Ferrar and Repatriation Commission
[2004] AATA 433
•30 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 433
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/112
VETERANS' APPEALS DIVISION ) Re MRS KATHLEEN JUNE FERRAR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member)
Date30 April 2004
PlaceHobart
Decision The decision under review is set aside and the following decision is substituted:
(a) The death of veteran, Edward Maxwell Ferrar, was war-caused due to a service-related smoking habit;
(b) In consequence his widow Kathleen June Ferrar is entitled to a widow’s pension.
[Sgd B W Davis]
Part-Time Member
CATCHWORDS
Veterans' Affairs - widows pension - husband eligible service - RAAF - smoking habit - claimed disabilities - atherosclerosis - cerebral ischaemia - cerebrovascular accident - Statements of Principle - VRB.
Legislation
Veterans' Entitlements Act 1986
Statements of Principles issued by the Repatriation Medical Authority (RMA)
Authorities
Re Bushell and Repatriation Commission (1992) 109 ALR 30
Re Byrnes and Repatriation Commission (1993) 116 ALR 210
Smith v Repatriation Commission (1999) FCA 1484
Whitworth v Repatriation Commission (2203) FCA 1530
REASONS FOR DECISION
30 April 2004 Associate Professor B W Davis AM (Part-time Member)
Decision Under Review
1. This is an appeal against a decision made by a delegate of the Repatriation Commission on 7 January 2002, subsequently affirmed by the Veterans’ Review Board (VRB) on 1 July 2002, that the death of the veteran, Edward Maxwell Ferrar was not related to service. The applicant Kathleen June Ferrar is seeking a widow’s pension.
The Issue
2. The issue is whether the veteran’s death on 20 July 1997 is related to conditions of his eligible service.
Standard of Proof
3. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal (s120(4) of the Veterans’ Entitlements Act 1986 (“the Act”).
Background
4. Mr Edward Maxwell Ferrar served in the Royal Australian Air Force (RAAF) during World War II from 2 February 1943 to 12 February 1945. His eligible service was in Australia throughout, as a flight mechanic. Mr Ferrar (the veteran) died on 20 July 1977, the cause of death being cited as “cerebro-vascular accident …. days, due to atherosclerosis”.
5. Mr Ferrar’s widow, the applicant, Kathleen June Ferrar, applied for a widow’s pension on 21 May 2001, on the basis of a claim that her husband’s death was due to a service-related smoking habit. It was argued smoking commenced during RAAF service and involved approximately 20 cigarettes per day until he ceased smoking about 1970. It was also claimed that the clinical onset of cardiovascular accident occurred in 1962, when her late husband was hospitalised. Alternatively, the late veteran had significant atherosclerosis from at least 1980.
6. On 7 January 2002 a delegate of the Repatriation Commission rejected the claim for widow’s pension, on the basis that the veteran’s death was not war-caused.
7. In reaching this decision, the delegate identified the cause of death as “cerebral ischaemia” and then considered the relevant Statement of Principles (SoP) applying to cigarette smoking, namely Instrument No 53 of 1999, concerning cerebrovascular accident. The decision-maker also noted the relevance of alcohol consumption to cerebral ischaemia and whether any other factors might be relevant to Mr Ferrar’s death.
8. The delegate had evidence from the applicant, Mrs Kathleen Ferrar, in the form of a Statutory Declaration (dated 21 May 2001) that the veteran ceased smoking during 1970.
9. For cerebral ischaemia to be caused by cigarette smoking and where the veteran has ceased smoking, the clinical onset of cerebral ischaemia must occur within 10 years of cessation of smoking.
10. The evidence concerning clinical onset in Mr Ferrar’s case is rather complex, involving the following points:
(a)In a letter dated 29 May 2001, Dr Cross the veteran’s GP from 1993 to 1997, stated that Mr Ferrar had a cerebrovascular accident in May 1996, which was diagnosed as cerebral haemorrhage, not as cerebral infarction.
(b)A medical opinion by a (Departmental Medical Officer) dated 1 October 2001 stated there was no medical evidence of any cerebrovascular condition prior to 1996.
(c)Records were sought from the Royal Hobart Hospital, however it advised they had been destroyed.
(d)In a letter dated 10 December 2001, Dr Loughhead, a specialist cardiologist, commented that a CT scan dated 13 July 1997, showed that:
“… the fact that he presented on that occasion (13 July 1997) with symptoms and signs of a further stroke, but without a bleed in the brain shows conclusively that the event was an episode of cerebral ischaemia.”
11. On the basis of this evidence the delegate concluded that the clinical onset of cerebral ischaemia was in 1996-97, which is at least twenty-five years after the cessation of smoking. As criteria specified in the SoP were not satisfied, there was no causation arising from service-related smoking.
12. The delegate was not able to identify any other factor in the SoP which might affect the case, but also noted there was no evidence of any alcohol problem or substance abuse at the time of Mr Ferrar’s discharge from the RAAF or subsequently.
13. Having considered all evidence, the decision-maker was unable to relate Mr Ferrar’s cerebral ischaemia to service-related smoking, hence his death was judged not service-related and the applicant’s claim for widow pension failed.
14. The applicant, Kathleen June Ferrar, rejected this decision and on 17 January 2002, sought review by the VRB.
The VRB Hearing
15. The VRB hearing was conducted in Hobart on 2 July 2002. Mrs Ferrar did not attend the hearing but was represented by Mr Roy Newton of Hobart Legacy, accompanied by Mr Arthur Harrison and Dr R McIntyre who gave evidence. There was no appearance on behalf of the Repatriation Commission. The VRB had a number of departmental files and reports before it for consideration.
16. Mr Newton, on behalf of the applicant had written to the VRB on 3 May 2002, claiming the applicant died from atherosclerosis and not cerebral haemorrhage and that Dr Loughhead had indicated the problem had its onset in 1962-63. Dr McIntyre Smith drew the Board’s attention to a CT scan of the late veteran’s brain carried out on or about 13 July 1997. He asked the Board to note there was evidence of “old infarcts” and indicated that such infarcts might be a decade or more old and could possibly have occurred before 1980.
17. The Board considered the evidence about the late veteran’s smoking habit to be one of conjecture. There was no direct evidence as to when the smoking habit commenced; while it was likely he did not smoke prior to service, the only claim was by the veteran’s widow that he was smoking when she first met him in 1944 and did not cease until around 1970. The Board was not satisfied on the balance of probabilities, that the veteran commenced smoking because of his war-service, although Mr Newton claimed that frustration and boredom had been demonstrated to be a common catalyst of smoking in the armed services.
18. The Board noted that the cause of death of the veteran was cerebrovascular accident due to atherosclerosis, which they interpreted as cerebral ischaemia not intracerebral haemorrhage. In the VRB’s opinion factor 5(k)(i) of SoP No 53 of 1999, dealing with cerebrovascular accident was relevant requiring that where smoking had ceased, clinical onset must occur within 10 years of cessation. Mr Ferrar had ceased smoking in 1970, but the cerebral ischaemia did not occur until 1997, thus the Factor was not made out.
19. The VRB decided that none of the factors set out in the SoP’s had been raised by evidence in the case. The Board was reasonably satisfied that the material before it did not raise a connection between the veteran’s death and his relevant service, hence the decision under review was affirmed.
20. The applicant then lodged an application for review with the Administrative Appeals Tribunal on 15 August 2002.
The AAT Hearing
21. The AAT hearing was conducted in Hobart on 1 April 2002. Mr Chris Webster, of counsel, appeared for the applicant and Mr Michael Castle for the respondent. No witnesses were called, but a number of documents and statements were taken in as evidence.
22. Counsel for Mrs Ferrar indicated the case revolved around the question of whether smoking had commenced during RAAF service. It was unlikely Mr Ferrar had smoked beforehand, given his age, family resistance to this habit and lack of availability of cigarettes due to rationing. This had altered when he commenced Air Force service, where cigarettes were plentiful, peer group pressure existed and affidavits showed many people suffered boredom and frustration with routine and lifestyle at the time. While no definitive proof existed in Mr Ferrar’s case, a combination of factors existed which rendered causation probable.
23. Mr Castle for the respondent, submitted that although it was likely smoking commenced during service there was no proof and several conjectures had been pressed upon the Tribunal, mainly in the form of generalisations. The evidence of Dr Loughhead, a cardiologist specialist, should be given due weight, relative to statements by general practitioners, but again these were speculations about the time of clinical onset of conditions, which rendered it difficult to decide the balance of probabilities. Both the original decision-maker and the VRB could not find sufficient evidence to link the smoking habit to cause of death and thus demonstrate it was service-related.
Analysis
24. The Tribunal is required to stand in the shoes of the original decision-maker, examining all evidence anew, taking into account relevant statutory provisions and any significant prior case determinations.
25. The first matter to be considered is whether a plausible hypothesis exists, linking the veteran’s smoking habit to subsequent disabilities and death. The relevant SoP for cerebrovascular accident No. 53 of 1999 lists many factors, but 5(k)(i) deals with cerebral ischaemia and one of the relevant conditions is smoking, with a requirement that where smoking has ceased, clinical onset must occur within 10 years of cessation. It thus becomes important to identify when clinical onset occurred, relative to date of death.
26. Evidence exists that Edward Maxwell Ferrar was smoking during RAAF service in 1944 and did not cease until 1970, with death occurring due to cerebrovascular accident on 20 July 1997. The underlying cause of death was claimed to be atherosclerosis, with Dr MacIntyre Smith noting in a statement dated 30 June 2003 evidence existed atheroma of the carotid arteries had been present for many years, rather than 1997 the year of death.
27. Dr Michael Loughhead, a consultant cardiologist, attempted to throw more light on the situation in three reports dated 16 September 2003, 22 September 2003 and 9 January 2004.
28. In the report dated 16 September 2003, Dr Loughhead confirmed that atherosclerosis was one of the commonest causes of death in the Australian community and that one of the important factors was smoking. However, he also noted claims the veteran had experienced a heart attack in the early 1960s and radiological evidence from a CT scan indicated that the veteran had old cerebral infarcts, with no evidence of cerebral haemorrhage. In other words his stroke or cerebrovascular accidents were due to atherosclerosis.
29. In a further note dated 22 September 2003, Dr Loughhead noted that smoking 20 cigarettes per day would result in a two to three fold risk of developing coronary heart disease. It was a reasonable proposition to say cigarette smoking was the principal factor providing atherosclerosis and it was more likely than not the veteran died of the consequences of his smoking habit.
30. In a more detailed report dated 9 January 2004, Dr Loughhead rejected the notion of cerebral haemorrhage, indicating it had not shown on the CT scan of 13 July 1997, but there was low density foci in the peri-ventricular matter in the left basal ganglia, consistent with old infarcts, multiple over time. He considered it likely the original decision-maker had not been aware of the implications of this, the reality was that the fatal stroke was on the balance of probabilities due to platelet thrombi from Mr Ferrar’s carotid arteries.
31. The Tribunal infers from the above that although the veteran died in 1997, there is evidence of onset of a clinical condition well prior to this, at some unidentified earlier date, perhaps as early as 1962, when an initial heart attack was claimed to have occurred.
32. Although the original decision-maker had decided no other factors from SoP No 53 of 1999 were relevant other than 5(k)(i), Dr Loughhead claimed there were two other factors, namely 5(k)(v) re cerebral embolus and 5(k)(vii) re precerebral artery which could be relevant in cerebral ischaemic events. In other words the situation was perhaps more complex than the original decision-makers realised in respect of likely episodes pre 1997. However there is nothing here with absolutely permits clear identification of the date of clinical onset of the disability.
33. It is now necessary to consider details of the smoking habit, which was evident in 1944 and appears to have ended in 1970. There is little information about probable starting date, causation and reasons for quitting. As the VRB found, the situation is speculative, although it does appear likely smoking commenced in the Air Force and continued thereafter. The smoking factor in the SoP applies where onset of disability occurs within 10 years of cessation. It is possible that the cerebrovascular accident may have occurred as early as 1980 or ever earlier, but no indicative evidence exists to give even an approximate timeline. This renders it difficult to demonstrate a clear linkage between smoking habit and subsequent death from atherosclerosis, but the presence of earlier infarcts which Dr Loughhead considered multiple, plus an earlier heart attack around 1961-63 are suggestive of a causal linkage.
34. The Tribunal notes that in Smith v Repatriation Commission [1999] FCA 1484 (28 October 1999) Heerey J, in similar circumstances determined that the Tribunal did not have to find concrete evidence, but could rely in part about human nature leading to smoking during war service. Similarly in Whitworth v Repatriation Commission [2003] FCA 1530 (19 December 2003) Ryan J found that although medical facts must be considered there was no onus on the applicant to conclusively prove any appropriate hypothesis, provided the latter was not fanciful or impossible. Justice Ryan stated:
“… an hypothesis asserting a connection between a veteran’s death and war service may still be reasonable, although theoretical in the sense of postulating a chain of reasoning that medical science is unable to confirm, but unable to describe as unreasonable – provided the material does in fact point to it.”
35. Having considered all evidence anew, the Tribunal finds on the balance of probabilities, Edward Maxwell Ferrar commenced smoking during eligible service and in consequence suffered cardio-vascular accidents later in life, leading to death in 1997 from atherosclerosis. While the causal linkages are not entirely clear, in timing and significance, multiple infarcts were recorded prior to 1997 and there is a high probability death occurred due to platelet thrombi from Mr Ferrar’s carotid arteries. Overall, on the balance of probabilities, the veteran’s death was service-related.
Decision
36. The decision under review is set aside and the following decision is substituted:
(a)The death of veteran, Edward Maxwell Ferrar, was war-caused due to a service-related smoking habit;
(b)In consequence his widow Kathleen June Ferrar is entitled to a widow’s pension.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 1 April 2004
Date of Decision 30 April 2004
Counsel for the Applicant Mr Chris Webster
Solicitor for the Applicant Wallace Wilkinson and Webster
Counsel for the Respondent Mr Michael Castle
Solicitor for the Respondent Department of Veterans' Affairs
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