ESTATE OF JOAN JOHNS And REPATRIATION COMMISSION

[2011] AATA 511

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 511

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2009/3283

VETERANS’ APPEALS DIVISION		)
Re		ESTATE OF JOAN JOHNS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr D Letcher QC, Senior Member

Dr M E C Thorpe, Member

Date25 July 2011

PlaceSydney

Decision The decision under review is affirmed.

....................[sgd]...................

Mr D Letcher QC
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – widows’ pension – whether death related to service – eligible service - myelodysplastic disorder – leukaemia – exposure to benzene – decision under review affirmed.

Veterans’ Entitlement Act 1986 s 196B

Instrument No. 37 of 2006 Statement of Principles concerning Myelodysplastic Disorder

REASONS FOR DECISION

25 July 2011

Mr D Letcher QC, Senior Member

Dr M E C Thorpe, Member

1.      Bruce Johns died on 20 March 1995 aged 76 years from bleeding of a duodenal ulcer.  His widow made a claim for a pension under the Veterans’ Entitlement Act 1986 in 2008.  That claim was refused, the Veterans’ Review Board affirmed that decision in 2009 and the legal personal representative of Mrs Johns’ estate sought review from this Tribunal.

2.      It is claimed that Mr Johns’ death was caused or contributed to by cutaneous contact with benzene on at least 300 days within a continuous period of two years, being between 30 December 1944 and 15 January 1946 when he was on “operational service” with the Australian Army in New Guinea.  He later suffered myelodysplastic disorder, namely leukaemia, was prescribed Prednisone, a corticosteroid known to induce duodenal ulcer, and died from blood loss as a result of the ulcer.

3.      Instrument No. 37 of 2006 Statement of Principles concerning Myelodysplastic Disorder (SoP) requires at least one of the stated factors to be related to the military service rendered and it was agreed by the parties that the only relevant factor was factor 6(f), namely:

being exposed to benzene on at least 300 days within a continuous two year period before the clinical onset of myelodysplastic disorder, where the first exposure occurred at least five years before the clinical onset of myelodysplastic disorder

4.      Section 9 of the SoP defines “being exposed to benzene” as including:

having cutaneous contact with liquids containing Benzene.

5.      Mr Johns saw operational service in New Guinea between 30 December 1944 and 15 January 1946.  The parties agreed that petrol contained benzene.

6.      The real question at issue was whether there was material pointing to each and every ingredient of factor 6(f).

7.      Mr Johns was posted as a private to 4AAOD (Australian Advanced Ordinance Depot) in Lae, New Guinea, during the period specified.  His fitness classification was “B2 (Constitutional-Physique)”.

8.      The evidence concerning Mr Johns’ service was derived from:

(a)Evidence of retired Colonel HM Pickering, then a Captain in 16AAOD stationed at Torokina, Bougainville, an island east of the New Guinea mainland;

(b)Evidence of Mr Brendan O’Keefe, a historian, referring to the 4AAOD War Diary, photographs, records or medical and re-classification examinations and other Army records; and

(c)Australian Military Forces records.

9.      When Mr Johns was in Lae the war front was hundreds of kilometres to the west and there were no Japanese forces in the vicinity of Lae.  By September 1944 General McArthur’s command post was in Hollandia (now in Irian Jaya).  Lae had been an established Australian base since it was taken from the Japanese in September 1943.  By contrast, only the Australian Army was in combat with the 20,000 strong remnant Japanese forces, cut off by the Allies’ “island-hopping” advance.  Colonel Pickering’s unit was supplying three AIF elements in close contact with the enemy on three fronts on Bougainville Island.

10.     Colonel Pickering had no direct knowledge of conditions in Lae, but believed that all AAOD units had “similar manning and equipment”.  This general knowledge and belief was qualified by Mr O’Keefe’s careful examination of the day to day documentary record.

11.     Colonel Pickering believed that every soldier could be directed to carry out every task, that if a man was overseas then he would be regarded as fit for every task and that petrol was used for burning latrine waste, firing cooking stoves, fuelling trucks and de-waxing weapons and engine parts.

12.     He recalled that “manpower was genuinely limited and storemen would be expected to perform other tasks” such as refuelling vehicles with hand-operated petrol pumps, de-waxing items, firing latrines and these activities would result in the “automatic exposure of all to petrol liquid and fumes on a daily basis”.

13.     This may well have been true under combat conditions on Bougaineville and Colonel Pickering was a truthful and careful witness as to events he observed.  However, at the well-established Lae base, the records of the unit disclose that with the war drawing to its close, and the enemy far distant, the conditions of service were quite different.

14.     Mr O’Keefe drew from Mr Johns’ classification as “B2 (Constit [P])” that in a substantial non-combat base like Lae at the end of the war that Mr Johns’ activities would be restricted to lighter duties in keeping with “B2”.  He believed from the unit diary that the tasks allotted to Mr Johns would be clerical in nature.

15.     In 1944 the official ‘Instructions to Army Medical Officers’ defined B2 as:

Medically fit, but by reason of disabilities of a permanent nature, employable only on certain duties requiring restricted medical fitness, or not employable in certain climates.

16.     Mr Johns had flat feet which might or might not have justified his fitness classification of itself.  The situation is not clear.  The war diary of Mr Johns’ unit discloses that the cooking stoves were not petrol fired, storemen were unlikely to be doing driver’s work of refuelling or repairing vehicles and the unit was applying, rather than removing, wax on items.

17.     From the records it also appeared that Mr Johns’ unit had a surplus of stores and driver’s mechanics staff making it unlikely that a B2 Storeman would be involved in the direct contact with petrol of which Colonel Pickering spoke.

18.     The ingredients of factor 6(f) included exposure to benzene “on at least 300 days within a continuous two year period” and the claim was that the exposure was “having cutaneous contact with liquids containing benzene”.

19.     Even taking account of the fact that the events in question occurred 65 years ago and direct eye witness accounts would not be expected, the material adduced did not support the following ingredients of factor 6(f):

(a)Exposure to benzene for at least 300 days:  Mr Johns was in New Guinea for only about 381 days.  Colonel Pickering had not seen the conditions in Lae and the documentary material did not support any suggestion of exposure almost daily;

(b)Cutaneous contact (ie skin contact with liquid rather than inhalation of fumes):  there was no documentary evidence of de-waxing using petrol (in fact, the contrary according to Mr O’Keefe whose research and evidence we accept).  The evidence was of application of “tropic proofing” material.  This made sense given that Lae was nowhere near the battle field, war stocks were being “mothballed” with hostilities coming to an end and substantial quantities of stores were being received for storage.

20.     Inferences may be drawn from surrounding facts without there being direct proof, but in this matter we find that the inferences properly drawn are that there was no frequent close or regular contact, cutaneous or otherwise, of Mr Johns with liquids containing benzene.  The material points in a contrary direction and we find that factor 6(f) is not supported on the material before the Tribunal.

21.     Accordingly, the decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher QC, Senior Member and Dr M E C Thorpe, Member.

Signed: ...[sgd]...........................................................................
           C. Taylor, Associate

Date/s of Hearing  9 February and 20 April 2011
Date of Decision  25 July 2011
Counsel for the Applicant              Mr John Dodd
Solicitor for the Applicant               Mr Andrew Kemp
Appearance for the Respondent    Mr Nigel Bunn