Fay Collins and Repatriation Commission
[2014] AATA 787
•24 October 2014
[2014] AATA 787
Division VETERANS’ APPEALS DIVISION File Number(s)
2012/3658
Re
Fay Collins
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr D Letcher QC, Senior Member
Date 24 October 2014 Place Sydney The decision under review is affirmed.
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Mr D Letcher QC, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – pension – operational service – claim that the veteran’s death was war-caused – consideration of Statement of Principles – the Tribunal affirms the decision under review
LEGISLATION
Veterans Entitlement Act 1986 ss 7(1)(a), 8, 13(1), 120A, 120B
Statement of Principles Concerning Anxiety Disorder (Instrument No 102 of 2007)
CASES
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
Mr D Letcher QC, Senior Member
24 October 2014
The Applicant, Mrs Faye Collins, is the widow of the veteran, Mr Vincent Collins. On 5 November 2010 Mrs Collins made a claim for pension in respect of the death of her late husband. On 28 February 2011, a delegate of the Repatriation Commission determined that Mr Collin’s death was not war-caused and refused Mrs Collin’s claim. On 16 July 2012 the Veteran’s Review Board affirmed the decision of the delegate. The Applicant now seeks review of this decision with this Tribunal.
Mr Collins was born on 23 June 1917 and passed away on 25 August 2010 aged 93 years. He served as a medical orderly in the Field Ambulance of the Australian Army from 28 May 1942 to 28 July 1945, including service overseas at Merauke, Dutch New Guinea from 1 June 1943 to 29 February 1944. His whole army service period is classified as “operational war service”, and thus eligible service, for the purposes of this application: s 7(1)(a) of the Veterans Entitlement Act 1986 (“the Act”).
The Applicant claims that Mr Collins met his “kind of death” following a chain of conditions satisfying the Statements of Principles. Those conditions are generalised anxiety disorder leading to hypertension then cardiovascular accident then vascular dementia.
LEGISLATION
Section 8 of the Act provides for when an injury or disease is taken to be war-caused:
War-caused death
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran‘s environment consequent upon his or her having rendered eligible war service
...
Section 13(1) provides, in effect, that where the death of a veteran was war-caused, the Commonwealth is liable to pay a pension by way of compensation to a dependent, which includes a widow.
As Mr Collins had operational service the determination of whether his death was war-caused requires a finding that his death was war‑caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that finding. I must be so satisfied if I am of the opinion that the material before me does not raise a reasonable hypothesis to connect the veteran’s death with his service.
ISSUES
The issues to be determined in this matter are:
(a)The “kind of death” suffered by Mr Collins, within the meaning of ss 120A and 120B of the Act; and
(b)Whether Mr Collins’ death was connected to his operational war service.
The Respondent concedes that the kind of death in this matter includes cerebrovascular accident and/or vascular dementia and no issue arises between the parties on this. The only issue in dispute is the first link in the chain claimed by the Applicant to have led to the kind of death suffered by Mr Collins, being the claimed generalised anxiety disorder, its clinical onset and its relationship to service.
DISCUSSION
The Applicant submits that the first link in the chain is Mr Collin’s generalised anxiety disorder. The Statement of Principles Concerning Anxiety Disorder (Instrument No 102 of 2007 as amended by No 15 of 2011) requires, as a minimum before it can be said a reasonable hypothesis exists connecting generalised anxiety disorder with the circumstances of relevant service, one of a number of factors to be established. Those which are relevant to this particular matter are Factor 6(a)(ii) and 6(a)(iii), which essentially require Mr Collins to have experienced a category 1A or alternatively a category 1B stressor within the five years before the clinical onset of his anxiety disorder.
The Statement of Principles defines a category 1A stressor as meaning one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured.
The Statement of Principles defines a category 1B stressor as meaning one the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties.
Mr Collins’ unit records show no evidence of actual combat or frontline stationing. There is a record of just one bombing raid on Merauke during the period when Mr Collins was stationed there on 9 September 1943. He told his wife some time in the 1950’s that Japanese bombers had bombed Merauke “every day at noon”. He said that he recalled the rattling of the marsden matting on the US airbase next to his hospital as the US fighters took off just before noon to avoid being hit on the ground. There is no objective evidence that this occurred. The record of the anti-aircraft unit at the airfield (which would be expected to be the most involved) does not show any such thing and the inference to be drawn from the absence of such entries in an official record is that no such regular bombings occurred (Exhibit C).
Mrs Collins, aged 87, gave evidence at the hearing via telephone from her nursing home. Her family and her husband’s family lived in North Queensland and they were friends before World War II. Mr Collins lived with his family at Mt Larcombe, about 50 miles from Rockhampton, where Mrs Collins lived. He returned to live with his family after discharge from the army.
Mrs Collins is about 10 years younger than Mr Collins and was aged 12 in 1939 at the outbreak of WWII. Pre-war, she and her brother stayed on occasions during holidays with the Collins family. Mrs Collins was 14 when Mr Collins entered the army on 9 June 1941.
Between 1945 and 1950 Mrs Collins was employed by ANZ Bank and saw Mr Collins only occasionally if he came to Rockhampton on a day she was not at work. From 1949 -1950 she was posted to Perth for a year during which time she did not see him at all.
Mrs Collins did not know much about Mr Collins except in a superficial way prior to when they began courting in about 1951. Mrs Collins said that she first ‘noticed’ Mr Collins after the war, stating “It might have been nearly 12 months after discharge I suppose”. She would then have been aged about 19 years. At that time, Mr Collins and his mother travelled to Rockhampton about every month to buy stock for their general store.
Mrs Collins said that it was not until the early 1950’s that she became interested in him and they went out for 12-18 months before marriage in May 1952.
Mrs Collins described her husband post-war as being “quite tense, everything had to be in order…he’d jump at anything…his sleep was quite disturbed…he had nightmares…the Japs were coming”. She qualified these statements by saying that she had the opportunity of seeing these things only after marriage, as they did not live together until marriage. She said that he had always been a very happy person before the war but agreed that she had only really got to know Mr Collins after they married. She was unable to ‘pinpoint’ the occurrence of any disturbed behaviour until after May 1952 but thought that he had started having nightmares within four or five months of them getting married.
Although the tenseness and sleep disturbances continued on throughout the marriage, Mr Collins did not seek any help until 1972.
Some doubt as to whether Mr Collins had always been a very happy person pre-war appears in the veteran’s medical records, which show that he had a barium meal investigation in 1942 for pain “made worse by worry” with a note “Symptoms appear to be nervous in origin” and a later opinion “Due to an inherited pattern of behaviour”.
Mrs Collins’ evidence does not support a finding of the clinical onset of generalised anxiety disorder within five years of a category 1A or 1B stressor.
The applicant attempted to make a case that Mr Collins may have been exposed to wounded men coming in to the hospital and the sight could constitute a 1B stressor. However, there is no evidence of fighting nearby and no evidence of Mr Collins being so exposed.
The parties have agreed that the only issue in serious dispute is whether the five year period requirement has been met (Applicant’s Closing Submissions at [5]). If it has not been then the Applicant cannot succeed.
The first medical investigation capable of casting light on Mr Collins’ mental state was in 1972 when he was seen by Dr Burfitt-Williams who noted “He probably has a duodenal ulcer but his main problem seems to be that his’ nerves have gone to pieces’ over past few years”.
That doctor referred Mr Collins to Dr Dinnen, psychiatrist, who reported “Obsessional personality; tension state manifested as duodenal ulcer symptoms”. Dr Dinnen prepared a report and gave evidence to the Tribunal in which he said that he could make a diagnosis looking back to 1972 and although he then said “tension state”‘ he would now say “‘anxiety”‘ and that symptoms in 1972 more likely than not were present from the time of service (Exhibit D at p3). He agreed that this opinion depended on Mrs Collins’ evidence but he also said “Yes, I think it likely that the anxiety was evident even during the war. It’s the nature of war caused anxiety” (Transcript at pp 58-35).
Dr Dinnen also said that “The clinical onset we have to define in various ways but probably the most acceptable is when you first see a doctor who finds the signs, the symptoms evident”. When asked by the Respondent whether he agreed that that was 1972, Dr Dinnen replied “yes” (Transcript at p58-45).
“Clinical onset” is “when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to the doctor of the disease being present…”: Repatriation Commission v Cornelius [2002] FCA 750 at [26]; Lees v Repatriation Commission [2002] FCAFC 398.
In my view Dr Dinnen was assuming that Mr Collins’ anxiety symptoms were war caused when that matter remains in question, to say the least. My view of the evidence is that Mrs Collins only became aware of her husband’s possible signs of anxiety after she commenced to live with him in 1952. In 1942 before going to New Guinea he showed similar symptoms to those in 1972 and if they indicated anxiety in 1972 they already existed before any possible stressor.
CONCLUSION
The factor required before a reasonable hypothesis has been raised as to the connection between generalised anxiety disorder and service has not been shown in this case. There was no category 1A or 1B stressor related to service which arose within five years of the clinical onset of the disorder which, at its earliest, was not before 1972. The chain of causation is not supported.
While unable to give Mrs Collins the satisfaction of having her claim succeed, the Tribunal wishes to express its understanding of her stated belief that her late husband’s life was adversely affected by the service he gave to his country in time of war. That such service involved stresses and hardships for those who served and also for the families they left behind is acknowledged with appreciation.
DECISION
The decision under review is affirmed.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher, QC, Senior Member ............................[SGD]............................................
Associate
Dated 24 October 2014
Dates of hearing 12 May and 1 September 2014 Counsel for the Applicant Mr T Saunders Solicitors for the Applicant Kemp & Co. Lawyers Advocate for the Respondent Mr T O’Reilly, Department of Veterans’ Affairs
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