
Asthma is defined as an inflammatory disease of the airways characterized by an increased responsiveness of the trachea and bronchi to various stimuli, and manifested by a widespread narrowing of the airways that changes in severity either spontaneously or as a result of therapy.
(ii)There is an interrelationship and overlap between the diseases that result in COPD and airflow obstruction – chronic bronchitis, emphysema and asthma;
(iii)Chronic bronchitis and emphysema with airflow obstruction usually occur together. Some patients may have asthma associated with these two disorders;
(iv)It is virtually impossible, in many cases, to differentiate patients with asthma whose airflow obstruction does not remit completely from patients with COPD who have partially reversible airflow obstruction and airway hyperactivity.
(v)Patients with COPD have usually been smoking at least 20 cigarettes per day for 20 or more years before symptoms develop. Chronic productive cough, sometimes with wheezing, often begins when patients are in their forties – although the patients are frequently less aware of these symptoms than the persons they live with. In its Recommendations the GOLD Report states that cigarette smoking is by far the largest preventable risk factor of COPD and smoking cessation counselling is a critical aspect of disease management;
(vi)An acute chest illness, generally when the patients are in their forties, may prompt a visit to the doctor. Sputum productive is insidious, initially occurring only in the morning;
(vii)Acute chest illnesses may occur intermittently and are characterized by increased cough, purulent sputum, wheezing, laboured breathing and occasionally fever. The symptoms of laboured breathing and wheezing may lead to an erroneous diagnosis of asthma;
(viii)Pulmonary function measurements are necessary for diagnosing and assessing the severity of airflow obstruction. The FEV1 (the volume of air expired in one second), is easily measured and is a measure of airflow obstruction. This is compared to the FVC, the forced vital capacity (the total amount of air blown out of the lungs);
(ix)The ratio of FEV1/FVC is a measure of airway obstruction. In the mildest degree of airflow obstruction, the FEV1/FVC ratio falls to below 0.70 and the FEV1 predicted is normal.
(x)The FEV1 and the FEV1/FVC ratio fall progressively as the severity of COPD increases; and
(xi)No tests of airflow obstruction can distinguish between chronic bronchitis and emphysema (Tribunal emphasis).
The divergent opinion of Dr Heiner and Dr Hickey is considered against this accepted body of medical knowledge on COPD contained in the GOLD Report. It is a relevant consideration that the GOLD Report states that chronic bronchitis and emphysema usually occur together with airflow obstruction.
The medical reports/clinical notes of Dr A Finnimore (1995) and Dr V Tran (2002-2003) predate the GOLD Report and so cannot be rigorously considered in the context of the accepted body of knowledge for COPD in 2006.
The GOLD Report recognizes a ratio of FEV1/FVC of 0.70 with the predicted FEV1 as normal, as the mildest degree of COPD. This, in fact, is the situation for the limited spirometry undertaken for the late veteran on 31 May 1995 of 0.71 (Exhibit R2) and another test in May 1995 of 0.69 (Exhibit R4).
Dr Hickey’s opinion is that he does not agree that an FEV1/FVC ratio of less than 0.7 indicates COPD. In contrast, Dr Heiner relies on the GOLD Report and accepts this ratio as indicating chronic bronchitis and emphysema causing COPD and airflow obstruction.
I prefer Dr Heiner’s opinion, in this regard, as it is consistent with the accepted body of medical knowledge on COPD.
Furthermore, I accept Dr Heiner’s opinion as to the deterioration in the ratio to 0.55 in November 1995 (Exhibit R2) in which he identifies areas of scientific uncertainty in the assessment :
“Well, all I can really say about that is that over the… five month period he’s really deteriorated. What we don’t know is whether or not he’s deteriorated because he’s got concomitant cold or a concomitant flu, or whatever or not he’s been deteriorating slowly but surely or, indeed whether or not he’s reached a stage where his lung function has decreased quite significantly. And so all I can say is that he’s deteriorated, you know, to a very – by a very marked degree, and that’s why he’s so symptomatic.”
However, the GOLD Report states that no test for airflow obstruction can distinguish between chronic bronchitis and emphysema. Accordingly, I have considered the reasoning upon which Dr Heiner and Dr Hickey have concluded as to their diagnosis of chronic bronchitis and emphysema and chronic bronchitis, respectively.
In this regard, I prefer the opinion of Dr Heiner to Dr Hickey for the following reasons:
(a)The GOLD Report recognizes COPD as “a disease state characterized by airflow limitation that is not fully reversible.” Dr Heiner’s opinion is that somebody who has been a smoker has an element of COPD in which you expect to see some reversibility depending on the ratio of their emphysema to chronic bronchitis to asthma. But the reversibility is only of the order of 7-8%.
(b)The GOLD Report refers to COPD in which acute chest illness may occur intermittently and is characterized by increasing cough, purulent sputum, wheezing are laboured breathing as well as an acute chest illness (double pneumonia). Mona Cowan’s oral evidence indicated these symptoms as being present in the late veteran when he was aged in his forties [see also para 35 (vi, vii): the GOLD Report]. In this regard, Dr Heiner stated:
“I have read a record from his wife and a statement from his wife whereby this man used to cough up mucus two or three times a week, and people who have usually have got well-controlled asthma do not cough up mucus two or three times per week.”
(c)In addition, when referred to pathological studies undertaken on the late veteran in November 1995 (Exhibit R4), Dr Heiner interpreted changes, over time, for CO2 and O2 and concluded : that the studies pointed to the fact that the late veteran was a “CO2 retainer” and asthmatics are usually not “CO2 retainers”; and
(d)Dr Heiner’s opinion, under cross-examination, was that the late veteran “has got an element of smoking – induced lung disease which is influencing his whole clinical picture.” In terms of cessation of smoking, and COPD impacts on subsequent health status, Dr Heiner stated:
“… the fact is that any text book of medicine will tell you that people that have had a significant pack-year history of smoking, even if they have surgery 20 years later, or 25 years later, they always have a higher complication of pneumonia and lung problems in the post-operative period, because the basis of their lungs, where the bulk of the lung is, they do not clear the mucous. They produce increased amounts of mucous, and the moment their activities are stopped, they are at increased risk of developing complications because of their past history of cigarette smoking,”
and
“One of the hallmarks, by the way, of chronic airways disease, even when people have stopped smoking, but when they’ve got significant chronic airways disease, is that every winter they get a cold, and they get bronchitis, which is associated with a prolonged infectious episode.”
(e)It is significant that the extent of a smoking habit that lends to COPD is subject to a qualification in the GOLD report – rather than being defined in absolute values (see para 35(v)).
Accordingly, based on all of the above findings I am reasonable satisfied that the kind of disease the late veteran suffered from was COPD – a disease state in which emphysema and chronic bronchitis overlapped resulting in airflow obstruction. This finding is consistent with the GOLD Report that chronic bronchitis and emphysema usually occur together resulting in airflow obstruction and that asthma may be associated with emphysema and chronic bronchitis.
I am also reasonably satisfied that:
(i)the two diseases, emphysema and chronic bronchitis resulted in the production of increased amounts of mucus in the late veteran leading to lung infection complications; and
(ii)the terminal disease of the late veteran of streptococcal pneumonia was caused by the two diseases emphysema and chronic bronchitis.
I have adopted the four stages in Repatriation Commission v Deledio to consider whether the late Mr Cowan’s death by streptococcal pneumonia was a “service related disability”.
Whether The Material Before The Tribunal Points To A Hypothesis That Connects The Disease With The Circumstances Of Service
The following hypothesis was advanced by the applicant: The late veteran developed a war-caused smoking habit that caused him to develop chronic bronchitis and emphysema. The chronic bronchitis and emphysema was a contributing cause of the pneumonia (streptococcus) that resulted in his death so that it increased the risk of him developing a pulmonary infection from streptococcal pneumonia.
Applying the principles in East, Stares, Horne and Byrnes, I conclude that the essential elements of the hypothesis are pointed to by the material before me and raises an hypothesis connecting the death of Mr Cowan with the circumstances of service. I recognise the hypothesis to be “a supposition made as a starting point for further investigation from known facts and no more than a conjectural explanation of an ultimate fact”.
Whether A SoP Is In Force
A Statement of Principles concerning “Chronic Bronchitis and Emphysema” (Instrument No. 30 of 2004) has been determined by the authority under s 196 of the VE Act.
The hypothesis advanced by the applicant relies on the following factor to relate the death of Mr Cowan to war service : -
“Smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products before the clinical onset of chronic bronchitis and/or emphysema” : Factor 5(a).
In terms of the Statement of Principles requirement of “five pack years of cigarettes”, Mr Smith, in his final submissions, acknowledged that the late veteran satisfied this amount. Consequently, this aspect of Factor 5(a) of the SoP was not in dispute.
Whether The Hypothesis Raised Is A Reasonable One
I conclude that the hypothesis advanced is reasonable as there is factual evidence pointing to the smoking habit acquired by the late veteran that can be connected to his war service and; that emphysema and chronic bronchitis resulted from his smoking habit and became a contributing cause of his death from streptococcal pneumonia. Accordingly, the hypothesis advanced by the applicant connecting war service to his subsequent death is (i) neither fanciful or untenable or (ii) contrary to known scientific factors, specifically the accepted body of knowledge for COPD.
Whether The Factual Evidence Before The Tribunal Discharges The Legal Standard Of Proof
I have carefully considered all of the evidence and information and turn to s 120(1) of the VE Act to decide, whether or not, there are sufficient facts to disprove the hypothesis beyond reasonable doubt.
It is not in dispute that the late Mr Cowan smoked at least five pack years of cigarettes prior to his death.
In terms of the clinical onset of emphysema and chronic bronchitis, these diseases can be said to be present when a finding is made, on investigation, which indicates to a doctor that the disease is present at that time: Re Robertson v Repatriation Commission (1999) 50 ALD 668.
Based on:
(i)the GOLD Report and spirometry investigations in 1995;
(ii)Dr Heiner’s evaluation of the facts from these investigations;
(iii)in the context of Mrs Cowan’s evidence of ongoing symptoms in her late husband over time;
(iv)the clinical onset of emphysema and chronic bronchitis was May 1995.
I have made a finding that the late veteran suffered from COPD in which emphysema and chronic bronchitis overlapped. In addition, that these two diseases led to lung infection complications in the late veteran resulting in his death from streptococcal pneumonia.
However, for Factor 5(a) of the SoP to be satisfied, there is also a need to consider whether there is a connection between emphysema and chronic bronchitis and operational service.
Because the VE Act is beneficial legislation, there is a requirement for reasonable certainty that a link does not exist before a claim can be rejected: Re Parat v Repatriation Commission [2000] AATA 709, at paragraph 59.
In discussing the statutory framework with respect to SoPs and raising a “reasonable hypothesis” connecting a disease with the circumstances of service, Emmet J in Kattenberg v Repatriation Commission [2002] FCA 412 stated that the relevant factor in the SoP will be related to the veteran’s service if there is shown to be a causal or contributory relationship between the specified factor in the SoP – in this case the late veteran’s smoking habit, and service – “or if the factor would not have occurred but for the rendering of that service.”
Mrs Cowan’s evidence, in this regard, is particularly relevant :
(a) She met her husband a few years after the war. They were married in 1948;
(b) Her husband told her that he did not smoke before the war. He commenced smoking during operational service (see also T4 Folio 8).
(c) Throughout their marriage her husband smoked daily. She did not regard him as a heavy smoker. He continued smoking even though he had lung problems; and
(d) Her husband continued smoking until he was aged in his late 60’s (around the mid 1980’s). He had acted on counselling advice from his Doctor to give up smoking.
It follows, therefore, that the late Mr Cowan commenced smoking during operational service and continued smoking after operational service, before giving up in the mid-1980’s, on medical advice. The clinical onset of emphysema and chronic bronchitis was 1995. It is not in dispute that the SoP requirement of 5 pack years of cigarettes before the clinical onset of both these diseases was satisfied.
Each case must be considered on its merits. In this particular application, for all of the above reasons, I find that the evidence before me proves, at the requisite standard of proof for the purposes of ss 120(1) of the VE Act, that the late Mr Cowan’s death from streptococcal pneumonia was preceded by emphysema and chronic bronchitis that resulted in lung infection complications. In turn, these latter two diseases were causally connected to a smoking habit that commenced during operational service – and continued on in the post-war period up to around 10 years before the clinical onset of emphysema and chronic bronchitis and COPD in 1995. Moreover, the diseases of emphysema and chronic bronchitis which led to airway obstruction and COPD would not have occurred, but for the late Mr Cowan reading operational service are commencing a smoking habit: Re Paints case.
Accordingly, there is a connection between the late Mr Cowan’s death from streptococcal pneumonia and his operational services.
There is no evidence before me that one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt: Byrnes v Repatriation Commission.
Therefore for all of the above reasons, I conclude that the late Mr Cowan’s streptococcal pneumonia was a “service-related disability”
Decision
The decision under review is set aside. In substitution, a decision is made that streptococcal pneumonia was a “service-related” disability and that the circumstances of death were war-caused. Mrs Cowan is entitled to receive a war widow’s pension with date of affect from 15 July 2004.
I certify that the preceding 67 paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member.
Signed:
V. Limu, Personal Assistant
Date of Hearing 3 May 2007, 27 June 2007
Date of Decision 6 November 2007
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Terence O'Connor
Respondent Mr M Smith, Departmental Advocate
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