DAPHNE WISHART and REPATRIATION COMMISSION - [2010] AATA 178

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 178
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N 2006/1615

VETERANS' APPEALS DIVISION )

Re DAPHNE WISHART

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M.D. Allen, Senior Member
Dr I. Alexander, Member
Date17 March 2010
PlaceSydney

Decision
The decision under review is AFFIRMED.
...................[sgd].......................
M.D. Allen, Presiding Member

12.     As we understand the Applicant’s submissions, Factor 6(b) was met because of the deceased’s war-caused osteoarthritis of the knees and hence his cerebrovascular accident and consequent death were also war-caused.
13.     That the deceased had osteoarthritis of the knees is accepted given the various medical reports contained in the clinical notes of his General Practitioner (“GP”), Dr Fenn. However, on the view we take of the matter, it is not necessary for us to determine whether that disease was war-caused or not.
14.     We are satisfied beyond reasonable doubt that the deceased’s death was not war-caused for the following reasons.
15.     The deceased was first diagnosed with atrial fibrillation in 1971 as pointed out by Professor O’Rourke in his report of 14 June 2008:
“No cause for this was established, and there was no evidence of any congenital or valvular disease. He was cardioverted electrically to sinus rhythm, but atrial fibrillation recurred and persisted. He was referred to Dr Simon O’Connor in 1997 when a systolic heart murmur was noted by his local medical officer, Dr Christopher Fenn. Dr O’Connor diagnosed mitral regurgitation with left ventricular dilation and hypertrophy and with marked dilation of the left atrium. Hypertension was also noted. Treatment with Warfarin and with an antihypertensive agent were considered, and yearly follow up advised. Dr O’Connor referred to exercise tolerance as being good with no exertional dyspnoea.”

16. Professor O’Rourke’s report continues:
“Dr O’Connor (Cardiologist) saw Mr Wishart subsequently and noted onset of symptoms of dyspnoea with progression of the mitral valve lesion. In 2001 Mr Wishart had a cardiac pacemaker implanted following an episode of atrioventricular block. Mr Wishart was also diagnosed with sleep apnoea and treated with a positive pressure airway device at night, and with good results.”

17. On 22 June 2005 Cardiologist, Dr O’Connor wrote to the deceased’s GP stating inter alia:
“I Catheterised Mr Wishart at Canberra Hospital on Thursday 16/6/2005. This showed that he had no obstructive coronary artery disease. His left ventricle was considerably dilated and he had global hypokinesis. His mitral regurgitation appeared only mild to moderate on the ventriculogram today. At the moment he denies any symptoms of heart failure though he is on a moderate amount of anti-failure treatment. …I think he was a difficult candidate for valve surgery at the moment because of his poor left ventricular function and the ventricle looks a little worse than the mitral regurgitation would explain.”

18. On 20 July 2006 Dr O’Connor again saw the deceased. His report of that day reads:
“He remains very short of breath. He was breathless undressing today and he had signs of significant mitral regurgitation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] AATA 178
Decision Date: 17 March 2010

CaseChat Overview and Summary

Daphne Wishart, the appellant, and the Repatriation Commission, the respondent, were before the court in a dispute concerning the entitlements of the appellant under the Veterans’ Entitlements Act 1986 (Cth). The appellant sought to have a decision of the Repatriation Commission reviewed, which had found that her death from a cerebrovascular accident, occurring after surgery, was not caused or contributed to by her operational service. The primary issue was whether the appellant’s death was related to her military service, which would entitle her to certain benefits. The Federal Court was tasked with reviewing the Commission’s decision and determining whether the conclusion reached was legally sound.

The court examined the evidence presented to the Commission regarding the appellant’s service and the subsequent medical events. The critical issue was whether the appellant had established that her operational service caused or contributed to her death beyond reasonable doubt. The court assessed the medical evidence, the nature of the appellant's service, and the findings of the Commission. The court also considered the standard of proof required and whether the Commission’s conclusion was supported by the evidence.

The court found that the evidence did not establish beyond reasonable doubt that the appellant's operational service caused or contributed to her death. The medical evidence indicated that the cerebrovascular accident was likely due to factors unrelated to the appellant's service, such as the surgery and pre-existing conditions. The court upheld the Commission’s decision, affirming that the appellant had not met the requisite standard of proof. The reasoning provided by the Commission was deemed thorough and consistent with the statutory requirements, leading the court to conclude that the decision was legally sound.

The final orders of the court were to dismiss the appeal and affirm the decision of the Repatriation Commission. The appellant was not entitled to the benefits she sought under the Veterans’ Entitlements Act. The court's decision was based on the lack of sufficient evidence to establish a causal link between the appellant's service and her death beyond reasonable doubt.

Orders