Downey and Repatriation Commission

[2011] AATA 326

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4954

VETERANS' APPEALS DIVISION		)
Re		MARGARET DOWNEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr Hadia Haikal-Mukhtar

Date17 May 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.

……….......[sgd]..............................
  Ms N Bell, Presiding Member  

CATCHWORDS – veterans’ entitlements – war widow’s pension – cause of death - non-operational service - cardiomyopathy - alcohol abuse and alcohol dependence  - relevant statement of principle - balance of probabilities

Veterans’ Entitlements Act 1986

McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr Hadia Haikal-Mukhtar   

1.Margaret Downey is the widow of Kevin Downey who served in the Australian Army during World War II from 26 October 1942 to 24 July 1946. He served wholly within Australia. His service was eligible war service within the meaning of the Veterans’ Entitlements Act 1986.

2.Mrs Downey has claimed a war-widow’s pension and seeks to establish that her late husband’s death was war caused.

3.There is agreement between the parties on the following:

(a)Mr Downey died on 15 April 1970 at the age of 50 years. The death certificate recorded a) myocardial infarction and b) alcohol myopathy. (which we understand to be alcohol cardiomyopathy).

(b)

Statement of Principles No. 24 of 2007 concerning cardiomyopathy applies to the kind of death suffered by Mr Downey. We note that

Mrs Downey relies on factor 6(a) of this SoP:

(a)       for males only, drinking at least 300 kilograms of alcohol within any ten year period before the clinical onset of cardiomyopathy;

(c)Mr Downey’s consumption of alcohol constituted alcohol abuse from 1948 until his death and alcohol dependence from the 1950s until his death.

(d)

The date of clinical onset of cardiomyopathy is unknown, but

Mr Downey was more likely than not to have consumed the quantity of alcohol required by factor 6(a) in SoP 24 of 2007 concerning cardiomyopathy before clinical onset.

(e)No factor in clause 6 of SoP 2 of 2009 concerning alcohol abuse and alcohol dependence is satisfied.

4.We accept the parties’ agreed facts and we concur with the parties’ agreed conclusions on the operation of the law.

5.Mrs Downey contends that the veteran’s death conforms with factor 6(a) of the cardiomyopathy SoP in that he consumed the amount of alcohol specified in that factor and that his alcohol consumption at that level was related to his service. She does not seek to rely on a diagnosis of alcohol abuse or alcohol dependence, but rather on the level of Mr Downey’s alcohol consumption. In this way, she contends, there is no need for a factor in the alcohol abuse and alcohol dependence SoP to be satisfied.

issues

6.The issues that remain for the Tribunal to consider are whether the failure to satisfy any factor in the alcohol abuse and alcohol dependence SoP renders the claim unsuccessful and, if not, whether Mr Downey’s…